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LOAN AGREEMENT
dated as of March 29, 1999
among
TAUBMAN AUBURN HILLS ASSOCIATES LIMITED PARTNERSHIP,
as Borrower,
FLEET NATIONAL BANK,
as a Bank,
PNC BANK, NATIONAL ASSOCIATION,
as a Bank,
the other Banks signatory hereto, each as a Bank,
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; ETC...................................................1
Section 1.01 Definitions...............................................1
Section 1.02 Accounting Terms.........................................11
Section 1.03 Computation of Time Periods..............................11
Section 1.04 Rules of Construction....................................11
ARTICLE II THE LOANS........................................................12
Section 2.01 The Loans; Advances Generally............................12
Section 2.02 Nature of Banks' Obligations.............................12
Section 2.03 Purpose..................................................12
Section 2.04 Procedures for Advance...................................12
Section 2.05 Extension of Maturity Date...............................13
Section 2.06 Interest Periods; Renewals...............................13
Section 2.07 Interest.................................................14
Section 2.08 Fees.....................................................14
Section 2.09 Notes....................................................14
Section 2.10 Prepayments..............................................15
Section 2.11 Method of Payment........................................15
Section 2.12 Elections, Conversions or Continuation of Loans..........15
Section 2.13 Minimum Amounts..........................................16
Section 2.14 Certain Notices Regarding Elections, Conversions and
Continuations of Loans...................................16
Section 2.15 Late Payment Premium.....................................16
Section 2.16 Amortization Payments....................................16
Section 2.17 Interest Rate Reduction..................................17
Section 2.18 Mandatory Prepayment.....................................17
ARTICLE III YIELD PROTECTION; ILLEGALITY; ETC...............................17
Section 3.01 Additional Costs.........................................17
Section 3.02 Limitation on Types of Loans.............................19
Section 3.03 Illegality...............................................19
Section 3.04 Treatment of Affected Loans..............................19
Section 3.05 Certain Compensation.....................................20
Section 3.06 Capital Adequacy.........................................20
Section 3.07 Substitution of Banks....................................21
ARTICLE IV CONDITIONS PRECEDENT.............................................22
Section 4.01 Conditions Precedent to Initial Advance..................22
Section 4.02 Conditions Precedent to Advances After the Initial
Advance..................................................26
Section 4.03 Deemed Representations...................................27
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................27
Section 5.01 Due Organization.........................................27
Section 5.02 Power and Authority; No Conflicts; Compliance With
Laws.....................................................27
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Section 5.03 Legally Enforceable Agreements...........................28
Section 5.04 Litigation...............................................28
Section 5.05 Good Title to Properties.................................28
Section 5.06 Taxes....................................................28
Section 5.07 ERISA....................................................28
Section 5.08 No Default on Outstanding Judgments or Orders............29
Section 5.09 No Defaults on Other Agreements..........................29
Section 5.10 Government Regulation....................................29
Section 5.11 Environmental Protection.................................29
Section 5.12 Solvency.................................................29
Section 5.13 Financial Statements.....................................30
Section 5.14 Valid Existence of Affiliates............................30
Section 5.15 Insurance................................................30
Section 5.16 Separate Tax and Zoning Lot..............................30
Section 5.17 Zoning and other Laws; Covenants and Restrictions........30
Section 5.18 Utilities Available......................................30
Section 5.19 Creation of Liens........................................30
Section 5.20 Roads....................................................31
Section 5.21 REAs and Leases..........................................31
Section 5.22 Accuracy of Information; Full Disclosure.................31
ARTICLE VI AFFIRMATIVE COVENANTS............................................31
Section 6.01 Maintenance of Existence.................................31
Section 6.02 Maintenance of Records...................................31
Section 6.03 Maintenance of Insurance.................................31
Section 6.04 Compliance with Laws; Payment of Taxes...................32
Section 6.05 Inspection and Cooperation...............................32
Section 6.06 Compliance With Environmental Laws.......................32
Section 6.07 Completion of Improvements; Payment of Costs.............32
Section 6.08 Maintenance of Properties................................33
Section 6.09 Reporting and Miscellaneous Document Requirements........33
Section 6.10 REAs; Leases.............................................35
Section 6.11 Compliance with Covenants, Restrictions and Easements....36
Section 6.12 Management, Leasing and Service Contracts................36
Section 6.13 Correction of Defects....................................36
Section 6.14 Additional Equity........................................36
Section 6.15 Additional Indebtedness..................................37
ARTICLE VII PROPERTY COVENANTS..............................................38
Section 7.01 Required Debt Service Coverage...........................38
ARTICLE VIII EVENTS OF DEFAULT..............................................39
Section 8.01 Events of Default........................................39
Section 8.02 Remedies.................................................42
ARTICLE IX ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS......................42
Section 9.01 Appointment, Powers and Immunities of Administrative
Agent....................................................42
Section 9.02 Reliance by Administrative Agent.........................42
Section 9.03 Defaults.................................................43
Section 9.04 Rights of Administrative Agent as a Bank.................43
Section 9.05 Sharing of Costs; Indemnification of Administrative
Agent....................................................43
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Section 9.06 Non-Reliance on Administrative Agent and Other Banks.....44
Section 9.07 Failure of Administrative Agent to Act...................44
Section 9.08 Resignation or Removal of Administrative Agent...........44
Section 9.09 Amendments Concerning Agency Function....................45
Section 9.10 Liability of Administrative Agent........................45
Section 9.11 Transfer of Agency Function..............................45
Section 9.12 Non-Receipt of Funds by Administrative Agent.............45
Section 9.13 Withholding Taxes........................................46
Section 9.14 Minimum Commitment by Fleet and PNC......................46
Section 9.15 Pro Rata Treatment.......................................46
Section 9.16 Sharing of Payments Among Banks..........................46
Section 9.17 Possession of Documents..................................47
ARTICLE X NATURE OF OBLIGATIONS.............................................47
Section 10.01 Absolute and Unconditional Obligations...................47
Section 10.02 Non-Recourse.............................................47
ARTICLE XI MISCELLANEOUS....................................................49
Section 11.01 Binding Effect of Request for Advance....................49
Section 11.02 Amendments and Waivers...................................49
Section 11.03 Usury....................................................50
Section 11.04 Expenses; Indemnification................................50
Section 11.05 Assignment; Participation................................50
Section 11.06 Documentation Satisfactory...............................52
Section 11.07 Notices..................................................52
Section 11.08 Year 2000................................................52
Section 11.09 Partial Releases.........................................53
Section 11.10 Table of Contents; Headings..............................53
Section 11.11 Severability.............................................53
Section 11.12 Counterparts.............................................53
Section 11.13 Integration..............................................53
Section 11.14 GOVERNING LAW............................................53
Section 11.15 Waivers..................................................54
Section 11.16 JURISDICTION; IMMUNITIES.................................54
EXHIBIT A - Authorization Letter
EXHIBIT B - Solvency Certificate
EXHIBIT C - Note
EXHIBIT D - List of Affiliates
EXHIBIT E - Assignment and Assumption Agreement
EXHIBIT F - Loan Commitments
EXHIBIT G - Notice of Assignment of Lease
EXHIBIT H - Pending Disbursements Clause
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LOAN AGREEMENT ("this Agreement") dated as of March 29, 1999 among
TAUBMAN AUBURN HILLS ASSOCIATES LIMITED PARTNERSHIP, a limited partnership
organized and existing under the laws of the State of Delaware ("Borrower"),
FLEET NATIONAL BANK ("Fleet"), PNC BANK, NATIONAL ASSOCIATION (in its individual
capacity and not as Administrative Agent, "PNC") and the other lenders signatory
hereto (Fleet, PNC, said other lenders signatory hereto, and the lenders who
from time to time become Banks pursuant to Section 3.07 or 11.05, each a "Bank"
and collectively, the "Banks") and PNC BANK, NATIONAL ASSOCIATION, as
administrative agent for the Banks (in such capacity, together with its
successors in such capacity, "Administrative Agent").
Borrower has requested that the Banks extend credit as provided
herein, and the Banks are prepared to extend such credit.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and conditions hereinafter set forth, Borrower,
Administrative Agent and each of the Banks agree as follows:
ARTICLE I
DEFINITIONS; ETC.
Section 1.01 Definitions.
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As used in this Agreement the following terms have the following
meanings (except as otherwise provided, terms defined in the singular to have a
correlative meaning when used in the plural and vice versa):
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's address
located at One PNC Plaza, 249 Fifth Avenue, P1-XXXX-19-2, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Real Estate Banking, or such other address in the
United States as Administrative Agent may designate by notice to Borrower and
the Banks.
"Affiliate" means, with respect to any Person (the "first Person"),
any other Person (1) which directly or indirectly controls, or is controlled by,
or is under common control with the first Person or (2) 10% or more of the
beneficial interest in which is directly or indirectly owned or held by the
first Person. The term "control" means the possession, directly or indirectly,
of the power, alone, to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Agreement" means this Loan Agreement, as amended, supplemented or
modified from time to time.
"Applicable Lending Office" means, for each Bank and for its LIBOR
Loan or Base Rate Loan, as applicable, the lending office of such Bank (or of an
Affiliate of such Bank) designated as such on its signature page hereof or in
the applicable Assignment and Assumption Agreement, or such other office of such
Bank (or of an Affiliate of such Bank) as such Bank may from time to time
specify to Administrative Agent and Borrower as the office by which its LIBOR
Loan or Base Rate Loan, as applicable, is to be made and maintained.
"Assignee" has the meaning specified in Section 11.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT E, pursuant to which
a Bank assigns and an Assignee assumes rights and obligations in accordance with
Section 11.05.
"Authorization Letter" means a letter agreement executed by Borrower
in the form of EXHIBIT A.
"Bank" and "Banks" have the respective meanings specified in the
preamble.
"Bank Parties" means Administrative Agent and the Banks.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in Pittsburgh, Boston and New York and (2)
whenever such day relates to a LIBOR Loan, an Interest Period with respect to a
LIBOR Loan or notice with respect to a LIBOR Loan, a day on which dealings in
Dollar deposits are also carried out in the London interbank market and banks
are open for business in London.
"Base Rate" means, for any day, the higher of (1) the Federal Funds
Rate for such day plus .50% or (2) the Prime Rate for such day.
"Base Rate Loan" means all or any portion (as the context requires)
of a Bank's Loan which shall accrue interest at a rate determined in relation to
the Base Rate.
"Borrower" has the meaning specified in the preamble.
"Borrower's Accountants" means Deloitte & Touche, or such other
accounting firm(s) selected by Borrower and reasonably acceptable to the
Required Banks.
"Borrower's Share of Total Project Costs" means, from time to time,
the excess of the amount of Total Project Costs over $170,000,000.
"Capital Lease" means any lease which has been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Closing Date" means the date this Agreement has been executed by
all parties.
"Co-Agents" means Dresdner Bank AG and Commerzbank AG.
"Code" means the Internal Revenue Code of 1986.
"Commitment Amount" means, at any time, the sum of the Principal
Amount plus the remaining amount, if any, of the Total Loan Commitment available
to be disbursed hereunder.
"Completion Costs Guaranty" means the Completion Costs Guaranty,
dated the date hereof, from Guarantor to the Banks.
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"Construction Consultant" means Xxxxxxx Consultants Inc. or other
engineering/architectural firm designated by Administrative Agent from time
to time on behalf of the Banks.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.12 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion
pursuant to Section 2.12 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan
into a Base Rate Loan, each of which may be accompanied by the transfer by a
Bank (at its sole discretion) of all or a portion of its Loan from one
Applicable Lending Office to another.
"Debt" means (1) indebtedness or liability for borrowed money, or
for the deferred purchase price of property or services (including trade
obligations), (2) obligations as lessee under Capital Leases, (3) current
liabilities in respect of unfunded vested benefits under any Plan, (4)
obligations under letters of credit issued for the account of any Person, (5)
all obligations arising under bankers' or trade acceptance facilities, (6) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase any of the
items included in this definition, to provide funds for payment, to supply funds
to invest in any Person, or otherwise to assure a creditor against loss, (7) all
obligations secured by any Lien on property owned by the Person whose Debt is
being measured, whether or not the obligations have been assumed and (8) all
obligations under any agreement providing for contingent participation or other
hedging mechanisms with respect to interest payable on any of the items
described above in this definition.
"Debt Service Coverage" means, for any calendar quarter, Net
Operating Income, annualized (i.e., multiplied by four (4)), divided by
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Hypothetical Annual Debt Service.
"Default" means any event which with the giving of notice or lapse
of time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to (1) with respect to
Base Rate Loans, a variable rate 2% above the rate of interest then in effect
thereon and (2) with respect to LIBOR Loans, a fixed rate 2% above the rate(s)
of interest in effect thereon (including the LIBOR Margin) at the time of
Default until the end of the then current Interest Period therefor and,
thereafter, a variable rate 2% above the rate of interest for a Base Rate Loan.
"Disposition" means a sale (whether by assignment, transfer or
Capital Lease) of an asset.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Elect", "Election" and "Elected" refer to election, if any, by
Borrower pursuant to Section 2.12 to have all or a portion of an advance of the
Loans be outstanding as LIBOR Loans.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
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"Environmental Law" means any Law relating to pollution or the
environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of Hazardous Materials into the work place, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person (1)
affecting or relating to Borrower's compliance with any Environmental Law in
connection with any activity or operations at any time conducted by Borrower,
(2) relating to the occurrence or presence of or exposure to or possible or
threatened or alleged occurrence or presence of or exposure to Environmental
Discharges or Hazardous Materials at the Premises, including, without limitation
(a) the existence of any contamination or possible or threatened contamination
at the Premises and (b) remediation of any Environmental Discharge or Hazardous
Materials at the Premises or any part thereof and (3) relating to any violation
or alleged violation of any relevant Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, including any rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business which
is a member of the same controlled group of organizations (within the meaning of
Section 414(b) of the Code) as Borrower or Guarantor or is under common control
(within the meaning of Section 414(c) of the Code) with Borrower or Guarantor or
is required to be treated as a single employer with Borrower or Guarantor under
Section 414(m) or (o) of the Code.
"Event of Default" has the meaning specified in Section 8.01.
"Federal Funds Rate" means, for any day, the rate per annum (based
on a year of 360 days) announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the previous
trading day, as computed and announced by such Federal Reserve Bank (or any
successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, however, that if
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such Federal Reserve Bank (or its successor) does not announce such rate on any
day, the "Federal Funds Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
"Fiscal Year" means each period from January 1 to December 31.
"Fleet" has the meaning specified in the preamble.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 5.13 (except for changes concurred in by Borrower's Accountants).
"Good Faith Contest" means the contest of an item if (1) the item is
diligently contested in good faith, and, if appropriate, by proceedings timely
instituted, (2) adequate
4
reserves are established with respect to the contested item, (3) during the
period of such contest, the enforcement of any contested item is effectively
stayed and (4) the failure to pay or comply with the contested item during the
period of the contest is not likely to (x) to have an adverse effect on the
Mortgaged Property or any part thereof or on the Banks' interest therein or (y)
result in a Material Adverse Change.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any state,
or any political subdivision of any thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantor" means The Taubman Realty Group Limited Partnership, a
Delaware limited partnership, Borrower's managing general partner and the owner
of an 80% general partnership interest therein.
"Guaranty" means, collectively, the Completion Costs Guaranty and
the Payment Guaranty.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Hypothetical Annual Debt Service" means, for any calendar quarter
(the date of the end of such calendar quarter being herein referred to as a
"Determination Date"), an amount equal to the greater of (1) the constant annual
payment of principal plus interest required to fully amortize, over a term of
twenty-five (25) years, a hypothetical loan in an amount equal to the Commitment
Amount as of such Determination Date, assuming such loan were to bear interest
at a rate equal to 2% per annum in excess of the percentage yield to maturity of
the then "on-the-run" ten (10)-year United States Treasury Note or (2) 8.5% of
the Commitment Amount as of such Determination Date.
"Improvements" means the existing single-level, enclosed,
super-regional value shopping center containing approximately 1,141,500 SFGLA
operated by Borrower on the Premises.
"Indemnity" means an agreement from Borrower and Guarantor whereby,
among other things, the Bank Parties are indemnified regarding Hazardous
Materials in respect of the Premises.
"Initial Advance" means the first advance of proceeds of the
Loans.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the date the same is advanced, converted from a Base Rate Loan or
Continued, as the case may be, and ending, as Borrower may select pursuant to
Section 2.06, on the
5
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, provided that each such Interest Period which commences on the
last Banking Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Banking Day of the appropriate calendar month.
"Law" means any federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof by a
Governmental Authority or otherwise, including any judicial or administrative
order, consent decree or judgment.
"LIBOR Base Rate" means, with respect to any Interest Period
therefor, the rate per annum for the first day of the Interest Period ("the
Reset Date") for deposits in Dollars for a period of the number of months
contained in the Interest Period (the "Designated Maturity") which appears on
Dow Xxxxx Page 3750 (or such other display page on the Dow Xxxxx System as may
replace such Page 3750) as of 11:00 a.m. (London time) on the day that is two
(2) Banking Days prior to that Reset Date for a period, and in an amount,
comparable to such Interest Period and principal amount of the LIBOR Loan in
question outstanding during such Interest Period. If such rate does not appear
on Dow Xxxxx Page 3750 (or such replacement page), the rate for a Reset Date
will be determined on the basis of the rates at which deposits in Dollars are
offered by four (4) major banks in the London interbank market as selected by
Administrative Agent and agreed to by Borrower (the "Reference Banks") at
approximately 11:00 a.m. (London time) on the day that is two (2) Banking Days
preceding that Reset Date to prime banks in the London interbank market for a
period of the Designated Maturity commencing on that Reset Date and in an amount
comparable to the amount of the LIBOR Loan to be outstanding during such
Interest Period (the "Representative Amount"). Administrative Agent will request
the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two (2) such quotations are provided, the
rate for that Interest Period will be the arithmetic mean of the quotations. If
fewer than two (2) quotations are provided as requested, the rate for that Reset
Date will the arithmetic mean of the rates quoted by major banks in New York
City, selected by Administrative Agent and agreed to by Borrower, at
approximately 11:00 a.m. (New York time) on that Reset Date for loans in Dollars
to leading European banks for a period of the Designated Maturity commencing on
that Reset Date and in a Representative Amount.
"LIBOR Interest Rate" means, for any LIBOR Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Administrative Agent to be equal to the quotient of (1) the LIBOR Base Rate for
such LIBOR Loan for the Interest Period therefor divided by (2) one minus the
LIBOR Reserve Requirement for such LIBOR Loan for such Interest Period.
"LIBOR Loan" means all or any portion (as the context requires) of
any Bank's Loan which shall accrue interest at rate(s) determined in relation to
LIBOR Interest Rate(s).
"LIBOR Margin" means, with respect to LIBOR Loans, 1.50% per annum,
as the same may be reduced in accordance with Section 2.17.
"LIBOR Reserve Requirement" means, for any LIBOR Loan, the rate at
which reserves (including any marginal, supplemental or emergency reserves) are
actually required to
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be maintained during the Interest Period for such LIBOR Loan under Regulation D
by the applicable Bank against "Eurocurrency liabilities" (as such term is used
in Regulation D). Without limiting the effect of the foregoing, the LIBOR
Reserve Requirement shall also reflect any other reserves actually required to
be maintained by any Bank by reason of any Regulatory Change against (1) any
category of liabilities which includes deposits by reference to which the LIBOR
Base Rate is to be determined as provided in the definition of "LIBOR Base Rate"
in this Section 1.01 or (2) any category of extensions of credit or other assets
which include loans the interest rate on which is determined on the basis of
rates referred to in said definition of "LIBOR Base Rate".
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment for collateral purposes, deposit arrangement, lien
(statutory or other), or other security agreement or charge of any kind or
nature whatsoever of any third party (excluding any right of setoff but
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction to evidence any of
the foregoing).
"Loan" and "Loans" have the respective meanings specified in
Section 2.01.
"Loan Commitment" means, with respect to each Bank, the obligation
to make a Loan in the principal amount set forth on EXHIBIT F, as such amounts
may be changed from time to time in accordance with the terms of this Agreement.
"Loan Documents" means this Agreement, the Notes, the Mortgage and
related Uniform Commercial Code financing statements, the Guaranty, the
Indemnity, the Authorization Letter and the Solvency Certificate.
"Major Lease" means any lease demising 20,000 SFGLA or more of
the Improvements.
"Master Declaration" means that certain Master Declaration of
Easements and Restrictions, dated as of June 11, 1997, made by Borrower, as
Developer, as amended by that certain First Amendment to Master Declaration of
Easements and Restrictions, dated as of January 20, 1998, both recorded in the
land records of Oakland County, Michigan, which Master Declaration encumbers the
Premises and certain other property previously owned by Borrower and conveyed by
it subsequent to the date of such Master Declaration to (1) the Owner Anchors
and (2) certain other Persons, and on which, in the case of the property
conveyed to the Owner Anchors, the respective Owner Anchor Stores are located.
"Material Adverse Change" means either (1) a material adverse change
in the status of the business, results of operations, financial condition,
property or prospects of Borrower or Guarantor or (2) any event or occurrence of
whatever nature which is likely to (x) have a material adverse effect on the
ability of Borrower or Guarantor to perform their respective obligations under
the Loan Documents or (y) create, in the sole and absolute judgment (reasonably
exercised) of Administrative Agent, a material risk of sale or forfeiture of any
of the Mortgaged Property (other than an immaterial portion thereof) or
otherwise materially impair the Mortgaged Property or the Banks' rights therein.
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"Maturity Date" means April 1, 2002, subject to extension in
accordance with Section 2.05.
"Mortgage" means the Mortgage, Assignment of Leases and Rents and
Security Agreement, dated the date hereof, of the Premises and Improvements made
by Borrower to Administrative Agent to secure the payment and performance of
Borrower's obligations hereunder, under the Notes and otherwise in respect of
the Loans.
"Mortgaged Property" means the Premises, Improvements and other
property constituting the "Mortgaged Property", as said quoted term is defined
in the Mortgage.
"Multiemployer Plan" means a Plan defined as such in Section 3(37)
of ERISA to which contributions have been made by Borrower, Guarantor or any
ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Cash Flow" means, for any period, net cash from operations of
Borrower at the Premises.
"Net Operating Income" means, for any calendar quarter, an amount
equal to:
(1) the sum, determined in accordance with GAAP (but adjusted
for non-cash revenues attributable to straight-lining of rents), of (a)
rental income and common area and other expense reimbursements from
tenants in occupancy in the Improvements plus (b) other income from
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operating the Premises (excluding income from sales of property)
less
----
(2) the sum, determined in accordance with GAAP, of (a) actual
operating expenses of the Premises (including a management fee of 4% of
gross rentals), real estate taxes and bad debt expense plus (b) tenant
----
improvement and capital expense reserves in an aggregate amount equal to
$0.15 per square foot,
all determined by Administrative Agent in its sole but reasonable judgment.
"Note" and "Notes" have the respective meanings specified in
Section 2.09.
"Obligations" means each and every obligation, covenant and
agreement of Borrower, now or hereafter existing, contained in this Agreement,
and any of the other Loan Documents, whether for principal, reimbursement
obligations, interest, fees, expenses, indemnities or otherwise, and any
amendments or supplements thereto, extensions or renewals thereof or
replacements therefor, including but not limited to, all indebtedness,
obligations and liabilities of Borrower to Administrative Agent and any Bank now
existing or hereafter incurred under or arising out of or in connection with the
Notes, this Agreement, the other Loan Documents, and any documents or
instruments executed in connection therewith; in each case whether direct or
indirect, joint or several, absolute or contingent, liquidated or unliquidated,
now or hereafter existing, renewed or restructured, whether or not from time to
time decreased or extinguished and later increased, created or incurred, and
including all indebtedness of Borrower, under any instrument now or hereafter
evidencing or securing any of the foregoing.
8
"Owner Anchor Stores" means those stores containing approximately
110,878 (Xxxxx-Star) and 124, 270 (Bass Pro) SFGLA, respectively, located on
parcels contiguous to portions of the Premises, which portions are owned,
occupied and operated by the respective Owner Anchors, and which, together with
the Improvements, are being operated as an integrated shopping center pursuant
to the REAs.
"Owner Anchors" means, respectively, Xxxxx-Star Partners, a
Michigan Co-Partnership, and Bass Pro Outdoor World, L.P., a Missouri limited
partnership.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Payment Guaranty" means the Guaranty of Payment, dated the date
hereof, from Guarantor to the Banks.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower, Guarantor or
any ERISA Affiliate and which is covered by Title IV of ERISA or to which
Section 412 of the Code applies.
"PNC" has the meaning specified in the preamble.
"Premises" means the real property located in Auburn Hills, Michigan
containing approximately 266 acres on which the Improvements are situated and
which is more particularly described on Schedule A to the Mortgage.
"presence", when used in connection with any Environmental Discharge
or Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time announced
by PNC at its principal office (presently located at One PNC Plaza, 249 Fifth
Avenue, Pittsburgh, Pennsylvania 15222) as its then prime rate, which rate may
not be the lowest rate then being charged to commercial borrowers by PNC.
"Principal Amount" means, at any time, the aggregate outstanding
principal amount of the Notes.
"Pro Rata Share" means, for purposes of this Agreement and with
respect to each Bank, a fraction, the numerator of which is the amount of such
Bank's Loan Commitment and the denominator of which is the Total Loan
Commitment.
9
"Prohibited Transaction" means any transaction set forth in Section
406 of ERISA or Section 4975 of the Code.
"REAs" means those certain Agreements of Easements and Restrictions,
dated April 7, 1998 (Bass Pro) and May 1, 1998 (Xxxxx-Star), between Borrower
and the respective Owner Anchors, both of which were recorded in the land
records of Oakland County, Michigan (together with any and all agreements
incidental or supplemental thereto) pursuant to which the Improvements and the
Owner Anchor Stores are being operated as an integrated super-regional value
shopping center commonly known as Great Lakes Crossing.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time, or any similar Law from time to time in effect.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time, or any similar Law from time to time in effect.
"Regulatory Change" means, with respect to any Bank, any change
after the date of this Agreement in United States federal, state, municipal or
foreign laws or regulations (including Regulation D) or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks including such Bank of or under any United States, federal,
state, municipal or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA.
"Required Banks" means, at any time, the Banks holding at least
66-2/3% of the then Principal Amount.
"SFGLA" means square feet of gross leasable area.
"Solvency Certificate" means a certificate in substantially the form
of EXHIBIT B, to be delivered by Borrower pursuant to the terms of this
Agreement.
"Solvent" means, when used with respect to any Person, that (1) the
fair value of the property of such Person, on a going concern basis, is greater
than the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person, (2) the present fair saleable value of the assets
of such Person, on a going concern basis, is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they
become absolute and matured, (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, (4) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged and (5) such Person has sufficient
resources, provided that such resources are prudently utilized, to satisfy all
of such Person's obligations. Contingent liabilities will be computed at the
10
amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Supplemental Fee Letter" means that certain letter agreement, dated
the date hereof, among Fleet, PNC, Administrative Agent, Syndication Agent and
Borrower.
"Syndication Agent" means Fleet.
"TCI" means Taubman Centers, Inc., a Michigan corporation,
Guarantor's managing general partner.
"Title Insurer" means the issuer(s) of the title insurance
policy(ies) insuring the Mortgage.
"Total Loan Commitment" means $170,000,000.
"Total Project Costs" means all costs of construction and
development of the Improvements, as reflected in the project budget delivered
pursuant to paragraph (29) of Section 4.01, subject to change from time to time
in accordance with amendments to or replacements of said budget approved by
Administrative Agent.
"TRG Consolidated Financial Statements" means the consolidated
balance sheet and related consolidated statement of operations, accumulated
deficiency in assets and cash flows, and footnotes thereto, of Guarantor,
prepared in accordance with GAAP.
Section 1.02 Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise
------------------------------
provided herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. When used in this Agreement
-----------------------
(1) "or" is not exclusive, (2) a reference to a Law includes any amendment or
modification to, or replacement of, such Law, (3) a reference to a Person
includes its permitted successors and permitted assigns, (4) except as provided
otherwise, all references to the singular shall include the plural and vice
----
versa, (5) except as provided in this Agreement, a reference to an agreement,
----- instrument or document shall include such agreement, instrument or
document as the same may be amended, modified or supplemented from time to time
in accordance with its terms and as permitted by the Loan Documents, (6) all
references to Articles or Sections shall be to Articles and Sections of this
Agreement unless otherwise indicated and (7) all Exhibits to this Agreement
shall be incorporated into this Agreement.
11
ARTICLE II
THE LOANS
Section 2.01 The Loans; Advances Generally. Subject to the terms and
-----------------------------
conditions of this Agreement, each of the Banks severally agrees to make a loan
to Borrower (each such loan by a Bank, a "Loan"; such loans, collectively, the
"Loans") pursuant to which the Bank shall from time to time advance to Borrower
up to an amount equal to such Bank's Loan Commitment. The Initial Advance shall
be in the amount of approximately $156,000,000 and shall be made upon Borrower's
satisfaction of the conditions set forth in Section 4.01. Subject to the
provisions of Section 6.14, subsequent advances shall be made no more frequently
than monthly thereafter, upon satisfaction of the conditions set forth in
Section 4.02 and the amount of each advance subsequent to the Initial Advance
shall be equal to 80% of the Total Project Costs which were incurred by Borrower
during the period since the date of the previous request for advance. In
addition, the amount of each such subsequent advance shall be (x) in the case of
advances of Base Rate Loans, in the minimum amount of $100,000 and in integral
multiples of $100,000 above such amount and (y) in the case of advances of LIBOR
Loans, in the minimum amount of $1,000,000 and in integral multiples of $100,000
above such amount. The Loans may be outstanding as (i) Base Rate Loans, (ii)
LIBOR Loans or (iii) a combination of the foregoing, as Borrower shall elect and
notify Administrative Agent in accordance with Section 2.14. The LIBOR Loan and
Base Rate Loan of each Bank shall be maintained at such Bank's Applicable
Lending Office for its LIBOR Loan and Base Rate Loan, respectively.
Section 2.02 Nature of Banks' Obligations. The obligations of the Banks
----------------------------
under this Agreement are several, and no Bank shall be responsible for the
failure of any other Bank to make any advance of a Loan to be made by such other
Bank. However, the failure of any Bank to make any advance of the Loan to be
made by it hereunder on the date specified therefor shall not relieve any other
Bank of its obligation to make any advance of its Loan specified hereby to be
made on such date.
Section 2.03 Purpose. Borrower shall use the proceeds of the Loans
-------
solely to pay Total Project Costs, including, without limitation, to (i) pay
Borrower's costs in connection with the closing of the Loans, as reasonably
approved by Administrative Agent and (ii) repay the existing loan made to
Guarantor by some or all of the Banks signatory hereto, which loan is referred
to in paragraph (31) of Section 4.01 and the proceeds of which were used to
finance the construction of the Improvements.
Section 2.04 Procedures for Advance. Borrower shall submit to
--------------------------
Administrative Agent a request for each advance of proceeds of the Loans
hereunder no later than 10:00 a.m. (Pittsburgh time) on the date, in the case of
advances of requested Base Rate Loans, which is two (2) Banking Days, and, in
the case of advances of requested LIBOR Loans, which is three (3) Banking Days,
prior to the date the advance is to be made. In addition to stating the amount
requested, each request for advance shall certify (w) that no Default or Event
of Default then exists or, to the best knowledge of the individual executing
such request for advance, would exist as a result of such advance, (x) that the
advance will be, and all prior advances have been, used solely for the purposes
described in Section 2.03, (y) that none of the costs covered by said request
for advance were the subject of any previous request for advance and (z) the
amount of Total Project Costs which Borrower has incurred during the period
since the date of the previous
12
request for advance and that Borrower has actually paid, as an equity investment
in the Improvements, 20% of such amount. Administrative Agent, upon its receipt
and approval of the request for advance, will so notify the Banks either by
telephone or by facsimile. Not later than 10:00 a.m. (Pittsburgh time) on the
date of each advance, each Bank shall, through its Applicable Lending Office and
subject to the conditions of this Agreement, make the amount to be advanced by
it on such day available to Administrative Agent, at Administrative Agent's
Office and in immediately available funds, for the account of Borrower. The
amount so received by Administrative Agent shall, subject to the conditions of
this Agreement, be made available to Borrower, in immediately available funds,
by Administrative Agent's crediting an account of Borrower designated by
Borrower in the request for advance.
Section 2.05 Extension of Maturity Date. Provided there exists no Default
--------------------------
or Event of Default, Borrower shall have the option, exercisable once, to
extend the original Maturity Date for a period of one (1) year, subject to (i)
Administrative Agent's receipt of (x) a written request from Borrower for such
extension between sixty (60) and ninety (90) days prior to the original Maturity
Date, (y) an extension fee, for the account of the Banks, in the amount of .15%
of the Principal Amount as of the original Maturity Date and (z) such note
extension agreement(s) as Administrative Agent may reasonably require and (ii)
Administrative Agent's determination (which shall be conclusive so long as made
on a reasonable basis) that, as of the original Maturity Date, (1) Guarantor is
in compliance with the covenants set forth in paragraphs 14 and 15 of the
Payment Guaranty, (2) the Improvements (other than unleased tenant space and
minor "punch-list" items) have been satisfactorily completed, lien-free, (3) at
least 85% of the total SFGLA in the Improvements is covered by executed leases
pursuant to which the tenants thereunder are in occupancy and which have an
unexpired term of one (1) year or more, (4) the Principal Amount does not exceed
70% of the "as-is" value of the Premises (as reflected in an update to the
appraisal delivered pursuant to Section 4.01(8), which updated appraisal shall
be commissioned by Administrative Agent at Borrower's expense) and (5) Debt
Service Coverage is at least 1.4, on average, for the four (4) full calendar
quarters immediately preceding the date of Borrower's written request for the
extension; provided, however, that the foregoing loan-to-value and Debt Service
-------- -------
Coverage conditions set forth in clauses (4) and (5) above shall be deemed
satisfied if Borrower makes a partial prepayment of the Principal Amount on or
before the original Maturity Date in an amount such that the requisite
loan-to-value or Debt Service Coverage, each recomputed based on the reduced
Principal Amount, is attained.
Section 2.06 Interest Periods; Renewals. In the case of the LIBOR Loans,
--------------------------
Borrower shall select an Interest Period of any duration in accordance with the
definition of Interest Period in Section 1.01, subject to the following
limitations: (i) no Interest Period may extend beyond the Maturity Date, (ii) if
an Interest Period would end on a day which is not a Banking Day, such Interest
Period shall be extended to the next Banking Day, unless such Banking Day would
fall in the next calendar month, in which event such Interest Period shall end
on the immediately preceding Banking Day and (iii) only five (5) (or four (4) if
any portion of the Principal Amount is bearing interest at the Base Rate)
discrete segments of a Bank's Loan bearing interest at a LIBOR Interest Rate,
for a designated Interest Period, pursuant to a particular Election, Conversion
or Continuation, may be outstanding at any one time (each such segment of each
Bank's Loan corresponding to a proportionate segment of each of the other Banks'
Loans).
13
Upon notice to Administrative Agent as provided in Section 2.14,
Borrower may Continue any LIBOR Loan on the last day of the Interest Period of
the same or different duration in accordance with the limitations provided
above. If Borrower shall fail to give notice to Administrative Agent of such a
Continuation, such LIBOR Loan shall automatically become a Base Rate Loan on the
last day of the current Interest Period.
Section 2.07 Interest. Borrower shall pay interest to Administrative
--------
Agent for the account of the applicable Bank on the outstanding and unpaid
principal amount of the Loans, at a rate per annum as follows: (i) for Base Rate
Loans at a rate equal to the Base Rate and (ii) for LIBOR Loans at a rate equal
to the applicable LIBOR Interest Rate plus the LIBOR Margin. Any principal
amount not paid when due (when scheduled, at acceleration or otherwise) shall
bear interest thereafter, payable on demand, at the Default Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest on Base Rate Loans and LIBOR Loans shall not exceed the
maximum amount permitted under applicable law. Interest shall be calculated for
the actual number of days elapsed on the basis of, in the case of both Base Rate
Loans and LIBOR Loans, three hundred sixty (360) days.
Accrued interest shall be due and payable in arrears, in the case of
both Base Rate Loans and LIBOR Loans, on the first Banking Day of each calendar
month; provided, however, that interest accruing at the Default Rate shall be
-------- -------
due and payable on demand.
Section 2.08 Fees. Borrower shall pay, for the accounts of the
----
parties specified therein, the fees provided for, on the dates specified,
in the Supplemental Fee Letter.
Section 2.09 Notes. The Loan made by each Bank under this Agreement
-----
shall be evidenced by, and repaid with interest in accordance with, a promissory
note of Borrower in the form of EXHIBIT C duly completed and executed by
Borrower, in the principal amount equal to such Bank's Loan Commitment, payable
to such Bank for the account of its Applicable Lending Office (each such note,
as the same may hereafter be amended, modified, extended, severed, assigned,
substituted, renewed or restated from time to time, including any substitute
note pursuant to Section 3.07 or 11.05, a "Note"; all such notes, as so amended,
modified, extended, severed, assigned, substituted, renewed or restated from
time to time, collectively, the "Notes"). Each Note shall mature, and all
outstanding principal and accrued interest and other sums thereunder shall be
paid in full, on the Maturity Date, as the same may be accelerated or extended.
Each Bank is hereby authorized by Borrower to endorse on a schedule
attached to the Note held by it, the amount of each advance, and each payment of
principal received by such Bank for the account of its Applicable Lending
Office(s) on account of its Loan, which endorsements, if made, shall, in the
absence of manifest error, be conclusive as to the outstanding balance of the
Loan made by such Bank; provided, however, that the failure to make such
-------- -------
notations with respect to the Loans or each advance or each payment shall not
limit or otherwise affect the obligations of Borrower under this Agreement or
the Note held by such Bank.
In case of any loss, theft, destruction or mutilation of any Bank's
Note, Borrower shall, upon its receipt of an affidavit of an officer of such
Bank as to such loss, theft, destruction
14
or mutilation and an appropriate indemnification, execute and deliver a
replacement Note to such Bank in the same principal amount and otherwise of like
tenor as the lost, stolen, destroyed or mutilated Note.
Section 2.10 Prepayments. Borrower may, upon at least one (1) Banking
-----------
Day's notice to Administrative Agent in the case of the Base Rate Loans, and at
least two (2) Banking Days' notice to Administrative Agent in the case of LIBOR
Loans (in each case to be received by Administrative Agent no later than 1:00
p.m., Pittsburgh time), prepay the Loans, in whole or in part, provided that (i)
--------
any partial prepayment under this Section shall be in integral multiples of
$1,000,000, (ii) a LIBOR Loan may be prepaid only on the last day of the
Applicable Interest Period for such LIBOR Loan and (iii) each prepayment under
this Section shall include all interest accrued on the amount of principal
prepaid through the date of prepayment. Any prepayment shall effect a permanent
reduction in the Total Loan Commitment by the amount prepaid.
Section 2.11 Method of Payment. Borrower shall make each payment
-----------------
under this Agreement and under the Notes not later than 11:00 a.m. (Pittsburgh
time) on the date when due in Dollars to Administrative Agent at Administrative
Agent's Office in immediately available funds. Administrative Agent will
thereafter, on the day of its receipt of each such payment (assuming receipt by
11:00 a.m.), cause to be distributed to each Bank (i) such Bank's appropriate
share (based upon the respective outstanding principal amounts and rate(s) of
interest under the Notes of the Banks) of the payments of principal and interest
in like funds for the account of such Bank's Applicable Lending Office and (ii)
fees payable to such Bank in accordance with the terms of this Agreement.
Borrower hereby authorizes Administrative Agent and the Banks, if and to the
extent payment by Borrower is not made when due under this Agreement or under
the Notes, to charge from time to time against any account Borrower maintains
with Administrative Agent or any Bank any amount so due to Administrative Agent
and/or the Banks.
Except to the extent provided in this Agreement, whenever any
payment to be made under this Agreement or under the Notes is due on any day
other than a Banking Day, such payment shall be made on the next succeeding
Banking Day, and such extension of time shall in such case be included in the
computation of the payment of interest and other fees, as the case may be.
Section 2.12 Elections, Conversions or Continuation of Loans. Subject
------------------------------------------------
to the provisions of Article III and Sections 2.06 and 2.13, Borrower shall have
the right to Elect to have all or a portion of any advance of the Loans be LIBOR
Loans, to Convert Base Rate Loans into LIBOR Loans, to Convert LIBOR Loans into
Base Rate Loans, or to Continue LIBOR Loans as LIBOR Loans, at any time or from
time to time, provided that (i) Borrower shall give Administrative Agent notice
--------
of each such Election, Conversion or Continuation as provided in Section 2.14
and (ii) a LIBOR Loan may be Converted or Continued only on the last day of the
applicable Interest Period for such LIBOR Loan. Except as otherwise provided in
this Agreement, each Election, Continuation and Conversion shall be applicable
to each Bank's Loan in accordance with its Pro Rata Share.
15
Section 2.13 Minimum Amounts. With respect to the Loans as a whole, each
Election of, and each Conversion to, LIBOR Loans shall be in an amount at
least equal to $1,000,000 and in integral multiples of $100,000.
Section 2.14 Certain Notices Regarding Elections, Conversions and
------------------------------------------------------------
Continuations of Loans . Notices by Borrower to Administrative Agent of
------------------------
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 10:00
a.m. (Pittsburgh time) on the number of Banking Days prior to the date of the
relevant Election, Conversion or Continuation specified below:
Number of
Notice Banking Days Prior
------ ------------------
Conversions into Base Rate Loans three (3)
Election of, Conversions into or three (3)
Continuations as, LIBOR Loans
Promptly following its receipt of any such notice, Administrative Agent shall so
advise the Banks either by telephone or by facsimile. Each such notice of
Election shall specify the portion of the amount of the advance that is to be
LIBOR Loans (subject to Section 2.13) and the duration of the Interest Period
applicable thereto (subject to Section 2.06); each such notice of Conversion
shall specify the LIBOR Loans or Base Rate Loans to be Converted; and each such
notice of Conversion or Continuation shall specify the date of Conversion or
Continuation (which shall be a Banking Day), the amount thereof (subject to
Section 2.13) and the duration of the Interest Period applicable thereto
(subject to Section 2.06). In the event that Borrower fails to Elect to have any
portion of an advance of the Loans be LIBOR Loans, the entire amount of such
advance shall constitute Base Rate Loans. In the event that Borrower fails to
Continue LIBOR Loans within the time period and as otherwise provided in this
Section, such LIBOR Loans will be automatically Converted into Base Rate Loans
on the last day of the then current applicable Interest Period for such LIBOR
Loans.
Section 2.15 Late Payment Premium. Borrower shall, at Administrative
---------------------
Agent's option, pay to Administrative Agent for the account of the Banks a late
payment premium in the amount of 4% of any payments of interest under the Loans
made more than fifteen (15) days after the due date thereof, which shall be due
with any such late payment. Such late charge represents the reasonable estimate
of Borrower and the Banks of a fair average compensation for the loss that may
be sustained by the Banks due to the failure of Borrower to make timely
payments. Such late charge shall be paid without prejudice to the right of the
Banks to collect any other amounts provided herein or in the other Loan
Documents to be paid or to exercise any other remedies under the Loan Documents.
Section 2.16 Amortization Payments . Commencing on the first day of
----------------------
the first month following the second anniversary of the Closing Date, and on the
first day of each month thereafter until the Maturity Date, Borrower shall, and
hereby covenants and promises to, make monthly payments in reduction of the
Principal Amount. The amount of the first twelve (12) such principal payments
shall be computed in accordance with a twenty-five (25)-year fully
16
amortizing, constant payment mortgage schedule based on the Principal Amount at
the time of the first such payment date and an assumed per annum interest rate
of 2% in excess of the percentage yield to maturity of the then "on-the-run" ten
(10)-year United States Treasury Note. If the Maturity Date is extended in
accordance with the provisions of Section 2.05, then, at the time of the
thirteenth (13th) payment, the amount of the monthly payment shall be
recalculated, such that the amount of the thirteenth (13th) payment and all
payments thereafter shall be computed in accordance with a twenty-four
(24)-year, fully-amortizing, constant payment mortgage schedule based on the
Principal Amount as of the date of said thirteenth (13th) payment and an assumed
per annum interest rate of 2% in excess of the percentage yield to maturity of
the then "on-the-run" ten (10)-year United States Treasury Note.
Section 2.17 Interest Rate Reduction . At any time following the first
-------------------------
anniversary of the Closing Date, the LIBOR Margin shall be reduced to 1.40% per
annum provided that (i) Borrower shall have satisfied the requirements for and
conditions to its entitlement to an extension of the Maturity Date set forth in
Section 2.05 (except that (A) condition (4) thereof need not be satisfied for
such rate reduction and (B) the required Debt Service Coverage in condition (5)
thereof must be for the four (4) full calendar quarters immediately preceding
the rate reduction) and (ii) Administrative Agent shall have received evidence
that (x) the tenants under Major Leases have achieved "Tenant Sales" (as
hereinafter defined) of at least $275 per square foot and (y) the tenants under
non-Major Leases have achieved Tenant Sales of at least $300 per square foot. As
used in this Section, the term "Tenant Sales" means the average sales per square
foot of tenants in occupancy (exclusive of tenants not required to report sales)
at any time during the most recently ended twelve (12)-month period for which
sales results are available.
Section 2.18 Mandatory Prepayment. If at any time during the term of
---------------------
the Loans the Principal Amount exceeds 80% of the then Total Project Costs,
Borrower shall, and hereby covenants and promises to, within ten (10) days of
Administrative Agent's demand therefor, make a payment in reduction of the
Principal Amount in an amount equal to such excess.
ARTICLE III
YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to each Bank
-----------------
from time to time on demand such amounts as such Bank may determine to be
necessary to compensate it for any increased costs which such Bank determines
are attributable to its making or maintaining a LIBOR Loan, or its obligation to
make or maintain a LIBOR Loan, or its obligation to Convert a Base Rate Loan to
a LIBOR Loan hereunder, or any reduction in any amount receivable by such Bank
hereunder in respect of its LIBOR Loan or such obligations (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), in each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or the Notes in respect of any such LIBOR Loan (other
than changes in the rate of general corporate, franchise, branch profit,
net income or other income tax
17
imposed on such Bank or its Applicable Lending Office by the jurisdiction
in which such Bank has its principal office or such Applicable Lending
Office); or
(2) (other than to the extent the LIBOR Reserve Requirement is taken
into account in determining the LIBOR Rate at the commencement of the
applicable Interest Period) imposes or modifies any reserve, special
deposit, deposit insurance or assessment, minimum capital, capital ratio or
similar requirements relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Bank (including
any LIBOR Loan or any deposits referred to in the definition of "LIBOR
Interest Rate" in Section 1.01), or any commitment of such Bank (including
such Bank's Loan Commitment hereunder); or
(3) imposes any other condition affecting this Agreement or the Notes
(or any of such extensions of credit or liabilities). Notwithstanding the
foregoing, in the event that any Bank determines that it shall incur
Additional Costs in maintaining a LIBOR Loan, such Bank shall provide
written notice thereof to Borrower (with a copy to Administrative Agent),
which notice shall include the dollar amount of the Additional Costs, and
Borrower shall have the option, which option must be exercised within five
(5) Banking Days of Borrower's receipt of such notice, to prepay such
LIBOR Loan or to Convert such LIBOR Loan into a Base Rate Loan, subject,
however, to the provisions of Section 3.05.
Without limiting the effect of the provisions of the first paragraph
of this Section, in the event that, by reason of any Regulatory Change, any Bank
either (1) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits of other liabilities of
such Bank which includes deposits by reference to which the LIBOR Interest Rate
is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Bank which includes loans based on the LIBOR
Interest Rate or (2) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to Borrower (with a copy to Administrative Agent), the
obligation of such Bank to permit Elections of, to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended (in which case the provisions of
Section 3.04 shall be applicable) until such Regulatory Change ceases to be in
effect.
Determinations and allocations by a Bank for purposes of this
Section of the effect of any Regulatory Change pursuant to the first or second
paragraph of this Section, on its costs or rate of return of making or
maintaining its Loan or portions thereof or on amounts receivable by it in
respect of its Loan or portions thereof, and the amounts required to compensate
such Bank under this Section, shall be conclusive absent manifest error.
To the extent that changing the jurisdiction of a Bank's Applicable
Lending Office would have the effect of minimizing Additional Costs, each such
Bank shall use reasonable efforts to make such a change, provided that same
would not otherwise be disadvantageous to each such Bank.
18
No Bank shall be entitled to any compensation pursuant to this Section
relating to any period more than ninety (90) days prior to the date notice
thereof is given to Borrower by such Bank.
Section 3.02 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of the LIBOR Interest Rate
for any Interest Period:
(1) Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of "LIBOR Interest Rate" in Section 1.01 are not being
provided in the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for the LIBOR Loans as provided in this Agreement;
or
(2) a Bank determines (which determination shall be conclusive) and
promptly notifies Administrative Agent that the relevant rates of interest
referred to in the definition of "LIBOR Interest Rate" in Section 1.01 upon the
basis of which the rate of interest for LIBOR Loans for such Interest Period is
to be determined do not adequately cover the cost to such Bank of making or
maintaining such LIBOR Loan for such Interest Period; then Administrative Agent
shall give Borrower prompt notice thereof, and so long as such condition remains
in effect, the Banks (or, in the case of the circumstances described in clause
(2) above, the affected Bank) shall be under no obligation to permit Elections
of LIBOR Loans, to Convert Base Rate Loans into LIBOR Loans or to Continue LIBOR
Loans and Borrower shall, on the last day(s) of the then current Interest
Period(s) for the affected outstanding LIBOR Loans, either (x) prepay the
affected LIBOR Loans or (y) Convert the affected LIBOR Loans into Base Rate
Loans in accordance with Section 2.12.
Section 3.03 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain a LIBOR Loan
hereunder, to allow Elections of a LIBOR Loan or to Convert a Base Rate Loan
into a LIBOR Loan, then such Bank shall promptly notify Administrative Agent and
Borrower thereof and such Bank's obligation to make or maintain a LIBOR Loan, or
to permit Elections of, to Continue, or to Convert its Base Rate Loan into, a
LIBOR Loan shall be suspended (in which case the provisions of Section 3.04
shall be applicable) until such time as such Bank may again make and maintain a
LIBOR Loan.
Section 3.04 Treatment of Affected Loans. If the obligations of any Bank
---------------------------
to make or maintain a LIBOR Loan, or to permit an Election of a LIBOR Loan, to
Continue its LIBOR Loan, or to Convert its Base Rate Loan into a LIBOR Loan,
are suspended pursuant to Sections 3.01 or 3.03 (each LIBOR Loan so affected
being herein called an "Affected Loan"), such Bank's Affected Loan shall be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for the Affected Loan (or, in the case of a Conversion
required by Sections 3.01 or 3.03, on such earlier date as such Bank may specify
to Borrower).
To the extent that such Bank's Affected Loan has been so Converted, all
payments and prepayments of principal which would otherwise be applied to such
Bank's Affected Loan
19
shall be applied instead to its Base Rate Loan and such Bank shall have no
obligation to Convert its Base Rate Loan into a LIBOR Loan.
In the event that the conditions giving rise to the suspension of any
Bank's obligations to permit an Election of a LIBOR Loan, to Continue its LIBOR
Loan, or to Convert its Base Rate Loan into a LIBOR Loan shall cease to exist,
such Bank shall provide Borrower with prompt written notice of same (with a copy
to Administrative Agent), and such Bank shall again be obligated to permit an
Election of a LIBOR Loan, to Continue its LIBOR Loan, or to Convert its Base
Rate Loan into a LIBOR Loan in accordance with this Agreement.
Section 3.05 Certain Compensation. Borrower shall pay to Administrative
--------------------
Agent for the account of the applicable Bank, upon the request of such Bank
through Administrative Agent, such amount or amounts as shall be sufficient
(in the reasonable opinion of such Bank) to compensate it for any loss,
cost or expense which such Bank determines is attributable to:
(1) any payment, prepayment, Conversion or Continuation of a LIBOR Loan
made by such Bank on a date other than the last day of an applicable Interest
Period for such LIBOR Loan, whether by reason of acceleration or otherwise;
or
(2) any failure by Borrower for any reason to Convert or Continue a LIBOR
Loan to be Converted or Continued by such Bank on the date specified
therefor in the relevant notice under Section 2.14; or
(3) any failure by Borrower to borrow (or to qualify for a borrowing of) a
LIBOR Loan which would otherwise be made hereunder on the date specified
in the relevant Election notice under Section 2.14 given or submitted by
Borrower.
Without limiting the foregoing, such compensation shall include an amount
equal to the present value (using as the discount rate an interest rate equal to
the rate determined under (2) below) of the excess, if any, of (1) the amount of
interest which otherwise would have accrued on the principal amount so paid,
prepaid, Converted or Continued (or not Converted, Continued or borrowed) for
the period from the date of such payment, prepayment, Conversion or Continuation
(or failure to Convert, Continue or borrow) to the last day of the then current
applicable Interest Period (or, in the case of a failure to Convert, Continue or
borrow, to the last day of the applicable Interest Period which would have
commenced on the date specified therefor in the relevant notice) at the
applicable rate of interest for the LIBOR Loan provided for herein, over (2) the
amount of interest (as reasonably determined by such Bank) based upon the
interest rate which such Bank would have bid in the London interbank market for
Dollar deposits, for amounts comparable to such principal amount and maturities
comparable to such period. A determination of any Bank as to the amounts payable
pursuant to this Section shall be conclusive absent manifest error.
Section 3.06 Capital Adequacy. If any Bank shall have determined that,
----------------
after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not
20
having the force of law) of any such Governmental Authority, central bank
or comparable agency, has or would have the effect of reducing the rate of
return on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within fifteen (15)
days after demand by such Bank (with a copy to Administrative Agent), Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank (or its Parent) for such reduction. A certificate of any Bank claiming
compensation under this Section, setting forth in reasonable detail the basis
therefor, shall be conclusive absent manifest error.
Section 3.07 Substitution of Banks. If any Bank (an "Affected Bank")
-----------------------
(i) makes demand upon Borrower for (or if Borrower is otherwise required to pay)
Additional Costs pursuant to Section 3.01 or (ii) gives notice to Borrower
that such Bank is unable to make or maintain a LIBOR Loan as a result of a
condition described in Section 3.03 or clause (2) of Section 3.02, Borrower may,
within ninety (90) days of receipt of such demand or notice (or the occurrence
of such other event causing Borrower to be required to pay Additional Costs or
causing said Section 3.03 or clause (2) of Section 3.02 to be applicable), as
the case may be, give notice (a "Replacement Notice") to Administrative Agent
(which will promptly forward a copy of such notice to each Bank) of Borrower's
intention either (x) to prepay in full the Affected Bank's Note and to terminate
the Affected Bank's entire Loan Commitment or (y) to replace the Affected Bank
with another financial institution (the "Replacement Bank") designated in such
Replacement Notice.
In the event Borrower opts to give the notice provided for in clause
(x) above, and if the Affected Bank shall not agree within thirty (30) days of
its receipt thereof to waive the payment of the Additional Costs in question or
the effect of the circumstances described in Section 3.03 or clause (2) of
Section 3.02, then, so long as no Default or Event of Default shall exist,
Borrower may terminate the Affected Bank's entire Loan Commitment, provided that
in connection therewith it pays to the Affected Bank all outstanding principal
and accrued and unpaid interest under the Affected Bank's Note, together with
all other amounts, if any, due from Borrower to the Affected Bank, including all
amounts properly demanded and unreimbursed under Sections 3.01 and 3.05.
In the event Borrower opts to give the notice provided for in clause
(y) above, and if (i) Administrative Agent shall, within thirty (30) days of its
receipt of the Replacement Notice, notify Borrower and each Bank in writing that
the Replacement Bank is reasonably satisfactory to Administrative Agent and (ii)
the Affected Bank shall not, prior to the end of such thirty (30)-day period,
agree to waive the payment of the Additional Costs in question or the effect of
the circumstances described in Section 3.03 or clause (2) of Section 3.02, then
the Affected Bank shall, so long as no Default or Event of Default shall exist,
assign its Note and all of its rights and obligations under this Agreement to
the Replacement Bank, and the Replacement Bank shall assume all of the Affected
Bank's rights and obligations, pursuant to an agreement, substantially in the
form of an Assignment and Assumption Agreement, executed by the Affected Bank
and the Replacement Bank. In connection with such assignment and assumption, the
Replacement Bank shall pay to the Affected Bank an amount equal to the
outstanding principal amount under the Affected Bank's Note plus all interest
accrued thereon, plus all other amounts, if any (other than the Additional Costs
in question), then due and payable to the Affected Bank; provided,
--------
21
however, that prior to or simultaneously with any such assignment and assumption
-------
Borrower shall have paid to such Affected Bank all amounts properly demanded and
unreimbursed under Sections 3.01 and 3.05. Upon the effective date of such
assignment and assumption, the Replacement Bank shall become a Bank Party to
this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the Affected Bank shall
be released from its obligations hereunder, and no further consent or action by
any party shall be required. Upon the consummation of any assignment pursuant to
this Section, a substitute Note shall be issued to the Replacement Bank by
Borrower, in exchange for the return of the Affected Bank's Note. The
obligations evidenced by such substitute note shall constitute "Obligations" for
all purposes of this Agreement and the other Loan Documents. If the Replacement
Bank is not incorporated under the laws of the United States of America or a
state thereof, it shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 9.13.
Borrower, Administrative Agent and the Banks shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Initial Advance. The obligations of
---------------------------------------
the Banks hereunder and the obligation of each Bank to make the Initial Advance
are subject to the condition precedent that Administrative Agent shall have
received on or before the Closing Date (other than with respect to paragraph
(26) below, which shall be required prior to the Initial Advance) each of the
following documents, and each of the following requirements shall have been
fulfilled:
(1) Fees and Expenses. The payment of (i) all fees and expenses
-------------------
incurred by Administrative Agent and Syndication Agent (including, without
limitation, the reasonable fees and expenses of legal counsel, the
Construction Consultant and any appraiser or environmental or insurance
consultants) and (ii) those fees specified in the Supplemental Fee Letter
to be paid on or before the Closing Date;
(2) Notes. The Notes for Fleet, PNC and each of the other Banks signatory
-----
hereto, duly executed by Borrower;
(3) Mortgage and UCCs. The Mortgage, duly executed by Borrower and recorded
-----------------
(or delivered for recording) in the appropriate land records, together with
duly executed UCC-1 financing statements filed (or delivered for filing)
under the Uniform Commercial Code of all jurisdictions necessary or, in the
reasonable opinion of Administrative Agent, desirable to perfect the lien
created by the Mortgage;
(4) Guaranty. The Guaranty, duly executed by Guarantor;
--------
22
(5) Indemnity. The Indemnity, duly executed by Borrower and Guarantor;
---------
(6) Title Policy. A paid title insurance policy in the amount of the
-------------
Mortgage, in form approved by Administrative Agent and issued by the Title
Insurer, which shall insure the Mortgage to be a valid first lien on Borrower's
interests in the Premises and Improvements, free and clear of all liens,
defects, encumbrances and exceptions other than those previously approved by
Administrative Agent, and shall contain (i) a reference to the survey but no
survey exceptions other than those approved by Administrative Agent, (ii) a
Pending Disbursements Clause in the form of EXHIBIT H, (iii) if such policy is
dated earlier than the date of the Initial Advance, an endorsement to such
policy, in a form approved by Administrative Agent, conforming to the pending
disbursements requirements set forth above and setting forth no additional
exceptions other than those approved by Administrative Agent and (iv) such
affirmative insurance and endorsements as Administrative Agent may require; and
shall be accompanied by such reinsurance agreements between the Title Insurer
and title companies approved by Administrative Agent, in ALTA facultative form
approved by Administrative Agent and with direct access provisions, as
Administrative Agent may require;
(7) Survey. A current ALTA/ACSM survey, certified to Administrative Agent
------
and the Title Insurer, showing (i) the location of the perimeter of the Premises
by courses and distances, (ii) all easements, rights-of-way, and utility lines
referred to in the title policy required by this Agreement or which actually
service or cross the Premises (with instrument, book and page number indicated),
(iii) the lines of the streets abutting the Premises and the width thereof, and
any established building lines (and that such roads have been dedicated for
public use and are completed and have been accepted by all required Governmental
Authorities), (iv) any encroachments and the extent thereof upon the Premises,
(v) locations of all portions (with the acreage thereof also identified) of the
Premises, if any, which are located in an area designated as a "flood prone
area" as defined by U.S. Department of Housing and Urban Development pursuant to
the Flood Disaster Protection Act of 1973 and (vi) the Improvements, and the
relationship thereof by distances to the perimeter of the Premises, established
building lines and street lines;
(8) Appraisal. An independent M.A.I. appraisal, commissioned by
---------
Administrative Agent, of the value of the Premises, which appraisal shall
indicate a stabilized value of $242,857,150 or more and shall comply in all
respects with the standards for real estate appraisals established pursuant to
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989;
(9) Insurance Policies. The policies and certificates of hazard and other
------------------
insurance required by the Mortgage, together with evidence of the payment of
the premiums therefor;
(10) Hazardous Materials Report/Reliance Letter. A detailed report
---------------------------------------------
(accompanied by a reliance letter acceptable to Administrative Agent) by a
properly qualified engineer with regard to Hazardous Materials affecting the
Premises, which shall include, inter alia, a certification that such engineer
----- ----
has examined a list of prior owners, tenants and other users of the Premises,
and has made an on-site physical examination of the Premises and Improvements,
and a visual observation of the surrounding areas, and
23
disclosing the extent of past or present Hazardous Materials activities or of
the presence of Hazardous Materials;
(11) Plans, Etc.. A complete set of the plans and specifications for the
------------
Improvements and copies of a soil-engineer's report, a site plan (showing
all necessary approvals, utility connections and site improvements) and all
inspection and test records and reports made by or for Borrower or its
architects;
(12) Consultant's Report. A detailed report from the Construction
--------------------
Consultant to the effect that (i) the Improvements are in satisfactory condition
and have been constructed in accordance with the plans and specifications
therefor approved by all Governmental Authorities, (ii) the Improvements comply
with all applicable zoning and other Laws, (iii) all roads and utilities
necessary for the full utilization of the Improvements for their intended
purposes have been completed, (iv) there exists a sufficient number of parking
spaces necessary to satisfy the requirements of all zoning and other applicable
Laws with respect to the Premises, and all required landscaping, sidewalks and
other amenities, and all off-site improvements, related to the Improvements have
been completed and (v) it has received and approved the project budget required
by paragraph (29) of this Section;
(13) Permits and Other Approvals. Copies of any and all authorizations,
----------------------------
including plot plan and subdivision approvals, zoning variances, sewer, building
and other permits, required by all Governmental Authorities for the use,
occupancy and operation of the Premises and/or Improvements in accordance with
all applicable building, environmental, ecological, landmark, subdivision and
zoning Laws;
(14) Leases. (i) Notices of assignment in the form of EXHIBIT G, duly
------
executed by Borrower, in respect of all executed leases of portions of the
Improvements, (ii) a certified copy of the standard form of lease Borrower is
using in connection with the leasing of space in the Improvements, (iii) the
most recent rent roll and leasing report of the sort required by paragraph (15)
of Section 6.09 (which most recent rent roll and leasing report must indicate
that at least 856,125 SFGLA of the Improvements are covered by fully
executed leases) and (iv) such of the following as Administrative Agent may
request: (w) certified copies of executed leases, (x) tenant estoppel
certificates, (y) subordination non-disturbance and attornment agreements and
(z) to the extent available, current financial statements of the tenants (and
guarantors of the tenants' obligations, if applicable);
(15) Master Declaratin and REAs. Copies, certified to be true and complete,
--------------------------
of the Master Declaration and REAs, together with estoppel certificates with
respect to the REAs from each of the Owner Anchors and, if available,
current financial statements of such parties;
(16) Management and Leasing Contract. A copy, certified to be true and
---------------------------------
complete, of its contract with The Taubman Company Limited Partnership providing
for the management, maintenance, operation and leasing of the Premises and
Improvements, together with such collateral assignment or "will-serve" letter
as Administrative Agent may require;
24
(17) UCC Searches. Uniform Commercial Code searches with respect to
-------------
Borrower and advice from the Title Insurer to the effect that searches of the
proper public records disclose no leases of personalty or financing statements
filed or recorded against Borrower or the Mortgaged Property;
(18) Financial Statements. (i) Unaudited financial statements of Borrower
---------------------
and audited TRG Consolidated Financial Statements, each as of and for the year
ended December 31, 1997 and (ii) unaudited financial statements of Borrower and
unaudited TRG Consolidated Financial Statements each as of and for the quarter
ended September 30, 1998, in each case certified by the chief financial officer
or Treasurer;
(19) Evidence of Formation and Existence. For each of Borrower and
---------------------------------------
Guarantor, certified (as of the Closing Date) copies of its certificate and
agreement of limited partnership, with all amendments thereto, and certificates
of the Secretary of State of Michigan and of Delaware as to its good standing in
such jurisdictions;
(20) Evidence of All Partnership Action. For each of Borrower and
--------------------------------------
Guarantor, certified (as of the Closing Date) copies of all documents evidencing
partnership action taken by it authorizing the execution, delivery and
performance of the Loan Documents and each other document to be delivered by it
or on its behalf pursuant to this Agreement;
(21) Incumbency and Signature Certificates. For each of Borrower and
----------------------------------------
Guarantor, a certificate (dated as of the Closing Date) of the Secretary of the
managing general partner of Guarantor certifying the names and true signatures
of each person authorized to sign on its behalf;
(22) Solvency Certificate. A duly executed Solvency Certificate;
---------------------
(23) Compliance Certificate. A certificate of the sort required by
-----------------------
paragraph (3) of Section 6.09;
(24) Opinion of Counsel. A favorable opinion, dated the Closing Date, of
------------------
Xxxx Xxxxxx & Xxxxxx, counsel for Borrower and Guarantor, as to such
matters as Administrative Agent may reasonably request;
(25) Authorization Letter. The Authorization Letter, duly executed by
---------------------
Borrower;
(26) Request for Advance. A request for advance in accordance with Section
-------------------
2.04;
(27) Certificate. The following statements shall be true and
-----------
Administrative Agent shall have received a certificate dated the Closing Date
signed by a duly authorized signatory of Borrower stating, to the best of the
certifying party's knowledge, the following:
(a) All representations and warranties contained in this Agreement
and in each of the other Loan Documents are true and correct on
and as of the Closing Date as though made on and as of such date,
25
(b) No Default or Event of Default has occurred and is continuing,
or could result from the transactions contemplated by this Agreement
and the other Loan Documents, and
(c) None of the Improvements has been injured or damaged by fire or
other casualty, or, if they have, such injury or damage does not exceed
$5,000,000 and is fully covered by insurance;
(28) Supplemental Fee Letter. The Supplemental Fee Letter, duly executed
-----------------------
by Borrower;
(29) Project Budget. A budget setting forth, on an item-by-item basis,
--------------
all hard and soft costs incurred, and estimated by Borrower to be incurred, by
Borrower in connection with its development and construction of the
Improvements;
(30) Equity Investment. A certificate from Borrower demonstrating that
------------------
it has invested equity in the Premises (i.e., its payment of Total Project
Costs) in an amount equal to at least $25,000,000, which certificate shall be
accompanied by such evidence of such investment as Administrative Agent may
reasonably request;
(31) Termination of Existing Loan. Evidence that that certain $210,000,000
----------------------------
unsecured loan made pursuant to a Loan Agreement, dated as of November 25, 1997,
among Guarantor (as Borrower), Fleet, PNC and other lenders (as Banks) and PNC
(as Administrative Agent) will be repaid in full and terminated upon
disbursement of the Initial Advance; and
(32) Additional Items. Such other approvals, opinions, documents or
----------------
information as Administrative Agent or any Bank may reasonably request.
Section 4.02 Conditions Precedent to Advances After the Initial Advance.
------------------------------------------------------------
The obligation of each Bank to make advances of the Loans subsequent to the
Initial Advance shall be subject to satisfaction of the following conditions
precedent:
(1) All conditions of Section 4.01 shall have been and remain satisfied as
of the date of the advance;
(2) No Default or Event of Default shall have occurred and be continuing
as of the date of the advance;
(3) Each of the representations and warranties contained in this Agreement
and in each of the other Loan Documents shall be true and correct in all
material respects as of the date of the advance;
(4) Administrative Agent shall have received and approved a request for an
advance in accordance with Section 2.04;
(5) Administrative Agent shall have received a continuation report and
endorsement to the title policy insuring the Mortgage to the date of such
advance, in the form approved by Administrative Agent, conforming to the
pending disbursements clause
26
contained in said policy and setting forth no additional exceptions (including
survey exceptions) except those approved by Administrative Agent, such
approval not to be unreasonably withheld; and
(6) At the option of Administrative Agent, Administrative Agent shall have
received a progress report from the Construction Consultant verifying, among
other things, the Total Project Costs incurred by Borrower to date in
connection with the completion of the Improvements and the estimated remaining
Total Project Costs necessary for such completion.
Section 4.03 Deemed Representations. Each request by Borrower for, and
-----------------------
acceptance by Borrower of, an advance of proceeds of the Loans shall constitute
a representation and warranty by Borrower and Guarantor that as of both the date
of such request and the date of the advance (i) no Default or Event of Default
has occurred and is continuing and (ii) if any representation or warranty
contained in this Agreement or the other Loan Documents is untrue or incorrect,
the condition giving rise to such untruthfulness or incorrectness is not likely
to result in a Material Adverse Change.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each
Bank as follows:
Section 5.01 Due Organization. Each of Borrower and Guarantor is duly
-----------------
organized, validly existing and in good standing under the Laws of the State of
Delaware has the partnership power and authority to own its assets and to
transact the business in which it is now engaged, and, if applicable, is duly
qualified as a foreign partnership and in good standing under the laws of each
other jurisdiction in which such qualification is required.
Section 5.02 Power and Authority; No Conflicts; Compliance With Laws . As
---------------------------------------------------------
to each of Borrower and Guarantor, the execution and delivery of, and the
performance of the obligations required to be performed by it under, the Loan
Documents does not and will not (i) require the consent or approval of its
partners or such consent or approval has been obtained, (ii) contravene its
partnership agreement, (iii) violate any provision of, or require any filing,
registration, consent or approval under, any Law (including, without limitation,
Regulation U), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to it, (iv) result in a breach of or
constitute a default under or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which it may be
a party or by which it or its properties may be bound or affected except for
consents which have been obtained, (v) result in, or require, the creation or
imposition of any Lien (other than the Mortgage) upon or with respect to any of
its properties now owned or hereafter acquired or (vi) cause it to be in default
under any such Law, order, writ, judgment, injunction, decree, determination or
award or any such indenture, agreement, lease or instrument; to the best of
Borrower's knowledge, Borrower and Guarantor are in compliance with all Laws
27
applicable to them where the failure to be in compliance would cause a Material
Adverse Change to occur.
Section 5.03 Legally Enforceable Agreements. Each Loan Document is a
--------------------------------
legal, valid and binding obligation of Borrower and/or Guarantor, as the case
may be, enforceable in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally.
Section 5.04 Litigation. There are no actions, suits or proceedings pending
----------
or, to Borrower's knowledge, threatened against Borrower, Guarantor or any of
their Affiliates, the Premises or Improvements, the validity or enforceability
of the Mortgage or the priority of the Lien thereof, at law or in equity, before
any court or arbitrator or any Governmental Authority except actions, suits or
proceedings which have been disclosed to the Bank Parties in writing and which
are fully covered by insurance or which would, if adversely determined, not
substantially impair the ability of Borrower or Guarantor to pay when due any
amounts which may become payable under the Notes or other Loan Documents or to
otherwise pay and perform their respective obligations in connection with the
Loans.
Section 5.05 Good Title to Properties. Borrower, Guarantor and each of
-------------------------
their Affiliates have good, marketable and legal title to all of the properties
and assets each of them purports to own (including, without limitation, those
reflected in the September 30, 1998 financial statements of Borrower and
Guarantor referred to in Section 5.13) and, in the case of all of Guarantor's
shopping center properties, only with exceptions which do not materially detract
from the value of such property or assets or the use thereof in Guarantor's and
such Affiliate's business, and except to the extent that any such properties and
assets have been encumbered or disposed of since the date of such financial
statements without violating any of the covenants contained in paragraph 14 of
the Payment Guaranty or elsewhere in the Loan Documents. Borrower, Guarantor and
their Affiliates enjoy peaceful and undisturbed possession of all leased
property necessary in any material respect in the conduct of their respective
businesses. All such leases are valid and subsisting and are in full force and
effect.
Section 5.06 Taxes. Each of Borrower and Guarantor has filed (or duly
-----
obtained an extension to file) all tax returns (federal, state and local)
required to be filed and has paid all taxes, assessments and governmental
charges and levies due and payable without the imposition of a penalty,
including interest and penalties, except to the extent they are the subject of a
Good Faith Contest.
Section 5.07 ERISA. Each of Borrower and Guarantor is in compliance in all
-----
material respects with all applicable provisions of ERISA. Neither a Reportable
Event nor a Prohibited Transaction has occurred with respect to any Plan; no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated within the past five (5) years; no circumstance exists which
constitutes grounds under Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings; Borrower, Guarantor and the ERISA
Affiliates have not completely or partially withdrawn under Sections 4201 or
4204 of ERISA from a Multiemployer Plan; Borrower, Guarantor and the ERISA
Affiliates have met the minimum funding requirements of each under ERISA with
respect to the Plans of each and there are no unfunded vested liabilities with
respect to any Plan established or maintained by each; and neither
28
Borrower, Guarantor nor the ERISA Affiliates has incurred any liability to
the PBGC under ERISA.
Section 5.08 No Default on Outstanding Judgments or Orders . Each of
---------------------------------------------------
Borrower and Guarantor has satisfied all judgments which are not being appealed
and is not in default with respect to any judgment, order, writ, injunction,
decree, rule or regulation binding on it of any court, arbitrator or federal,
state, municipal or other Governmental Authority, commission, board, bureau,
agency or instrumentality, domestic or foreign.
Section 5.09 No Defaults on Other Agreements. Except as disclosed to the
--------------------------------
Bank Parties in writing, including anything disclosed on financial statements,
neither Borrower nor Guarantor, to the best of Borrower's knowledge, is a party
to any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any partnership, trust or other restriction which is
likely to result in a Material Adverse Change. To the best of Borrower's
knowledge, neither Borrower nor Guarantor is in default in any respect in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument binding on it which is
likely to result in a Material Adverse Change.
Section 5.10 Government Regulation. Neither Borrower nor Guarantor is
----------------------
subject to regulation under the Investment Company Act of 1940, the Interstate
Commerce Act, the Federal Powers Act or any statute or regulation limiting any
such Person's ability to incur indebtedness for money borrowed as contemplated
hereby.
Section 5.11 Environmental Protection. To the best of Borrower's knowledge,
------------------------
none of Borrower's, Guarantor's or their Affiliates' properties (including the
Premises) contains any Hazardous Materials that, under any Environmental Law
currently in effect (x) would impose liability on Borrower or Guarantor that is
likely to result in a Material Adverse Change or (y) is likely to result in the
imposition of a Lien on any assets (including the Premises) of Borrower or
Guarantor, in each case if not properly handled in accordance with applicable
Law. To the best of Borrower's knowledge, neither it, Guarantor nor any of their
Affiliates, nor any portion of the Premises or Improvements, is in violation of,
or subject to any existing, pending or threatened investigation or proceeding by
any Governmental Authority under, any Environmental Law. Borrower is not aware
of any matter, claim, condition or circumstance which would reasonably cause a
Person to make further inquiry with respect to such matters in order to
ascertain whether any Hazardous Materials or their effects have been disposed of
or released on or to any portion of the Premises or Improvements or any
surrounding areas; to the best of Borrower's knowledge, it is not required by
any Environmental Law to obtain any permits or license to construct or use any
improvements, fixtures, or equipment with respect to the Premises or
Improvements, or if such permit or license is required it has been obtained;
and, to Borrower's actual knowledge, the prior use of the Premises and
Improvements has not resulted in the disposal or release of any Hazardous
Materials on or to any portion of the Premises or any surrounding areas in
violation of applicable Law.
Section 5.12 Solvency. Each of Borrower and Guarantor is, and upon
--------
consummation of the transactions contemplated by this Agreement, the other Loan
Documents and any other documents, instruments or agreements relating thereto,
will be, Solvent.
29
Section 5.13 Financial Statements. Borrower's financial statements and the
--------------------
TRG Consolidated Financial Statements most recently delivered to the Banks
pursuant to the terms of this Agreement are in all material respects complete
and correct and fairly present the financial condition of the subjects thereof
as of the dates of and for the periods covered by such statements, all in
accordance with GAAP. There has been no Material Adverse Change since the date
of such most recently delivered Borrower's financial statements and TRG
Consolidated Financial Statements, and no borrowings which might give rise to a
Lien or claim against the Mortgaged Property or against the proceeds of the
Loans have been made by Borrower or others since the dates of such most recently
delivered Borrower's financial statements and TRG Consolidated Financial
Statements.
Section 5.14 Valid Existence of Affiliates. As of the Closing Date, the
-------------------------------
only material Affiliates of Borrower or Guarantor which own or lease operating
shopping centers or shopping centers under construction are listed on EXHIBIT D.
Each such Affiliate is a partnership, limited liability company or joint venture
duly organized and existing in good standing under the laws of the jurisdiction
of its formation. As to each such Affiliate, its correct name, the jurisdiction
of its formation and Borrower's and/or Guarantor's percentage of beneficial
interest therein are set forth on said EXHIBIT D. Borrower, Guarantor and each
of such Affiliates have the power to own their respective properties and to
carry on their respective businesses now being conducted. Each of Borrower,
Guarantor and such Affiliates is duly qualified as a foreign partnership,
company or venture to do business and is in good standing in every jurisdiction
in which the nature of the respective businesses conducted by it or its
respective properties, owned or held under lease, make such qualification
necessary.
Section 5.15 Insurance. Borrower has in force paid insurance as required by
---------
the Mortgage and, generally, Borrower, Guarantor and each of their Affiliates
has in force paid insurance with financially sound and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in the same or a similar business and similarly
situated.
Section 5.16 Separate Tax and Zoning Lot. The Premises constitutes a
----------------------------
distinct parcel for purposes of zoning and of taxes, assessments and impositions
(public or private) and is not otherwise considered as part of a larger single
lot for purposes of zoning or of taxes, assessments or impositions (public or
private).
Section 5.17 Zoning and other Laws; Covenants and Restrictions. (i) The
----------------------------------------------------
Improvements and the uses thereof comply with all applicable zoning and other
Laws, and all requirements for such uses have been satisfied and (ii) Borrower
and the Premises are in compliance with all applicable restrictions and
covenants.
Section 5.18 Utilities Available. All utility services necessary for the
--------------------
operation of the Improvements for their intended purposes are available and
servicing the Premises, including water supply, storm and sanitary sewer, gas,
electric power and telephone facilities.
Section 5.19 Creation of Liens. It has entered into no contract or
-------------------
arrangement of any kind the performance of which by the other party thereto
would give rise to a Lien on all or part of the Mortgaged Property prior to the
Mortgage, other than its contracts with contractors performing work on the
Improvements.
30
Section 5.20 Roads. All roads (other than Lake Angelus Road, which is
-----
currently in the process of being dedicated to public use) necessary for the
full utilization of the Improvements for their intended purposes have been
completed and dedicated to public use and accepted by all appropriate
Governmental Authorities.
Section 5.21 REAs and Leases. The REAs and all leases in respect of the
----------------
Premises are unmodified and in full force and effect; to the best of Borrower's
knowledge, there are no defaults under any thereof except as disclosed to
Administrative Agent in writing, and all conditions to the effectiveness and
continuing effectiveness thereof required to be satisfied as of the date hereof
have been satisfied. There exists a sufficient number of parking spaces
necessary to satisfy the requirements of the REAs and all leases.
Section 5.22 Accuracy of Information; Full Disclosure. Neither this
--------------------------------------------
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
or Guarantor to any Bank Party in connection with the negotiation of this
Agreement or the consummation of the transactions contemplated hereby, or
required herein to be furnished by or on behalf of Borrower or Guarantor,
contains any untrue or misleading statement of a material fact or omits a
material fact necessary to make the statements herein or therein not misleading.
There is no fact which Borrower has not disclosed to the Bank Parties in writing
which materially affects adversely nor, so far as Borrower can now foresee, will
materially affect adversely any of the Mortgaged Property or the business,
prospects, profits or financial condition of Borrower or Guarantor or the
ability of Borrower or Guarantor to perform this Agreement and the other Loan
Documents.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to any
Bank Party hereunder or under any other Loan Document, Borrower (as to itself)
shall, and shall cause Guarantor (as to Guarantor) to:
Section 6.01 Maintenance of Existence. Preserve and maintain its legal
--------------------------
existence and good standing in the state of Michigan and, if applicable, qualify
and remain qualified as a foreign partnership in each jurisdiction in which such
qualification is required, except to the extent that failure to so qualify is
not likely to result in a Material Adverse Change.
Section 6.02 Maintenance of Records. Keep adequate records and books of
-----------------------
account, in which complete entries will be made in accordance with GAAP,
reflecting all of its financial transactions.
Section 6.03 Maintenance of Insurance. At all times, (i) maintain and keep
------------------------
in force the insurance required by the Mortgage and (ii) maintain and keep in
force, and cause each of its Affiliates to maintain and keep in force, insurance
with financially sound and reputable insurance companies or associations in such
amounts and covering such risks as are usually carried by companies engaged in
the same or a similar business and similarly situated, which insurance may
provide for reasonable deductibility from coverage thereof.
31
Section 6.04 Compliance with Laws; Payment of Taxes. Comply in all
--------------------------------------
respects with all Laws applicable to it or to any of its properties (including
the Premises) or any part thereof, such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property, except to the extent
they are the subject of a Good Faith Contest.
Section 6.05 Inspection and Cooperation . (a) At any reasonable
--------------------------
time and from time to time upon reasonable notice, permit Administrative Agent
or any Bank or any agent or representative thereof (provided that a
representative of any Bank must, at Borrower's or Guarantor's request, be
accompanied by a representative of Borrower or Guarantor, as the case may be),
to examine and make copies and abstracts from the records and books of account
of, and visit the properties (including the Premises) of, Borrower and Guarantor
and to discuss the affairs, finances and accounts of Borrower and Guarantor with
the chief financial officers or Treasurers thereof and with Borrower's
Accountants.
(b) Permit Administrative Agent, its representatives and the
Construction Consultant to enter upon the Premises, inspect the Mortgaged
Property, including the Improvements and all materials to be used in the
construction thereof, and examine all detailed plans and shop drawings which are
or may be kept at the construction site, provided that the foregoing rights
--------
shall not be exercised in a manner so as to interfere unduly with the conduct of
business and operations of Borrower; cooperate and cause its contractors and
subcontractors to cooperate with the Construction Consultant to enable it to
perform its functions hereunder.
(c) Each Bank and Administrative Agent agree that it shall maintain
confidentiality with respect to the materials referred to in paragraph (a) of
this Section, provided that the Banks and Administrative Agent shall not be
--------
precluded from making disclosure regarding such information: (i) to the Banks'
and Administrative Agent's respective counsel, accountants and other
professional advisors (who are, in each case, subject to this confidentiality
agreement), (ii) to officers, directors, employees, agents and partners of each
Bank and Administrative Agent who need to know such information (who are, in
each case, subject to this confidentiality agreement), (iii) in response to a
subpoena or order of a court or Governmental Authority, (iv) to any Assignee or
Participant or prospective Assignee or Participant, provided that any such
--------
entity shall be subject to this paragraph (however, the Banks and Administrative
Agent shall have no duty to monitor any Assignee or Participant or prospective
Assignee or Participant and shall have no liability in the event that any
Assignee or Participant or prospective Assignee or Participant violates this
paragraph) or (v) as required by Law or by GAAP.
Section 6.06 Compliance With Environmental Laws. Comply in all
-------------------------------------
material respects with all applicable Environmental Laws and immediately pay
or cause to be paid all costs and expenses incurred in connection with such
compliance, except to the extent there is a Good Faith Contest; and at its sole
cost and expense, promptly remove, or cause removal of, any and all Hazardous
Materials or the effects thereof at any time identified as being on, in, under
or affecting the Premises or the Improvements in violation of applicable
Environmental Law.
Section 6.07 Completion of Improvements; Payment of Costs. Complete
--------------------------------------------
the construction of the Improvements (including all punch-list items and tenant
improvements), lien free, in a timely manner in accordance with the plans and
specifications therefor, all applicable Laws, the REAs and all leases; and pay
all costs and expenses required for such completion and
32
for the satisfaction of the conditions of this Agreement, including, without
limitation, (i) all document and stamp taxes, recording and filing expenses and
fees and commissions lawfully due to brokers in connection with the transactions
contemplated hereby and (ii) subject to Borrower's right to contest the same as
provided in Section 1.07(c) of the Mortgage, any taxes, assessments, impositions
(public or private), insurance premiums, Liens (except for Liens for real estate
taxes not yet due and payable), security interests or other claims or charges
against the Premises or Improvements.
Section 6.08 Maintenance of Properties. Do all things reasonably
-------------------------
necessary to maintain, preserve, protect and keep its properties (including the
Premises) in good repair, working order and condition.
Section 6.09 Reporting and Miscellaneous Document Requirements.
-----------------------------------------------------
Furnish directly to each of the Banks:
(1) Annual Financial Statements. As soon as available and in any
-----------------------------
event within ninety (90)days after the end of each Fiscal Year, Borrower's
financial statements and the TRG Consolidated Financial Statements, in
each case as of the end of and for such Fiscal Year, in reasonable detail
and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year and audited by
Borrower's Accountants;
(2) Quarterly Financial Statements. As soon as available and in any
--------------------------------
event within forty-five (45) days after the end of each calendar
quarter, unaudited Borrower's financial statements and unaudited TRG
Consolidated Financial Statements, in each case as of the end of and for
such calendar quarter, in reasonable detail and stating in comparative
form the respective figures for the corresponding date and period in the
prior Fiscal Year and certified by the chief financial officer or
Treasurer;
(3) Certificate of No Default and Guarantor Financial Compliance.
-----------------------------------------------------------------
Within forty-five (45) days after the end of each of the first
three quarters of each Fiscal Year and within ninety (90) days after the
end of each Fiscal Year, a certificate of Guarantor's chief financial
officer or Treasurer (a) stating that, to the best of his or her
knowledge, no Default or Event of Default has occurred and is continuing,
or if a Default or Event of Default has occurred and is continuing,
specifying the nature thereof and the action which is proposed to be taken
with respect thereto, (b) stating that the covenants contained in
paragraphs 14 and 15 of the Payment Guaranty have been complied with (or
specifying those that have not been complied with) and including
computations demonstrating such compliance (or non-compliance) and (c)
setting forth the details of all items comprising "Total Outstanding
Indebtedness" (including amount, maturity, interest rate and amortization
requirements) as of the end of such quarter, and "Combined EBITDA",
"Interest Expense" and "Fixed Charges", each for the twelve (12)-month
period ending with such quarter(as all of such quoted terms are defined in
the Payment Guaranty);
(4) Certificate of No Default and Property Financial Compliance.
----------------------------------------------------------------
Within forty-five (45) days after the end of each calendar quarter
subsequent to the first anniversary of the Closing Date, a certificate
of Borrower's general partner's chief financial officer or Treasurer (a)
stating that, to the best of his or her knowledge, no
33
Default or Event of Default has occurred and is continuing, or if a
Default or Event of Default has occurred and is continuing, specifying the
nature thereof and the action which is proposed to be taken with respect
thereto and (b) stating that the covenants contained in Article VII have
been complied with (or specifying those that have not been complied with)
and including computations, in reasonable detail, demonstrating such
compliance (or non-compliance);
(5) Certificate of Borrower's Accountants. Simultaneously with the
---------------------------------------
delivery of the annual financial statements required by paragraph (1) of
this Section, a statement of Borrower's Accountants who audited such
financial statements comparing the computations set forth in the financial
compliance certificate required by paragraph (3) of this Section to the
audited financial statements required by paragraph (1) of this Section
(where such information appears in such financial statements);
(6) Dispositions or Acquisitions of Assets by Guarantor. Within thirty
---------------------------------------------------
(30) days after the occurrence thereof, written notice of any Disposition
or acquisition of assets (other than acquisitions or Dispositions of
investments such as certificates of deposit, Treasury securities and money
market deposits in the ordinary course of Guarantor's cash management) in
excess of $25,000,000, together with, in the case of any acquisition of
such an asset, (a) a certificate, of the sort required by paragraph (3)(b)
of this Section, containing covenant compliance calculations that include
the pro-forma adjustments set forth in paragraph 16 of the Payment
Guaranty, which calculations shall demonstrate Guarantor's compliance,
on a pro-forma basis, as of the end of the most recently ended calendar
quarter for which financial results are required hereunder to have been
reported by Guarantor, with all covenants enumerated in said paragraph (3)
(b) and (b) such other information relating to the acquisition as
Administrative Agent may reasonably request,including, without limitation,
(x) copies of the agreements governing the acquisition and (y) historical
balance sheets (to the extent available) and statements of income and cash
flows with respect to the property acquired for at least the preceding
three (3) years (to the extent available) and Guarantor's revenue and
expense projections for the property acquired for at least the next five
(5) years (all of the foregoing to be in form and detail satisfactory to
Administrative Agent);
(7) Notice of Litigation. Promptly after the commencement and
----------------------
knowledge thereof, notice of all actions, suits, and proceedings before
any Governmental Authority, court or arbitrator, affecting Borrower,
Guarantor or all or any portion of the Mortgaged Property which, if
determined adversely, is likely to result in a Material Adverse Change;
(8) Notices of Defaults and Events of Default. As soon as possible
--------------------------------------------
and in any event within ten (10) days after Borrower becomes aware of the
occurrence of a material Default or any Event of Default, a written notice
setting forth the details of such Default or Event of Default and the
action which is proposed to be taken with respect thereto;
(9) Material Adverse Change. As soon as is practicable and in any
------------------------
event within five (5) days after knowledge of the occurrence of any
event or circumstance which is likely to result in or has resulted in a
Material Adverse Change, written notice thereof;
34
(10) Bankruptcy of Tenants. Promptly after becoming aware of the
----------------------
same, written notice of the bankruptcy, insolvency or cessation of
operations of (a) any of the Owner Anchors, (b) any tenant in the
Improvements to which 5% or more of the aggregate minimum rent from the
Improvements is attributable or (c) except to the extent such information
is (or will be) disclosed in the TRG Consolidated Financial Statements
delivered pursuant to paragraphs (1) and (2) above, any tenant in any
property of Guarantor or in which Guarantor has an interest to which 5% or
more of the aggregate minimum rent payable, directly or indirectly, to
Guarantor is attributable;
(11) Offices. Thirty (30) days' prior written notice of any change
-------
in the chief executive office or principal place of business of Borrower
or Guarantor;
(12) Environmental and Other Notices. As soon as possible and in any
-------------------------------
event within five (5) days after receipt, copies of (a) all Environmental
Notices received by Borrower or Guarantor which are not received in the
ordinary course of business and which relate to the Premises or to a
situation which is likely to result in a Material Adverse Change and (b)
all reports of any official searches made by any Governmental Authority
having jurisdiction over the Premises or the Improvements, and of any
claims of violations thereof;
(13) Insurance Coverage. Promptly, such information concerning
-------------------
Borrower's or Guarantor's insurance coverage as Administrative Agent may
reasonably request;
(14) SEC Filings, Etc. As soon as possible and in any event within ten
----------------
(10) days of the sending or filing thereof, copies of all annual reports
on Form 10-K (without exhibits)and quarterly reports on Form 10-Q (without
exhibits); and as soon as possible following Administrative Agent's
request therefor, copies of all proxy statements, financial statements,
registration statements and reports which TCI sends to its shareholders
or files with the Securities and Exchange Commission or any Governmental
Authority which may be substituted therefor;
(15) Leasing Reports and Operating Statements. As soon as available
------------------------------------------
and in any event within thirty (30) days after the end of each calendar
quarter, a rent roll, leasing report and operating and cash statements for
the Premises, in each case certified by Borrower to be true and complete;
(16) Other Property Information. As soon as available and in any
--------------------------
event within ninety (90) days after the end of each Fiscal Year, a tenant
sales report for the Premises for such Fiscal Year and a budget for the
Premises (including projections) for the next Fiscal Year; and
(17) General Information. Promptly, such other information respecting
-------------------
the condition or operations, financial or otherwise, of Borrower or
Guarantor or any of their properties (including the Premises) as
Administrative Agent or any Bank may from time to time reasonably request.
Section 6.10 REAs; Leases. Keep the REAs and all leases in full
------------
force and effect (except as may be permitted by this Agreement or by the
Mortgage) and at all times use commercially reasonable efforts to compel
performance by the parties to the REAs or the tenants
35
under such leases, as the case may be, of all obligations, covenants and
agreements by such parties or tenants, as the case may be, to be performed
thereunder; deliver to Administrative Agent, (i) promptly following the
execution thereof, certified copies of all amendments or supplements to the
Master Declaration or the REAs and (ii) promptly following Administrative
Agent's request therefor, certified copies of any or all leases of portions of
the Improvements (together with abstracts of such leases), any or all amendments
or supplements to any thereof, current financial statements (to the extent
available) of the tenants thereunder (and of any guarantors of such tenants'
obligations), estoppel certificates (on a best efforts basis) from any or all of
said tenants and notices of assignment in the form of EXHIBIT G; and not enter
into any Major Lease or modify (other than de minimus modifications) the Master
-- -------
Declaration, the REAs or any Major Lease, without, in any such case, the prior
written consent of Administrative Agent, such consent not to be unreasonably
withheld or delayed.
Section 6.11 Compliance with Covenants, Restrictions and Easements.
-----------------------------------------------------
Comply with all restrictions, covenants and easements affecting the Premises or
the Improvements.
Section 6.12 Management, Leasing and Service Contracts. Deliver to
-----------------------------------------
Administrative Agent, (i) as and when executed, certified copies of all
management and leasing contracts and (ii) as and when requested by
Administrative Agent, copies of all service contracts, in any case entered into
with respect to the Premises or Improvements, each of which management or
leasing contracts shall be entered into with a party, and on terms and
conditions, reasonably acceptable to Administrative Agent; contemporaneously
with entering into each such management or leasing contract, at Administrative
Agent's option, cause the same to be collaterally assigned to Administrative
Agent for the benefit of the Banks as additional security for the Loans and/or
cause the manager or leasing agent under each such management or leasing
contract to undertake, inter alia, to continue performance on the Banks' behalf
----- ----
without additional cost in the event of a Default; cause each service contract
to contain a provision allowing for the as-of-right cancellation thereof on
thirty (30) days' notice from Borrower or its successors as owners of the
Premises; and keep in full force and effect and not materially modify the
management and leasing agreement(s) approved pursuant to paragraph (16) of
Section 4.01 without Administrative Agent's prior written consent, such consent
not to be unreasonably withheld.
Section 6.13 Correction of Defects. Upon demand of Administrative
---------------------
Agent or the Construction Consultant, correct any defects (including structural)
in the Improvements.
Section 6.14 Additional Equity. (a) Subject to paragraph (b) below,
-----------------
make equity investments in the Premises, in addition to that required by
paragraph (30) of Section 4.01, in amounts such that Borrower's aggregate equity
investment in the Premises will be equal to at least 100% of Borrower's Share of
Total Project Costs by the date which is one hundred eighty (180) days from the
date hereof (the "Final Equity Determination Date"), it being understood that in
such event the unused Loan Commitments of the Banks, if any, shall automatically
terminate.
(b) In the event Borrower's equity investments in the Premises on
the Final Equity Determination Date aggregate less than 100% of Borrower's Share
of Total Project Costs, as reasonably determined by Administrative Agent, the
following procedure shall apply. Borrower shall, within five (5) days of
Administrative Agent's demand therefor, deposit into a "blocked"
36
cash collateral account to be established with Administrative Agent (the
"Project Costs Cash Collateral Account") (and held by Administrative Agent for
the benefit of the Banks as hereinafter provided) an amount equal to the excess
of (x) 100% of Borrower's Share of Total Project Costs over (y) the amount of
equity actually invested by Borrower in the Premises as of the Final Equity
Determination Date, as reasonably determined by Administrative Agent and
specified by it in its demand to Borrower referred to above. Following
Borrower's deposit into the Project Costs Cash Collateral Account as aforesaid,
the Banks shall advance to Administrative Agent for deposit into the Project
Costs Cash Collateral Account all remaining undisbursed proceeds of the Loans,
if any, irrespective of whether or not Borrower has submitted a request for such
advance to Administrative Agent as provided herein, such advance not to exceed,
however, 80% of the then remaining Total Project Costs. Upon such advance, the
unused Loan Commitments of the Banks, if any, in excess of 80% of the then
remaining Total Project Costs shall automatically terminate.
(c) Amounts deposited into the Project Costs Cash Collateral Account as
aforesaid shall be invested by Administrative Agent in certificates of deposit
or other money market instruments (each such certificate of deposit or money
market instrument, a "MM Instrument") issued (and to be held) by Administrative
Agent, the amounts and terms of which shall be acceptable to Administrative
Agent. Borrower hereby assigns the Project Costs Cash Collateral Account and all
sums therein, and all MM Instruments, including earnings thereon, to
Administrative Agent, for the benefit of the Banks, as security for the payment
and performance of Borrower's obligations under the Loan Documents and
acknowledges that Borrower shall have no right to such sums or such MM
Instruments except to the extent specifically provided for herein. Borrower
further acknowledges that Administrative Agent shall retain possession of all
documents evidencing the Project Costs Cash Collateral Account and any MM
Instrument to perfect its security interests therein. Provided there exists no
Default or Event of Default, Borrower shall be entitled to advances of sums in
the Project Costs Cash Collateral Account, or invested in MM Instruments, for
the payment of Total Project Costs upon its submission of a request therefor to
Administrative Agent, which request shall certify (and demonstrate) that
Borrower has incurred such Total Project Costs and shall be accompanied by such
evidence of such incurrence as Administrative Agent may reasonably request.
Notwithstanding the foregoing, upon the occurrence of an Event of Default,
Administrative Agent may, upon the direction of the Required Banks, apply any
and all sums in the Project Costs Cash Collateral Account and all sums invested
in MM Instruments, including earnings thereon, to the immediate reduction of the
Principal Amount and/or accrued and unpaid interest and/or other sums payable
hereunder or under the Notes or other Loan Documents, in such order and amounts
as the Required Banks shall elect. Administrative Agent is hereby appointed
Borrower's attorney-in-fact for the purpose of withdrawing any and all sums from
the Project Costs Cash Collateral Account and all sums invested in MM
Instruments. Borrower agrees to execute such further documents (including
security agreements and UCC-1 financing statements) and do such further acts as
Administrative Agent may reasonably request to confirm or perfect the assignment
and security interests provided for in this Section.
Section 6.15 Additional Indebtedness. Not incur Debt (other than the
-----------------------
Loans) in excess of $5,000,000 without the prior written consent of the Required
Banks.
37
ARTICLE VII
PROPERTY COVENANTS
Section 7.01 Required Debt Service Coverage. (a) If (x) as of the
------------------------------
end of any calendar quarter ending after the first anniversary of the Closing
Date, Debt Service Coverage shall be less than 1.25 or (y) as of the end of any
calendar quarter ending during the extended term of the Loans (assuming an
effective exercise of Borrower's option to extend the Maturity Date pursuant to
Section 2.05), Debt Service Coverage shall be less than 1.40, then, (i) within
forty-five (45) days after the end of any such quarter, Borrower shall, and
hereby covenants to, make a payment to Administrative Agent in an amount equal
to Net Cash Flow for such quarter and (ii) within forty-five (45) days after the
end of each subsequent calendar quarter until Administrative Agent is required
to release sums as provided in paragraph (b) below, Borrower shall, and hereby
covenants to (subject to paragraph (c) below), make a payment to Administrative
Agent in an amount equal to Net Cash Flow for such quarter, irrespective of
whether the requisite Debt Service Coverage was attained as of the end of such
quarter. Said amounts shall be deposited by Administrative Agent into an
interest-bearing, "blocked" cash collateral account to be established with
Administrative Agent (the "Cash Flow Collateral Account") and held by
Administrative Agent for the benefit of the Banks as hereinafter provided.
Borrower hereby assigns the Cash Flow Collateral Account and all sums therein,
including interest thereon, to Administrative Agent, for the benefit of the
Banks, as security for the payment and performance of Borrower's obligations
under the Loan Documents and acknowledges that Borrower shall have no right to
such sums except to the extent specifically provided for herein. Borrower
further acknowledges that Administrative Agent shall retain possession of all
documents evidencing the Cash Flow Collateral Account to perfect its security
interest therein. Provided there exists no Default or Event of Default, Borrower
shall be entitled to advances of sums in the Cash Flow Collateral Account to (x)
prepay the Loans in accordance with Section 2.10, (y) pay real estate taxes and
insurance premiums in respect of the Premises, but only to the extent that funds
in any reserve accounts established for such purposes are insufficient for such
payment or (z) pay such operating expenses in respect of the Improvements as may
be approved by the Required Banks. Notwithstanding the foregoing, upon the
occurrence of an Event of Default, Administrative Agent may, at its option,
apply any and all sums in the Cash Flow Collateral Account (including interest)
to the immediate reduction of the Principal Amount and/or accrued and unpaid
interest and/or other sums payable hereunder or under the Notes or other Loan
Documents, in such order and amounts as Administrative Agent shall elect.
Administrative Agent is hereby appointed Borrower's attorney-in-fact for the
purpose of withdrawing any and all sums from the Cash Flow Collateral Account.
Borrower agrees to execute such further documents (including security agreements
and UCC-1 financing statements) and do such further acts as Administrative Agent
may reasonably request to confirm or perfect the assignment and security
interest provided for in this Section.
(b) If, as of the end of two (2) consecutive calendar quarters
following an event giving rise to Borrower's obligation to make payments to
Administrative Agent for deposit into the Cash Flow Collateral Account, as set
forth in paragraph (a) above, Debt Service Coverage shall equal or exceed 1.25
or 1.40, as the case may be as required by paragraph (a) above, then, if there
exists no Default or Event of Default, on the forty-fifth (45th) day following
the end of such second quarter, Administrative Agent shall release all sums
(including interest), if any, then on deposit in the Cash Flow Collateral
Account to Borrower and such sums shall be
38
deemed free of the assignment and security interest created pursuant to this
Section, and Administrative Agent shall execute such further documents
(including UCC termination statements) to confirm the foregoing as Borrower
shall reasonably request; provided, however, that if the requisite Debt Service
-------- -------
Coverage specified in paragraph (a) of this Section shall not be attained as of
the end of any succeeding quarter, Borrower shall again be required to make
payments for deposit in the Cash Flow Collateral Account as provided in said
paragraph (a) and the other provisions of said paragraph (a) and this paragraph
(b) shall be applicable.
(c) Notwithstanding the foregoing provisions of this Section, if the
Debt Service Coverage required by paragraph (a) above is not attained, Borrower
may, in lieu of making the requisite payments of Net Cash Flow provided for
above, make, prior to the first payment date of such Net Cash Flow, a partial
prepayment of the Principal Amount in an amount such that the required Debt
Service Coverage would have been attained had the reduced Principal Amount been
the Principal Amount as of the end of the calendar quarter in respect of which
payments of Net Cash Flow were determined to be required.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. Any of the following events shall be
-----------------
an "Event of Default":
(1) If Borrower shall fail to pay the principal of any Notes
(including, without limitation, any principal payments required by Section
2.16) as and when due; or fail to pay interest accruing on any Notes as and
when due and such failure to pay shall continue unremedied for five (5)
days after the due date of such amount; or fail to pay any fee or any
other amount under this Agreement or any other Loan Document or under the
Supplemental Fee Letter as and when due and such failure to pay shall
continue unremedied for two (2) Banking Days after notice by Administrative
Agent of such failure to pay; or
(2) If any representation or warranty made by Borrower or Guarantor
in this Agreement or in any other Loan Document or which is contained
in any certificate, document, opinion, financial or other statement
furnished at any time under or in connection with a Loan Document shall
prove to have been incorrect in any material respect on or as of the date
made; or
(3) If Guarantor shall fail to perform or observe any term,
covenant or agreement contained in paragraphs 14 or 15 of the Payment
Guaranty, or if Borrower shall fail to perform or observe any term,
covenant or agreement contained in Article VII; or
(4) If Borrower or Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Article VI or otherwise contained
in this Agreement or any Loan Document (other than obligations specifically
referred to elsewhere in this Section) or any other document executed by
Borrower or Guarantor and delivered to Administrative Agent and/or the
Banks in connection with the transactions contemplated
39
hereby and such failure shall remain unremedied for thirty (30) consecutive
calendar days after notice of the occurrence thereof from Administrative
Agent (or such shorter cure period as may be expressly prescribed in the
applicable Loan Document); provided, however, that if any such default
-------- -------
cannot by its nature be cured within such thirty (30) day, or shorter, as
the case may be, grace period and so long as Borrower shall have commenced
cure within such thirty (30) day, or shorter, as the case may be, grace
period and shall, at all times thereafter, diligently prosecute the same to
completion, Borrower shall have an additional period, not to exceed ninety
(90) days, to cure such default; in no event, however, is the foregoing
intended to effect an extension of the Maturity Date; or
(5) If Borrower, Guarantor or TCI shall fail(a) to pay any Debt (other
than the payment obligations described in paragraph (1) of this Section) in
an amount equal to or greater than $10,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise) or (b) to perform or observe any material term, covenant, or
condition under any agreement or instrument relating to any such Debt, when
required to be performed or observed, if the effect of such failure to
perform or observe is to accelerate, or to permit the acceleration of,
after the giving of notice or the lapse of time, or both (other than in
cases where, in the judgment of the Required Banks, meaningful discussions
likely to result in (i) a waiver or cure of the failure to perform or
observe or (ii) otherwise averting such acceleration are in progress
between Borrower, Guarantor or TCI, as the case may be, and the obligee of
such Debt), the maturity of such Debt, or any such Debt shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled or otherwise required prepayment), prior to the stated maturity
thereof; or
(6) If Borrower, Guarantor, TCI or any Affiliate of any of them to
which $150,000,000 or more of "Capitalization Value" (as such quoted term
is defined in the Payment Guaranty) is attributable, shall: (a) generally
not, or be unable to, or shall admit in writing its inability to, pay its
debts as such debts become due; or (b) make an assignment for the benefit
of creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it, the Premises or a substantial part
of its other assets; or (c) commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect; or (d) have had any such petition or application filed or any such
proceeding shall have been commenced, against it or the Premises, in which
an adjudication or appointment is made or order for relief is entered, or
which petition, application or proceeding remains undismissed or unstayed
for a period of ninety (90) days or more; or (e) be the subject of any
proceeding under which the Premises or all or a substantial part of its
other assets may be subject to seizure, forfeiture or divestiture; or (f)
by any act or omission indicate its consent to, approval of or acquiescence
in any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for the Premises or all or
any subst-antial part of its other property; or (g) suffer any such
custodianship, receivership or trusteeship for the Premises or all or any
substantial part of its other property, to continue undischarged for a
period of ninety (90) days or more; or
(7) If one or more judgments, decrees or orders for the payment
of money in excess of $10,000,000 in the aggregate shall be rendered
against Borrower, Guarantor or
40
TCI, and any such judgments, decrees or orders shall continue unsatisfied
and in effect for a period of thirty (30) consecutive days without being
vacated, discharged, satisfied or stayed or bonded pending appeal; or
(8) If any of the following events shall occur or exist with respect
to Borrower, Guarantor or any ERISA Affiliate: (a) any non-exempt
Prohibited Transaction involving any Plan; (b) any Reportable Event with
respect to any Plan; (c) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any Plan; (d) any
event or circumstance which might constitute grounds entitling the PBGC to
institute proceedings under Section 4042 of ERISA for the termination of,
or for the appointment of a trustee to administer, any Plan, or the
institution by the PBGC of any such proceedings; or (e) complete or partial
withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan or
the reorganization, insolvency, or termination of any Multiemployer Plan;
and in each case above, if such event or conditions, if any, could in the
opinion of any Bank reasonably be expected to result in liability of
Borrower, Guarantor or any ERISA Affiliate for any tax, penalty, or other
liability to or in respect of a Plan, Multiemployer Plan, the PBGC or
otherwise (or any combination thereof) which materially and adversely
affects the financial condition of (x) Borrower or Guarantor with respect
to clause (a) above or (y) Borrower, Guarantor or any ERISA Affiliate with
respect to clauses (b) through (e) above; or
(9) If at any time TCI is not a qualified real estate investment
trust under Sections 856 through 860 of the Code or is not listed on
the New York Stock Exchange or the American Stock Exchange; or
(10) If at any time Borrower fails to
operate as a real estate operating company for ERISA purposes (within the
meaning of C.F.R. ss.2510.3-101); or
(11) If at any time Guarantor fails to operate as either a real estate
operating company or a venture capital operating company for ERISA purposes
(within the meaning of C.F.R. ss.2510.3-101); or
(12) If The Taubman Company Limited Partnership, the entity presently
providing property management and leasing services for all the regional
shopping center properties in which Guarantor has an ownership interest
(other than the "value center" property known as Arizona Xxxxx located in
Tempe, Arizona), shall discontinue providing such services for 25% or more
of the regional shopping center properties (other than "value center"
properties) then owned in whole or in part by Guarantor and no substitute
property manager acceptable to Administrative Agent shall have been engaged
prior to such discontinuance; or
(13) If the Mortgage shall at any time and for any reason cease (a) to
create a valid and perfected first priority Lien in and to the Mortgaged
Property purported to be subject thereto or (b) to be in full force and
effect or shall be declared null and void; or the validity or
enforceability thereof shall be contested by any party thereto, or any
party thereto shall deny any further liability or obligation thereunder; or
41
(14) If an "Event of Default" shall occur under the Mortgage (as such
quoted term is defined therein).
Section 8.02 Remedies. If any Event of Default shall occur and be
--------
continuing, Administrative Agent shall, upon request of the Required Banks,
by notice to Borrower, (i) declare the outstanding Notes, all interest
thereon, and all other amounts payable under this Agreement and any
other Loan Documents to be forthwith due and payable, whereupon the Notes,
all such interest, and all such amounts due under this Agreement and under
any other Loan Document shall become and be forthwith due and payable,
without presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by Borrower; and/or (ii) exercise any
remedies provided in any of the Loan Documents or by Law.
ARTICLE IX
ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS
Section 9.01 Appointment, Powers and Immunities of Administrative Agent.
----------------------------------------------------------
Each Bank hereby irrevocably appoints and authorizes Administrative Agent to act
as its agent hereunder and under any other Loan Document with such powers as are
specifically delegated to Administrative Agent by the terms of this Agreement
and any other Loan Document, together with such other powers as are reasonably
incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any
other Loan Document or required by law, and shall not by reason of this
Agreement be a fiduciary or trustee for any Bank except to the extent that
Administrative Agent acts as an agent with respect to the receipt or payment of
funds (nor shall Administrative Agent have any fiduciary duty to Borrower nor
shall any Bank have any fiduciary duty to Borrower or to any other Bank).
Administrative Agent shall not be responsible to the Banks for any recitals,
statements, representations or warranties made by Borrower or Guarantor or any
officer, partner or official of Borrower or any other Person contained in this
Agreement or any other Loan Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document or instrument referred to or
provided for herein or therein, for the perfection or priority of any Lien
securing the Obligations or for any failure by Borrower to perform any of its
obligations hereunder or thereunder. Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. Neither
Administrative Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
Borrower shall pay any fee agreed to by Borrower and Administrative Agent with
respect to Administrative Agent's services hereunder, as set forth in the
Supplemental Fee Letter.
Section 9.02 Reliance by Administrative Agent. Administrative Agent
--------------------------------
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it
to be genuine and correct and to have been
42
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by Administrative Agent. Administrative Agent may deem and treat each
Bank as the holder of the Loan made by it for all purposes hereof and shall not
be required to deal with any Person who has acquired a participation in any Loan
or participation from a Bank. As to any matters not expressly provided for by
this Agreement or any other Loan Document, Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by the Required Banks, and such instructions
of the Required Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks and any other holder of all or any portion
of any Loan or Participation.
Section 9.03 Defaults. Administrative Agent shall not be deemed to
--------
have knowledge of the occurrence of a Default or Event of Default unless
Administrative Agent has received notice from a Bank or Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent shall give
prompt notice thereof to the Banks. Administrative Agent, following consultation
with the Banks, shall (subject to Section 9.07) take such action with respect to
such Default or Event of Default which is continuing as shall be directed by the
Required Banks; provided that, unless and until Administrative Agent shall have
--------
received such directions, Administrative Agent may take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interest of the Banks; and provided further
that Administrative Agent shall not send a notice of Default or acceleration to
Borrower without the approval of the Required Banks. In no event shall
Administrative Agent be required to take any such action which it determines to
be contrary to the Loan Documents or to Law.
Section 9.04 Rights of Administrative Agent as a Bank. With respect
----------------------------------------
to its Loan Commitment and the Loan provided by it, Administrative Agent in its
capacity as a Bank hereunder shall have the same rights and powers hereunder
as any other Bank and may exercise the same as though it were not acting as
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Administrative Agent in its capacity as a Bank.
Administrative Agent and its Affiliates may (without having to account therefor
to any Bank) accept deposits from, lend money to (on a secured or unsecured
basis), and generally engage in any kind of banking, trust or other business
with Borrower (and any Affiliates of Borrower) as if it were not acting as
Administrative Agent.
Section 9.05 Sharing of Costs; Indemnification of Administrative Agent.
---------------------------------------------------------
Each Bank agrees to pay its Pro Rata Share of any expenses incurred (and not
paid or reimbursed by Borrower after demand for payment is made by
Administrative Agent) by or on behalf of the Banks in connection with any
Default or Event of Default, including, without limitation, costs of enforcement
of the Loan Documents and any advances to pay taxes or insurance premiums or
otherwise to preserve the Lien of the Mortgage or to preserve or protect the
Mortgaged Property. In the event a Bank fails to pay its Pro Rata Share of
expenses as aforesaid, and all or a portion of such unpaid amount is paid by
Administrative Agent and/or one (1) or more of the other Banks, then the
defaulting Bank shall reimburse Administrative Agent and/or the other Bank(s)
for the portion of such unpaid amount paid by it or them, as the case may be,
together with interest thereon at the Base Rate from the date of payment by
Administrative Agent and/or the other Bank(s). Each Bank agrees to indemnify
Administrative Agent (to the extent not
43
reimbursed under Section 11.04 or under the applicable provisions of any other
Loan Document, but without limiting the obligations of Borrower under Section
11.04 or such provisions), for its Pro Rata Share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against Administrative Agent in any way relating to
or arising out of this Agreement, any other Loan Document or any other documents
contemplated by or referred to herein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses which Borrower is
obligated to pay under Section 11.04 or under the applicable provisions of any
other Loan Document) or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided that no Bank shall be
liable for (1) any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified, (2) any loss of
principal or interest with respect to Administrative Agent's Loan or (3) any
loss suffered by Administrative Agent in connection with a swap or other
interest rate hedging arrangement entered into by Administrative Agent with
Borrower.
Section 9.06 Non-Reliance on Administrative Agent and Other Banks.
------------------------------------------------------
Each Bank agrees that it has, independently and without reliance on
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
Borrower and Guarantor and the decision to enter into this Agreement and that it
will, independently and without reliance upon Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any other Loan Document. Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by Borrower or Guarantor of this Agreement or any other Loan Document
or any other document referred to or provided for herein or therein or to
inspect the properties (including the Premises) or books of Borrower or
Guarantor. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by Administrative Agent
hereunder, Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of Borrower, Guarantor or any Affiliate of
either of them which may come into the possession of Administrative Agent or any
of its Affiliates. Administrative Agent shall not be required to file this
Agreement, any other Loan Document or any document or instrument referred to
herein or therein, for record or give notice of this Agreement, any other Loan
Document or any document or instrument referred to herein or therein, to anyone.
Section 9.07 Failure of Administrative Agent to Act. Except for action
--------------------------------------
expressly required of Administrative Agent hereunder, Administrative Agent shall
in all cases be fully justified in failing or refusing to act hereunder unless
it shall have received further assurances (which may include cash collateral) of
the indemnification obligations of the Banks under Section 9.05 in respect of
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
Section 9.08 Resignation or Removal of Administrative Agent. Provided
----------------------------------------------
there exists no Event of Default, Administrative Agent hereby agrees not to
unilaterally resign except in the event it becomes an Affected Bank and is
removed or replaced as a Bank pursuant to Section 3.07, in which event it shall
have the right to resign. Administrative Agent may be removed at any time with
or without cause by the Required Banks, provided that Borrower and
44
the other Banks shall be promptly notified thereof. Upon any such resignation or
removal, the successor Administrative Agent shall, at Fleet's option, be Fleet
provided Fleet's then Loan Commitment equals or exceeds $20,000,000. If Fleet
elects not to, or cannot, become the successor Administrative Agent as provided
above, the Required Banks shall have the right to appoint a successor
Administrative Agent which, provided there exists no Event of Default, shall be
subject to Borrower's consent, which consent shall not be unreasonably withheld
or delayed. If no successor Administrative Agent shall have been so appointed by
the Required Banks and shall have accepted such appointment (and, if required,
been consented to by Borrower) within thirty (30) days after the Required Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent,
which shall be one of the Banks. The Required Banks or the retiring
Administrative Agent, as the case may be, shall upon the appointment of a
successor Administrative Agent promptly so notify Borrower and the other Banks.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's removal hereunder as Administrative Agent, the
provisions of this Article IX shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
Section 9.09 Amendments Concerning Agency Function. Notwithstanding
-------------------------------------
anything to the contrary contained in this Agreement, Administrative Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its duties, rights, and/or
function hereunder or thereunder unless it shall have given its prior written
consent thereto.
Section 9.10 Liability of Administrative Agent. Administrative Agent
---------------------------------
shall not have any liabilities or responsibilities to Borrower or Guarantor on
account of the failure of any Bank to perform its obligations hereunder or to
any Bank on account of the failure of Borrower or Guarantor to perform their
obligations hereunder or under any other Loan Document.
Section 9.11 Transfer of Agency Function. Without the consent of
----------------------------
Borrower or any Bank, Administrative Agent may at any time or from time to time
transfer its functions as Administrative Agent hereunder to any of its offices
wherever located in the United States, provided that Administrative Agent shall
promptly notify Borrower and the Banks thereof.
Section 9.12 Non-Receipt of Funds by Administrative Agent. Unless
---------------------------------------------
Administrative Agent shall have received notice from a Bank or Borrower
(either one as appropriate being the "Payor") prior to the date on which such
Bank is to make payment hereunder to Administrative Agent of the proceeds of a
Loan or Borrower is to make payment to Administrative Agent, as the case may be
(either such payment being a "Required Payment"), which notice shall be
effective upon receipt, that the Payor will not make the Required Payment in
full to Administrative Agent, Administrative Agent may assume that the Required
Payment has been made in full to Administrative Agent on such date, and
Administrative Agent in its sole discretion may, but shall not be obligated to,
in reliance upon such assumption, make the amount thereof available to the
intended recipient on such date. If and to the extent the Payor shall not have
in fact so made the Required Payment in full to Administrative Agent, the
recipient of such
45
payment shall repay to Administrative Agent forthwith on demand such amount made
available to it together with interest thereon, for each day from the date such
amount was so made available by Administrative Agent until the date
Administrative Agent recovers such amount, at the customary rate set by
Administrative Agent for the correction of errors among Banks for three (3)
Banking Days and thereafter at the Base Rate.
Section 9.13 Withholding Taxes. Each Bank represents that it is
-----------------
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to Administrative Agent such forms,
certifications, statements and other documents as Administrative Agent or
Borrower may request from time to time to evidence such Bank's exemption from
the withholding of any tax imposed by any jurisdiction or to enable
Administrative Agent to comply with any applicable Laws or regulations relating
thereto. Without limiting the effect of the foregoing, if any Bank is not
created or organized under the laws of the United States of America or any state
thereof, such Bank will furnish to Administrative Agent Form 4224 or Form 1001
of the Internal Revenue Service, or such other forms, certifications, statements
or documents, duly executed and completed by such Bank as evidence of such
Bank's exemption from the withholding of U.S. tax with respect thereto.
Administrative Agent shall not be obligated to make any payments hereunder to
such Bank in respect of any Loan or participation or such Bank's Loan Commitment
or obligation to purchase participations until such Bank shall have furnished to
Administrative Agent the requested form, certification, statement or document.
Section 9.14 Minimum Commitment by Fleet and PNC. Subsequent to the
-----------------------------------
Closing Date, each of Fleet and PNC agree to maintain a Loan Commitment in an
amount no less than $10,000,000, provided there exists no Event of Default, and
each of them further agrees to hold and not to participate or assign any of such
amount other than an assignment to a Federal Reserve Bank or to their respective
Parent or respective majority-owned subsidiary.
Section 9.15 Pro Rata Treatment. Except to the extent otherwise
--------------------
provided, (1) the advance of proceeds of the Loans shall be made by the Banks
and (2) each reduction of the amount of the Total Loan Commitment under Section
2.10 or under other provisions of this Agreement shall be applied to the Loan
Commitments of the Banks, ratably according to the amounts of their respective
Loan Commitments.
Section 9.16 Sharing of Payments Among Banks. If a Bank shall obtain
-------------------------------
payment of any principal of or interest on any Loan made by it through the
exercise of any right of setoff, banker's lien, counterclaim, or by any other
means (including direct payment), and such payment results in such Bank
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to the Banks, then
such Bank shall promptly purchase for cash from the other Banks participations
in the Loans made by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Banks shall share ratably the benefit of such payment. To such end the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Borrower agrees that any Bank so purchasing a participation in the
Loans made by other Banks may exercise all rights of setoff, banker's lien,
counterclaim or similar rights with respect to such participation. Nothing
contained herein shall require any Bank to exercise any such right or shall
46
affect the right of any Bank to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness of Borrower.
Section 9.17 Possession of Documents. Each Bank shall keep possession
-----------------------
of its own Note. Administrative Agent shall hold all the other Loan Documents
and related documents in its possession and maintain separate records and
accounts with respect thereto, and shall permit the Banks and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
ARTICLE X
NATURE OF OBLIGATIONS
Section 10.01 Absolute and Unconditional Obligations. Borrower
------------------------------------------
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of (1) any lack of validity or enforceability of any of the
Obligations, any Loan Documents, or any agreement or instrument relating
thereto, (2) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Obligations, or any other amendment
or waiver of or consent to any departure from any Loan Documents or any other
documents or instruments executed in connection with or related to the
Obligations, (3) any exchange or release of any collateral, or of any other
Person from all or any of the Obligations or (4) any other circumstances which
might otherwise constitute a defense available to, or a discharge of, Borrower
or any other Person in respect of the Obligations.
The obligations and liabilities of Borrower under this Agreement and
other Loan Documents shall not be conditioned or contingent upon the pursuit by
any Bank or any other Person at any time of any right or remedy against Borrower
or any other Person which may be or become liable in respect of all or any part
of the Obligations or against any collateral or security or guarantee therefor
or right of setoff with respect thereto.
Section 10.02 Non-Recourse. (a) Notwithstanding anything to the
------------
contrary contained in this Agreement, in any of the other Loan Documents (other
than the Indemnity and the Guaranty), or in any other instruments, certificates,
documents or agreements executed in connection with the Loans (all of the
foregoing, with the exception of the Indemnity and the Guaranty, for purposes of
this Section, hereinafter referred to, individually and collectively, as the
"Relevant Documents"), no recourse under or upon any Obligation, representation,
warranty, promise or other matter whatsoever under or in respect of the Relevant
Documents shall be had against Borrower or any of the constituent partners of
Borrower or their successors or assigns (said constituent partners and their
successors and assigns, for purposes of this Section, hereinafter referred to,
individually and collectively, as the "Borrower Partners") except to the extent
of realization upon the Mortgaged Property or any other collateral now or
hereafter given for the Loans, and each Bank expressly waives and releases, on
behalf of itself and its successors and assigns, all right to assert any
liability whatsoever under or with respect to the Relevant Documents against, or
to satisfy any claim or obligation arising thereunder against, any of the
Borrower Partners or out of any assets of the Borrower Partners, provided,
--------
however, that nothing in this Section shall be deemed to (1) constitute a waiver
-------
of any obligation evidenced or secured
47
by, or contained in, the Relevant Documents or affect in any way the validity or
enforceability of the Relevant Documents; or (2) limit the right of
Administrative Agent and/or the Banks to proceed against or realize upon all or
part of the Mortgaged Property or any other collateral now or hereafter given
for the Loans or to name Borrower (or, to the extent that the same are required
by applicable Law or are determined by a court to be necessary parties in
connection with an action or suit against Borrower or all or part of the
Mortgaged Property or any other collateral now or hereafter given for the Loans,
any of the Borrower Partners) as a party defendant in any action or suit for
judicial foreclosure and sale under the Mortgage or any other security document
so long as no judgment or order in the nature of a personal monetary judgment or
order or deficiency judgment or order shall be asked for or taken against
Borrower or the Borrower Partners; or (3) affect in any way the validity or
enforceability of any guaranty (whether of payment and/or performance)
(including the Guaranty) or indemnity agreement (including the Indemnity) now or
hereafter given to or for the benefit of the Banks in connection with the Loans;
or (4) constitute a waiver by the Banks of any rights to reimbursement for
actual, out-of-pocket losses, costs or expenses, or any other remedy at law or
equity against Borrower or its constituent general partner(s) by reason of (i)
fraudulent acts or omissions of Borrower or its constituent general partner(s),
(ii) after an Event of Default has occurred, willful misapplication of any
insurance proceeds, condemnation awards or tenant security deposits, or of any
rental or other income, in each case to the extent of the amount misapplied and
any reasonable out-of-pocket expense caused thereby, which was expressly
required by the Mortgage or other Loan Documents to be paid or applied in a
specified manner, arising in any such case, with respect to the Mortgaged
Property or other collateral now or hereafter given for the Loans or (iii) after
the occurrence of an Event of Default, the reasonable out-of-pocket legal and
related expenses caused by the failure to deliver, promptly upon demand, tenant
and other project files and original executed leases and other agreements
relating to occupancy, construction or operation in respect of the Premises in
Borrower's possession or control which have been reasonably requested by
Administrative Agent or any Bank.
(b) Notwithstanding anything to the contrary contained in the
Relevant Documents, the Indemnity or the Guaranty, no recourse under or upon any
Obligation, representation, warranty, promise or other matter whatsoever under
the Relevant Documents, the Indemnity or the Guaranty shall be had against any
of the constituent partners of Guarantor or their successors or assigns (said
constituent partners and their successors and assigns, for purposes of this
Section, hereinafter referred to, individually and collectively, as the "TRG
Partners") and Administrative Agent and each Bank expressly waive and release,
on behalf of themselves and their successors and assigns, all right to assert
any liability whatsoever under or with respect to the Relevant Documents, the
Indemnity or the Guaranty against, or to satisfy any claim or obligation arising
thereunder against, any of the TRG Partners or out of any assets of the TRG
Partners; provided, however, that nothing in this Section shall be deemed to:
-------- -------
(1) release Borrower or its constituent general partner(s) from any personal
liability pursuant to, or from any of its obligations under, the Indemnity, or
release Guarantor from any personal liability pursuant to, or from any of its
obligations under, the Indemnity or the Guaranty; (2) release any TRG Partner
from personal liability for its or his own fraudulent actions or fraudulent
omissions; (3) constitute a waiver of any obligation evidenced or secured by, or
contained in, the Relevant Documents, the Indemnity or the Guaranty, or affect
in any way the validity or enforceability of any of the Relevant Documents, the
Indemnity or the Guaranty; (4) limit the right of Administrative Agent and/or
the Banks to proceed against or realize upon the Mortgaged Property or any other
collateral now or hereafter given for the Loans or to name Guarantor or (to
48
the extent that the same are required by applicable Law or are determined by a
court to be necessary parties in connection with an action or suit against
Borrower, Guarantor or the Mortgaged Property or any other collateral now or
hereafter given for the Loans) any of the TRG Partners as a party defendant in,
and to enforce against the Mortgaged Property or any other collateral now or
hereafter given for the Loans any judgment obtained by Administrative Agent
and/or the Banks with respect to, any action or suit under the Relevant
Documents so long as no judgment shall be enforced or taken (except to the
extent taking a judgment is required by applicable Law or determined by a court
to be necessary to preserve Administrative Agent's and/or the Banks' rights
against the Mortgaged Property or any other collateral now or hereafter given
for the Loans or Borrower or Guarantor, but not otherwise) against the TRG
Partners, their successors and assigns, or their assets; or (5) limit the right
of Administrative Agent and/or Lenders to proceed against or realize upon any
and all of the assets of Borrower or Guarantor (notwithstanding the fact that
the TRG Partners have an ownership interest in Guarantor and, thereby, an
interest in the assets of Guarantor) or to name Borrower or Guarantor (or, to
the extent that the same are required by applicable Law or are determined by a
court to be necessary parties in connection with an action or suit against
Borrower or Guarantor, any of the TRG Partners) as a party defendant in, and to
enforce against the assets of Borrower or Guarantor any judgment obtained by
Administrative Agent and/or the Banks with respect to, any action or suit under
the Indemnity or the Guaranty so long as no judgment shall be enforced or taken
(except to the extent taking a judgment is required by applicable Law or
determined by a court to be necessary to preserve Administrative Agent's and/or
the Banks rights against Borrower or Guarantor, but not otherwise) against the
TRG Partners, their successors and assigns, or their assets.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Binding Effect of Request for Advance. Borrower agrees
-------------------------------------
that, by its acceptance of any advance of proceeds of the Loans under this
Agreement, it shall be bound in all respects by the request for advance
submitted on its behalf in connection therewith with the same force and effect
as if Borrower had itself executed and submitted the request for advance and
whether or not the request for advance is executed and/or submitted by an
authorized person.
Section 11.02 Amendments and Waivers. No amendment or material
------------------------
waiver of any provision of this Agreement or any other Loan Document nor consent
to any material departure by Borrower or Guarantor therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Required
Banks and, solely for purposes of its acknowledgment thereof, Administrative
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given, provided, however, that
-------- -------
no amendment, waiver or consent shall, unless in writing and signed by all the
Banks do any of the following: (1) reduce the principal of, or interest on, the
Notes or any fees due hereunder or any other amount due hereunder or under any
Loan Document; (2) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees due hereunder or under any Loan Document, or
waive any default in the payment of principal, interest or any other amount due
hereunder or under any Loan Documents; (3) change the definition of Required
Banks; (4) amend this Section or any other provision requiring the consent of
all the Banks or of the Required Banks; (5) waive any default under paragraph
(6) of Section
49
8.01; (6) increase the Loan Commitment of any Bank; (7) amend Section 9.15 or
Section 9.16; (8) release Guarantor from its obligations, in whole or in part,
in respect of the Loans other than in accordance with the Loan Documents; or (9)
release any material portion of the Mortgaged Property or other collateral
now or hereafter given for the Loans other than in accordance with the Loan
Documents. Any advance of proceeds of the Loans made prior to or without the
fulfillment by Borrower of all of the conditions precedent thereto, whether or
not known to Administrative Agent and the Banks, shall not constitute a waiver
of the requirement that all conditions, including the non-performed conditions,
shall be required with respect to all future advances, if any. No failure on the
part of Administrative Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by Law.
Section 11.03 Usury. Anything herein to the contrary notwithstanding,
-----
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of Law applicable to a Bank
limiting rates of interest which may be charged or collected by such Bank.
Section 11.04 Expenses; Indemnification. Borrower agrees to reimburse
-------------------------
Administrative Agent on demand for all reasonable costs, expenses, and charges
(including, without limitation, all reasonable fees and charges of engineers,
appraisers, consultants and external legal counsel) incurred by Administrative
Agent in connection with the Loans and to reimburse each of the Banks for
reasonable legal costs, expenses and charges incurred by each of the Banks in
connection with the performance or enforcement of this Agreement, the Notes, or
any other Loan Documents; provided, however, that Borrower is not responsible
-------- -------
for costs, expenses and charges incurred by the Bank Parties in connection with
the administration or syndication of the Loans (other than the syndication
expenses and administration fee required by the Supplemental Fee Letter).
Borrower agrees to indemnify Administrative Agent and each Bank and their
respective directors, officers, employees and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them arising out of or by reason of (x) any claims by brokers
due to acts or omissions by Borrower or (y) any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to any actual or proposed use by Borrower of the proceeds
of the Loans, including without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified).
The obligations of Borrower under this Section shall survive the
repayment of all amounts due under or in connection with any of the Loan
Documents and the termination of the Loans.
Section 11.05 Assignment; Participation. This Agreement shall be
-------------------------
binding upon, and shall inure to the benefit of, Borrower, Administrative Agent,
the Banks and their respective successors and permitted assigns. Borrower may
not assign or transfer its rights or obligations hereunder.
50
Subject to the provisions of Section 9.14, any Bank may at any time
grant to one or more banks or other institutions (each a "Participant")
participating interests in its Loan (each a "Participation"), at no cost to
Borrower, subject to the consent of Fleet and PNC, which consents shall not be
unreasonably withheld or delayed, and provided that any such Participation shall
be in the minimum amount of $10,000,000. In the event of any such grant by a
Bank of a Participation to a Participant, whether or not Borrower or
Administrative Agent was given notice, such Bank shall remain responsible for
the performance of its obligations hereunder, and Borrower and Administrative
Agent shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations hereunder. Any agreement pursuant to
which any Bank may grant a Participation shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of Borrower
hereunder and under any other Loan Document including, without limitation, the
right to approve any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement enumerated in Section 11.02 without the consent of the
Participant.
Subject to the provisions of Section 9.14, any Bank may at any time
assign to any bank or other institution, with the acknowledgment of
Administrative Agent and the consent of Fleet, PNC and, provided there exists no
Event of Default, of Borrower, which consents shall not be unreasonably withheld
or delayed (such assignee, a "Consented Assignee"), or to one or more banks or
other institutions which are majority owned subsidiaries of a Bank or of the
Parent of a Bank (each Consented Assignee or subsidiary bank or institution, an
"Assignee") all, or a proportionate part of all, of its rights and obligations
under this Agreement and its Note, and such Assignee shall assume rights and
obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and the assigning Bank, provided that, in each case, after giving
--------
effect to such assignment, the Assignee's Loan Commitment, and, in the case of a
partial assignment, the assigning Bank's Loan Commitment, each will be equal to
or greater than $10,000,000. Upon (i) execution and delivery of such instrument,
(ii) payment by such Assignee to the Bank of an amount equal to the purchase
price agreed between the Bank and such Assignee and (iii) payment by such
Assignee to Administrative Agent of a fee, for Administrative Agent's own
account, in the amount of $2,500, on account of Administrative Agent's fees and
expenses in connection with such assignment, such Assignee shall be a Bank Party
to this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the assigning Bank shall
be released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this paragraph, substitute Notes shall be issued
to the assigning Bank and Assignee by Borrower, in exchange for the return of
the original Note. The obligations evidenced by such substitute notes shall
constitute "Obligations" for all purposes of this Agreement and the other Loan
Documents. If the Assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the first date on which
interest or fees are payable hereunder for its account, deliver to Borrower and
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 9.13.
51
Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
Borrower recognizes that in connection with a Bank's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In addition, such documentation
etc. may be exhibited to and retained by Affiliates of a Bank. In connection
with a Bank's delivery of any financial statements and appraisals to any such
Participant or assignee or prospective Participant or assignee, such Bank shall
also deliver its standard confidentiality statement indicating that the same are
delivered on a confidential basis. Borrower agrees to provide, at no cost to
Borrower, all assistance reasonably requested by a Bank to enable such Bank to
sell Participations or make assignments of its Loan as permitted by this
Section. Each Bank agrees to provide Borrower with notice of all Participations
sold by such Bank.
Section 11.06 Documentation Satisfactory. All documentation required
---------------------------
from or to be submitted on behalf of Borrower or Guarantor in connection with
this Agreement and the documents relating hereto shall be subject to the
prior approval of, and be satisfactory in form and substance to, Administrative
Agent, its counsel and, where specifically provided herein, the Banks. In
addition, the persons or parties responsible for the execution and delivery
of, and signatories to, all of such documentation, shall be acceptable to, and
subject to the approval of, Administrative Agent and its counsel and the Banks.
Section 11.07 Notices. Unless the party to be notified otherwise
-------
notifies the other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to Administrative
Agent by telephone, confirmed by writing, and to the Banks and to Borrower by
ordinary mail or overnight courier addressed to such party at its address on the
signature page of this Agreement. Notices shall be effective (1) if by
telephone, at the time of such telephone conversation, (2) if given by mail,
three (3)days after mailing and (3) if given by overnight courier, upon receipt.
Section 11.08 Year 2000. Borrower represents, warrants and covenants
---------
that each of Borrower and Guarantor has taken and shall take all action
reasonably necessary to assure that its data processing and information
technology systems are capable of effectively processing data and information,
including dates on and after January 1, 2000, and shall not cease to perform, or
provide, or cause any software and/or system which is material to its operations
of any interface therewith to provide, invalid or incorrect result of date
functionality and/or data, or otherwise experience any material degradation of
performance of functionality arising from, relating to or including date
functionality and/or data which represents or references different centuries or
more than one century or leap years, and that all such systems shall be
reasonably effective and accurate in managing and manipulating data derived
from, involving or relating in any way to dates (including single century
formulas and multi-century or leap year formulas), and will not cause a material
abnormally ending scenario within such systems or in any software and/or system
with which such systems interface, or generate materially incorrect values or
invalid results involving such date. At the request of Administrative Agent,
Borrower shall provide, and cause Guarantor to provide, Administrative Agent
with reasonably acceptable assurance of Borrower's and Guarantor's year 2000
capability.
52
Section 11.09 Partial Releases. Provided there exists no Default or
----------------
Event of Default, Administrative Agent shall release, within seven (7) Banking
Days of Borrower's delivery to it of the items required by this paragraph, the
lien of the Mortgage from portions of the Premises outside of the "ring road"
of the shopping center of which the Improvements are a part (each such
portion of the Premises, a "Release Parcel") in connection with Borrower's
simultaneous conveyance thereof to other Persons for the construction and
operation on said Release Parcels by such Persons of retail stores or other
facilities compatible with the shopping center. All such releases shall be
subject to Administrative Agent's determination that the same will not have a
materially adverse effect on the value of the balance of the Premises not so
released. Such releases shall be further subject, in each case, to
Administrative Agent's receipt of (i) evidence that the balance of the Premises
constitutes a separate tax lot and an endorsement to the title insurance policy
for the Mortgage insuring that the lien of the Mortgage will not be impaired by
virtue of the release of the Release Parcel, (ii) a copy, certified by Borrower
to be true and complete, of the executed contract of sale for the Release
Parcel, (iii) a current survey of the Premises, specifically delineating the
Release Parcel, certified to Administrative Agent and the Title Insurer, (iv)
evidence that the portion of the Premises remaining subject to the Mortgage has
adequate pedestrian and vehicular access for the contemplated uses thereof to
publicly dedicated roads, (v) such other documents, opinions and assurances as
Administrative Agent may reasonably request (all of the foregoing items (i)
through (v) to be in form and substance reasonably satisfactory to
Administrative Agent) and (vi) payment of Administrative Agent's out-of-pocket
expenses, including the fees and expenses of counsel, in connection with the
foregoing transactions.
Section 11.10 Table of Contents; Headings. Any table of contents
---------------------------
and the headings and captions hereunder are for convenience only and shall not
affect the interpretation or construction of this Agreement.
Section 11.11 Severability. The provisions of this Agreement are
------------
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 11.12 Counterparts. This Agreement may be executed in any
------------
number of counterparts, all of which taken together shall constitute one
and the same instrument, and any party hereto may execute this Agreement by
signing any such counterpart.
Section 11.13 Integration. The Loan Documents and Supplemental Fee
-----------
Letter set forth the entire agreement among the parties hereto relating to the
transactions contemplated thereby and supersede any prior oral or written
statements or agreements with respect to such transactions.
Section 11.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
-------------
AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO NEW YORK'S PRINCIPLES OF CONFLICTS OF LAWS).
53
Section 11.15 Waivers. In connection with the obligations and
-------
liabilities as aforesaid, Borrower hereby waives (1) promptness and diligence,
(2) notice of any actions taken by any Bank Party under this Agreement, any
other Loan Document or any other agreement or instrument relating thereto except
to the extent otherwise provided herein, (3) all other notices, demands and
protests, and all other formalities of every kind in connection with the
enforcement of the Obligations, the omission of or delay in which, but for the
provisions of this Section, might constitute grounds for relieving Borrower of
its obligations hereunder or under any of the other Loan Documents, (4) any
requirement that any Bank Party protect, secure, perfect or insure any Lien on
or against any of the Mortgaged Property or on or against any other collateral
or exhaust any right or take any action against Borrower, Guarantor or any other
Person or against any of the Mortgaged Property or any other collateral, (5) any
right or claim of right to cause a marshalling of the assets of Borrower or
Guarantor and (6) all rights of subrogation or contribution, whether arising by
contract or operation of law (including, without limitation, any such right
arising under the Federal Bankruptcy Code) or otherwise by reason of payment by
Borrower pursuant to this Agreement or other Loan Documents.
Section 11.16 JURISDICTION; IMMUNITIES. BORROWER, ADMINISTRATIVE AGENT
------------------------
AND EACH BANK HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK
STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER
LOAN DOCUMENT. BORROWER, ADMINISTRATIVE AGENT AND EACH BANK IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR UNITED STATES FEDERAL COURT. BORROWER,
ADMINISTRATIVE AGENT AND EACH BANK IRREVOCABLY CONSENT TO THE SERVICE OF ANY AND
ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH
PROCESS TO BORROWER, ADMINISTRATIVE AGENT OR EACH BANK, AS THE CASE MAY BE, AT
THE ADDRESSES SPECIFIED HEREIN. BORROWER, ADMINISTRATIVE AGENT AND EACH BANK
FURTHER WAIVE ANY OBJECTION TO VENUE IN THE STATE OF NEW YORK AND ANY OBJECTION
TO AN ACTION OR PROCEEDING IN THE STATE OF NEW YORK ON THE BASIS OF FORUM NON
CONVENIENS. BORROWER, ADMINISTRATIVE AGENT AND EACH BANK AGREE THAT ANY ACTION
OR PROCEEDING BROUGHT AGAINST BORROWER, ADMINISTRATIVE AGENT OR ANY BANK, AS THE
CASE MAY BE, SHALL BE BROUGHT ONLY IN A NEW YORK STATE COURT SITTING IN NEW YORK
CITY OR A UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY.
Nothing in this Section shall affect the right of Borrower,
Administrative Agent or any Bank to serve legal process in any other manner
permitted by Law.
To the extent that Borrower, Administrative Agent or any Bank have
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether from service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, Borrower, Administrative Agent and each Bank hereby irrevocably
waive such immunity in respect of its obligations under this Agreement, the
Notes and any other Loan Document.
54
BORROWER, ADMINISTRATIVE AGENT AND EACH BANK WAIVE ANY RIGHT EACH
SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOANS. IN
ADDITION, BORROWER HEREBY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO THE
NOTES, ANY RIGHT BORROWER MAY HAVE TO (1) INTERPOSE ANY COUNTERCLAIM THEREIN
(OTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE SUIT, ACTION OR PROCEEDING
BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS COULD NOT BE BROUGHT IN A SEPARATE
SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO DISMISSAL OR SIMILAR
DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING
BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS) OR (2) HAVE THE SAME CONSOLIDATED
WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED
SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE
ACTION AGAINST ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO ANY ASSERTED
CLAIM.
55
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have caused this Agreement to be duly executed and delivered as of the
day and year first above written.
TAUBMAN AUBURN HILLS ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: The Taubman Realty Group Limited
Partnership, a Delaware limited
partnership, its managing general partner
By: /s/ Xxxxxx X. Xxxx
------------------
Xxxxxx X. Xxxx,
an authorized signatory
Address for Notices:
c/o The Taubman Company
Limited Partnership
000 Xxxx Xxxx Xxxx Xxxx - Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxx
with copy to:
Xxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000 - X.X. Xxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
56
PNC BANK, NATIONAL ASSOCIATION
(as Bank and Administrative Agent)
By: /s/ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice President
PNC Bank National Association
One PNC Plaza
000 Xxxxx Xxxxxx
X0-XXXX-00-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
One PNC Plaza
000 Xxxxx Xxxxxx
X0-XXXX-00-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FLEET NATIONAL BANK
(as Bank and Syndication Agent)
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for notices and Applicable Lending
Office:
Fleet National Bank
00 Xxxxx Xxxxxx
XX BOF 11-C
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
00
XXXXXXXX XXXX XX, Xxx Xxxx and
Grand Cayman Branches
(as Bank and Co-Agent)
By /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By /s/ Brigitte Sacin
-------------------------
Name: Brigitte Sacin
Title: Assistant Treasurer
Address for notices:
Dresdner Bank AG, New York and
Grand Cayman Branches
x/x Xxxxxxxx Xxxx XX, Xxxxxxx Branch
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 1305
Applicable Lending Office:
Dresdner Bank AG, New York and
Grand Cayman Branches
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
00
XXXXXXXXXXX XX, Xxxxxxx Branch
(as Bank and Co-Agent)
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxxxxxx Xxxxx
-------------------------
Name: Xxxxxxxxx Xxxxx
Title: Assistant Treasurer
Address for notices and Applicable Lending
Office:
Commerzbank AG, Chicago Branch
x/x Xxxxxxxxxxx XX, Xxx Xxxx Branch
2 World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BAYERISCHE HYPO- UND
VEREINSBANK AG (as Bank)
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Address for notices and Applicable Lending
Office:
Bayerische Hypo- und Vereinsbank AG
Real Estate Lending
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
59
COMERICA BANK (as Bank)
By /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
Address for notices and Applicable Lending
Office:
Comerica Bank
U.S. Banking-East
Comerica Tower at Detroit Center
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BAYERISCHE LANDESBANK GIROZENTRALE
(Cayman Islands Branch) (as Bank)
By /s/ Xxxx X. Xxxx
-----------------------
Name: Xxxx X. Xxxx
Title: First Vice President
By /s/ X. Xxxxxxx
-------------------------
Name: X. Xxxxxxx
Title: First Vice President
Address for notices and Applicable Lending
Office:
Bayerische Landesbank
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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