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Exhibit 4.2
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CREDIT AGREEMENT
Dated as of September 22, 2000
among
SIMON PROPERTY GROUP, L.P.,
SIMON PROPERTY GROUP, INC.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE AGENT,
and
BANK OF AMERICA, N.A., AS DOCUMENTATION AGENT,
and
J.P. MORGAN SECURITIES INC., AS SYNDICATION AGENT
and
CHASE SECURITIES INC.,
AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
and
BANK OF AMERICA SECURITIES INC.,
AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
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TABLE OF CONTENTS
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<TABLE>
ARTICLE I
DEFINITIONS
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1.1 Certain Defined Terms............................................ 1
1.2 Computation of Time Periods...................................... 32
1.3 Accounting Terms................................................. 33
1.4 Other Terms...................................................... 33
ARTICLE II
AMOUNTS AND TERMS OF LOANS
1.5 Loans............................................................ 33
1.6 Intentionally Omitted............................................ 35
1.7 Use of Proceeds of Loans......................................... 35
1.8 Termination Date................................................. 35
1.9 Intentionally Ommitted........................................... 35
1.10 Maximum Credit Facility.......................................... 35
1.11 Authorized Agents................................................ 35
ARTICLE III INTENTIONALLY OMITTED
ARTICLE IV PAYMENTS AND PREPAYMENTS
1.12 Prepayments...................................................... 36
1.13 Payments......................................................... 38
1.14 Promise to Repay; Evidence of Indebtedness....................... 42
ARTICLE V
INTEREST AND FEES
1.15 Interest on the Loans and other Obligations...................... 43
1.16 Special Provisions Governing Eurodollar Rate Loans............... 46
1.17 Fees............................................................. 51
ARTICLE VI
CONDITIONS TO LOANS
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1.18 Conditions Precedent to the Loans................................ 52
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
1.19 Representations and Warranties of the Borrower................... 54
ARTICLE VIII
REPORTING COVENANTS
1.20 Borrower Accounting Practices.................................... 67
1.21 Financial Reports................................................ 67
1.22 Events of Default................................................ 72
1.23 Lawsuits......................................................... 72
1.24 Insurance........................................................ 73
1.25 ERISA Notices.................................................... 74
1.26 Environmental Notices............................................ 74
1.27 Labor Matters.................................................... 76
1.28 Notices of Asset Sales and/or Acquisitions....................... 77
1.29 Tenant Notifications............................................. 77
1.30 Other Reports.................................................... 77
1.31 Other Information................................................ 78
ARTICLE IX
AFFIRMATIVE COVENANTS
1.32 Existence, Etc................................................... 78
1.33 Powers; Conduct of Business...................................... 78
1.34 Compliance with Laws, Etc........................................ 79
1.35 Payment of Taxes and Claims...................................... 79
1.36 Insurance........................................................ 79
1.37 Inspection of Property; Books and Records; Discussions........... 80
1.38 ERISA Compliance................................................. 80
1.39 Maintenance of Property.......................................... 80
1.40 Hedging Requirements............................................. 81
1.41 Company Status................................................... 81
1.42 Ownership of Projects, Minority Holdings and Property............ 81
ARTICLE X
NEGATIVE COVENANTS
1.43 Indebtedness..................................................... 82
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1.44 Sales of Assets................................................. 82
1.45 Liens........................................................... 82
1.46 Investments..................................................... 83
1.47 Conduct of Business............................................. 84
1.48 Transactions with Partners and Affiliates....................... 84
1.49 Restriction on Fundamental Changes.............................. 84
1.50 Margin Regulations; Securities Laws............................. 85
1.51 ERISA........................................................... 85
1.52 Organizational Documents........................................ 86
1.53 Fiscal Year..................................................... 86
1.54 Other Financial Covenants....................................... 86
1.55 Pro Forma Adjustments........................................... 87
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
1.56 Events of Default............................................... 89
1.57 Rights and Remedies............................................. 94
ARTICLE XII
THE AGENTS
1.58 Appointment..................................................... 96
1.59 Nature of Duties................................................ 96
1.60 Right to Request Instructions................................... 97
1.61 Reliance........................................................ 97
1.62 Indemnification................................................. 98
1.63 Agents Individually............................................. 98
1.64 Successor Agents................................................ 98
1.65 Relations Among the Lenders..................................... 99
ARTICLE XIII
YIELD PROTECTION
1.66 Taxes........................................................... 100
1.67 Increased Capital............................................... 103
1.68 Changes; Legal Restrictions..................................... 103
1.69 Replacement of Certain Lenders.................................. 105
ARTICLE XIV
INTENTIONALLY OMITTED
ARTICLE XV
MISCELLANEOUS
1.70 Assignments and Participations.................................. 106
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1.71 Expenses........................................................ 109
1.72 Indemnity....................................................... 111
1.73 Change in Accounting Principles................................. 112
1.74 Setoff.......................................................... 112
1.75 Ratable Sharing................................................. 113
1.76 Amendments and Waivers.......................................... 114
1.77 Notices......................................................... 116
1.78 Survival of Warranties and Agreements........................... 117
1.79 Failure or Indulgence Not Waiver; Remedies Cumulative........... 117
1.80 Marshalling; Payments Set Aside................................. 117
1.81 Severability.................................................... 118
1.82 Headings........................................................ 118
1.83 Governing Law................................................... 118
1.84 Limitation of Liability......................................... 118
1.85 Successors and Assigns.......................................... 119
1.86 Certain Consents and Waivers of the Borrower.................... 119
1.87 Counterparts; Effectiveness; Inconsistencies.................... 120
1.88 Limitation on Agreements........................................ 121
1.89 Confidentiality................................................. 121
1.90 Disclaimers..................................................... 121
1.91 Intentionally Omitted........................................... 122
1.92 Retained Properties............................................. 122
1.93 Entire Agreement................................................ 122
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LIST OF EXHIBITS AND SCHEDULES
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Note
Exhibit C -- Form of Notice of Borrowing
Exhibit D -- Form of Notice of Conversion/Continuation
Exhibit E -- List of Closing Documents
Exhibit F -- Form of Officer's Certificate
Exhibit G -- Sample Calculations of Financial Covenants
Schedule 1.1.4 -- Permitted Securities Options
Schedule 1.1.5 -- Unsecured Bond Offerings
Schedule 7.1-A -- Organizational Documents
Schedule 7.1-C -- Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H -- Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I -- Pending Actions
Schedule 7.1-P -- Environmental Matters
Schedule 7.1-Q -- ERISA Matters
Schedule 7.1-T -- Insurance Policies
Schedule 15.23 -- Retained Properties
115
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CREDIT AGREEMENT
This Credit Agreement, dated as of September 22, 2000 (as amended,
supplemented or modified from time to time, the "Agreement") is entered into
---------
among SIMON PROPERTY GROUP, L.P., SIMON PROPERTY GROUP, INC., the institutions
from time to time a party hereto as Lenders, whether by execution of this
Agreement or an Assignment and Acceptance, THE CHASE MANHATTAN BANK, as
Administrative Agent, and BANK OF AMERICA, N.A., as Documentation Agent.
R E C I T A L S
WHEREAS, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms used in this Agreement
---------------------
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Administrative Agent" is Chase, and each successor Administrative
--------------------
Agent appointed pursuant to the terms of Article XII of this Agreement.
-----------
"Affiliate", as applied to any Person, means any other Person that
---------
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote fifteen percent (15.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
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"Agent" means Chase in its capacity as Administrative Agent, each
-----
Documentation Agent, Syndication Agent, and each successor agent appointed
pursuant to the terms of Article XII of this Agreement.
-----------
"Agreement" is defined in the preamble hereto.
---------
"Annual EBITDA" means, with respect to any Project or Minority
-------------
Holding, as of the first day of each fiscal quarter for the immediately
preceding consecutive four fiscal quarters, an amount equal to (i) total
revenues relating to such Project or Minority Holding for such period, less (ii)
----
total operating expenses relating to such Project or Minority Holding for such
period (it being understood that the foregoing calculation shall exclude non-
cash charges as determined in accordance with GAAP). Each of the foregoing
amounts shall be determined by reference to the Borrower's Statement of
Operations for the applicable periods. An example of the foregoing calculation
is set forth on Exhibit G hereto.
---------
"Applicable Lending Office" means, with respect to a particular
-------------------------
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Loan, the respective
-----------------
percentages per annum determined, at any time, based on the range into which
Borrower's Credit Rating then falls, in accordance with the following tables.
Any change in the Applicable Margin shall be effective immediately as of the
date on which any of the rating agencies announces a change in the Borrower's
Credit Rating or the date on which the Borrower has no Credit Rating, whichever
is applicable.
The Applicable Margin, from time to time, depending on Borrower's Credit Rating
shall be as follows:
Range of Applicable
Borrower's Applicable Margin for
Credit Rating Margin for Base Rate
S&P/Moody's Eurodollar Rate Loans Loans
Ratings) (% per annum) (% per annum)
----------------- ------------ -------------
below BBB-/Baa3 1.350% 0.00%
BBB-/Baa3 0.900% 0.00%
BBB/Baa2 0.750% 0.00%
BBB+/Baa1 0.650% 0.00%
A-/A3 0.500% 0.00%
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If at any time the Borrower has a Credit Rating by both Moody's and S&P which
Credit Ratings are split, then: (A) if the difference between such Credit
Ratings is one ratings category (e.g. Baa2 by Moody's and BBB- by S&P), the
Applicable Margin shall be the rate per annum that would be applicable if the
higher of the Credit Ratings were used; and (B) if the difference between such
Credit Ratings is two ratings category (e.g. Baa1 by Moody's and BBB- by S&P),
the Applicable Margin shall be the rate per annum that would be applicable if
the median of the applicable Credit Ratings is used.
"Assignment and Acceptance" means an Assignment and Acceptance in
-------------------------
substantially the form of Exhibit A attached hereto and made a part hereof (with
---------
blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 15.1.
------------
"Authorized Financial Officer" means a chief executive officer, chief
----------------------------
financial officer, treasurer or other qualified senior officer acceptable to the
Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate per
---------
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by Chase in New York, New
York from time to time, as Chase's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus (B)
----
the Federal Funds Rate in effect from time to time during such period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
--------------
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
--------------
immediately before it became due.
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"Borrower" means SIMON PROPERTY GROUP, L.P., a Delaware limited
--------
partnership.
"Borrower Partnership Agreement" means the Seventh Amended and
------------------------------
Restated Limited Partnership Agreement of the Borrower, dated as of August 27,
1999, as such agreement may be amended, restated, modified or supplemented from
time to time with the consent of the Administrative Agent or as permitted under
Section 10.10.
-------------
"Borrowing" means a borrowing consisting of Loans of the same type
---------
made, continued or converted on the same day.
"Business Activity Report" means (i) an Indiana Business Activity
------------------------
Report from the Indiana Department of Revenue, Compliance Division, or (ii) a
Notice of Business Activities Report from the State of New Jersey Division of
Taxation, (iii) a Minnesota Business Activity Report from the Minnesota
Department of Revenue, or (iv) a similar report to those referred to in clauses
(i) through (iii) hereof with respect to any jurisdiction where the failure to
file such report would have a Material Adverse Effect.
"Business Day" means a day, in the applicable local time, which is not
------------
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England and/or New
York, New York.
"Capital Expenditures" means, for any period, the aggregate of all
--------------------
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of their Subsidiaries' fixed asset accounts as reflected in
any of their respective balance sheets; provided, however, (i) Capital
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Expenditures shall include, whether or not such a designation would be in
conformity with GAAP, (a) that portion of Capital Leases which is capitalized on
the consolidated balance sheet of the Company, the
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Borrower and their Subsidiaries and (b) expenditures for Equipment which is
purchased simultaneously with the trade-in of existing Equipment owned by either
General Partner, the Borrower or any of their Subsidiaries, to the extent the
gross purchase price of the purchased Equipment exceeds the book value of the
Equipment being traded in at such time; and (ii) Capital Expenditures shall
exclude, whether or not such a designation would be in conformity with GAAP,
expenditures made in connection with the restoration of Property, to the extent
reimbursed or financed from insurance or condemnation proceeds.
"Capitalization Value" means the sum of (i) Combined EBITDA
--------------------
capitalized at an annual interest rate equal to 8.25%, and (ii) Cash and Cash
Equivalents, and (iii) Construction Asset Cost.
"Capital Lease" means any lease of any property (whether real,
-------------
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock
-------------
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Cash and Cash Equivalents" means (i) cash, (ii) marketable direct
-------------------------
obligations issued or unconditionally guaranteed by the United States government
and backed by the full faith and credit of the United States government; and
(iii) domestic and Eurodollar certificates of deposit and time deposits,
bankers' acceptances and floating rate certificates of deposit issued by any
commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody's;
provided that the maturities of such Cash and Cash Equivalents shall not exceed
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one year.
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"Cash Interest Expense" means, for any period, total interest expense,
---------------------
whether paid or accrued, but without duplication, (including the interest
component of Capital Leases) of the Borrower, which is payable in cash, all as
determined in conformity with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation
------
and Liability Act of 1980, 42 U.S.C. (S)(S) 9601 et seq., any amendments
-- ---
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
"Chase" means The Chase Manhattan Bank.
-----
"Claim" means any claim or demand, by any Person, of whatsoever kind
-----
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means September 22, 2000.
------------
"Combined Debt Service" means, for any period, the sum of (i)
---------------------
regularly scheduled payments of principal and interest of the Consolidated
Businesses paid during such period and (ii) the portion of the regularly
scheduled payments of principal and interest of Minority Holdings allocable to
the Borrower in accordance with GAAP, paid during such period, in each case
including participating interest expense and excluding balloon payments of
principal and extraordinary interest payments and net of amortization of
deferred costs associated with new financings or refinancings of existing
Indebtedness.
"Combined EBITDA" means the sum of (i) 100% of the Annual EBITDA from
---------------
the Consolidated Businesses; and (ii) the portion of the Annual EBITDA of the
Minority Holdings allocable to the Borrower in accordance with GAAP; and (iii)
for so long as the Borrower owns a majority economic interest in the Management
Company, 100% of the Borrower's share of the actual Annual EBITDA of the
Management Company; provided, however that the Borrower's share of the Annual
EBITDA of the Management Company
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shall in no event constitute in excess of five percent (5%) of Combined EBITDA.
For purposes of newly opened Projects which are no longer capitalized, the
Annual EBITDA shall be based upon twelve-month projections of contractual rental
revenues multiplied by the EBITDA profit margin of the Borrower property type
(i.e. regional mall or community center) as such profit margin is reported in
---
the most recently published annual report or 10-K for the Company, until such
time as actual performance data for a twelve-month period is available.
"Combined Equity Value" means Capitalization Value minus Total
---------------------
Adjusted Outstanding Indebtedness.
"Combined Interest Expense" means, for any period, the sum of (i)
-------------------------
interest expense of the Consolidated Businesses paid during such period and (ii)
interest expense of the Consolidated Businesses accrued for such period and
(iii) the portion of the interest expense of Minority Holdings allocable to the
Borrower in accordance with GAAP and paid during such period and (iv) the
portion of the interest expense of Minority Holdings allocable to the Borrower
in accordance with GAAP and accrued for such period, in each case including
participating interest expense but excluding extraordinary interest expense, and
net of amortization of deferred costs associated with new financings or
refinancings of existing Indebtedness.
"Commission" means the Securities and Exchange Commission and any
----------
Person succeeding to the functions thereof.
"Commitment" means, with respect to any Lender, the obligation of such
----------
Lender to make Loans pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such Lender's
name under the heading "Commitment" on the signature pages hereof or the
signature page of the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "Commitments" means the
-----------
aggregate principal amount of the Commitments of all the Lenders,
8
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the maximum amount of which shall be $475,000,000, as reduced from time to time
pursuant to Section 4.1.
-----------
"Company" means Simon Property Group, Inc., a Delaware corporation.
-------
"Compliance Certificate" is defined in Section 8.2(b).
---------------------- --------------
"Consolidated" means consolidated, in accordance with GAAP.
------------
"Consolidated Businesses" means the General Partners, the Borrower and
-----------------------
their wholly-owned Subsidiaries (for purposes hereof, "wholly-owned" shall be
deemed to include those Subsidiaries which are REITs and which are at least 99%
owned).
"Construction Asset Cost" means, with respect to Property on which
-----------------------
construction of Improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by such Property being opened for business to the general public),
the aggregate sums expended on the construction of such Improvements (including
land acquisition costs).
"Contaminant" means any waste, pollutant, hazardous substance, toxic
-----------
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos (in any form or condition),
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as defined in federal,
state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
---------------------
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclu-
9
<PAGE>
sive of contractual indemnities (including, without limitation, any indemnity or
price-adjustment provision relating to the purchase or sale of securities or
other assets) and guarantees of non-monetary obligations (other than guarantees
of completion) which have not yet been called on or quantified, of such Person
or of any other Person. The amount of any Contingent Obligation described in
clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or
interest and principal, or operating income guaranty, the sum of all payments
required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the interest rate applicable to such Indebtedness,
through (i) in the case of an interest or interest and principal guaranty, the
stated date of maturity of the obligation (and commencing on the date interest
could first be payable thereunder), or (ii) in the case of an operating income
guaranty, the date through which such guaranty will remain in effect, and (b)
with respect to all guarantees not covered by the preceding clause (a) an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as recorded on the balance sheet and on the
footnotes to the most recent financial statements of the applicable Borrower
required to be delivered pursuant hereto. Notwithstanding anything contained
herein to the contrary, guarantees of completion shall not be deemed to be
Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the applicable Borrower), the amount of such
guaranty shall be deemed to be 100% thereof unless and only to the extent that
(X) such other Person has delivered Cash or Cash Equivalents to secure all or
any part of such Person's guaranteed obligations (in which case, the amount
10
<PAGE>
of the guaranty shall be deemed to be reduced by the amount of such Cash and
Cash Equivalents) or (Y) such other Person holds an Investment Grade Credit
Rating from either Moody's or S&P (in which case, the amount of such guaranty
shall be deemed reduced by its pro rata share of the amount guaranteed by such
other person), and (ii) in the case of a guaranty, (whether or not joint and
several) of an obligation otherwise constituting Debt of such Person, the amount
of such guaranty shall be deemed to be only that amount in excess of the amount
of the obligation constituting Indebtedness of such Person. Notwithstanding
anything contained herein to the contrary, "Contingent Obligations" shall not be
deemed to include guarantees of loan commitments or of construction loans to the
extent the same have not been drawn.
"Contractual Obligation", as applied to any Person, means any
----------------------
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"Credit Rating" means the publicly announced rating of a Person given
-------------
by Moody's or S&P.
"Cure Loans" is defined in Section 4.2(b)(v)(C).
---------- ------- ------------
"Customary Permitted Liens" means
-------------------------
(1) Liens (other than Environmental Liens and Liens in favor of the
PBGC) with respect to the payment of taxes, assessments or governmental
charges in all cases which are not yet due or which are being contested in
good faith by appropriate proceedings in accordance with Section 9.4 and
-----------
with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(2) statutory Liens of landlords against any Property of the Borrower
or any of its Subsidiaries and Liens against any Property of the Borrower
or any of its Subsidiaries in favor of suppliers, mechanics, carriers,
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materialmen, warehousemen or workmen and other Liens against any Property
of the Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which, if not resolved in favor of
the Borrower or such Subsidiary, could not result in a Material Adverse
Effect;
(3) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and performance bonds; provided that (A) all such Liens do not in the
-------- ----
aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or Property or materially impair the use thereof in the
operation of their respective businesses, and (B) all Liens of attachment
or judgment and Liens securing bonds to stay judgments or in connection
with appeals do not secure at any time an aggregate amount of recourse
Indebtedness exceeding $10,000,000; and
(4) Liens against any Property of the Borrower or any Subsidiary of
the Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of Real Property which do not interfere with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries to the extent it could
not result in a Material Adverse Effect.
"Debt Yield" is defined in Section 10.12(d).
---------- ----------------
"Designee Lender" shall have the meaning set forth in Section 13.4
--------------- ------------
hereof.
"Documentation Agent" means Bank of America, N.A. or any other Lender
-------------------
who shall be appointed as Documentation Agent, and each successor Documentation
Agent appointed pursuant to the terms of Article XII of this Agreement.
-----------
"DOL" means the United States Department of Labor and any Person
---
succeeding to the functions thereof.
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"Dollars" and "$" mean the lawful money of the United States.
------- -
"Domestic Lending Office" means, with respect to any Lender, such
-----------------------
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii)
-----------------
a commercial bank having total assets in excess of $2,500,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (iv) a finance company or other financial
institution reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $300,000,000 or is otherwise reasonably acceptable to the
Administrative Agent.
"Environmental, Health or Safety Requirements of Law" means all
---------------------------------------------------
Requirements of Law derived from or relating to any federal, state or local
law, ordinance, rule, regulation, Permit, license or other binding determination
of any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
------------------
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable
-----------------------------------
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the transfer, sale, lease or closure of
any Property or deed or title for any Property for environmental reasons,
including, but not limited to, any so-called "Environmental Cleanup
Responsibility Act" or "Responsible Property Transfer Act".
13
<PAGE>
"Equipment" means equipment used in connection with the maintenance of
---------
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
-----
U.S.C. (S)(S) 1000 et seq., any amendments thereto, any successor statutes, and
-- ---
any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
---------------
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect to
-----------------------
any Plan; (ii) the withdrawal of the Borrower or any ERISA Affiliate from a Plan
during a plan year in which the Borrower or such ERISA Affiliate was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of 20% of
Plan participants who are employees of the Borrower or any ERISA Affiliate;
(iii) the imposition of an obligation on the Borrower or any ERISA Affiliate
under Section 4041 of ERISA to provide affected parties written notice of intent
to terminate a Plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the institution by the PBGC of proceedings to terminate a Plan; (v)
any event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan; or (vi) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
--------------------
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower and
the Administrative Agent.
"Eurodollar Interest Period" is defined in Section 5.2(b)(i).
-------------------------- -----------------
14
<PAGE>
"Eurodollar Interest Rate Determination Date" is defined in Section
------------------------------------------- -------
5.2(c)(i).
---------
"Eurodollar Lending Office" means, with respect to any Lender, such
-------------------------
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may from
time to time specify by written notice to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for any Eurodollar Interest Period, an
---------------
interest rate per annum equal to the rate per annum obtained by multiplying (a)
a rate per annum equal to the rate for U.S. dollar deposits with maturities
comparable to such Eurodollar Interest Period which appears on Telerate Page
3750 as of 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Eurodollar Interest Period, provided, however, that if such
rate does not appear on Telerate Page 3750, the "Eurodollar Rate" applicable to
a particular Eurodollar Interest Period shall mean a rate per annum equal to the
rate at which U.S. dollar deposits in an amount approximately equal to the
principal balance (or the portion thereof which will bear interest at a rate
determined by reference to the Eurodollar Rate during the Eurodollar Interest
Period to which such Eurodollar Rate is applicable in accordance with the
provisions hereof), and with maturities comparable to the last day of the
Eurodollar Interest Period with respect to which such Eurodollar Rate is
applicable, are offered in immediately available funds in the London Interbank
Market to the London office of Chase by leading banks in the Eurodollar market
at 11:00 a.m., London time, two (2) Business Days prior to the commencement of
the Eurodollar Interest Period to which such Eurodollar Rate is applicable, by
(b) a fraction (expressed as a decimal) the numerator of which shall be the
number one and the denominator of which shall be the number one minus the
-----
Eurodollar Reserve Percentage for such Eurodollar Interest Period.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a rate
--------------------
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
--------------
which was a Eurodollar Rate Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage
-----------------------------
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York with deposits exceeding five
billion Dollars in respect of "Eurocurrency Liabilities" (or in respect of any
other
15
<PAGE>
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in Section
---------------- -------
11.1 after the expiration of any applicable grace period and the giving of any
----
applicable notice, in each case as expressly provided in Section 11.1.
------------
"Facility Fee" is defined in Section 5.3(a).
------------ --------------
"Facility Fee Percentage" means the applicable percentage per annum
-----------------------
determined, at any time, based on the range into which Borrower's Credit Rating
(if any) then falls, in accordance with the following tables. Any change in the
Facility Fee Percentage shall be effective immediately as of the date on which
any of the rating agencies announces a change in the Borrower's Credit Rating or
the date on which the Borrower has no Credit Rating, whichever is applicable.
The Facility Fee Percentage during the time, from time to time, that
the Borrower maintains an Investment Grade Credit Rating by either Moody's or
S&P shall be as follows:
Range of
Borrower's
Credit Rating Percentage of
S&P/Moody's Ratings Maximum Credit Amount
------------------- ---------------------
below BBB-/Baa3 0.00%
BBB-/Baa3 0.20%
BBB/Baa2 0.20%
BBB+/Baa1 0.15%
A-/A3 0.15%
If at any time the Borrower has a Credit Rating by both Moody's and S&P
which Credit Ratings are split, then: (A) if the difference between such Credit
Ratings is one ratings category (e.g. Baa2 by Moody's and BBB- by S&P), the
Facility Fee Percentage shall be the rate per annum that would be appli-cable if
the highest of the Credit Ratings were used; and (B) if the difference between
such Credit Ratings is two ratings category (e.g. Baa1 by Moody's and BBB- by
S&P), the Facility Fee Percentage shall be the rate per annum that would be
appli-
16
<PAGE>
cable if the median of the applicable Credit Ratings is used.
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on transactions by
the Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any Governmental Authority succeeding to its functions.
"Financial Statements" means (i) quarterly and annual consolidated
--------------------
statements of income and retained earnings, statements of cash flow, and balance
sheets, (ii) such other financial statements as any General Partner shall
routinely and regularly prepare on a quarterly or annual basis, and (iii) such
other financial statements of the Consolidated Businesses or Minority Holdings
as the Requisite Lenders may from time to time reasonably specify; provided,
--------
however, that the Financial Statements referenced in clauses (i) and (ii) above
-------
shall be prepared in form satisfactory to the Administrative Agent.
"Fiscal Year" means the fiscal year of the Company and the Borrower
-----------
for accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such
17
<PAGE>
other entity as may be in general use by significant segments of the accounting
profession as in effect on the Closing Date (unless otherwise specified herein
as in effect on another date or dates).
"General Partner" or "General Partners" means SPG, the Company and any
--------------- ----------------
successor general partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in any
---------------------
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"Governmental Authority" means any nation or government, any federal,
----------------------
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Holder" means any Person entitled to enforce any of the Obligations,
------
whether or not such Person holds any evidence of Indebtedness, including,
without limitation, the Administrative Agent, and each other Lender.
"Improvements" means all buildings, fixtures, structures, parking
------------
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
------------
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest, fees and
18
<PAGE>
charges relating thereto, (ii) under profit payment agreements or in respect of
obligations to redeem, repurchase or exchange any Securities of such Person or
to pay dividends in respect of any stock, (iii) with respect to letters of
credit issued for such Person's account, (iv) to pay the deferred purchase price
of property or services, except accounts payable and accrued expenses arising in
the ordinary course of business, (v) in respect of Capital Leases, (vi) which
are Contingent Obligations or (vii) under warranties and indemnities; (b) all
indebtedness, obligations or other liabilities of such Person or others secured
by a Lien on any property of such Person, whether or not such indebtedness,
obligations or liabilities are assumed by such Person, all as of such time; (c)
all indebtedness, obligations or other liabilities of such Person in respect of
interest rate contracts and foreign exchange contracts, net of liabilities owed
to such Person by the counterparties thereon; (d) all preferred stock subject
(upon the occurrence of any contingency or otherwise) to mandatory redemption;
and (e) all contingent Contractual Obligations with respect to any of the
foregoing.
"Indemnified Matters" is defined in Section 15.3.
------------------- ------------
"Indemnitees" is defined in Section 15.3.
----------- ------------
"Interest Period" is defined in Section 5.2(b).
--------------- --------------
"Interest Rate Hedges" is defined in Section 9.9.
-------------------- -----------
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or
----------
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
and (iii) any loan,
19
<PAGE>
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including, without
limitation, all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business. The amount of any
Investment shall be the original cost of such Investment, plus the cost of all
additions thereto less the amount of any return of capital or principal to the
extent such return is in cash with respect to such Investment without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
"Investment Grade" means (i) with respect to Moody's a Credit Rating
----------------
of Baa3 or higher and (ii) with respect to S&P, a Credit Rating of BBB- or
higher.
"Investment Grade Credit Rating" means (i) a Credit Rating of Baa3 or
------------------------------
higher given by Moody's or (ii) a Credit Rating of BBB- or higher given by S&P.
"IRS" means the Internal Revenue Service and any Person succeeding to
---
the functions thereof.
"knowledge" with reference to any General Partner, the Borrower or any
---------
Subsidiary of the Borrower, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as such General Partner, the
Borrower or such Subsidiary of the Borrower, as applicable, deems reasonably
necessary).
"Lease" means a lease, license, concession agreement or other
-----
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof and
all side letters or side agreements relating thereto.
20
<PAGE>
"Lender" means each financial institution a signatory hereto as a
------
Lender as of the Closing Date and, at any other given time, each financial
institution which is a party hereto as a Lender, whether as a signatory hereto
or pursuant to an Assignment and Acceptance, and regardless of the capacity in
which such entity is acting (i.e. whether as Administrative Agent, Syndication
Agent, Documentation Agent or Lender).
"Liabilities and Costs" means all liabilities, obligations,
---------------------
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to (S) 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Minority Holdings" means Minority Holdings in which (i)
-------------------------
Borrower has a less than fifty percent (50%) ownership interest and (ii) neither
the Borrower nor the Company directly or indirectly controls
21
<PAGE>
the management of such Minority Holdings, whether as the general partner or
managing member of such Minority Holding, or otherwise. As used in this
definition only, the term "control" shall mean the authority to make major
management decisions or the management of day-to-day operations of such entity
and shall include instances in which the Management Company manages the day-to-
day leasing, management, control or development of the Properties of such
Minority Interest pursuant to the terms of a management agreement.
"Limited Partners" means those Persons who from time to time are
----------------
limited partners of the Borrower; and "Limited Partner" means each of the
---------------
Limited Partners, individually.
"Loan" means the Loan made by a Lender pursuant to Section 2.1;
---- -----------
provided that, if any such Loan or Loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from such subdivision, as
the case may be.
"Loan Account" is defined in Section 4.3(b).
------------ --------------
"Loan Documents" means this Agreement, the Notes and all other
--------------
instruments, agreements, and written Contractual Obligations between the
Borrower and any of the Lenders pursuant to or in connection with the
transactions contemplated hereby.
"Management Company" means, collectively, (i) M.S. Management
------------------
Associates, Inc., a Delaware corporation and its wholly-owned or controlled
Subsidiaries and (ii) such other property management companies controlled
(directly or indirectly) by the Company for which the Borrower has previously
provided the Administrative Agent with: (1) notice of such property management
company, and (2) evidence reasonably satisfactory to the Administrative Agent
that such property management company is controlled (directly or indirectly) by
the Company.
22
<PAGE>
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
financial condition or assets of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the ability of the Lenders or the Administrative Agent
to enforce any of the Loan Documents.
"MIS" means a computerized management information system for recording
---
and maintenance of information regarding purchases, sales, aging,
categorization, and locations of Properties, creation and aging of receivables,
and accounts payable (including agings thereof).
"Minority Holdings" means partnerships, joint ventures and
-----------------
corporations held or owned by the Borrower or a General Partner which are not
wholly-owned by the Borrower or a General Partner.
"Moody's" means Moody's Investor Services, Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any ERISA Affiliate or
in respect of which the Borrower or any ERISA Affiliate has assumed any
liability.
"Non Pro Rata Loan" is defined in Section 4.2 (b)(v).
----------------- ------------------
"Note" means a promissory note in the form attached hereto as Exhibit
---- -------
B payable to a Lender, evidencing certain of the Obligations of the Borrower to
-
such Lender and executed by the Borrower as required by Section 4.3(a), as the
--------------
same may be amended, supplemented, modified or restated from time to time;
"Notes" means, collectively, all of such Notes outstanding at any given time.
------
23
<PAGE>
"Notice of Borrowing" means a notice substantially in the form of
-------------------
Exhibit C attached hereto and made a part hereof.
---------
"Notice of Conversion/Continuation" means a notice substantially in
---------------------------------
the form of Exhibit D attached hereto and made a part hereof with respect to a
---------
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
--------------
"Obligations" means all Loans, advances, debts, liabilities,
-----------
obligations, covenants and duties owing by the Borrower to the Administrative
Agent, any other Lender, any Affiliate of the Administrative Agent, any other
Lender, or any Person entitled to indemnification pursuant to Section 15.3 of
------------
this Agreement, of any kind or nature, arising under this Agreement, the Notes
or any other Loan Document. The term includes, without limitation, all
interest, charges, expenses, fees, reasonable attorneys' fees and disbursements
and any other sum chargeable to the Borrower under this Agreement or any other
Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
---------------------
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"Operating Lease" means, as applied to any Person, any lease of any
---------------
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
------------------------
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corpora-
24
<PAGE>
tion or limited liability company, (ii) the partnership agreement executed by
the partners in the partnership, (iii) the bylaws (or the equivalent governing
documents) of the corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
----
(S)(S) 651 et seq., any amendments thereto, any successor statutes and any
-- ---
regulations or guidance promulgated thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
----
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization, license,
-------
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Securities Options" means the subscriptions, options,
----------------------------
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on Schedule 1.1.4.
--------------
"Person" means any natural person, corporation, limited liability
------
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA
----
in respect of which the Borrower or any ERISA Affiliate is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or the Borrower or any ERISA Affiliate has assumed any liability.
25
<PAGE>
"Potential Event of Default" means an event that has occurred with
--------------------------
respect to the Borrower which, with the giving of notice or the lapse of time,
or both, would constitute an Event of Default.
"Prepayment Date" is defined in Section 4.1(d).
--------------- --------------
"Process Agent" is defined in Section 15.17(a).
------------- ----------------
"Project" means any shopping center, retail property and mixed-use
-------
property owned, directly or indirectly, by any of the Consolidated Businesses or
Minority Holdings.
"Property" means any Real Property or personal property, plant,
--------
building, facility, structure, underground storage tank or unit, equipment,
general intangible, receivable, or other asset owned, leased or operated by any
Consolidated Business or any Minority Holding (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"Pro Rata Share" means, with respect to any Lender, the percentage
--------------
obtained by dividing (i) the sum of such Lender's Commitment (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement
or any Assignment and Acceptance to which such Lender is a party) by (ii) the
aggregate amount of all of the Commitments.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
----
U.S.C. (S)(S) 6901 et seq., any amendments thereto, any successor statutes, and
-- ----
any regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's present and future right,
-------------
title and interest (including, without limitation, any leasehold estate) in (i)
any plots, pieces or parcels of land, (ii) any Improvements of every nature
whatsoever (the rights and interests described in clauses (i) and (ii) above
being the "Premises"), (iii) all easements, rights of way, gores of land or any
lands occupied by streets, ways, alleys, passages, sewer rights, water courses,
water rights and
26
<PAGE>
powers, and public places adjoining such land, and any other interests in
property constituting appurtenances to the Premises, or which hereafter shall in
any way belong, relate or be appurtenant thereto, (iv) all hereditaments, gas,
oil, minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in, on or
benefitting the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in clauses (iii) and (iv) above.
------------- ----
"Reference Bank" means Chase.
--------------
"Register" is defined in Section 15.1(c).
-------- ---------------
"Regulation A" means Regulation A of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
------------
effect from time to time.
"REIT" means a domestic trust, corporation or association that
----
qualifies as a real estate investment trust under the provisions of Sections
856, et seq. of the Internal Revenue Code.
-- ---
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
27
<PAGE>
"Remedial Action" means actions required to (i) clean up, remove,
---------------
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section
----------------
4043(b) of ERISA and the regulations promulgated thereunder as in effect from
time to time but not including any such event as to which the thirty (30) day
notice requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and by-laws
-------------------
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders (without regard to such Lenders'
-----------------
performance of their respective obligations hereunder) whose aggregate ratable
shares (stated as a percentage) of the aggregate outstanding principal balance
of all Loans are greater than sixty-six and two-thirds percent (66.67%).
"Retained Properties" shall mean those real properties more
-------------------
particularly described on Schedule 15.23 hereto.
"S&P" means Standard & Poor's Ratings Service.
---
28
<PAGE>
"Secured Indebtedness" means any Indebtedness secured by a Lien.
--------------------
"Securities" means any stock, shares, voting trust certificates,
----------
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
-----------------------
as amended from time to time, and any successor statute.
"Solvent", when used with respect to any Person, means that at the
-------
time of determination:
(5) the fair saleable value of its assets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(6) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become absolute and
matured; and
(7) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(8) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
29
<PAGE>
"SPG" means SPG Properties, Inc., a Maryland corporation.
---
"Subsidiary" of a Person means any corporation, limited liability
----------
company, business trust, general or limited partnership, or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by such
Person, one or more of the other subsidiaries of such Person or any combination
thereof.
"Syndication Agent" means J.P. Morgan Securities Inc. or any other
-----------------
Lender who shall be appointed as Syndication Agent, and each successor
Syndication Agent appointed pursuant to the terms of Article XII of this
-----------
Agreement.
"Taxes" is defined in Section 13.1(a).
----- ---------------
"Telerate Page 3750" means the display designated as "Page 3750" on
------------------
the Associated Press-Dow Jones Telerate Service (or such other page as may
replace Page 3750 on the Associated Press-Dow Jones Telerate Service or such
other service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest settlement rates for U.S. Dollar deposits). Any Eurodollar Rate
determined on the basis of the rate displayed on Telerate Page 3750 in
accordance with the provisions hereof shall be displayed by the Associated
Press-Dow Jones Telerate Service within one hour of the time when such rate is
first displayed by such service.
"Tenant Allowance" means a cash allowance paid to a tenant by the
----------------
landlord pursuant to a Lease or "free rent" granted to a tenant in lieu of a
cash payment.
"Termination Date" means the earlier to occur of (i) September 24,
----------------
2001 (or, if not a Business Day, the next preceding Business Day); and (ii) the
date of termination of the Commitments pursuant to the terms of this Agreement.
"TI Work" means any construction or other "build-out" of tenant
-------
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) performed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.
30
<PAGE>
"Total Adjusted Outstanding Indebtedness" means, for any period, the
---------------------------------------
sum of (i) the amount of Indebtedness of the Consolidated Businesses set forth
on the then most recent quarterly financial statements of the Borrower and (ii)
the outstanding amount of Minority Holding Indebtedness allocable in accordance
with GAAP to any of the Consolidated Businesses as of the time of determination
and (iii) the Contingent Obligations of the Consolidated Businesses and, to the
extent allocable to the Consolidated Businesses in accordance with GAAP, of the
Minority Holdings.
"Total Unsecured Outstanding Indebtedness" means that portion of Total
----------------------------------------
Adjusted Outstanding Indebtedness that is not secured by a Lien.
"Unencumbered Combined EBITDA" means that portion of Combined EBITDA
----------------------------
which represents revenues earned from the Management Company (up to 5% of
Combined EBITDA) or from Real Property that is not subject to or encumbered by
Secured Indebtedness and is not subject to any agreements (other than those
agreements more particularly described on Schedule 1.1.5), the effect of which
--------------
would be to restrict, directly or indirectly, the ability of the owner of such
Property from granting Liens thereon, calculated on the first day of each fiscal
quarter for the four immediately preceding consecutive fiscal quarters.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
-----------------------
in the State of New York, as it may be amended from time to time.
"Unsecured Debt Yield" is defined in Section 10.12(e).
-------------------- ----------------
"Unsecured Interest Expense" means the interest expense incurred on
--------------------------
the Total Unsecured Outstanding Indebtedness.
1.2 Computation of Time Periods. 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 the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
-------- ----
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
31
<PAGE>
1.3 Accounting Terms. Subject to Section 15.4, for purposes of this
---------------- ------------
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4 Other Terms. All other terms contained in this Agreement shall,
-----------
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
1.5 Loans.
-----
(1) Availability. Subject to the terms and conditions set forth in
------------
this Agreement, each Lender hereby severally and not jointly agrees to make
loans, in Dollars (each individually, a "Loan" and, collectively, the "Loans")
---- --- -----
to the Borrower as of the Closing Date, in an amount equal to such Lender's Pro
Rata Share of the Commitments. All Loans comprising the same Borrowing under
this Agreement shall be made by the Lenders simultaneously and proportionately
to their then respective Pro Rata Shares, it being understood that no Lender
shall be responsible for any failure by any other Lender to perform its
obligation to make a Loan hereunder nor shall the Commitment of any Lender be
increased or decreased as a result of any such failure. Subject to the
provisions of this Agreement, the Borrower may repay any outstanding Loan on any
day which is a Business Day and any amounts so repaid may not be reborrowed.
(2) Notice of Borrowing. The Borrower shall deliver to the
-------------------
Administrative Agent a Notice of Borrowing, signed by it no later than 12:00
noon (New York time)at least three (3) Business Days in advance of the Closing
Date, in the case of a Borrowing of Eurodollar Rate Loans, or one (1) Business
Day in advance of the Closing Date, in the case of a Borrowing of Base Rate
Loans. Such Notice of Borrowing shall specify (i) whether the proposed Borrowing
will be of Base Rate Loans or Eurodollar Rate Loans, (ii) in the case of
Eurodollar Rate Loans, the requested Eurodollar Interest Period, and (iii)
instructions for the disbursement of the proceeds of the proposed Borrowing. The
Notice of Borrowing given pursuant to this Section 2.1(b) shall be irrevocable.
--------------
32
<PAGE>
(3) Making of Loans. (i) Promptly after receipt of the Notice of
---------------
Borrowing under Section 2.1(b) (or telephonic notice in lieu thereof), the
--------------
Administrative Agent shall notify each Lender by facsimile transmission, or
other similar form of transmission, of the proposed Borrowing (which notice to
the Lenders, in the case of a Borrowing of Eurodollar Rate Loans, shall be at
least three (3) Business Days in advance of the Closing Date). Each Lender shall
deposit an amount equal to its Pro Rata Share of the Borrowing requested by the
Borrower with the Administrative Agent at its office in New York, New York, in
immediately available funds, not later than 12:00 noon (New York time) on the
Closing Date. Subject to the fulfillment of the conditions precedent set forth
in Section 6.1 or Section 6.2, as applicable, the Administrative Agent shall
----------- -----------
make the proceeds of such amounts received by it available to the Borrower at
the Administrative Agent's office in New York, New York on the Closing Date and
shall disburse such proceeds in accordance with the Borrower's disbursement
instructions set forth in the Notice of Borrowing. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the Closing
Date shall not relieve any other Lender of its obligations hereunder to make its
Loan on the Closing Date. In the event the conditions precedent set forth in
Section 6.1 or 6.2 are not fulfilled as of the Closing Date for the Borrowing,
----------- ---
the Administrative Agent shall promptly return, by wire transfer of immediately
available funds, the amount deposited by each Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified by any
Lender on the Business Day immediately preceding the Closing Date that such
Lender does not intend to fund its Loan requested to be made on the Closing
Date, the Administrative Agent may assume that such Lender has funded its Loan
and is depositing the proceeds thereof with the Administrative Agent on the
Closing Date, and the Administrative Agent in its sole discretion may, but shall
not be obligated to, disburse a corresponding amount to the Borrower on the
Closing Date. If the Loan proceeds corresponding to that amount are advanced to
the Borrower by the Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the Closing Date, such
Lender agrees to pay, and in addition the Borrower agrees to repay, to the
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is disbursed to or
for the benefit of the Borrower until the date such amount is paid or repaid to
the Administrative Agent, at the interest rate applicable to such Borrowing. If
such Lender shall pay to the Administrative Agent the corresponding amount, the
amount so paid shall constitute such Lender's Loan, and if both such Lender and
the Borrower shall pay and repay such corresponding amount, the Administrative
Agent shall promptly pay to the Borrower such
33
<PAGE>
corresponding amount. This Section 2.1(c)(ii) does not relieve any Lender of its
------------------
obligation to make its Loan on the Closing Date.
1.6 Intentionally Omitted.
---------------------
1.7 Use of Proceeds of Loans. The proceeds of the Loans issued for
------------------------
the account of the Borrower hereunder may be used for the purpose of refinancing
of existing Indebtedness; which purpose shall be a lawful general corporate,
partnership and working capital purpose of the Borrower.
1.8 Termination Date. The Commitments shall terminate on the
----------------
Closing Date,and all outstanding Obligations shall be paid in full, on the
Termination Date.
1.9 Intentionally Omitted.
---------------------
1.10 Maximum Credit Facility. Notwithstanding anything in this
-----------------------
Agreement to the contrary, in no event shall the aggregate principal Obligations
exceed the aggregate Commitments.
1.11 Authorized Agents. On the Closing Date and from time to time
-----------------
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request a conversion/continuation of any Loan and containing a specimen
signature of each such employee or agent. The employees and agents so
authorized shall also be authorized to act for the Borrower in respect of all
other matters relating to the Loan Documents. The Administrative Agent and the
Lenders shall be entitled to rely conclusively on such employee's or agent's
authority to request such Loan or such conversion/continuation until the
Administrative Agent receive written notice to the contrary. The Administrative
Agent shall not have any duty to verify the authenticity of the signature
appearing on any written Notice of Borrowing or Notice of
Conversion/Continuation or any other document, and, with respect to an oral
request for such conversion/continuation, the Administrative Agent shall have no
duty to verify the identity of any person representing himself or herself as one
of the employees or agents authorized to make such request or otherwise to act
on behalf of the Borrower. None of the Administrative Agent or the Lenders
shall incur any liability to the Borrower or any other Person in acting upon any
telephonic or facsimile notice referred to above which the Administrative Agent
believes to have been given by a person duly authorized to act on behalf of the
Borrower and the Borrower hereby indemnifies and holds harmless the
Administrative Agent and each
34
<PAGE>
other Lender from any loss or expense the Administrative Agent or the Lenders
might incur in acting in good faith as provided in this Section 2.7.
-----------
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
1.12 Prepayments.
-----------
(1) Voluntary Prepayments. The Borrower may, at any time and from
---------------------
time to time, prepay the Loans in part or in their entirety, subject to the
following limitations. The Borrower shall give at least five (5) Business Days'
prior written notice to the Administrative Agent (which the Administrative Agent
shall promptly transmit to each Lender) of any prepayment in the entirety to be
made prior to the occurrence of an Event of Default, which notice of prepayment
shall specify the date (which shall be a Business Day) of prepayment. When
notice of prepayment is delivered as provided herein, the outstanding principal
amount of the Loans on the prepayment date specified in the notice shall become
due and payable on such prepayment date. Each voluntary partial prepayment of
the Loans shall be in a minimum amount of $1,000,000 and in integral multiples
of $1,000,000 in excess of that amount. Eurodollar Rate Loans may be prepaid in
part or in their entirety only upon payment of the amounts described in Section
-------
5.2(f). Each such prepayment shall be applied to prepay ratably the Loans of the
------
Lenders. Any amount so prepaid pursuant to this Section 4.1(a) may not be
--------------
reborrowed.
(2) Intentionally Omitted.
---------------------
(3) No Penalty. The prepayments and payments in respect of
----------
reductions described in clause (a) of this Section 4.1 may be made without
-----------
premium or penalty (except as provided in Section 5.2(f)).
---------------
(4) Mandatory Prepayment. If at any time from and after the Closing
--------------------
Date: (i) the Borrower merges or consolidates with another Person in violation
of Section 10.7 hereof, or (ii) the Borrower or any Consolidated Business sells,
transfers, assigns or conveys assets, the book value of which (computed in
accordance with GAAP but without deduction for depreciation), in the aggregate
of
35
<PAGE>
all such sales, transfers, assignments, foreclosures, or conveyances exceeds 30%
of the Capitalization Value, or (iii) the portion of Capitalization Value
attributable to the aggregate Limited Minority Holdings (but excluding the
Borrower's interest in Pentagon Fashion Center) of the Borrower and its
Consolidated Businesses exceed 20% of Capitalization Value, or (iv) the Borrower
or the Management Company ceases to provide directly or through their Affiliates
property management and leasing services to at least 33% of the total number of
shopping centers in which the Borrower has an ownership interest (the date any
such event shall occur being the "Prepayment Date"), the Borrower shall be
---------------
required to prepay the Loans in their entirety as if the Prepayment Date were
the Termination Date. The Borrower shall immediately make such prepayment
together with interest accrued to the date of the prepayment on the principal
amount prepaid. In connection with the prepayment of any Loan prior to the
maturity thereof, the Borrower shall also pay any applicable expenses pursuant
to Section 5.2(f). Each such prepayment shall be applied to prepay ratably the
--------------
Loans of the Lenders. Amounts prepaid pursuant to this Section 4.1(d) may not be
--------------
reborrowed. As used in this Section 4.1(d) only, the phrase "sells, transfers,
--------------
assigns or conveys" shall not include (i) sales or conveyances among Borrower
and any Consolidated Businesses, or (ii) mortgages secured by Real Property.
1.13 Payments.
--------
(1) Manner and Time of Payment. All payments of principal of and
--------------------------
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent or any other Lender
shall be made without condition or reservation of right, in immediately
available funds, delivered to the Administrative Agent not later than 12:00 noon
(New York time) on the date and at the place due, to such account of the
Administrative Agent as it may designate, for the account of the Administrative
Agent or such other Lender, as the case may be; and funds received by the
Administrative Agent, not later than 12:00 noon (New York time) on any given
Business Day shall be credited against payment to be made that day and funds
received by the Administrative Agent after that time shall be deemed to have
been paid on the next succeeding Business Day. Payments actually received by the
Administrative Agent for the account of the Lenders, or any of them, shall be
paid to them by the Administrative Agent promptly after receipt thereof, in
immediately available funds.
(2) Apportionment of Payments. (i) Subject to the provisions of
-------------------------
Section 4.2(b)(iv), all payments of principal and interest in respect of
------------------
outstanding Loans, all payments of fees and all other payments in respect of any
other Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to
36
<PAGE>
their respective Pro Rata Shares or otherwise as provided herein. Subject to the
provisions of Section 4.2(b)(ii), all such payments and any other amounts
------------------
received by the Administrative Agent from or for the benefit of the Borrower
shall be applied in the following order:
(1) to pay principal of and interest on any portion of the Loans
which the Administrative Agent may have advanced on behalf of any Lender
other than itself for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower,
(2) to pay all other Obligations then due and payable and
(3) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of Loans shall be applied first, to repay outstanding Base Rate Loans, and then
----- ----
to repay outstanding Eurodollar Rate Loans, with those Eurodollar Rate Loans
which have earlier expiring Interest Periods being repaid prior to those which
have later expiring Interest Periods.
(ii) After the occurrence of an Event of Default and while the same is
continuing, the Administrative Agent shall apply all payments in respect of any
Obligations in the following order:
(4) first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Lender other than itself for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower;
(5) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent, in its
capacity as Administrative Agent and not as Lender;
(6) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(7) fourth, to pay interest due in respect of Loans;
(8) fifth, to the ratable payment or prepayment of principal
outstanding on Loans; and
37
<PAGE>
(9) sixth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
------------------
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent, the other Lenders and other Holders as
among themselves. The order of priority set forth in clauses (C) through (F) of
this Section 4.2(b)(ii) may at any time and from time to time be changed by the
------------------
Requisite Lenders without necessity of notice to or consent of or approval by
the Borrower, any Holder which is not a Lender, or any other Person. The order
of priority set forth in clauses (A) and (B) of this Section 4.2(b)(ii) may be
------------------
changed only with the prior written consent of the Administrative Agent.
(iii) Subject to Section 4.2(b)(iv), the Administrative Agent shall
------------------
promptly distribute to each other Lender at its primary address set forth on the
appropriate signature page hereof or the signature page to the Assignment and
Acceptance by which it became a Lender, or at such other address as a Lender or
other Holder may request in writing, such funds as such Person may be entitled
to receive, subject to the provisions of Article XII; provided that the
----------- --------
Administrative Agent shall under no circumstances be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of any
Holder and may suspend all payments or seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby.
(iv) In the event that any Lender fails to fund its Pro Rata Share
of any Loan requested by the Borrower which such Lender is obligated to fund
under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), until the earlier of such
-----------------
Lender's cure of such failure and the termination of the Commitments, the
proceeds of all amounts thereafter repaid to the Administrative Agent by the
Borrower and otherwise required to be applied to such Lender's share of all
other Obligations pursuant to the terms of this Agreement shall be advanced to
the Borrower by the Administrative Agent on behalf of such Lender to cure, in
full or in part, such failure by such Lender, but shall nevertheless be deemed
to have been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(10) the foregoing provisions of this Section 4.2(b)(iv) shall apply
------------------
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section 5.1(c);
--------------
38
<PAGE>
(11) a Lender shall be deemed to have cured its failure to fund its
Pro Rata Share of any Loan at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Loan is
fully funded to the Borrower, whether made by such Lender itself or by
operation of the terms of this Section 4.2(b)(iv), and whether or not the
------------------
Non Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(12) amounts advanced to the Borrower to cure, in full or in part,
any such Lender's failure to fund its Pro Rata Share of any Loan ("Cure
----
Loans") shall bear interest at the Base Rate in effect from time to time,
-----
and for all other purposes of this Agreement shall be treated as if they
were Base Rate Loans; and
(13) regardless of whether or not an Event of Default has occurred or
is continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in accordance
with the other terms of this Section 4.2, would be applied to the
-----------
outstanding Base Rate Loans shall be applied first, ratably to all Base
-----
Rate Loans constituting Non Pro Rata Loans, second, ratably to Base Rate
------
Loans other than those constituting Non Pro Rata Loans or Cure Loans and,
third, ratably to Base Rate Loans constituting Cure Loans.
-----
(3) Payments on Non-Business Days. Whenever any payment to be made
-----------------------------
by the Borrower hereunder or under the Notes is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 5.2(b)(iii), the next preceding
-------------------
Business Day).
1.14 Promise to Repay; Evidence of Indebtedness.
------------------------------------------
(1) Promise to Repay. The Borrower and the Company, jointly and
----------------
severally, each hereby agrees to pay when due the principal amount of each Loan
which is made to it, and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the Notes. The
Borrower shall execute and deliver to each Lender on the Closing Date, a
promissory note, in form and substance acceptable to the Administrative Agent
and such Lender, evidencing the Loans and thereafter shall execute and deliver
such other promissory notes as are necessary to evidence the Loans owing to the
Lenders after giving effect to any assignment thereof pursuant to Section 15.1,
------------
all in form and substance acceptable to the Administrative Agent and the parties
to such assignment (all such promissory
39
<PAGE>
notes and all amendments thereto, replacements thereof and substitutions
therefor being collectively referred to as the "Notes"; and "Note" means any one
----- ----
of the Notes).
(2) Loan Account. Each Lender shall maintain in accordance with
------------
its usual practice an account or accounts (a "Loan Account") evidencing the
------------
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under the Notes.
Notwithstanding the foregoing, the failure by any Lender to maintain a Loan
Account shall in no way affect the Borrower's obligations hereunder, including,
without limitation, the obligation to repay the Obligations.
(3) Control Account. The Register maintained by the Administrative
---------------
Agent pursuant to Section 15.1(c) shall include a control account, and a
---------------
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the type of
Loan comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance
delivered to and accepted by it and the parties thereto, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder or under the Notes and (iv) the amount of any
sum received by the Administrative Agent from the Borrower hereunder and each
Lender's share thereof.
(4) Entries Binding. The entries made in the Register and each
---------------
Loan Account shall be conclusive and binding for all purposes, absent manifest
error.
(5) No Recourse to Limited Partners or Certain General Partners.
-----------------------------------------------------------
Notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed that nothing herein or in the Notes shall be
construed as creating any liability on any Limited Partner, any General Partner
other than the Company, or any partner, officer, shareholder or director of any
Limited Partner or any General Partner, to pay any of the Obligations other than
liability arising from or in connection with (i) fraud or (ii) the
misappropriation or misapplication of proceeds of the Loans; but nothing
contained in this Section 4.3(e) shall be construed to prevent the exercise of
--------------
any remedy allowed to the Administrative Agent or the Lenders by law or by the
terms of this Agreement or the other Loan Documents which does not relate to or
result in such an obligation by any Limited Partner or any General Partner other
than the Company (or any partner, officer, shareholder or director of any
Limited Partner or any General Partner) to pay money.
40
<PAGE>
ARTICLE V
INTEREST AND FEES
1.15 Interest on the Loans and other Obligations.
-------------------------------------------
(1) Rate of Interest. All Loans and the outstanding principal balance
----------------
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
--------------
follows:
(1) If a Base Rate Loan or such other Obligation, at a rate per annum
equal to the sum of (A) the Base Rate, as in effect from time to time as
interest accrues, plus (B) the then Applicable Margin for Base Rate Loans;
----
and
(2) If a Eurodollar Rate Loan, at a rate per annum equal to the sum
of (A) the Eurodollar Rate determined for the applicable Eurodollar
Interest Period, plus (B) the then Applicable Margin for Eurodollar Rate
----
Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time the Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the Eurodollar Rate as the
-------- -------
applicable basis for determining the rate of interest on such a Loan if at the
time of such selection an Event of Default or a Potential Event of Default would
occur or has occurred and is continuing and further provided that, from and
------- -------- ----
after the occurrence of an Event of Default or a Potential Event of Default,
each Eurodollar Rate Loan then outstanding may, at the Administrative Agent's
option, convert to a Base Rate Loan. If on any day any Loan is outstanding with
respect to which notice has not been timely delivered to the Administrative
Agent in accordance with the terms of this Agreement specifying the basis for
determining the rate of interest on that day, then for that day interest on that
Loan shall be determined by reference to the Base Rate.
(2) Interest Payments. (i) Interest accrued on each Loan shall be
-----------------
calculated on the last day of each calendar month and shall be payable in
arrears (A) on the first day of each calendar month, commencing on the first
such day following the making of such Loan, and (B) if not theretofore paid in
full, at maturity (whether by acceleration or otherwise) of such Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be
41
<PAGE>
payable in arrears (A) on the first day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (B) upon
repayment thereof in full or in part, and (C) if not theretofore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(3) Conversion or Continuation. (i) The Borrower shall have the
--------------------------
option (A) to convert at any time all or any part of outstanding Base Rate Loans
to Eurodollar Rate Loans; (B) to convert all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; (C) to continue all or any
part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods
which expire on the same date as Eurodollar Rate Loans, and the succeeding
Eurodollar Interest Period of such continued Loans shall commence on such
expiration date; provided, however, no such outstanding Loan may be continued
-------- -------
as, or be converted into, a Eurodollar Rate Loan (i) if the continuation of, or
the conversion into, would violate any of the provisions of Section 5.2 or (ii)
-----------
if an Event of Default or a Potential Event of Default would occur or has
occurred and is continuing. Any conversion into or continuation of Eurodollar
Rate Loans under this Section 5.1(c) shall be in a minimum amount of $1,000,000
--------------
and in integral multiples of $100,000 in excess of that amount, except in the
case of a conversion into or a continuation of an entire Borrowing of Non Pro
Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
-----------------
Borrower shall deliver a Notice of Conversion/Continuation to the Administrative
Agent no later than 11:00 a.m. (New York time) at least three (3) Business Days
in advance of the proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (A) the proposed conversion/continuation
date (which shall be a Business Day), (B) the principal amount of the Loan to be
converted/continued, (C) whether such Loan shall be converted and/or continued,
and (D) in the case of a conversion to, or continuation of, a Eurodollar Rate
Loan, the requested Eurodollar Interest Period. In lieu of delivering a Notice
of Conversion/Continuation, the Borrower may give the Administrative Agent
telephonic notice of any proposed conversion/continuation by the time required
under this Section 5.1(c)(ii), if the Borrower confirms such notice by delivery
------------------
of the Notice of Conversion/Continuation to the Administrative Agent by
facsimile transmission promptly, but in no event later than 3:00 p.m. (New York
time) on the same day. Promptly after receipt of a Notice of
Conversion/Continuation under this Section 5.1(c)(ii) (or telephonic notice in
------------------
lieu thereof), the Administrative Agent shall notify each Lender by facsimile
transmission, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) given
pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower shall
------------------
be
42
<PAGE>
bound to convert or continue in accordance therewith. In the event no Notice of
Conversion/Continuation is delivered as and when specified in this Section
-------
5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
----------
expiration of the Interest Period applicable thereto, such Loans shall
automatically be continued as Eurodollar Rate Loans with a Eurodollar Interest
Period of thirty (30) days; provided, however, no such outstanding Loan may be
-------- -------
continued as, or be converted into, a Eurodollar Rate Loan (i) if the
continuation of, or the conversion into, would violate any of the provisions of
Section 5.2 or (ii) if an Event of Default or a Potential Event of Default would
-----------
occur or has occurred and is continuing.
(4) Default Interest. Notwithstanding the rates of interest specified
----------------
in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
--------------
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to the sum of (A) the Base Rate,
as in effect from time to time as interest accrues, plus (B) four percent (4.0%)
----
per annum.
(5) Computation of Interest. Interest on all Obligations shall be
-----------------------
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded.
(6) Eurodollar Rate Information. Upon the reasonable request of the
---------------------------
Borrower from time to time, the Administrative Agent shall promptly provide to
the Borrower such information with respect to the applicable Eurodollar Rate as
may be so requested.
1.16 Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
(1) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall
-------------------------------
be in a minimum principal amount of $1,500,000 and in integral multiples of
$100,000 in excess of that amount.
(2) Determination of Eurodollar Interest Period. By giving notice as
-------------------------------------------
set forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate
--------------
Loans), or Section 5.1(c) (with respect to a conversion into or continuation of
--------------
Eurodollar Rate Loans), the Borrower shall have the option, subject to the other
provisions of this
43
<PAGE>
Section 5.2, to select an interest period (each, an "Interest Period") to apply
----------- ---------------
to the Loans described in such notice, subject to the following provisions:
(1) The Borrower may only select, as to a particular Borrowing of
Eurodollar Rate Loans, an Interest Period (each, a "Eurodollar Interest
-------------------
Period") of one, two, three or six months in duration or, with the prior
------
written consent of the Administrative Agent, a shorter or a longer
duration;
(2) In the case of immediately successive Eurodollar Interest Periods
applicable to a Borrowing of Eurodollar Rate Loans, each successive
Eurodollar Interest Period shall commence on the day on which the next
preceding Eurodollar Interest Period expires;
(3) If any Eurodollar Interest Period would otherwise expire on a day
which is not a Business Day, such Eurodollar Interest Period shall be
extended to expire on the next succeeding Business Day if the next
succeeding Business Day occurs in the same calendar month, and if there
will be no succeeding Business Day in such calendar month, the Eurodollar
Interest Period shall expire on the immediately preceding Business Day;
(4) The Borrower may not select an Interest Period as to any Loan if
such Interest Period terminates later than the Termination Date; and
(5) There shall be no more than four (4) Interest Periods in effect
at any one time with respect to Eurodollar Rate Loans.
(3) Determination of Eurodollar Interest Rate. As soon as practicable
-----------------------------------------
on the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Administrative
-------------------------------------------
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Eurodollar Interest Period and shall promptly give notice thereof (in writing or
by telephone confirmed in writing) to the Borrower and to each Lender. The
Administrative Agent's determination shall be presumed to be correct, absent
manifest error, and shall be binding upon the Borrower.
(4) Interest Rate Unascertainable, Inadequate or Unfair. In the event
---------------------------------------------------
that at least one (1) Business Day before a Eurodollar Interest Rate
Determination Date:
44
<PAGE>
(1) the Administrative Agent is advised by the Reference Bank that
deposits in Dollars (in the applicable amounts) are not being offered by
the Reference Bank in the London interbank market for such Eurodollar
Interest Period; or
(2) the Administrative Agent determines that adequate and fair means
do not exist for ascertaining the applicable interest rates by reference to
which the Eurodollar Rate then being determined is to be fixed; or
(3) the Requisite Lenders advise the Administrative Agent that the
Eurodollar Rate for Eurodollar Rate Loans comprising such Borrowing will
not adequately reflect the cost to such Requisite Lenders of obtaining
funds in Dollars in the London interbank market in the amount substantially
equal to such Lenders' Eurodollar Rate Loans in Dollars and for a period
equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurodollar Rate
shall be suspended and each outstanding Eurodollar Rate Loan shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
therefor, notwithstanding any prior election by the Borrower to the contrary.
(5) Illegality. (i) If at any time any Lender determines (which
----------
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the Borrower
and the Administrative Agent, and the Administrative Agent shall promptly
transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i), (A)
-----------------
the Borrower's right to request from such Lender and such Lender's obligation,
if any, to make Eurodollar Rate Loans shall be immediately suspended, and such
Lender shall make a Base Rate Loan as part of any requested Borrowing of
Eurodollar Rate
45
<PAGE>
Loans and (B) if the affected Eurodollar Rate Loans are then outstanding, the
Borrower shall immediately, or if permitted by applicable law, no later than the
date permitted thereby, upon at least one (1) Business Day's prior written
notice to the Administrative Agent and the affected Lender, convert each such
Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
-------
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
---------
Loans, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans
shall thereupon be restored.
(6) Compensation. In addition to all amounts required to be paid by
------------
the Borrower pursuant to Section 5.1 and Article XIII, the Borrower shall
----------- ------------
compensate each Lender, upon demand, for all losses, expenses and liabilities
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender's Eurodollar Rate Loans to the Borrower but
excluding any loss of Applicable Margin on the relevant Loans) which that Lender
may sustain (i) if for any reason a Borrowing, conversion into or continuation
of Eurodollar Rate Loans does not occur on a date specified therefor in a Notice
of Borrowing or a Notice of Conversion/Continuation given by the Borrower or in
a telephonic request by it for borrowing or conversion/ continuation or a
successive Eurodollar Interest Period does not commence after notice therefor is
given pursuant to Section 5.1(c), including, without limitation, pursuant to
--------------
Section 5.2(d), (ii) if for any reason any Eurodollar Rate Loan is prepaid
-------------
(including, without limitation, mandatorily pursuant to Section 4.1(d)) on a
--------------
date which is not the last day of the applicable Interest Period, (iii) as a
consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate
Loan as a result of any of the events indicated in Section 5.2(d), or (iv) as a
--------------
consequence of any failure by the Borrower to repay a Eurodollar Rate Loan when
required by the terms of this Agreement. The Lender making demand for such
compensation shall deliver to the Borrower concurrently with such demand a
written statement in reasonable detail as to such losses, expenses and
liabilities, and this statement shall be conclusive as to the amount of
compensation due to that Lender, absent manifest error.
(7) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
--------------------------------
transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender
46
<PAGE>
shall be entitled, however, to receive any greater amount under Sections
--------
4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar
--- ----- ------------
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(8) Affiliates Not Obligated. No Eurodollar Affiliate or other
------------------------
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(9) Adjusted Eurodollar Rate. Any failure by any Lender to take into
------------------------
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for any
future period.
1.17 Fees.
----
(1) Facility Fee. Borrower shall pay to the Administrative Agent, for
------------
the account of the Lenders based on their respective Pro Rata Shares, a fee (the
"Facility Fee"), accruing at a per annum rate equal to the then applicable
------------
Facility Fee Percentage on the aggregate outstanding Loans, such fee being
payable monthly, in arrears, commencing on the first day of the month next
succeeding the Closing Date and on the first day of each month thereafter.
Notwithstanding the foregoing, in the event that any Lender fails to fund its
Pro Rata Share of any Loan requested by the Borrower which such Lender is
obligated to fund under the terms of this Agreement, (A) such Lender shall not
be entitled to any portion of the Facility Fee with respect to its Commitment
until such failure has been cured in accordance with Section 4.2(b)(iv)(B) and
---------------------
(B) until such time, the Facility Fee shall accrue in favor of the Lenders which
have funded their respective Pro Rata Shares of such requested Loan, shall be
allocated among such performing Lenders ratably based upon their relative
Commitments, and shall be calculated based upon the average amount by which the
aggregate Commitments of such performing Lenders exceeds the outstanding
principal amount of the Loans owing to such performing Lenders.
(2) Upfront Fee. Borrower shall pay to the Administrative Agent, for
-----------
the account of the Lenders based on their respective Pro Rata Shares, on the
Closing Date, a fee at a per annum rate equal to .075% on the then aggregate
outstanding Loans.
47
<PAGE>
(3) Commitment Fee. Borrower shall pay to the Administrative Agent,
--------------
for the account of the Lenders based on their respective Pro Rata Shares, on
March 23, 2001, a fee (the "Commitment Fee") at a per annum rate equal to .125%
--------------
on the then aggregate outstanding Loans.
(4) Calculation and Payment of Fees. All fees shall be calculated on
-------------------------------
the basis of the actual number of days elapsed in a 360-day year. All fees shall
be payable in addition to, and not in lieu of, interest, compensation, expense
reimbursements, indemnification and other Obligations. Fees shall be payable to
the Administrative Agent at its office in New York, New York in immediately
available funds. All fees shall be fully earned and nonrefundable when paid. All
fees due to any other Lender, including, without limitation, those referred to
in this Section 5.3, shall bear interest, if not paid when due, at the interest
-----------
rate specified in Section 5.1(d) and shall constitute Obligations.
--------------
ARTICLE VI
CONDITIONS TO LOANS
1.18 Conditions Precedent to the Loans. The obligation of each Lender
---------------------------------
on the Closing Date to make any Loan requested to be made by it shall be subject
to the satisfaction of all of the following conditions precedent:
(1) Documents. The Administrative Agent shall have received on or
---------
before the Closing Date all of the following:
(1) this Agreement, the Notes, and, to the extent not otherwise
specifically referenced in this Section 6.1(a), all other Loan Documents
--------------
and agreements, documents and instruments described in the List of Closing
Documents attached hereto as Exhibit E and made a part hereof, each duly
---------
executed and in recordable form, where appropriate, and in form and
substance satisfactory to the Administrative Agent; without limiting the
foregoing, the Borrower hereby directs its legal counsel to prepare and
deliver to the Agents, the Lenders, and Skadden, Arps, Slate, Meagher &
Flom LLP the legal opinions referred to in such List of Closing Documents;
and
(2) such additional documentation as the Administrative Agent may
reasonably request.
48
<PAGE>
(2) No Legal Impediments. No law, regulation, order, judgment or
--------------------
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received any notice that litigation is pending or threatened which is
likely to (i) enjoin, prohibit or restrain the making of the Loans on the
Closing Date or (ii) impose or result in the imposition of a Material Adverse
Effect.
(3) No Change in Condition. No change in the business, assets,
----------------------
management, operations, financial condition or prospects of the Borrower or any
of its Properties shall have occurred since June 30, 2000, which change, in the
judgment of the Administrative Agent, will have or is reasonably likely to have
a Material Adverse Effect.
(4) Interim Liabilities and Equity. Except as disclosed to the
------------------------------
Lenders, since June 30, 2000, neither the Borrower nor the Company shall have
(i) entered into any material (as determined in good faith by the Administrative
Agent) commitment or transaction, including, without limitation, transactions
for borrowings and capital expenditures, which are not in the ordinary course of
the Borrower's business, (ii) declared or paid any dividends or other
distributions other than in the ordinary course of business, (iii) established
compensation or employee benefit plans, or (iv) redeemed or issued any equity
Securities.
(5) No Loss of Material Agreements and Licenses. Since June 30, 2000,
-------------------------------------------
no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Properties shall have been terminated,
modified, revoked, breached or declared to be in default, the termination,
modification, revocation, breach or default under which, in the reasonable
judgment of the Administrative Agent, would result in a Material Adverse Effect.
(6) No Market Changes. Since June 30, 2000, no material adverse
-----------------
change shall have occurred in the conditions in the capital markets or the
market for loan syndications generally.
(7) No Default. No Event of Default or Potential Event of Default
----------
shall have occurred and be continuing or would result from the making of the
Loans.
(8) Representations and Warranties. All of the representations and
------------------------------
warranties contained in Section 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Closing Date.
49
<PAGE>
(9) Fees and Expenses Paid. There shall have been paid to the
----------------------
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Closing Date and all
expenses due and payable on or before the Closing Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
1.19 Representations and Warranties of the Borrower. In order to
----------------------------------------------
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower described herein, the Borrower
hereby represents and warrants to each Lender that the following statements are
true, correct and complete:
(1) Organization; Powers. (i) The Borrower (A) is a limited
--------------------
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have or is reasonably likely to have a Material
Adverse Effect, (C) has filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate
Governmental Authority in each state in which failure to do so would have a
Material Adverse Effect, (D) has all requisite power and authority to own,
operate and encumber its Property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement and (E) is a
partnership for federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, (B) is
duly authorized and qualified to do business and is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing will have or is reasonably likely to have a Material Adverse Effect,
and (C) has all requisite corporate power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted.
(iii) SPG (A) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland, (B) is duly authorized
and
50
<PAGE>
qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing will have
or is reasonably likely to have a Material Adverse Effect, and (C) has all
requisite corporate power and authority to own, operate and encumber its
Property and to conduct its business as presently conducted.
(iv) True, correct and complete copies of the Organizational
Documents identified on Schedule 7.1-A have been delivered to the Administrative
--------------
Agent, each of which is in full force and effect, has not been modified or
amended except to the extent set forth indicated therein and, to the best of the
Borrower's knowledge, there are no defaults under such Organizational Documents
and no events which, with the passage of time or giving of notice or both, would
constitute a default under such Organizational Documents.
(v) Neither the Borrower, the Company nor any of their Affiliates
are "foreign persons" within the meaning of Section 1445 of the Internal Revenue
Code.
(2) Authority. (i) Each General Partner has the requisite power
---------
and authority to execute, deliver and perform this Agreement on behalf of the
Borrower and each of the other Loan Documents which are required to be executed
on behalf of the Borrower as required by this Agreement.
(ii) The Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement and each of the other Loan Documents
to which it is a party.
(iii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the General Partners acting on behalf of the Borrower in connection
therewith, all necessary corporate action of such General Partner) and such
authorization has not been rescinded. No other partnership or corporate action
or proceedings on the part of the Borrower or any General Partner is necessary
to consummate such transactions.
(iv) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Company and to which the Company is a party and the consummation of the
transactions contemplated thereby are within the Company's corporate powers,
have
51
<PAGE>
been duly authorized by all necessary corporate action and such authorization
has not been rescinded. No other corporate action or proceeding on the part of
the Company is necessary to consummate such transactions.
(v) Each of the Loan Documents to which the Borrower is a party has
been duly executed and delivered on behalf of the Borrower and constitutes the
Borrower's legal, valid and binding obligation, enforceable against the Borrower
in accordance with its terms, is in full force and effect and all the terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by the Company, the Borrower and the Borrower's
Subsidiaries on or before the Closing Date have been performed or complied with,
and no Potential Event of Default, Event of Default or breach of any covenant by
any of the Company, the Borrower or any Subsidiary of the Borrower exists
thereunder.
(3) Subsidiaries; Ownership of Capital Stock and Partnership
--------------------------------------------------------
Interests. (i) Schedule 7.1-C (A) contains a diagram indicating the corporate
--------- --------------
structure of the Company, the Borrower, and any other Person in which the
Company or the Borrower holds a direct or indirect partnership, joint venture or
other equity interest indicating the nature of such interest with respect to
each Person included in such diagram; and (B) accurately sets forth (1) the
correct legal name of such Person, the jurisdiction of its incorporation or
organization and the jurisdictions in which it is qualified to transact business
as a foreign corporation, or otherwise, and (2) the authorized, issued and
outstanding shares or interests of each class of Securities of the Company, the
Borrower and the Subsidiaries of the Borrower and the owners of such shares or
interests. None of such issued and outstanding Securities is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options (other than Permitted Securities Options) outstanding with respect to
such Securities, except as noted on Schedule 7.1-C. The outstanding Capital
--------------
Stock of the Company is duly authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of the Borrower and its
Subsidiaries are duly authorized and validly issued. Attached hereto as part of
Schedule 7.1-C is a true, accurate and complete copy of the Borrower Partnership
--------------
Agreement as in effect on the Closing Date and such Partnership Agreement has
not been amended, supplemented, replaced, restated or otherwise modified in any
respect since the Closing Date.
(ii) Except where failure may not have a Material Adverse Effect,
each Subsidiary: (A) is a corporation or partnership, as indicated on Schedule
--------
7.1-C, duly organized, validly existing and, if applicable, in good standing
-----
under the laws of the jurisdiction of its organization, (B) is duly qualified to
do business and, if applicable, is in good standing under the laws of each
jurisdiction in which failure to be so
52
<PAGE>
qualified and in good standing would limit its ability to use the courts of such
jurisdiction to enforce Contractual Obligations to which it is a party, and (C)
has all requisite power and authority to own, operate and encumber its Property
and to conduct its business as presently conducted and as proposed to be
conducted hereafter.
(4) No Conflict. The execution, delivery and performance of each of
-----------
the Loan Documents to which the Borrower is a party do not and will not (i)
conflict with the Organizational Documents of the Borrower or any Subsidiary of
the Borrower, (ii) constitute a tortious interference with any Contractual
Obligation of any Person or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of the Borrower, the General
Partners, any Limited Partner, any Subsidiary of the Borrower, or any general or
limited partner of any Subsidiary of the Borrower, or require termination of any
such Contractual Obligation which may subject the Administrative Agent or any of
the other Lenders to any liability, (iii) result in or require the creation or
imposition of any Lien whatsoever upon any of the Property or assets of the
Borrower, any General Partner, any Limited Partner, any Subsidiary of the
Borrower, or any general partner or limited partner of any Subsidiary of the
Borrower, or (iv) require any approval of shareholders of the Company or any
general partner (or equity holder of any general partner) of any Subsidiary of
the Borrower.
(5) Governmental Consents. The execution, delivery and performance
---------------------
of each of the Loan Documents to which the Borrower is a party do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, except filings, consents
or notices which have been made, obtained or given.
(6) Governmental Regulation. Neither the Borrower nor any General
-----------------------
Partner is subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, or the Investment
Company Act of 1940, or any other federal or state statute or regulation which
limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated by this Agreement.
(7) Financial Position. Complete and accurate copies of the
------------------
following financial statements and materials have been delivered to the
Administrative Agent: (i) annual audited financial statements of the Borrower
and its Subsidiaries for the fiscal year ended December 31, 1999, and (ii)
quarterly financial statements for the Borrower and its Subsidiaries for the
fiscal quarter ending June 30,
53
<PAGE>
2000. All financial statements included in such materials were prepared in all
material respects in conformity with GAAP, except as otherwise noted therein,
and fairly present in all material respects the respective consolidated
financial positions, and the consolidated results of operations and cash flows
for each of the periods covered thereby of the Borrower and its Subsidiaries as
at the respective dates thereof. Neither the Borrower nor any of its
Subsidiaries has any Contingent Obligation, contingent liability or liability
for any taxes, long-term leases or commitments, not reflected in its audited
financial statements delivered to the Administrative Agent on or prior to the
Closing Date or otherwise disclosed to the Administrative Agent and the Lenders
in writing, which will have or is reasonably likely to have a Material Adverse
Effect.
(8) Indebtedness. Schedule 7.1-H sets forth, as of June 30, 2000,
------------ --------------
all Indebtedness for borrowed money of each of the Borrower, the General
Partners and their respective Subsidiaries and, except as set forth on Schedule
--------
7.1-H, there are no defaults in the payment of principal or interest on any such
-----
Indebtedness and no payments thereunder have been deferred or extended beyond
their stated maturity and there has been no material change in the type or
amount of such Indebtedness (except for the repayment of certain Indebtedness)
since June 30, 2000.
(9) Litigation; Adverse Effects. Except as set forth in Schedule
--------------------------- --------
7.1I, as of the Closing Date, there is no action, suit, proceeding, Claim,
----
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Company, the Borrower, or any of their respective Subsidiaries, or any Property
of any of them (i) challenging the validity or the enforceability of any of the
Loan Documents, (ii) which will or is reasonably likely to result in any
Material Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets to
any Governmental Authority as a potential criminal penalty. There is no material
loss contingency within the meaning of GAAP which has not been reflected in the
consolidated financial statements of the Company and the Borrower. None of the
Company, the Borrower or any Subsidiary of the Borrower is (A) in violation of
any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or is reasonably likely to have a Material Adverse Effect.
54
<PAGE>
(10) No Material Adverse Effect. Since June 30, 2000, there has
--------------------------
occurred no event which has had or is reasonably likely to have a Material
Adverse Effect.
(11) Tax Examinations. The IRS has examined (or is foreclosed from
----------------
examining by applicable statutes) the federal income tax returns of any of the
Company's, the Borrower's or its Subsidiaries' predecessors in interest with
respect to the Projects for all tax periods prior to and including the taxable
year ending December 31, 1997 and the appropriate state Governmental Authority
in each state in which the Company's, the Borrower's or its Subsidiaries'
predecessors in interest with respect to the Projects were required to file
state income tax returns has examined (or is foreclosed from examining by
applicable statutes) the state income tax returns of any of such Persons with
respect to the Projects for all tax periods prior to and including the taxable
year ending December 31, 1997. All deficiencies which have been asserted against
such Persons as a result of any federal, state, local or foreign tax examination
for each taxable year in respect of which an examination has been conducted have
been fully paid or finally settled or are being contested in good faith, and no
issue has been raised in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion of a material
deficiency for any other year not so examined which has not been reserved for in
the financial statements of such Persons to the extent, if any, required by
GAAP. No such Person has taken any reporting positions for which it does not
have a reasonable basis nor anticipates any further material tax liability with
respect to the years which have not been closed pursuant to applicable law.
(12) Payment of Taxes. All tax returns, reports and similar
----------------
statements or filings of each of the Persons described in Section 7.1(k), the
--------------
Company, the Borrower and its Subsidiaries required to be filed have been timely
filed, and, except for Customary Permitted Liens, all taxes, assessments, fees
and other charges of Governmental Authorities thereupon and upon or relating to
their respective Properties, assets, receipts, sales, use, payroll, employment,
income, licenses and franchises which are shown in such returns or reports to be
due and payable have been paid, except to the extent (i) such taxes,
assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of Section 9.4 and (ii) such taxes, assessments, fees and
-----------
other charges of Governmental Authorities pertain to Property of the Borrower or
any of its Subsidiaries and the non-payment of the amounts thereof would not,
individually or in the aggregate, result in a Material Adverse Effect. All other
taxes (including, without limitation, real estate taxes), assessments, fees and
other governmental charges upon or relating to the respective
55
<PAGE>
Properties of the Borrower and its Subsidiaries which are due and payable have
been paid, except for Customary Permitted Liens and except to the extent
described in clauses (i) and (ii) hereinabove. The Borrower has no knowledge of
any proposed tax assessment against the Borrower, any of its Subsidiaries, or
any of the Projects that will have or is reasonably likely to have a Material
Adverse Effect.
(13) Performance. Neither the Company, the Borrower nor any of their
-----------
Affiliates has received any notice, citation or allegation, nor has actual
knowledge, that (i) it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
Contractual Obligation applicable to it, (ii) any of its Properties is in
violation of any Requirements of Law or (iii) any condition exists which, with
the giving of notice or the lapse of time or both, would constitute a default
with respect to any such Contractual Obligation, in each case, except where such
default or defaults, if any, will not have or is not reasonably likely to have a
Material Adverse Effect.
(14) Disclosure. The representations and warranties of the Borrower
----------
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading. The Borrower
has not intentionally withheld any fact from the Administrative Agent or the
other Lenders in regard to any matter which will have or is reasonably likely to
have a Material Adverse Effect. Notwithstanding the foregoing, the Lenders
acknowledge that the Borrower shall not have liability under this clause (o)
with respect to its projections of future events.
(15) Requirements of Law. The Borrower and each of its Subsidiaries
-------------------
is in compliance with all Requirements of Law applicable to it and its
respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have or is reasonably likely to
have a Material Adverse Effect.
(16) Environmental Matters.
---------------------
(i) Except as disclosed on Schedule 7.1P:
-------------
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply with all applicable
Environmental, Health or Safety Requirements of Law;
56
<PAGE>
(B) the Borrower and each of its Subsidiaries have
obtained all material environmental, health and safety Permits necessary for
their respective operations, and all such Permits are in good standing and the
holder of each such Permit is currently in compliance with all terms and
conditions of such Permits;
(C) none of the Borrower or any of its Subsidiaries
or any of their respective present or past Property or operations are subject to
or are the subject of any investigation, judicial or administrative proceeding,
order, judgment, decree, dispute, negotiations, agreement or settlement
respecting (I) any Environmental, Health or Safety Requirements of Law, (II) any
Remedial Action, (III) any Claims or Liabilities and Costs arising from the
Release or threatened Release of a Contaminant into the environment, or (IV) any
violation of or liability under any Environmental, Health or Safety Requirement
of Law;
(D) none of Borrower or any of its Subsidiaries has
filed any notice under any applicable Requirement of Law (I) reporting a Release
of a Contaminant; (II) indicating past or present treatment, storage or disposal
of a hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent; or (III) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law;
(E) none of the Borrower's or any of its
Subsidiaries' present or past Property is listed or proposed for listing on the
National Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive
---
Environmental Response Compensation Liability Information System List
("CERCLIS") or any similar state list of sites requiring Remedial Action;
-------
(F) neither the Borrower nor any of its Subsidiaries
has sent or directly arranged for the transport of any waste to any site listed
or proposed for listing on the NPL, CERCLIS or any similar state list;
(G) to the best of Borrower's knowledge, there is not
now, and to Borrower's knowledge there has never been on or in any Project (I)
any treatment, recycling, storage or disposal of any hazardous waste, as that
term is defined under 40 C.F.R. Part 261 or any state equivalent; (II) any
landfill, waste pile, or surface impoundment; (III) any underground storage
tanks the presence or use of which is or, to Borrower's knowledge, has been in
violation of applicable Environmental, Health or Safety Requirements of Law,
(IV) any asbestos-containing material which such Person has any reason to
believe could subject such Person or its
57
<PAGE>
Property to Liabilities and Costs arising out of or relating to environmental,
health or safety matters that would result in a Material Adverse Effect; or (V)
any polychlorinated biphenyls (PCB) used in hydraulic oils, electrical
transformers or other Equipment which such Person has any reason to believe
could subject such Person or its Property to Liabilities and Costs arising out
of or relating to environmental, health or safety matters that would result in a
Material Adverse Effect;
(H) neither the Borrower nor any of its
Subsidiaries has received any notice or Claim to the effect that any of such
Persons is or may be liable to any Person as a result of the Release or
threatened Release of a Contaminant into the environment;
(I) neither the Borrower nor any of its
Subsidiaries has any contingent liability in connection with any Release or
threatened Release of any Contaminants into the environment;
(J) no Environmental Lien has attached to any
Property of the Borrower or any Subsidiary of the Borrower;
(K) no Property of the Borrower or any
Subsidiary of the Borrower is subject to any Environmental Property Transfer
Act, or to the extent such acts are applicable to any such Property, the
Borrower and/or such Subsidiary whose Property is subject thereto has fully
complied with the requirements of such acts; and
(L) neither the Borrower nor any of its
Subsidiaries owns or operates, or, to Borrower's knowledge has ever owned or
operated, any underground storage tank, the presence or use of which is or has
been in violation of applicable Environmental, Health or Safety Requirements of
Law, at any Project.
(ii) the Borrower and each of its Subsidiaries are
conducting and will continue to conduct their respective businesses and
operations and maintain each Project in compliance with Environmental, Health or
Safety Requirements of Law and no such Person has been, and no such Person has
any reason to believe that it or any Project will be, subject to Liabilities and
Costs arising out of or relating to environmental, health or safety matters that
would result in a Material Adverse Effect.
58
<PAGE>
(17) ERISA. Neither the Borrower nor any ERISA Affiliate maintains
-----
or contributes to any Plan or Multiemployer Plan other than those listed on
Schedule 7.1-Q hereto. Each such Plan which is intended to be qualified under
--------------
Section 401(a) of the Internal Revenue Code as currently in effect has been
determined by the IRS to be so qualified, and each trust related to any such
Plan has been determined to be exempt from federal income tax under Section
501(a) of the Internal Revenue Code as currently in effect. Except as disclosed
in Schedule 7.1-Q, neither the Borrower nor any of its ERISA Affilates maintains
--------------
or contributes to any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA. The Borrower and each
of its ERISA Affiliates is in compliance in all material respects with the
responsibilities, obligations and duties imposed on it by ERISA, the Internal
Revenue Code and regulations promulgated thereunder with respect to all Plans.
No Plan has incurred any accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or not
waived. Neither the Borrower nor any ERISA Affiliate nor any fiduciary of any
Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt prohibited
transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue
Code or (ii) has taken or failed to take any action which would constitute or
result in a Termination Event. Neither the Borrower nor any ERISA Affiliate is
subject to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. Neither the Borrower nor any ERISA Affiliate has incurred any liability
to the PBGC which remains outstanding other than the payment of premiums, and
there are no premium payments which have become due which are unpaid. Schedule B
to the most recent annual report filed with the IRS with respect to each Plan
and furnished to the Administrative Agent is complete and accurate in all
material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the Plan
relating to such Schedule B. Neither the Borrower nor any ERISA Affiliate has
(i) failed to make a required contribution or payment to a Multiemployer Plan or
(ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA
from a Multiemployer Plan. Neither the Borrower nor any ERISA Affiliate has
failed to make a required installment or any other required payment under
Section 412 of the Internal Revenue Code on or before the due date for such
installment or other payment. Neither the Borrower nor any ERISA Affiliate is
required to provide security to a Plan under Section 401(a)(29) of the Internal
Revenue Code due to a Plan amendment that results in an increase in current
liability for the plan year. Except as disclosed on Schedule 7.1-Q, neither the
--------------
Borrower nor any of its ERISA Affiliates has, by reason of the transactions
contemplated hereby, any obligation to make any payment to any employee pursuant
to any Plan or existing contract or arrangement.
59
<PAGE>
(18) Securities Activities. The Borrower is not engaged in the
---------------------
business of extending credit for the purpose of purchasing or carrying Margin
Stock.
(19) Solvency. After giving effect to the Loans to be made on the
--------
Closing Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower is Solvent.
(20) Insurance. Schedule 7.1-T accurately sets forth as of the
--------- --------------
Closing Date all insurance policies and programs currently in effect with
respect to the respective Property and assets and business of the Borrower and
its Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has delivered
to the Administrative Agent copies of all insurance policies set forth on
Schedule 7.1-T. Such insurance policies and programs are currently in full force
--------------
and effect, in compliance with the requirements of Section 9.5 hereof and,
-----------
together with payment by the insured of scheduled deductible payments, are in
amounts sufficient to cover the replacement value of the respective Property and
assets of the Borrower and/or its Subsidiaries.
(21) REIT Status. The Company qualifies as a REIT under the Internal
-----------
Revenue Code.
(22) Ownership of Projects, Minority Holdings and Property. Ownership
-----------------------------------------------------
of substantially all wholly-owned Projects, Minority Holdings and other Property
of the Consolidated Businesses is held by the Borrower and its Subsidiaries and
is not held directly by any General Partner.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 15.3 not yet due), unless the
------------
Requisite Lenders shall otherwise give prior written consent thereto:
1.20 Borrower Accounting Practices. The Borrower shall maintain, and
-----------------------------
cause each of its Subsidiaries to maintain, a system of accounting established
and
60
<PAGE>
administered in accordance with sound business practices to permit preparation
of consolidated and consolidating financial statements in conformity with GAAP,
and each of the financial statements and reports described below shall be
prepared from such system and records and in form satisfactory to the
Administrative Agent.
1.21 Financial Reports. The Borrower shall deliver or cause to be
-----------------
delivered to the Administrative Agent and the Lenders:
(1) Quarterly Reports.
-----------------
(i) Borrower Quarterly Financial Reports. As soon as practicable,
------------------------------------
and in any event within fifty (50) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), a
consolidated balance sheet of the Borrower and the related consolidated
statements of income and cash flow of the Borrower (to be prepared and delivered
quarterly in conjunction with the other reports delivered hereunder at the end
of each fiscal quarter) for each such fiscal quarter, in each case in form and
substance satisfactory to the Administrative Agent and, in comparative form, the
corresponding figures for the corresponding periods of the previous Fiscal Year,
certified by an Authorized Financial Officer of the Borrower as fairly
presenting the consolidated and consolidating financial position of the Borrower
as of the dates indicated and the results of their operations and cash flow for
the months indicated in accordance with GAAP, subject to normal quarterly
adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and
-----------------------------------
in any event within fifty (50) days after the end of each fiscal quarter in each
Fiscal Year (other than the last fiscal quarter in each Fiscal Year), the
Financial Statements of the Company, the Borrower and its Subsidiaries on Form
10-Q as at the end of such period and a report setting forth in comparative form
the corresponding figures for the corresponding period of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Company as fairly
presenting the consolidated and consolidating financial position of the Company,
the Borrower and its Subsidiaries as at the date indicated and the results of
their operations and cash flow for the period indicated in accordance with GAAP,
subject to normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery
---------------------------------
of any quarterly report pursuant to paragraph (a)(i) of this Section 8.2, the
-----------
Borrower shall deliver Officer's Certificates of the Borrower and the Company
(the "Quarterly Compliance Certificates"), signed by the Borrower's and the
---------------------------------
Company's respective Authorized Financial Officers representing and certifying
(1) that the Authorized
61
<PAGE>
Financial Officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her supervision, a
review in reasonable detail of the transactions and consolidated and
consolidating financial condition of the Company, the Borrower and its
Subsidiaries, during the fiscal quarter covered by such reports, that such
review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as at
the date of such Officer's Certificate, of any condition or event which
constitutes an Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or exists, and
specifying the nature and period of existence thereof and what action the
General Partners and/or the Borrower or any of its Subsidiaries has taken, is
taking and proposes to take with respect thereto, (2) the calculations (with
such specificity as the Administrative Agent may reasonably request) for the
period then ended which demonstrate compliance with the covenants and financial
ratios set forth in Articles IX and X and, when applicable, that no Event of
-----------------
Default described in Section 11.1 exists, (3) a schedule of the Borrower's
------------
outstanding Indebtedness, including the amount, maturity, interest rate and
amortization requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by the Administrative Agent, (4) a
schedule of Combined EBITDA, (5) a schedule of Unencumbered Combined EBITDA, (6)
calculations, in the form of Exhibit G attached hereto, evidencing compliance
with each of the financial covenants set forth in Article X hereof, and (7) a
---------
schedule of the estimated taxable income of the Borrower for such fiscal
quarter.
(iv) Hedging Status Report. The Borrower shall deliver, within fifty
---------------------
(50) days after the end of each fiscal quarter of each Fiscal Year, a written
report which sets forth the details of the "Interest Rate Hedges" required under
Section 9.9.
-----------
(2) Annual Reports.
--------------
(i) Borrower Financial Statements. As soon as practicable, and in any
-----------------------------
event within ninety-five (95) days after the end of each Fiscal Year, (i) the
Financial Statements of the Borrower and its Subsidiaries as at the end of such
Fiscal Year, (ii) a report with respect thereto of Arthur Andersen & Co. or
other independent certified public accountants acceptable to the Administrative
Agent, which report shall be unqualified and shall state that such financial
statements fairly present the consolidated and consolidating financial position
of each of the Borrower and its Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes with which Arthur Andersen & Co. or any such other independent certified
public accountants, if applicable, shall concur and which shall
62
<PAGE>
have been disclosed in the notes to the financial statements), and (iii) in the
event that the report referred to in clause (ii) above is qualified, a copy of
the management letter or any similar report delivered to the General Partners or
to any officer or employee thereof by such independent certified public
accountants in connection with such financial statements (which letter or report
shall be subject to the confidentiality limitations set forth herein). The
Administrative Agent and each Lender (through the Administrative Agent) may,
with the consent of the Borrower (which consent shall not be unreasonably
withheld), communicate directly with such accountants, with any such
communication to occur together with a representative of the Borrower, at the
expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(ii) Company Financial Statements. As soon as practicable, and in any
----------------------------
event within ninety-five (95) days after the end of each Fiscal Year, (i) the
Financial Statements of the Company and its Subsidiaries on Form 10-K as at the
end of such Fiscal Year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior Fiscal Year; (ii) a report with respect
thereto of Arthur Andersen & Co. or other independent certified public
accountants acceptable to the Administrative Agent, which report shall be
unqualified and shall state that such financial statements fairly present the
consolidated and consolidating financial position of each of the Company and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which Arthur Andersen & Co.
or any such other independent certified public accountants, if applicable, shall
concur and which shall have been disclosed in the notes to the financial
statements)(which report shall be subject to the confidentiality limitations set
forth herein); and (iii) in the event that the report referred to in clause (ii)
above is qualified, a copy of the management letter or any similar report
delivered to the Company or to any officer or employee thereof by such
independent certified public accountants in connection with such financial
statements. The Administrative Agent and each Lender (through the
Administrative Agent) may, with the consent of the Company (which consent shall
not be unreasonably withheld), communicate directly with such accountants, with
any such communication to occur together with a representative of the Company,
at the expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(iii) Annual Compliance Certificates. Together with each delivery of
------------------------------
any annual report pursuant to clauses (i) and (ii) of this Section 8.2(b), the
--------------
Borrower
63
<PAGE>
shall deliver Officer's Certificates of the Borrower and the Company (the
"Annual Compliance Certificates" and, collectively with the Quarterly Compliance
------------------------------
Certificates, the "Compliance Certificates"), signed by the Borrower's and the
-----------------------
Company's respective Authorized Financial Officers, representing and certifying
that (1) the officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her supervision, a
review in reasonable detail of the transactions and consolidated and
consolidating financial condition of the General Partners, the Borrower and its
Subsidiaries, during the accounting period covered by such reports, that such
review has not disclosed the existence during or at the end of such accounting
period, and that such officer does not have knowledge of the existence as at the
date of such Officer's Certificate, of any condition or event which constitutes
an Event of Default or Potential Event of Default or mandatory prepayment event,
or, if any such condition or event existed or exists, and specifying the nature
and period of existence thereof and what action the General Partners and/or the
Borrower or any of its Subsidiaries has taken, is taking and proposes to take
with respect thereto, (2) the calculations (with such specificity as the
Administrative Agent may reasonably request) for the period then ended which
demonstrate compliance with the covenants and financial ratios set forth in
Articles IX and X and, when applicable, that no Event of Default described in
-----------------
Section 11.1 exists, (3) a schedule of the Borrower's outstanding Indebtedness
------------
including the amount, maturity, interest rate and amortization requirements, as
well as such other information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (4) a schedule of Combined EBITDA, (5) a
schedule of Unencumbered Combined EBITDA, (6) calculations, in the form of
Exhibit G attached hereto, evidencing compliance with each of the financial
covenants set forth in Article X hereof, and (7) a schedule of the estimated
---------
taxable income of the Borrower for such fiscal year.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any
-------------------------
event within ninety-five (95) days after the end of each Fiscal Year, the
Borrower shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against any
tenant of any of the Projects, which tenant occupies 3% or more of the gross
leasable area in the Projects in the aggregate. The Borrower shall deliver to
the Administrative Agent and the Lenders, immediately upon the Borrower's
learning thereof, of any bankruptcy proceedings filed by or against, or the
cessation of business or operations of, any tenant of any of the Projects which
tenant occupies 3% or more of the gross leasable area in the Projects in the
aggregate.
64
<PAGE>
(v) Property Reports. When reasonably requested by the Administrative
----------------
Agent, a rent roll, tenant sales report and income statement with respect to any
Project.
1.22 Events of Default. Promptly upon the Borrower obtaining
-----------------
knowledge (a) of any condition or event which constitutes an Event of Default or
Potential Event of Default, or becoming aware that any Lender or the
Administrative Agent has given any notice to the Borrower with respect to a
claimed Event of Default or Potential Event of Default under this Agreement; (b)
that any Person has given any notice to the Borrower or any Subsidiary of the
Borrower or taken any other action with respect to a claimed default or event or
condition of the type referred to in Section 11.1(e); or (c) of any condition or
---------------
event which has or is reasonably likely to have a Material Adverse Effect, the
Borrower shall deliver to the Administrative Agent and the Lenders an Officer's
Certificate specifying (i) the nature and period of existence of any such
claimed default, Event of Default, Potential Event of Default, condition or
event, (ii) the notice given or action taken by such Person in connection
therewith, and (iii) what action the Borrower has taken, is taking and proposes
to take with respect thereto. The occurrence of a condition or event described
in clause (c) above shall not constitute an Event of Default.
1.23 Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge
--------
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
--------------
which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of its Subsidiaries to liability in an amount aggregating $1,000,000 or
more and is not covered by Borrower's insurance, the Borrower shall give written
notice thereof to the Administrative Agent and the Lenders and provide such
other information as may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters; (ii) as soon as
practicable and in any event within fifty (50) days after the end of each fiscal
quarter of the Borrower, the Borrower shall provide a written quarterly report
to the Administrative Agent and the Lenders covering the institution of, or
written threat of, any action, suit, proceeding, governmental investigation or
arbitration (not previously reported) against or affecting the Borrower or any
of its Subsidiaries or any Property of the Borrower or any of its Subsidiaries
not previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable
65
<PAGE>
each Lender and the Administrative Agent and its counsel to evaluate such
matters; and (iii) in addition to the requirements set forth in clauses (i) and
(ii) of this Section 8.4, the Borrower upon request of the Administrative Agent
-----------
or the Requisite Lenders shall promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to clause (i) or (ii) above and provide such other
information as may be reasonably available to it to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
1.24 Insurance. As soon as practicable and in any event by January
---------
1st of each calendar year, the Borrower shall deliver to the Administrative
Agent and the Lenders (i) a report in form and substance reasonably satisfactory
to the Administrative Agent and the Lenders outlining all insurance coverage
maintained as of the date of such report by the Borrower and its Subsidiaries
and the duration of such coverage and (ii) evidence that all premiums with
respect to such coverage have been paid when due.
1.25 ERISA Notices. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent and the Lenders, at the Borrower's
expense, the following information and notices as soon as reasonably possible,
and in any event:
(a) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that an ERISA Termination Event has
occurred, a written statement of the chief financial officer of the
Borrower describing such ERISA Termination Event and the action, if any,
which the Borrower or any ERISA Affiliate has taken, is taking or proposes
to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or has
reason to know that a prohibited transaction (defined in Sections 406 of
ERISA and Section 4975 of the Internal Revenue Code) has occurred, a
statement of the chief financial officer of the Borrower describing such
transaction and the action which the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (form 5500 series),
including Schedule B thereto, filed with respect to each Plan;
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(d) within fifteen (15) Business Days after receipt by the Borrower or
any ERISA Affiliate of each actuarial report for any Plan or Multiemployer
Plan and each annual report for any Multiemployer Plan, copies of each such
report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to
any Plan and all communications received by the Borrower or any ERISA
Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Plan or Multiemployer
Plan or the establishment of any new Plan or the commencement of
contributions to any Plan or Multiemployer Plan to which the Borrower or
any ERISA Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice of the PBGC's intention to terminate a Plan or to
have a trustee appointed to administer a Plan, copies of each such notice;
(h) within fifteen (15) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter;
(i) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due
date for such installment or payment, a notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted
or will institute proceedings under Section 4042 of ERISA to
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terminate a Multiemployer Plan, notification of such termination, intention
to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate shall be
-----------
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
1.26 Environmental Notices. The Borrower shall notify the
---------------------
Administrative Agent and the Lenders in writing, promptly upon any
representative of the Borrower or other employee of the Borrower responsible for
the environmental matters at any Property of the Borrower learning thereof, of
any of the following (together with any material documents and correspondence
received or sent in connection therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law;
(e) any condition which might reasonably result in a violation by the
Borrower or any Subsidiary of the Borrower of any Environmental, Health or
Safety Requirement of Law, which violation would result in a Material
Adverse Effect;
(f) commencement or threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries
of any Environmental, Health or Safety Requirement of Law, which would
result in a Material Adverse Effect;
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(g) new or proposed changes to any existing Environmental, Health or
Safety Requirement of Law that could result in a Material Adverse Effect;
or
(h) any proposed acquisition of stock, assets, real estate, or
leasing of Property, or any other action by the Borrower or any of its
Subsidiaries that could subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which could result in
a Material Adverse Effect.
1.27 Labor Matters. The Borrower shall notify the Administrative
-------------
Agent and the Lenders in writing, promptly upon the Borrower's learning thereof,
of any labor dispute to which the Borrower or any of its Subsidiaries may become
a party (including, without limitation, any strikes, lockouts or other disputes
relating to any Property of such Persons' and other facilities) which could
result in a Material Adverse Effect.
1.28 Notices of Asset Sales and/or Acquisitions. The Borrower shall
------------------------------------------
deliver to the Administrative Agent and the Lenders written notice of each of
the following upon the occurrence thereof: (a) a sale, transfer or other
disposition of assets, in a single transaction or series of related
transactions, for consideration in excess of $50,000,000, (b) an acquisition of
assets, in a single transaction or series of related transactions, for
consideration in excess of $50,000,000, and (c) the grant of a Lien with respect
to assets, in a single transaction or series of related transactions, in
connection with Indebtedness aggregating an amount in excess of $50,000,000.
1.29 Tenant Notifications. The Borrower shall promptly notify the
--------------------
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than 3% of the Borrower's share of
consolidated minimum rent is attributable.
1.30 Other Reports. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent and the other Lenders copies of all
financial statements, reports, notices and other materials, if any, sent or made
available generally by any General Partner and/or the Borrower to its respective
Securities holders or filed with the Commission, all press releases made
available generally by any General Partner and/or the Borrower or any of its
Subsidiaries to the public concerning material developments in the business of
any General Partner, the Borrower or any such Subsidiary and all notifications
received by the General Partners, the
69
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Borrower or its Subsidiaries pursuant to the Securities Exchange Act and the
rules promulgated thereunder.
1.31 Other Information. Promptly upon receiving a request therefor
-----------------
from the Administrative Agent, the Borrower shall prepare and deliver to the
Administrative Agent and the other Lenders such other information with respect
to any General Partner, the Borrower, or any of its Subsidiaries, as from time
to time may be reasonably requested by the Administrative Agent.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 15.3 not yet due), unless the
------------
Requisite Lenders shall otherwise give prior written consent:
1.32 Existence, Etc. The Borrower shall, and shall cause each of its
---------------
Subsidiaries to, at all times maintain its corporate existence or existence as a
limited partnership or joint venture, as applicable, and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses, except where the loss or termination of
such rights and franchises is not likely to have a Material Adverse Effect.
1.33 Powers; Conduct of Business. The Borrower shall remain
---------------------------
qualified, and shall cause each of its Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction in
which the nature of its business and the ownership of its Property requires it
to be so qualified and in good standing.
1.34 Compliance with Laws, Etc. The Borrower shall, and shall cause
--------------------------
each of its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, Property, assets or
operations of such Person, and (b) obtain and maintain as needed all Permits
necessary for its operations (including, without limitation, the operation of
the Projects) and maintain such Permits in good standing, except where
noncompliance with either clause (a) or (b) above is not reasonably likely to
---------- ---
have a Material Adverse Effect; provided, however, that the Borrower shall, and
-------- -------
shall cause each of its Subsidiaries to, comply with all Environmental, Health
or Safety Requirements of
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Law affecting such Person or the business, Property, assets or operations of
such Person.
1.35 Payment of Taxes and Claims. (a) The Borrower shall pay, and
---------------------------
shall cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its Property or assets
or in respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all Claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due and payable and
which by law have or may become a Lien (other than a Lien permitted by Section
-------
10.3 or a Customary Permitted Lien for property taxes and assessments not yet
----
due upon any of the Borrower's or any of the Borrower's Subsidiaries' Property
or assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, however, that no such taxes, assessments, fees and
-------- -------
governmental charges referred to in clause (i) above or Claims referred to in
clause (ii) above need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
1.36 Insurance. The Borrower shall maintain for itself and its
---------
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on Schedule 7.1-U or
--------------
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers reasonably acceptable to the
Administrative Agent.
1.37 Inspection of Property; Books and Records; Discussions. The
------------------------------------------------------
Borrower shall permit, and cause each of its Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
other Lender to visit and inspect any of the Projects or inspect the MIS of the
Borrower or any of its Subsidiaries which relates to the Projects, to examine,
audit, check and make copies of their respective financial and accounting
records, books, journals, orders, receipts and any correspondence and other data
relating to their respective businesses or the transactions contemplated hereby
(including, without limitation, in connection with environmental compliance,
hazard or liability), and to discuss their affairs, finances and accounts with
their officers and independent certified public accountants, all with a
representative of the Borrower present, upon reasonable notice and at such
reasonable times during normal business hours, as often as may be reasonably
requested. Each such visitation and inspection shall be at such visitor's
expense. The
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Borrower shall keep and maintain, and cause its Subsidiaries to keep and
maintain, in all material respects on its MIS and otherwise proper books of
record and account in which entries in conformity with GAAP shall be made of all
dealings and transactions in relation to their respective businesses and
activities.
1.38 ERISA Compliance. The Borrower shall, and shall cause each of
----------------
its Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Plans to comply in all material respects with the provisions of ERISA, the
Internal Revenue Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
1.39 Maintenance of Property. The Borrower shall, and shall cause
-----------------------
each of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair and in a businesslike manner, and not permit, commit or suffer any waste
or abandonment of any such Property and from time to time shall make or cause to
be made all material repairs, renewal and replacements thereof, including,
without limitation, any capital improvements which may be required to maintain
the same in a businesslike manner; provided, however, that such Property may be
-------- -------
altered or renovated in the ordinary course of business of the Borrower or such
applicable Subsidiary. Without any limitation on the foregoing, the Borrower
shall maintain the Projects in a manner such that each Project can be used in
the manner and substantially for the purposes such Project is used on the
Closing Date, including, without limitation, maintaining all utilities, access
rights, zoning and necessary Permits for such Project.
1.40 Hedging Requirements. The Borrower shall maintain "Interest Rate
--------------------
Hedges" (as defined below) on a notional amount of Indebtedness of the Borrower
and its Subsidiaries which, when added to the aggregate principal amount of
Indebtedness of the Borrower and its Subsidiaries which bears interest at a
fixed rate, equals or exceeds 75% of the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries. "Interest Rate Hedges" shall
--------------------
mean interest rate exchange, collar, cap, swap, adjustable strike cap,
adjustable strike corridor or similar agreements having terms, conditions and
tenors reasonably acceptable to the Administrative Agent entered into by the
Borrower and/or its Subsidiaries in order to provide protection to, or minimize
the impact upon, the Borrower and/or such Subsidiaries of increasing floating
rates of interest applicable to Indebtedness.
1.41 Company Status. The Company shall at all times (1) remain a
--------------
publicly traded company listed on the New York Stock Exchange or other national
stock exchange; (2) maintain its status as a REIT under the Internal Revenue
Code,
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(3) retain direct or indirect management and control of the Borrower, and (4)
own, directly or indirectly, no less than ninety-nine percent (99%) of the
equity Securities of the Company (or any other General Partner of the Borrower).
1.42 Ownership of Projects, Minority Holdings and Property. The
-----------------------------------------------------
ownership of substantially all wholly-owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by any General Partner.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Commitments are outstanding and thereafter until
payment in full of all of the Obligations (other than indemnities pursuant to
Section 15.3 not yet due), unless the Requisite Lenders shall otherwise give
------------
prior written consent:
1.43 Indebtedness. Neither the Borrower nor any of its Subsidiaries
------------
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except
Indebtedness which, when aggregated with Indebtedness of the General Partners,
the Borrower or any of their respective Subsidiaries and Minority Holdings
Indebtedness allocable in accordance with GAAP to the Borrower or any Subsidiary
of the Borrower as of the time of determination, would not exceed (i) sixty
percent (60%) of Capitalization Value as of the date of incurrence, or (ii) in
the case of Secured Indebtedness of the Consolidated Businesses and the
Borrower's proportionate share of Secured Indebtedness of its Minority Holdings,
fifty-five percent (55%) of the Capitalization Value. In addition, neither the
Borrower nor any of its Subsidiaries shall incur, directly or indirectly,
Indebtedness for borrowed money from any of the General Partners, unless such
Indebtedness is unsecured and expressly subordinated to the payment of the
Obligations.
1.44 Sales of Assets. Neither the Borrower nor any of its
---------------
Subsidiaries shall sell, assign, transfer, lease, convey or otherwise dispose of
any Property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so which would result in a Material
Adverse Effect.
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1.45 Liens. Neither the Borrower nor any of its Subsidiaries shall
-----
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered into in
the ordinary course of business of the Borrower pursuant to which the
aggregate Indebtedness under such Capital Leases does not exceed $100,000
for any Project;
(b) Liens securing permitted Secured Indebtedness; and
(c) Customary Permitted Liens.
1.46 Investments. Neither the Borrower nor any of its Subsidiaries
-----------
shall directly or indirectly make or own any Investment except:
(a) Investments in Cash Equivalents;
(b) Subject to the limitations of clause (e) below, Investments in
the Borrower's Subsidiaries, the Borrower's Affiliates and the Management
Company;
(c) Investments in the form of advances to employees in the ordinary
course of business; provided that the aggregate principal amount of all
-------- ----
such advances at any time outstanding shall not exceed $1,000,000;
(d) Investments received in connection with the bankruptcy or
reorganization of suppliers and lessees and in settlement of delinquent
obligations of, and other disputes with, lessees and suppliers arising in
the ordinary course of business;
(e) Investments (i) in any individual Project (other than Mall of
America), which when combined with like Investments of the General Partners
in such Project, do not exceed ten percent (10%) of the Capitalization
Value after giving effect to such Investments of the Borrower or (ii) in a
single Person owning a Project or Property, or a portfolio of Projects or
Properties, which when combined with like Investments of the General
Partners in such Person, do not exceed thirty-three percent (33%) of the
Capitalization Value after giving effect to such Investments of the
Borrower, it being understood that no Investment in any individual Person
will be permitted if the Borrower's
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allocable share of the Investment of such Person in any individual Project
would exceed the limitation described in clause (i) hereinabove.
1.47 Conduct of Business. Neither the Borrower nor any of its
-------------------
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing and managing
predominantly retail and mixed use Projects and portfolios of like Projects and
(b) any business or activities which are substantially similar, related or
incidental thereto.
1.48 Transactions with Partners and Affiliates. Neither the Borrower
-----------------------------------------
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of the
Borrower, or with any Affiliate of the Borrower which is not its Subsidiary, on
terms that are determined by the respective Boards of Directors of the General
Partners to be less favorable to the Borrower or any of its Subsidiaries, as
applicable, than those that might be obtained in an arm's length transaction at
the time from Persons who are not such a holder or Affiliate. Nothing contained
in this Section 10.6 shall prohibit (a) increases in compensation and benefits
------------
for officers and employees of the Borrower or any of its Subsidiaries which are
customary in the industry or consistent with the past business practice of the
Borrower or such Subsidiary, provided that no Event of Default or Potential
-------- ----
Event of Default has occurred and is continuing; (b) payment of customary
partners' indemnities; or (c) performance of any obligations arising under the
Loan Documents.
1.49 Restriction on Fundamental Changes. Neither the Borrower nor
----------------------------------
any of its Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of the Borrower's or any such
Subsidiary's business or Property, whether now or hereafter acquired, except in
connection with issuance, transfer, conversion or repurchase of limited
partnership interests in Borrower. Notwithstanding the foregoing, the Borrower
shall be permitted to merge with another Person so long as either (x) the
Borrower is the surviving Person following such merger, or (y) the majority of
the board of directors (or equivalent) of the surviving Person, as well as the
majority of senior management of the surviving Person shall be the same as the
board of directors (or equivalent) and senior management of the Borrower
immediately prior to such merger.
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1.50 Margin Regulations; Securities Laws. Neither the Borrower nor
-----------------------------------
any of its Subsidiaries shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
1.51 ERISA. The Borrower shall not and shall not permit any of its
-----
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect
to any Plan, whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Plan;
(d) terminate any Plan which would result in any liability of
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which Borrower or any ERISA Affiliate may be required to make under
any agreement relating to such Multiemployer Plan, or any law pertaining
thereto;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or other payment; or
(g) amend a Plan resulting in an increase in current liability for
the plan year such that the Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the Internal
Revenue Code.
1.52 Organizational Documents. Neither the General Partners, the
------------------------
Borrower nor any of its Subsidiaries shall amend, modify or otherwise change any
of the terms or provisions in any of their respective Organizational Documents
as in effect on the Closing Date, except amendments to effect (a) a change of
name of the Borrower or any such Subsidiary, provided that the Borrower shall
-------- ----
have provided the
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Administrative Agent with sixty (60) days prior written notice of any such name
change, or (b) changes that would not affect such Organizational Documents in
any material manner not otherwise permitted under this Agreement.
1.53 Fiscal Year. Neither the Company, the Borrower nor any of its
-----------
Consolidated Businesses shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
1.54 Other Financial Covenants.
-------------------------
(1) Minimum Combined Equity Value. The Combined Equity Value shall
-----------------------------
at no time be less than $4,500,000,000.
(2) Consolidated Interest Coverage Ratio. As of the first day of
------------------------------------
each fiscal quarter for the immediately preceding consecutive four fiscal
quarters, the ratio of (i) Combined EBITDA to (ii) Combined Interest
Expense shall not be less than 1.8 to 1.0.
(3) Minimum Debt Service Coverage Ratio. As of the first day of
-----------------------------------
each fiscal quarter for the immediately preceding consecutive four fiscal
quarters, the ratio of Combined EBITDA to Combined Debt Service shall not
be less than 1.60 to 1.00.
(4) Minimum Debt Yield. As of the first day of each fiscal quarter
------------------
for the immediately preceding consecutive four fiscal quarters, the ratio
(expressed as a percentage) (the "Debt Yield") of (1) Combined EBITDA to
----------
(2) Total Adjusted Outstanding Indebtedness (less unrestricted Cash and
Cash Equivalents of the Borrower) shall not be less than 13.5%.
(5) Unencumbered Combined EBITDA to Total Unsecured Outstanding
-----------------------------------------------------------
Indebtedness. As of the first day of each fiscal quarter for the
------------
immediately preceding consecutive four fiscal quarters, the ratio
(expressed as a percentage) (the "Unsecured Debt Yield") of (i) the
--------------------
Unencumbered Combined EBITDA to (ii) Total Unsecured Outstanding
Indebtedness (less unrestricted Cash and Cash Equivalents of the Borrower)
shall not be less than 11%.
(6) Unencumbered Combined EBITDA to Unsecured Interest Expense. As
----------------------------------------------------------
of the first day of each fiscal quarter for the immediately preceding
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consecutive four fiscal quarters, the ratio of (i) the Unencumbered
Combined EBITDA to (ii) Unsecured Interest Expense shall not be less than
1.5 to 1.0.
1.55 Pro Forma Adjustments. In connection with an acquisition of a
---------------------
Project, a Property, or a portfolio of Projects or Properties, by any of the
Consolidated Businesses or any Minority Holding (whether such acquisition is
direct or through the acquisition of a Person which owns such Property), the
financial covenants contained in this Agreement shall be calculated as follows
on a pro forma basis (with respect to the pro rata share of the Borrower in the
--------- --------
case of an acquisition by a Minority Holding), which pro forma calculation shall
---------
be effective until the last day of the fourth fiscal quarter following such
acquisition (or such earlier test period, as applicable), at which time actual
performance shall be utilized for such calculations.
(1) Annual EBITDA. Annual EBITDA for the acquired Property shall be
-------------
deemed to be an amount equal to (i) the net purchase price of the acquired
Property (or the Borrower's pro rata share of such net purchase price in the
event of an acquisition by a Minority Holding) for the first fiscal quarter
following such acquisition, multiplied by 8.25% and (ii) for the succeeding
three fiscal quarters, Annual EBITDA shall be deemed the greater of (A) the net
purchase price multiplied by 8.25%, or (B) the actual EBITDA from such acquired
Property during the period following Borrower's (direct or indirect)
acquisition, computed on an annualized basis, provided that such annualized
EBITDA shall in no event exceed the final product obtained after multiplying (1)
the net purchase price by (2) 1.1, and then by (3) 8.25%.
(2) Combined EBITDA. The pro forma calculation of Annual EBITDA for
---------------
the acquired Property shall be added to the calculation of Combined EBITDA.
(3) Unencumbered Combined EBITDA. If, after giving effect to the
----------------------------
acquisition, the acquired Property will not be encumbered by Secured
Indebtedness, then the pro forma Annual EBITDA for the acquired Property shall
be added to the calculation of Unencumbered Combined EBITDA.
(4) Secured Indebtedness. Any Indebtedness secured by a Lien
--------------------
incurred and/or assumed in connection with such acquisition of a Property shall
be added to the calculation of Secured Indebtedness.
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(5) Total Adjusted Outstanding Indebtedness. Any Indebtedness
---------------------------------------
incurred and/or assumed in connection with such acquisition shall be added to
the calculation of Total Adjusted Outstanding Indebtedness.
(6) Combined Interest Expense. If any Indebtedness is incurred or
-------------------------
assumed in connection with such acquisition, then the amount of interest expense
to be incurred on such Indebtedness during the period following such
acquisition, computed on an annualized basis during the applicable period, shall
be added to the calculation of Combined Interest Expense.
(7) Total Unsecured Outstanding Indebtedness. Any Indebtedness
----------------------------------------
which is not secured by a Lien and which is incurred and/or assumed in
connection with such acquisition shall be added to the calculation of Total
Unsecured Outstanding Indebtedness.
(8) Unsecured Interest Expense. If any unsecured Indebtedness is
--------------------------
incurred or assumed in connection with such acquisition, then the amount of
interest expense to be incurred on such Indebtedness during the period following
such acquisition, computed on an annualized basis during the applicable period,
shall be added to the calculation of Unsecured Interest Expense.
(9) Debt Yield and Unencumbered Debt Yield. For purposes of
--------------------------------------
calculating Debt Yield and Unencumbered Debt Yield only, non-recourse
Indebtedness and completion guarantees incurred for the construction of new
Projects shall, until such time as the interest expense associated with such
financing need no longer be capitalized in accordance with GAAP, be excluded
from the calculation of Total Adjusted Outstanding Indebtedness (provided that
recourse Indebtedness and repayment guarantees shall be included in such
calculation).
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
1.56 Events of Default. Each of the following occurrences shall
-----------------
constitute an Event of Default under this Agreement:
(1) Failure to Make Payments When Due. The Borrower shall fail to
---------------------------------
pay (i) when due any principal payment on the Obligations which is due on the
Termination Date or pursuant to the terms of Section 2.1(a), Section 2.4, or
-------------- -----------
Section 4.1(d) or (ii) within five Business Days after the date on which due,
-------------
any interest
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payment on the Obligations or any principal payment pursuant to the terms of
Section 4.1(a) or (iii) when due, any principal payment on the Obligations not
--------------
referenced in clauses (i) or (ii) hereinabove.
(2) Breach of Certain Covenants. The Borrower shall fail duly and
---------------------------
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under Sections 8.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, or Article X.
------------ --- --- --- --- --- --- ---------
(3) Breach of Representation or Warranty. Any representation or
------------------------------------
warranty made by the Borrower to the Administrative Agent or any other Lender
herein or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at any time given by any such
Person pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made.
(4) Other Defaults. Except as set forth in the next sentence, the
--------------
Borrower shall default in the performance of or compliance with any term
contained in this Agreement (other than as identified in paragraphs (a), (b) or
(c) of this Section 11.1), or any default or event of default shall occur under
------------
any of the other Loan Documents, and such default or event of default shall
continue for twenty (20) days after receipt of written notice from the
Administrative Agent thereof. With respect to any failure in the performance of
or compliance with the terms of Section 9.9, such failure or noncompliance shall
-----------
not constitute an Event of Default so long as the Borrower cures such failure or
noncompliance within one hundred eighty (180) days after the receipt of written
notice from the Administrative Agent thereof.
(5) Acceleration of Other Indebtedness. Any breach, default or
----------------------------------
event of default shall occur, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any recourse Indebtedness
(other than the Obligations) of the Borrower or its Subsidiaries aggregating
$30,000,000 or more, and the effect thereof is to cause an acceleration,
mandatory redemption or other required repurchase of such Indebtedness, or
permit the holder(s) of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such Indebtedness;
or any such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof.
(6) Involuntary Bankruptcy; Appointment of Receiver, Etc.
----------------------------------------------------
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(i) An involuntary case shall be commenced against any General
Partner, the Borrower, or any of its Subsidiaries to which $150,000,000 or more
of the Combined Equity Value is attributable, and the petition shall not be
dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any General Partner, the
Borrower or any of its Subsidiaries in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal, state, local
or foreign law; or the respective board of directors of any General Partner or
Limited Partners of the Borrower or the board of directors or partners of any of
the Borrower's Subsidiaries (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over any of the General
Partners, the Borrower, or any of its Subsidiaries to which $150,000,000 or more
of the Combined Equity Value is attributable, or over all or a substantial part
of the Property of any of the General Partners, the Borrower or any of such
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of any of the General Partners, the Borrower or any of such
Subsidiaries or of all or a substantial part of the Property of any of the
General Partners, the Borrower or any of such Subsidiaries shall be appointed or
a warrant of attachment, execution or similar process against any substantial
part of the Property of any of the General Partners, the Borrower or any of such
Subsidiaries shall be issued and any such event shall not be stayed, dismissed,
bonded or discharged within sixty (60) days after entry, appointment or
issuance; or the respective board of directors of any of the General Partners or
Limited Partners of the Borrower or the board of directors or partners of any of
Borrower's Subsidiaries (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(7) Voluntary Bankruptcy; Appointment of Receiver, Etc. Any of the
---------------------------------------------------
General Partners, the Borrower, or any of its Subsidiaries to which $150,000,000
or more of the Combined Equity Value is attributable, shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its Property; or any of the General Partners, the Borrower or any of
such Subsidiaries shall make any assignment for the benefit of
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creditors or shall be unable or fail, or admit in writing its inability, to pay
its debts as such debts become due.
(8) Judgments and Unpermitted Liens.
-------------------------------
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage), writ or
warrant of attachment, or similar process against the Borrower or any of its
Subsidiaries or any of their respective assets involving in any case an amount
in excess of $15,000,000 (other than with respect to Claims arising out of non-
recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder; provided,
--------
however, if any such judgment, writ or warrant of attachment or similar process
-------
is in excess of $30,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness), the entry thereof shall immediately constitute an
Event of Default hereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over or otherwise
secured to the satisfaction of the Administrative Agent within fifty (50) days
after the filing thereof or the date upon which the Administrative Agent
receives actual knowledge of the filing thereof for an amount which, either
separately or when aggregated with the amount of any judgments described in
clause (i) above and/or the amount of the Environmental Lien Claims described in
clause (iii) below, equals or exceeds $15,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when aggregated with
the amount of any judgments described in clause (i) above and/or the amount of
the tax Liens described in clause (ii) above, equals or exceeds $15,000,000.
(9) Dissolution. Any order, judgment or decree shall be entered
-----------
against the Borrower decreeing its involuntary dissolution or split up; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(10) Loan Documents. At any time, for any reason, any Loan Document
--------------
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
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(11) ERISA Termination Event. Any ERISA Termination Event occurs
-----------------------
which the Administrative Agent believes could subject either the Borrower or any
ERISA Affiliate to liability in excess of $500,000.
(12) Waiver Application. The plan administrator of any Plan applies
------------------
under Section 412(d) of the Code for a waiver of the minimum funding standards
of Section 412(a) of the Internal Revenue Code and the Administrative Agent
believes that the substantial business hardship upon which the application for
the waiver is based could subject either the Borrower or any ERISA Affiliate to
liability in excess of $500,000.
(13) Intentionally Omitted.
---------------------
(14) Certain Defaults Pertaining to the General Partners. The
---------------------------------------------------
Company shall fail to (i) maintain its status as a REIT for federal income tax
purposes, (ii) continue as a general partner of the Borrower, (iii) maintain
ownership of no less than 99% of the equity Securities of any other General
Partner of the Borrower, (iv) comply with all Requirements of Law applicable to
it and its businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have or is reasonably likely to
have a Material Adverse Effect, (v) remain listed on the New York Stock Exchange
or other national stock exchange, or (vi) file all tax returns and reports
required to be filed by it with any Governmental Authority as and when required
to be filed or to pay any taxes, assessments, fees or other governmental charges
upon it or its Property, assets, receipts, sales, use, payroll, employment,
licenses, income, or franchises which are shown in such returns, reports or
similar statements to be due and payable as and when due and payable, except for
taxes, assessments, fees and other governmental charges (A) that are being
contested by the Company in good faith by an appropriate proceeding diligently
pursued, (B) for which adequate reserves have been made on its books and
records, and (C) the amounts the non-payment of which would not, individually or
in the aggregate, result in a Material Adverse Effect.
(15) Merger or Liquidation of the General Partners or the Borrower.
-------------------------------------------------------------
Any General Partner shall merge or liquidate with or into any other Person,
other than another General Partner, and, as a result thereof and after giving
effect thereto, (i) such General Partner is not the surviving Person, or (ii)
the majority of the board of directors (or equivalent) of the surviving Person,
as well as the majority of senior management of the surviving Person shall not
be the same as the board of directors (or equivalent) and senior management of
such General Partner immediately prior to such merger, or (iii) such merger or
liquidation would effect an acquisition of or
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Investment in any Person not otherwise permitted under the terms of this
Agreement. The Borrower shall merge or liquidate with or into any other Person
and, as a result thereof and after giving effect thereto, (i) the Borrower is
not the surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person not otherwise permitted under the
terms of this Agreement.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 15.7.
------------
1.57 Rights and Remedies.
-------------------
(1) Acceleration and Termination. Upon the occurrence of any
----------------------------
Event of Default described in Sections 11.1(f) or 11.1(g), the Commitments shall
---------------- -------
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations and all accrued fees shall
automatically become immediately due and payable, without presentment, demand,
or protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower; and upon the occurrence and during the continuance of any other
Event of Default, the Administrative Agent shall at the request, or may with the
consent, of the Requisite Lenders, by written notice to the Borrower, (i)
declare that the Commitments are terminated, and/or (ii) declare the unpaid
principal amount of and any and all accrued and unpaid interest on the
Obligations to be, and the same shall thereupon be, immediately due and payable,
without presentment, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration), all
of which are hereby expressly waived by the Borrower.
(2) Rescission. If at any time after termination of the
----------
Commitments and/or acceleration of the maturity of the Loans, the Borrower shall
pay all arrears of interest and all payments on account of principal of the
Loans which shall have become due otherwise than by acceleration (with interest
on principal and, to the extent permitted by law, on overdue interest, at the
rates specified in this Agreement) and all Events of Default and Potential
Events of Default (other than nonpayment of principal of and accrued interest on
the Loans due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to Section 15.7, then upon the written consent of the Requisite
------------
Lenders and written notice to the Borrower, the termination of the Commitments
and/or the acceleration and their consequences may be rescinded and annulled;
but such action shall not affect any subsequent Event
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<PAGE>
of Default or Potential Event of Default or impair any right or remedy
consequent thereon. The provisions of the preceding sentence are intended merely
to bind the Lenders to a decision which may be made at the election of the
Requisite Lenders; they are not intended to benefit the Borrower and do not give
the Borrower the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.
(3) Enforcement. The Borrower acknowledges that in the event the
-----------
Borrower or any of its Subsidiaries fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or any other
Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the other Lenders; therefore, the Borrower agrees that
the Administrative Agent and the other Lenders shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.
ARTICLE XII
THE AGENTS
1.58 Appointment. (a) Each Lender hereby designates and appoints
-----------
Chase as the Administrative Agent of such Lender under this Agreement, and each
Lender hereby irrevocably authorizes the Administrative Agent and all other
Agents to take such actions on its behalf under the provisions of this Agreement
and the Loan Documents and to exercise such powers as are set forth herein or
therein together with such other powers as are reasonably incidental thereto.
The Agents each agrees to act as such on the express conditions contained in
this Article XII. The Administrative Agent shall administer this Agreement and
-----------
service the Loans with the same degree of care as the Administrative Agent would
use in servicing a loan of similar size and type for its own account.
(1) The provisions of this Article XII are solely for the benefit
-----------
of the Agents and the Lenders, and neither the Borrower, the General Partners
nor any Subsidiary of the Borrower shall have any rights to rely on or enforce
any of the provisions hereof (other than as expressly set forth in Section
-------
12.7). In performing their respective functions and duties under this Agreement,
----
the Agents shall act solely as agent of the Lenders and do not assume and shall
not be deemed to have assumed any obligation or relationship of agency, trustee
or fiduciary with or for any General Partner, the Borrower or any Subsidiary of
the Borrower. The Agents may perform any of their respective duties hereunder,
or under the Loan Documents, by or through their respective agents or employees.
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<PAGE>
1.59 Nature of Duties. The Agents shall not have any duties or
----------------
responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. The duties of the Administrative Agent shall be mechanical and
administrative in nature. None of the Agents shall have by reason of this
Agreement a fiduciary relationship in respect of any Holder. Nothing in this
Agreement or any of the Loan Documents, expressed or implied, is intended to or
shall be construed to impose upon the Agents any obligations in respect of this
Agreement or any of the Loan Documents except as expressly set forth herein or
therein. The Administrative Agent hereby agrees that its duties shall include
providing copies of documents received by such Agent from the Borrower which are
reasonably requested by any Lender and promptly notifying each Lender upon its
obtaining actual knowledge of the occurrence of any Event of Default hereunder.
In addition, the Administrative Agent shall promptly deliver to each of the
Lenders copies of all notices of default and other formal notices (including,
without limitation, requests for waivers or modifications) sent or received.
1.60 Right to Request Instructions. The Agents may at any time
-----------------------------
request instructions from the Lenders with respect to any actions or approvals
which by the terms of any of the Loan Documents such Agent is permitted or
required to take or to grant, and such Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from those Lenders from whom such Agent is required
to obtain such instructions for the pertinent matter in accordance with the Loan
Documents. Without limiting the generality of the foregoing, such Agent shall
take any action, or refrain from taking any action, which is permitted by the
terms of the Loan Documents upon receipt of instructions from those Lenders from
whom such Agent is required to obtain such instructions for the pertinent matter
in accordance with the Loan Documents, provided, that no Holder shall have any
--------
right of action whatsoever against the Agents as a result of such Agent acting
or refraining from acting under the Loan Documents in accordance with the
instructions of the Requisite Lenders or, where required by the express terms of
this Agreement, a greater proportion of the Lenders.
1.61 Reliance. The Agents shall each be entitled to rely upon any
--------
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the Loan Documents and its duties
hereunder or thereunder,
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<PAGE>
upon advice of legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it.
1.62 Indemnification. To the extent that any Agent is not
---------------
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify such Agent solely in its capacity as such Agent and not as a Lender
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, and reasonable costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against it in any way relating to or arising out of the Loan
Documents or any action taken or omitted by such Agent under the Loan Documents,
in proportion to each Lender's Pro Rata Share, unless and to the extent that any
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, and reasonable costs, expenses or disbursements shall arise as a result
of such Agent's gross negligence or willful misconduct. Such Agent agrees to
refund to the Lenders any of the foregoing amounts paid to it by the Lenders
which amounts are subsequently recovered by such Agent from the Borrower or any
other Person on behalf of the Borrower. The obligations of the Lenders under
this Section 12.5 shall survive the payment in full of the Loans and all other
------------
Obligations and the termination of this Agreement.
1.63 Agents Individually. With respect to their respective Pro
-------------------
Rata Share of the Commitments hereunder, if any, and the Loans made by it, if
any, the Agents shall have and may exercise the same rights and powers hereunder
and is subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender. The terms "Lenders" or "Requisite Lenders" or
any similar terms shall, unless the context clearly otherwise indicates, include
each of the Agents in its respective individual capacity as a Lender or as one
of the Requisite Lenders. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Borrower or any of its Subsidiaries as if they were not acting
as the applicable Agent pursuant hereto.
1.64 Successor Agents.
----------------
(1) Resignation and Removal. Any Agent may resign from the
-----------------------
performance of all its functions and duties hereunder at any time by giving at
least thirty (30) Business Days' prior written notice to the Borrower and the
other Lenders, unless applicable law requires a shorter notice period or that
there be no notice period, in which instance such applicable law shall control.
Any Agent may be removed (i) at the direction of Lenders whose Pro Rata Shares,
in the aggregate, are greater than fifty percent (50%), in the event the Agent
is not also a Lender having a Commitment of at
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<PAGE>
least $20,000,000 or twenty percent (20%) of the Commitments at such time or
(ii) at the direction of the Requisite Lenders, in the event such Agent shall
commit gross negligence or willful misconduct in the performance of its duties
hereunder. Such resignation or removal shall take effect upon the acceptance by
a successor Agent of appointment pursuant to this Section 12.7.
------------
(2) Intentionally Omitted.
---------------------
(3) Appointment by Retiring Agent. If a successor Administrative
-----------------------------
Agent shall not have been appointed within the thirty (30) Business Days or
shorter period provided in paragraph (a) of this Section 12.7, the retiring
------------- ------------
Agent shall then appoint a successor Agent who shall serve as Administrative
Agent until such time, if any, as the Lenders appoint a successor Agent as
provided above.
(4) Rights of the Successor and Retiring Agents. Upon the
-------------------------------------------
acceptance of any appointment as Administrative Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XII shall inure to its benefit as to any actions
-----------
taken or omitted to be taken by it while it was the Agent under this Agreement.
1.65 Relations Among the Lenders. Each Lender agrees that it will
---------------------------
not take any legal action, nor institute any actions or proceedings, against the
Borrower hereunder with respect to any of the Obligations, without the prior
written consent of the Lenders. Without limiting the generality of the
foregoing, no Lender may accelerate or otherwise enforce its portion of the
Obligations, or unilaterally terminate its Commitment except in accordance with
Section 11.2(a).
---------------
ARTICLE XIII
YIELD PROTECTION
1.66 Taxes.
-----
(1) Payment of Taxes. Any and all payments by the Borrower
----------------
hereunder or under any Note or other document evidencing any Obligations shall
be made, in accordance with Section 4.2, free and clear of and without reduction
-----------
for any and all present or future taxes, levies, imposts, deductions, charges,
withholdings, and
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<PAGE>
all stamp or documentary taxes, excise taxes, ad valorem taxes and other taxes
imposed on the value of the Property, charges or levies which arise from the
execution, delivery or registration, or from payment or performance under, or
otherwise with respect to, any of the Loan Documents or the Commitments and all
other liabilities with respect thereto excluding, in the case of each Lender,
taxes imposed on or measured by net income or overall gross receipts and capital
and franchise taxes imposed on it by (i) the United States, (ii) the
Governmental Authority of the jurisdiction in which such Lender's Applicable
Lending Office is located or any political subdivision thereof or (iii) the
Governmental Authority in which such Person is organized, managed and controlled
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges and withholdings being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to withhold or deduct any
-----
Taxes from or in respect of any sum payable hereunder or under any such Note or
document to any Lender, (x) the sum payable to such Lender shall be increased as
may be necessary so that after making all required withholding or deductions
(including withholding or deductions applicable to additional sums payable under
this Section 13.1) such Lender receives an amount equal to the sum it would have
------------
received had no such withholding or deductions been made, (y) the Borrower shall
make such withholding or deductions, and (z) the Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(2) Indemnification. The Borrower will indemnify each Lender
---------------
against, and reimburse each Lender on demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental Authority
on amounts payable under this Section 13.1 and any additional income or
------------
franchise taxes resulting therefrom) incurred or paid by such Lender or any of
its Affiliates and any liability (including penalties, interest, and out-of-
pocket expenses paid to third parties) arising therefrom or with respect
thereto, whether or not such Taxes were lawfully payable. A certificate as to
any additional amount payable to any Person under this Section 13.1 submitted by
------------
it to the Borrower shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. Each Lender agrees, within a reasonable time
after receiving a written request from the Borrower, to provide the Borrower and
the Administrative Agent with such certificates as are reasonably required, and
take such other actions as are reasonably necessary to claim such exemptions as
such Lender may be entitled to claim in respect of all or a portion of any Taxes
which are otherwise required to be paid or deducted or withheld pursuant to this
Section 13.1 in respect of any payments under this Agreement or under the Notes.
------------
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(3) Receipts. Within thirty (30) days after the date of any payment
--------
of Taxes by the Borrower, the Borrower will furnish to the Administrative Agent,
at its address referred to in Section 15.8, the original or a certified copy of
------------
a receipt evidencing payment thereof.
(4) Foreign Bank Certifications. (i) Each Lender that is not created
---------------------------
or organized under the laws of the United States or a political subdivision
thereof shall deliver to the Borrower and the Administrative Agent on the
Closing Date or the date on which such Lender becomes a Lender pursuant to
Section 15.1 hereof a true and accurate certificate executed in duplicate
------------
by a duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax (I) under the provisions of an
applicable tax treaty concluded by the United States (in which case the
certificate shall be accompanied by two duly completed copies of Form W-8BEN (or
any successor or substitute form or forms)) or (II) under Sections 1442(c)(1)
and 1442(a) of the Internal Revenue Code (in which case the certificate shall be
accompanied by two duly completed copies of Form W-8ECI (or any successor or
substitute form or forms)).
(ii) Each Lender further agrees to deliver to the Borrower and the
Administrative Agent from time to time a true and accurate certificate executed
in duplicate by a duly authorized officer of such Lender before or promptly upon
the occurrence of any event requiring a change in the most recent certificate
previously delivered by it to the Borrower and the Administrative Agent pursuant
to this Section 13.1(d). Each certificate required to be delivered pursuant to
---------------
this Section 13.1(d)(ii) shall certify as to one of the following:
-------------------
(1) that such Lender can continue to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax;
(2) that such Lender cannot continue to receive payments hereunder
and under the Notes without deduction or withholding of United States
federal income tax as specified therein but does not require additional
payments pursuant to Section 13.1(a) because it is entitled to recover the
---------------
full amount of any such deduction or withholding from a source other than
the Borrower; or
(3) that such Lender is no longer capable of receiving payments
hereunder and under the Notes without deduction or withholding of United
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States federal income tax as specified therein and that it is not capable
of recovering the full amount of the same from a source other than the
Borrower.Each Lender agrees to deliver to the Borrower and the
Administrative Agent further duly completed copies of the above mentioned
IRS forms on or before the earlier of (x) the date that any such form
expires or becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding from United States
federal income tax and (y) fifteen (15) days after the occurrence of any
event requiring a change in the most recent form previously delivered by
such Lender to the Borrower and Administrative Agent, unless any change in
treaty, law, regulation, or official interpretation thereof which would
render such form inapplicable or which would prevent the Lender from duly
completing and delivering such form has occurred prior to the date on which
any such delivery would otherwise be required and the Lender promptly
advises the Borrower that it is not capable of receiving payments hereunder
and under the Notes without any deduction or withholding of United States
federal income tax.
1.67 Increased Capital. If after the date hereof any Lender
-----------------
determines that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or quasi-
governmental authority exercising jurisdiction, power or control over any Lender
or banks or financial institutions generally (whether or not having the force of
law), compliance with which affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (ii) the amount of such capital is increased by or
based upon the making or maintenance by any Lender of its Loans, any Lender's
participation in or obligation to participate in the Loans or other advances
made hereunder or the existence of any Lender's obligation to make Loans, then,
in any such case, upon written demand by such Lender (with a copy of such demand
to the Administrative Agent), the Borrower shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error.
1.68 Changes; Legal Restrictions. If after the date hereof any
---------------------------
Lender determines that the adoption or implementation of or any change in or in
the interpretation or administration of any law or regulation or any guideline
or request from any
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central bank or other Governmental Authority or quasi-governmental authority
exercising jurisdiction, power or control over any Lender, or over banks or
financial institutions generally (whether or not having the force of law),
compliance with which:
(a) does or will subject a Lender (or its Applicable Lending Office
or Eurodollar Affiliate) to charges (other than taxes) of any kind which
such Lender reasonably determines to be applicable to the Commitments of
the Lenders to make Eurodollar Rate Loans or change the basis of taxation
of payments to that Lender of principal, fees, interest, or any other
amount payable hereunder with respect to Eurodollar Rate Loans; or
(b) does or will impose, modify, or hold applicable, in the
determination of a Lender, any reserve (other than reserves taken into
account in calculating the Eurodollar Rate), special deposit, compulsory
loan, FDIC insurance or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, advances or loans
by, commitments made, or other credit extended by, or any other acquisition
of funds by, a Lender or any Applicable Lending Office or Eurodollar
Affiliate of that Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, upon written demand by
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall immediately pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, such amount or
amounts as may be necessary to compensate such Lender or its Eurodollar
Affiliate for any such additional cost incurred or reduced amount received.
Such demand shall be accompanied by a statement as to the amount of such
compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
1.69 Replacement of Certain Lenders. In the event a Lender (a
------------------------------
"Designee Lender") shall have requested additional compensation from the
---------------
Borrower under Section 13.2 or under Section 13.3, the Borrower may, at its sole
------------ ------------
election, (a) make written demand on such Designee Lender (with a copy to the
Administrative Agent) for the Designee Lender to assign, and such Designee
Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances to one or more Eligible Assignees which the Borrower or the
Administrative Agent shall have identified for such purpose, all of such
Designee Lender's right and obligations under
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this Agreement and the Notes (including, without limitation, and all Loans owing
to it) in accordance with Section 15.1 for an amount equal to the then
------------
outstanding principal balance of the Loans owing to the Designee Lender together
with interest accrued with respect thereto to the date of such repayment and all
fees and other charges accrued or payable under the terms of this Agreement for
the benefit of the Designee Lender or (b) repay all Loans owing to the Designee
Lender together with interest accrued with respect thereto to the date of such
repayment and all fees and other charges accrued or payable under the terms of
this Agreement for the benefit of the Designee Lender to the date of such
repayment. Any such repayment and remittance shall be for the sole credit of the
Designee Lender and not for any other Lender. Upon delivery of such repayment
and remittance in immediately available funds to the Designee Lender in
accordance with clauses (a) or (b) of the foregoing sentence, as applicable, the
Designee Lender shall cease to be a Lender under this Agreement. All expenses
incurred by the Administrative Agent in connection with the foregoing shall be
for the sole account of the Borrower and shall constitute Obligations hereunder.
In no event shall Borrower's election under the provisions of this Section 13.4
------------
affect its obligation to pay the additional compensation required under either
Section 13.2 or Section 13.3.
------------ ------------
ARTICLE XIV
INTENTIONALLY OMITTED
ARTICLE XV
MISCELLANEOUS
1.70 Assignments and Participations.
------------------------------
(1) Assignments. No assignments or participations of any Lender's
-----------
rights or obligations under this Agreement shall be made except in accordance
with this Section 15.1. During the continuance of an Event of Default, each
------------
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all of its rights and
obligations with respect to the Loans) in accordance with the provisions of
Section 15.1(b). In addition, the foregoing shall not be deemed to prohibit any
---------------
assignment or participation by a Lender to a special purpose entity in
connection with issuances of collateralized loan obligations, collateralized
bond obligations or similar securities issuances. In addition, the foregoing
shall not be deemed to prohibit any assignment or participation by a Lender to a
special purpose entity in connection with issuances of credit derivatives.
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(2) Limitations on Assignments. Upon such execution, delivery,
--------------------------
acceptance and recording in the Register, from and after the effective date
specified in each Assignment and Acceptance and agreed to by the Administrative
Agent, (A) the assignee thereunder shall, in addition to any rights and
obligations hereunder held by it immediately prior to such effective date, if
any, have the rights and obligations hereunder that have been assigned to it
pursuant to such Assignment and Acceptance and shall, to the fullest extent
permitted by law, have the same rights and benefits hereunder as if it were an
original Lender hereunder, (B) the assigning Lenders shall, to the extent that
rights and obligations hereunder have been assigned by them pursuant to such
Assignment and Acceptance, relinquish their rights and be released from their
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of all assigning Lenders'
rights and obligations under this Agreement, the assigning Lenders shall cease
to be parties hereto) and (C) the Borrower shall execute and deliver to the
assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans.
(3) The Register. The Administrative Agent shall maintain at its
------------
address referred to in Section 15.8 a copy of each Assignment and Acceptance
------------
delivered to and accepted by it and a register (the "Register") for the
--------
recordation of the names and addresses of the Lenders, the Commitment of, and
the principal amount of the Loans under the Commitments owing to, each Lender
from time to time and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an Assignment and Acceptance. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower and each of its Subsidiaries, the Administrative Agent
and the other Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(4) Fee. Upon its receipt of an Assignment and Acceptance executed by
---
the assigning Lenders and an Eligible Assignee and a processing and recordation
fee of $3,500 (payable by the assignee to the Administrative Agent), the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in compliance with this Agreement and in substantially the form of
Exhibit A hereto, (i) accept such Assignment and Acceptance, (ii) record the
---------
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(5) Participations. Each Lender may sell participations to one or
--------------
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without
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limitation, all or a portion of any or all of its Commitment hereunder and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
-------- -------
this Agreement (including, without limitation, its Commitment hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (iv) each participation shall be in a minimum
amount of $5,000,000, and (v) such participant's rights to agree or to restrict
such Lender's ability to agree to the modification, waiver or release of any of
the terms of the Loan Documents, to consent to any action or failure to act by
any party to any of the Loan Documents or any of their respective Affiliates, or
to exercise or refrain from exercising any powers or rights which any Lender may
have under or in respect of the Loan Documents, shall be limited to the right to
consent to (A) increase in the Commitment of the Lender from whom such
participant purchased a participation, (B) reduction of the principal of, or
rate or amount of interest on the Loans subject to such participation (other
than by the payment or prepayment thereof), (C) postponement of any date fixed
for any payment of principal of, or interest on, the Loan(s) subject to such
participation and (D) release of any guarantor of the Obligations.
(6) Intentionally Omitted.
---------------------
(7) Information Regarding the Borrower. Subject to Section 15.20, any
----------------------------------
Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 15.1, disclose to the
------------
assignee or participant or proposed assignee or participant, any information
relating to the Borrower or its Subsidiaries furnished to such Lender by the
Administrative Agent or by or on behalf of the Borrower.
(8) SPC Assignment. Notwithstanding anything to the contrary
--------------
contained herein, any Lender (a "Granting Lender") may grant to a special
---------------
purpose funding vehicle (a "SPC"), identified in writing from time to time by
---
the Granting Lender to the Administrative Agent, the option to purchase from the
Granting Lender all or any part of any Loan that such Granting Lender would
otherwise be obligated to make as provided herein, provided that (i)
--------
nothing herein shall constitute a commitment to purchase any Loan by any SPC,
and (ii) if a SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to fund
such Loan pursuant to the terms hereof. The funding of a Loan by a SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were funded by such Granting Lender. Each
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<PAGE>
party hereby agrees that no SPC shall be liable for any indemnity or payment
under this Agreement for which a Lender would otherwise be liable, for so long
as, and to the extent, the Granting Lender provides such indemnity or makes such
payment. In furtherance of the foregoing, each party hereto hereby agrees that,
prior to the date that is one year and one day after the payment in full of all
outstanding Loans of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States. Notwithstanding anything to the contrary
contained in this Agreement, the Granting Lender may disclose to a SPC and any
SPC may disclose to any Rating Agency or provider of any surety or guarantee to
such SPC any information relating to the SPC's funding of Loans, all on a
confidential basis. This clause (h) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Loans are being funded
by a SPC at the time of such amendment.
(9) Payment to Participants. Anything in this Agreement to the
-----------------------
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(10) Lenders' Creation of Security Interests. Notwithstanding any
---------------------------------------
other provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
1.71 Expenses.
--------
(1) Generally. The Borrower agrees upon demand to pay or reimburse
---------
the Administrative Agent for all of its reasonable external audit and
investigation expenses, and for the fees, expenses and disbursements of Skadden,
Arps, Slate, Meagher & Flom LLP (but not of other legal counsel) and for all
other out-of-pocket costs and expenses of every type and nature incurred by the
Administrative Agent in connection with (i) the audit and investigation of the
Consolidated Businesses, the Projects and other Properties of the Consolidated
Businesses in connection with the preparation, negotiation, and execution of the
Loan Documents; (ii) the preparation, negotiation, execution and interpretation
of this Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article VI), the Loan
----------
Documents, and the making of the Loans hereunder; (iii) the syndication of the
Loans, (iv) the ongoing
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<PAGE>
administration of this Agreement and the Loans, including consultation with
attorneys in connection therewith and with respect to the Administrative Agent's
rights and responsibilities under this Agreement and the other Loan Documents;
(v) the protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (vi) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, any
Project, the Borrower, any of its Subsidiaries, this Agreement or any of the
other Loan Documents; (vii) the response to, and preparation for, any subpoena
or request for document production with which the Administrative Agent or any
other Agents or any other Lender is served or deposition or other proceeding in
which any Lender is called to testify, in each case, relating in any way to the
Obligations, a Project, the Borrower, any of the Consolidated Businesses, this
Agreement or any of the other Loan Documents; and (viii) any amendments,
consents, waivers, assignments, restatements, or supplements to any of the Loan
Documents and the preparation, negotiation, and execution of the same.
(2) After Default. The Borrower further agrees to pay or reimburse
-------------
the Administrative Agent and each of the Lenders upon demand for all out-of-
pocket costs and expenses, including, without limitation, reasonable attorneys'
fees (including allocated costs of internal counsel and costs of settlement)
incurred by such entity after the occurrence of an Event of Default (i) in
enforcing any Loan Document or Obligation or any security therefor or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; (ii) in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or in
any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, a
Project, any of the Consolidated Businesses and related to or arising out of the
transactions contemplated hereby or by any of the other Loan Documents; and (iv)
in taking any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise) described in clauses (i) through (iii) above.
1.72 Indemnity. The Borrower further agrees (a) to defend, protect,
---------
indemnify, and hold harmless the Administrative Agent and each and all of the
other Lenders and each of their respective officers, directors, employees,
attorneys and agents (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article VI) (collectively, the "Indemnitees") from and
---------- -----------
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits,
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<PAGE>
claims, costs, reasonable expenses and disbursements of any kind or nature
whatsoever (excluding any taxes and including, without limitation, the
reasonable fees and disbursements of counsel for such Indemnitees in connection
with any investigative, administrative or judicial proceeding, whether or not
such Indemnitees shall be designated a party thereto), imposed on, incurred by,
or asserted against such Indemnitees in any manner relating to or arising out of
(i) this Agreement or the other Loan Documents, or any act, event or transaction
related or attendant thereto, the making of the Loans hereunder, the management
of such Loans, the use or intended use of the proceeds of the Loans hereunder,
or any of the other transactions contemplated by the Loan Documents, or (ii) any
Liabilities and Costs relating to violation of any Environmental, Health or
Safety Requirements of Law, the past, present or future operations of the
Borrower, any of its Subsidiaries or any of their respective predecessors in
interest, or, the past, present or future environmental, health or safety
condition of any respective Property of the Borrower or any of its Subsidiaries,
the presence of asbestoscontaining materials at any respective Property of the
Borrower or any of its Subsidiaries, or the Release or threatened Release of any
Contaminant into the environment (collectively, the "Indemnified Matters");
-------------------
provided, however, the Borrower shall have no obligation to an Indemnitee
-------- -------
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or gross negligence of such Indemnitee, as determined by a
court of competent jurisdiction in a non-appealable final judgment; and (b) not
to assert any claim against any of the Indemnitees, on any theory of liability,
for consequential or punitive damages arising out of, or in any way in
connection with, the Commitments, the Obligations, or the other matters governed
by this Agreement and the other Loan Documents. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion which it is permitted
to pay and satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.
1.73 Change in Accounting Principles. If any change in the
-------------------------------
accounting principles used in the preparation of the most recent financial
statements referred to in Sections 8.1 or 8.2 are hereafter required or
------------ ---
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by any General Partner or the Borrower, as applicable, with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the covenants,
standards or terms found in Article X, the parties hereto agree to enter into
----------
negotiations in order to amend such provisions so as to equitably reflect such
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<PAGE>
changes with the desired result that the criteria for evaluating compliance with
such covenants, standards and terms by the Borrower shall be the same after such
changes as if such changes had not been made; provided, however, no change in
-------- -------
GAAP that would affect the method of calculation of any of the covenants,
standards or terms shall be given effect in such calculations until such
provisions are amended, in a manner satisfactory to the Administrative Agent and
the Borrower, to so reflect such change in accounting principles.
1.74 Setoff. In addition to any Liens granted under the Loan
------
Documents and any rights now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default, each Lender and
any Affiliate of any Lender is hereby authorized by the Borrower at any time or
from time to time, without notice to any Person (any such notice being hereby
expressly waived) to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured (but not
including trust accounts)) and any other Indebtedness at any time held or owing
by such Lender or any of its Affiliates to or for the credit or the account of
the Borrower against and on account of the Obligations of the Borrower to such
Lender or any of its Affiliates, including, but not limited to, all Loans and
all claims of any nature or description arising out of or in connection with
this Agreement, irrespective of whether or not (i) such Lender shall have made
any demand hereunder or (ii) the Administrative Agent, at the request or with
the consent of the Requisite Lenders, shall have declared the principal of and
interest on the Loans and other amounts due hereunder to be due and payable as
permitted by Article XI and even though such Obligations may be contingent or
----------
unmatured. Each Lender agrees that it shall not, without the express consent of
the Requisite Lenders, and that it shall, to the extent it is lawfully entitled
to do so, upon the request of the Requisite Lenders, exercise its setoff rights
hereunder against any accounts of the Borrower now or hereafter maintained with
such Lender or any Affiliate.
1.75 Ratable Sharing. The Lenders agree among themselves that (i)
---------------
with respect to all amounts received by them which are applicable to the payment
of the Obligations (excluding the fees described in Sections 5.2(f), and 5.3 and
--------------- ---
Article XIII) equitable adjustment will be made so that, in effect, all such
------------
amounts will be shared among them ratably in accordance with their Pro Rata
Shares, whether received by voluntary payment, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross-action or by the enforcement
of any or all of the Obligations (excluding the fees described in Sections
--------
5.2(f), and 5.3 and Article XIII), (ii) if any of them shall by voluntary
------ --- ------------
payment or by the exercise of any right of counterclaim, setoff, banker's lien
or otherwise, receive payment of a proportion of the aggregate
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<PAGE>
amount of the Obligations held by it, which is greater than the amount which
such Lender is entitled to receive hereunder, the Lender receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest and
participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all such
recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if all or part of
-------- -------
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 15.6 may, to the fullest extent permitted by
------------
law, exercise all its rights of payment (including, subject to Section 15.5, the
------------
right of setoff) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
1.76 Amendments and Waivers.
----------------------
(1) General Provisions. Unless otherwise provided for or required in
------------------
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower; provided,
--------
however, that the Borrower's agreement shall not be required for any amendment
-------
or modification of Sections 12.1 through 12.8. No termination or waiver of any
------------- ----
provision of this Agreement or any of the other Loan Documents, or consent to
any departure by the Borrower therefrom, shall be effective without the written
concurrence of the Requisite Lenders, which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion. All amendments, waivers and
consents not specifically reserved to the Administrative Agent or the other
Lenders in Section 15.7(b), 15.7(c), and in other provisions of this Agreement
---------------- -------
shall require only the approval of the Requisite Lenders. Any waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it was given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
(2) Amendments, Consents and Waivers by Affected Lenders. Any
----------------------------------------------------
amendment, modification, termination, waiver or consent with respect to any of
the
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following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(1) waiver of any of the conditions specified in Section 6.1
-----------
(except with respect to a condition based upon another provision of this
Agreement, the waiver of which requires only the concurrence of the
Requisite Lenders),
(2) increase in the amount of such Lender's Commitment,
(iii) reduction of the principal of, rate or amount of interest on
the Loans, or any fees or other amounts payable to such Lender (other than
by the payment or prepayment thereof), and
(3) postponement or extension of any date (other than the
Termination Date postponement or extension of which is governed by Section
-------
15.7(c)(i)) fixed for any payment of principal of, or interest on, the
---------
Loans or any fees or other amounts payable to such Lender (except with
respect to any modifications of the application provisions relating to
prepayments of Loans and other Obligations which are governed by Section
-------
4.2(b)).
------
(3) Amendments, Consents and Waivers by All Lenders. Any amendment,
-----------------------------------------------
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(1) postponement of the Termination Date, or increase in the
aggregate Commitments to any amount in excess of $475,000,000,
(2) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action hereunder or under the other Loan
Documents,
(iv) amendment of Section 15.6 or this Section 15.7,
------------ ------------
(3) assignment of any right or interest in or under this Agreement
or any of the other Loan Documents by the Borrower, and
(4) waiver of any Event of Default described in Sections 11.1(a),
----------------
(f), (g), (i), (n), and (o).
--- --- --- --- ---
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(4) Administrative Agent Authority. The Administrative Agent may,
------------------------------
but shall have no obligation to, with the written concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that Lender.
Notwithstanding anything to the contrary contained in this Section 15.7, no
------------
amendment, modification, waiver or consent shall affect the rights or duties of
the Administrative Agent under this Agreement and the other Loan Documents,
unless made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower shall have requested, in writing,
that any Lender agree to an amendment, modification, waiver or consent with
respect to any particular provision or provisions of this Agreement or the other
Loan Documents, and such Lender shall have failed to state, in writing, that it
either agrees or disagrees (in full or in part) with all such requests (in the
case of its statement of agreement, subject to satisfactory documentation and
such other conditions it may specify) within thirty (30) days after such Lender
receives such request, then such Lender hereby irrevocably authorizes the
Administrative Agent to agree or disagree, in full or in part, and in the
Administrative Agent's sole discretion, to such requests on behalf of such
Lender as such Lenders' attorney-in-fact and to execute and deliver any writing
approved by the Administrative Agent which evidences such agreement as such
Lender's duly authorized agent for such purposes.
1.77 Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service and shall be deemed to have been given when delivered in person
or by courier service, or upon receipt of a facsimile transmission. Notices to
the Administrative Agent pursuant to Articles II, IV or XII shall not be
----------- -- ---
effective until received by the Administrative Agent. For the purposes hereof,
the addresses of the parties hereto (until notice of a change thereof is
delivered as provided in this Section 15.8) shall be as set forth below each
------------
party's name on the signature pages hereof or the signature page of any
applicable Assignment and Acceptance, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the
other parties to this Agreement.
1.78 Survival of Warranties and Agreements. All representations and
-------------------------------------
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and the termination of this Agreement and shall not be
limited in any way by
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the passage of time or occurrence of any event and shall expressly cover time
periods when the Administrative Agent, any of the other Agents or any of the
other Lenders may have come into possession or control of any Property of the
Borrower or any of its Subsidiaries.
1.79 Failure or Indulgence Not Waiver; Remedies Cumulative. No
-----------------------------------------------------
failure or delay on the part of the Administrative Agent, any other Lender or
any other Agent in the exercise of any power, right or privilege under any of
the Loan Documents shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under the Loan Documents are cumulative to and not exclusive
of any rights or remedies otherwise available.
1.80 Marshalling; Payments Set Aside. None of the Administrative
-------------------------------
Agent or any other Lender shall be under any obligation to marshall any assets
in favor of the Borrower or any other party or against or in payment of any or
all of the Obligations. To the extent that the Borrower makes a payment or
payments to the Administrative Agent or any other Lender or any such Person
exercises its rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
1.81 Severability. In case any provision in or obligation under
------------
this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
1.82 Headings. Section headings in this Agreement are included
--------
herein for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
1.83 Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
-------------
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF
103
<PAGE>
THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
1.84 Limitation of Liability. No claim may be made by any Lender,
-----------------------
the Administrative Agent, or any other Person against any Lender (acting in any
capacity hereunder) or the Affiliates, directors, officers, employees, attorneys
or agents of any of them for any consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and each Lender and the
Administrative Agent hereby waives, releases and agrees not to sue upon any such
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
1.85 Successors and Assigns. This Agreement and the other Loan
----------------------
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. The rights hereunder of the
Borrower, or any interest therein, may not be assigned without the prior written
consent of all Lenders, except in accordance with the provisions of Article XIV
hereof.
1.86 Certain Consents and Waivers of the Borrower.
--------------------------------------------
(1) Personal Jurisdiction. (i) EACH OF THE LENDERS AND THE
---------------------
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT
SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF
MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE
BORROWER IRREVOCABLY DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, 1633
BROADWAY, NEW YORK, NEW YORK 10019, AS ITS AGENT (THE
104
<PAGE>
"PROCESS AGENT") FOR SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
-------------
COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. EACH OF THE LENDERS AND THE BORROWER AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION
NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE OTHER
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE BORROWER AGREES THAT IT WILL NOT
ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE
ADMINISTRATIVE AGENT OR ANY LENDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF THE ADMINISTRATIVE AGENT OR ANY LENDER. THE BORROWER WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS
SECTION.
(2) Service of Process. THE BORROWER IRREVOCABLY CONSENTS TO THE
------------------
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS SPECIFIED
BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY
105
<PAGE>
LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE OTHER LENDERS TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(3) WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT AND THE
--------------------
OTHER LENDERS AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
1.87 Counterparts; Effectiveness; Inconsistencies. This Agreement
--------------------------------------------
and any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Lender on the Closing Date. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually inconsistent with the terms and conditions of any other Loan Document,
this Agreement shall govern.
1.88 Limitation on Agreements. All agreements between the Borrower,
------------------------
the Administrative Agent and each Lender in the Loan Documents are hereby
expressly limited so that in no event shall any of the Loans or other amounts
payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
1.89 Confidentiality. The Lenders shall hold all nonpublic
---------------
information obtained pursuant to the requirements of this Agreement, and
identified as such by the Borrower, in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices (provided that such Lender may
share such information with its Affiliates in accordance with such Lender's
customary procedures for handling confidential information of this nature and
provided further that such Affiliate similarly shall hold such information
confidential) and in any event the Lenders may make disclosure reasonably
required by a bona fide offeree, transferee or participant in connection with
the contemplated transfer or participation or as required or requested by any
Governmental Authority or representative thereof or pursuant to legal process
and shall require any such offeree, transferee or participant to agree (and
require any of its offerees, transferees or participants to agree) to comply
with this Section 15.20.
-------------
106
<PAGE>
In no event shall any Lender be obligated or required to return any materials
furnished by the Borrower; provided, however, each offeree shall be required to
-------- -------
agree that if it does not become a transferee or participant it shall return all
materials furnished to it by the Borrower in connection with this Agreement. Any
and all confidentiality agreements entered into between any Lender and the
Borrower shall survive the execution of this Agreement.
1.90 Disclaimers. The Administrative Agent and the other Lenders
-----------
shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services performed or materials
supplied in connection with any work performed on the Projects, including any TI
Work. The Administrative Agent and the other Lenders shall not be liable for any
debts or claims accruing in favor of any such parties against the Borrower or
others or against any of the Projects. The Borrower is not and shall not be an
agent of any of the Administrative Agent or the other Lenders for any purposes
and none of the Lenders or the Administrative Agent shall be deemed partners or
joint venturers with Borrower or any of its Affiliates. None of the
Administrative Agent or the other Lenders shall be deemed to be in privity of
contract with any contractor or provider of services to any Project, nor shall
any payment of funds directly to a contractor or subcontractor or provider of
services be deemed to create any third party beneficiary status or recognition
of same by any of the Administrative Agent or the other Lenders and the Borrower
agrees to hold the Administrative Agent and the other Lenders harmless from any
of the damages and expenses resulting from such a construction of the
relationship of the parties or any assertion thereof.
1.91 Intentionally Omitted.
---------------------
1.92 Retained Properties. Notwithstanding anything contained in
-------------------
this Agreement to the contrary, the Company or any Subsidiary thereof will
retain direct or indirect ownership of the Retained Properties, or, if the
Company shall elect to sell or otherwise transfer any of the Retained
Properties, it shall retain any and all proceeds received in connection
therewith, and will not contribute any portion thereof to the Borrower or any
other entity or distribute any portion thereof to any of its shareholders.
1.93 Entire Agreement. This Agreement, taken together with all of
----------------
the other Loan Documents, embodies the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings,
written and oral, relating to the subject matter hereof.
107
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER: SIMON PROPERTY GROUP, L.P.,
-------- a Delaware limited partnership
By: SIMON PROPERTY GROUP, INC.,
as Managing General Partner
By: _______________________
David Simon
Chief Executive Officer
SIMON PROPERTY GROUP, INC.
By: _______________________
David Simon
Chief Executive Officer
Notice Address:
--------------
Merchants Plaza
P.O. Box 7033
Indianapolis, Indiana 46207
Attn: Mr. David Simon
Telecopy: (317) 263-7037
with a copy to:
Simon Property Group, L.P.
Merchants Plaza
P.O. Box 7033
Indianapolis, Indiana 46207
Attn: General Counsel
Telecopy: (317) 685-7221
108
<PAGE>
ADMINISTRATIVE AGENT: THE CHASE MANHATTAN BANK
--------------------
By:______________________
Name:____________________
Title:___________________
Notice Address, Domestic and Eurodollar Lending
-----------------------------------------------
Office:
------
The Chase Manhattan Bank
270 Park Avenue, 31/st/ Floor
New York, New York 10017
Attention: John Mix
Pro Rata Share: 25.26315%
Revolving Credit Commitment: $120,000,000
<PAGE>
DOCUMENTATION AGENT: BANK OF AMERICA, NATIONAL ASSOCIATION
-------------------
By:____________________________
Name: Cynthia C. Sanford
Title: Senior Vice President
Notice Address; Domestic and
----------------------------
Eurodollar Lending Office:
-------------------------
Bank of America, N.A.
901 Main Street, 51/st/ Floor
Dallas, TX 75202
Attn: Alison B. Connell
Telecopy: 214-209-1571
Pro Rata Share: 20%
Revolving Credit Commitment: $95,000,000
110
<PAGE>
LENDER: UBS AG, STAMFORD BRANCH
------
By:________________________
Name: Jeffrey W. Wald
Title: Executive Director
By:________________________
Name:______________________
Title:_____________________
Notice Address, Domestic
Lending Office and
Eurodollar Lending Office:
--------------
UBS AG
299 Park Avenue
New York, New York 10171
Attn: Ms. Xiomara Martez
Telecopy: (212) 821-4138
Pro Rata Share: 9.89473%
Revolving Credit Commitment: $47,000,000
111
<PAGE>
LENDER: MORGAN GUARANTY TRUST COMPANY
------
OF NEW YORK
By:________________________
Name:______________________
Title:_____________________
Notice Address:
--------------
c/o J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, Delaware 19713-2107
Attn: Mr. William Lamb
Telecopy: (302) 634-1093
Domestic and Eurodollar
-----------------------
Lending Office:
--------------
c/o J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, Delaware 19713-2107
Attn: Mr. William Lamb
Telecopy: (302) 634-1093
Pro Rata Share: 17.05264%
Revolving Credit Commitment: $81,000,000
112
<PAGE>
LENDER: MERRILL LYNCH CAPITAL CORPORATION
------
By:________________________
Name:______________________
Title:_____________________
Notice Address:
--------------
Attn:
Telecopy:
Domestic and Eurodollar
-----------------------
Lending Office:
--------------
Attn:
Telecopy:
Pro Rata Share: 14.94737%
Revolving Credit Commitment: $71,000,000
113
<PAGE>
LENDER: CITICORP REAL ESTATE, INC.
------
By:_________________________
Name: Mark Brown
Title: Vice President
Notice Address:
--------------
Citicorp Real Estate, Inc.
599 Lexington Avenue
20/th/ Floor/Zone 6
New York, NY 10043
Attn: Mark Brown
Telecopy: 212-793-6314
Domestic Lending Office, Eurodollar
-----------------------------------
Lending Office or
-----------------
Eurodollar Affiliate:
--------------------
Citicorp Real Estate, Inc.
599 Lexington Avenue
20/th/ Floor/Zone 6
New York, NY 10043
Attn: Mark Brown
Telecopy: 212-793-6314
And to:
Citicorp Real Estate, Inc.
599 Lexington Avenue
25/th/ Floor/Zone 10
New York, NY 10043
Attn: Michael Broido, Esq.
General Counsel
Telecopy:
Pro Rata Share: 12.84211%
Revolving Credit Commitment: $61,000,000
114
<PAGE>
EXHIBIT A
to
Credit Agreement
dated as of September 22, 2000
FORM OF ASSIGNMENT AND ACCEPTANCE
____________________________________________ ASSIGNMENT AND
ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE dated as of _____________, 200, among
[Names of Assignor Lenders] (each, an "Assignor" and collectively, the
"Assignors") and ________, __________, ____________, (etc.) (each, an "Assignee"
and collectively, the "Assignees").
PRELIMINARY STATEMENTS
A. Reference is made to the Credit Agreement dated as of September
22, 2000 (as the same may be amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement") among Simon Property Group,
L.P., Simon Property Group, Inc., the institutions from time to time party
thereto as Lenders and syndication and documentation agents, and The Chase
Manhattan Bank, as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein are used as defined in the Credit Agreement.
B. The Assignors are Lenders under the Credit Agreement and each
desires to sell and assign to the Assignees a portion of such Assignor's
existing Commitment, as set forth on Schedule 2 attached hereto (each, an
"Assigned Commitment") in the aggregate amount of $__________ of the Commitments
(the "Aggregate Assigned Amount"), and each Assignee desires to purchase and
assume from each Assignor, on terms and conditions set forth below, an interest
in such Assignor's respective Assigned Commitment and related outstanding Loans
(the "Assigned Percentages"), together with the Assignors' respective rights and
obligations under the Credit Agreement with respect to the Assigned Percentages,
such that each Assignee shall, from and after the Effective Date (as defined
below), become a Lender under the Credit Agreement with the respective
Commitment and Pro Rata Share listed on the signature pages attached hereto.
A-5
<PAGE>
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Assignors and the Assignees
hereby agree as follows:
1. In consideration of the payments of each Assignee to each
Assignor, to be made by wire transfer to the Administrative Agent of immediately
available funds on the Effective Date in accordance with Schedule 3 attached
hereto, each Assignor hereby sells and assigns to each Assignee, and each
Assignee hereby purchases and assumes from such Assignor, the Assigned
Percentage set forth on Schedule 1 attached hereto, together with such
Assignor's rights and obligations under the Credit Agreement and all of the
other Loan Documents with respect to the Assigned Percentages as of the date
hereof (after giving effect to any other assignments thereof made prior to the
date hereof, whether or not such assignments have become effective, but without
giving effect to any other assignments thereof also made on the date hereof),
including, without limitation, the obligation to make Loans.
2. Each Assignor (i) represents and warrants that as of the date
hereof its Commitment is as set forth on Schedule 2 attached hereto (in each
case, after giving effect to any other assignments thereof made prior to the
date hereof, whether or not such assignments have become effective, but without
giving effect to any other assignments thereof made as of the date hereof); (ii)
represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim and that such Assignor is legally authorized to enter into
this Assignment and Acceptance; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of the
other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any of the other
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any obligations under the Credit Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant thereto.
3. Each Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it shall have no recourse against the Assignor with respect to any matter
relating to the Credit Agreement, any of the other Loan Documents, or this
Assignment and
A-6
<PAGE>
Acceptance (except with respect to the representations or warranties made by the
Assignors in clauses (i) and (ii) of paragraph 2 above); (iv) agrees that it
----------- ----
will, independently and without reliance upon the Administrative Agent, the
Assignors or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (v) confirms that it is
an Eligible Assignee; (vi) appoints and authorizes the Administrative Agent to
take such action as agent on Assignee's behalf and to exercise such powers under
the Credit Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (vii)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (viii) confirms that, to the best of its knowledge,
as of the date hereof, it is not subject to any law, regulation or guideline
from any central bank or other Governmental Authority or quasi-governmental
authority exercising jurisdiction, power or control over it, which would subject
the Borrower to the payment of additional compensation under Section 13.2 or
------------
under Section 13.3 of the Credit Agreement; (ix) specifies as its Domestic
------------
Lending Office (and address for notices) and Eurodollar Lending Office(s) the
offices set forth beneath its name on the signature pages hereof; (x) if such
Assignee is organized under the laws of a jurisdiction outside the United
States, attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such rates at a rate reduced by an applicable tax treaty; and (xi) represents
and warrants that none of the funds, monies, assets or other consideration being
used to purchase pursuant to this Assignment and Acceptance are "plan assets" as
defined under ERISA and that its rights, benefits, and interests in and under
the Loan Documents will not be "plan assets" under ERISA.
4. Following the execution of this Assignment and Acceptance by each
of the Assignors and the Assignees, it will be delivered to the Administrative
Agent for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be _______________, 200__ (the
"Effective Date").
5. As of the Effective Date, (i) each Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) each
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement with respect to its Assigned Commitment.
A-7
<PAGE>
6. From and after the Effective Date, the Administrative Agent shall
make all payments under the Credit Agreement and the Notes in respect of the
Aggregate Assigned Amount (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the appropriate Assignees.
The Administrative Agent shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective
Date.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
A-8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ASSIGNORS: ___________________
By:_______________________
Name: ____________________
Title:____________________
By:_______________________
Name: ____________________
Title:____________________
Notice Address, Domestic
------------------------
Lending Office and Eurodollar Lending Office:
--------------------------------------------
Adjusted Pro Rata Share: __%
Adjusted Commitment: $____
A-9
<PAGE>
ASSIGNEES: ___________________
By:_______________________
Name: __________
Title:_________
By:_______________________
Name: __________
Title:_________
Notice Address, Domestic
------------------------
Lending Office and Eurodollar Lending Office:
--------------------------------------------
Pro Rata Share: __%
Commitment: $____
A-10
<PAGE>
Accepted as of this __ day
of ___________, 200
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:______________________
Name:
Title:
A-11
<PAGE>
SCHEDULE 1
Assignee Assigned New Pro
--------
Percentage Rata Share
---------- ----------
A-12
<PAGE>
SCHEDULE 2
EXISTING CREDIT COMMITMENTS AND
PRO RATA SHARES OF ASSIGNORS
Assignor Existing Existing
Credit Pro Rata Assigned
Commitment Share Commitment
---------- ----- ----------
A-13
<PAGE>
SCHEDULE 3
PAYMENTS/1/
Lender Facility Funding
------ -------- -------
Fee Amount/Repay- Fee to
--- ------------- ------
ment to Assignors Administrative Agent/2/
----------------- -----------------------
________________________
/1/ Payments to the Lenders are shown without parentheses; payments from the
Lenders to the Administrative Agent, on its own behalf or on behalf of the
Lenders, are shown in parentheses.
/2/ Pursuant to Section 15.1 (d) of the Credit Agreement.
A-14
<PAGE>
EXHIBIT B
to
Credit Agreement
dated as of September 22, 2000
FORM OF NOTE
---------------------------------------------------------
PROMISSORY NOTE
Dated: September 22, 2000
FOR VALUE RECEIVED, the undersigned, SIMON PROPERTY GROUP, L.P., a
Delaware limited partnership, and SIMON PROPERTY GROUP, INC., a Delaware
corporation (collectively, "Borrower"), JOINTLY AND SEVERALLY HEREBY PROMISE TO
--------
PAY to the order of _______________________ (the "Lender"), on the Termination
------
Date, the aggregate principal amount then outstanding of the Loans made by the
Lender to the Borrower pursuant to that certain Credit Agreement dated as of
September 22, 2000, among Borrower, the Lender, the other financial institutions
from time to time a party thereto as Lenders and syndication and documentation
agents, and The Chase Manhattan Bank, as Administrative Agent (as the same may
be amended, restated, supplemented, or otherwise modified from time to time, the
"Credit Agreement"). Capitalized terms used herein, and not otherwise defined
----------------
herein, shall have the meanings ascribed to such terms in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date advanced until such principal amount is paid
in full, at such interest rates (which shall not exceed the maximum rate
permitted by applicable law), and at such times, as are specified in the Credit
Agreement.
All payments of principal and interest in respect of this Promissory
Note shall be made to the Administrative Agent in lawful money of the United
States of America in same day funds for the account of the Lender in accordance
with the terms of the Credit Agreement. Each Loan made by the Lender to the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender on its books and records and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make any such
--------
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
B-1
<PAGE>
This Promissory Note is one of the Notes referred to in, is executed
and delivered pursuant to, and is entitled to the benefits of, the Credit
Agreement, to which Credit Agreement reference is hereby made for a statement of
the terms and conditions under which this Promissory Note may be prepaid or the
Obligations accelerated or extended. The terms and conditions of the Credit
Agreement are hereby incorporated in their entirety herein by reference as
though fully set forth herein. Upon the occurrence of certain Events of Default
as more particularly described in the Credit Agreement, the unpaid principal
amount evidenced by this Promissory Note shall become, and upon the occurrence
and during the continuance of certain other Events of Default, such unpaid
principal amount may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
Notwithstanding anything contained in this Promissory Note or the
Credit Agreement to the contrary, it is expressly understood and agreed that
nothing in the Credit Agreement or in this Promissory Note shall be construed as
creating any liability on any Limited Partner, any General Partner, or any
partner, officer, shareholder or director of any Limited Partner or any General
Partner to pay any of the Obligations other than liability arising from or in
connection with (i) fraud or (ii) the misappropriation or misapplication of
proceeds of the Loans; but nothing herein shall be construed to prevent the
exercise of any remedy allowed to the Administrative Agent, the other Lenders or
any Issuing Banks by law or by the terms of the Credit Agreement or the other
Loan Documents which does not relate to or result in such an obligation by any
Limited Partner or any General Partner to pay money.
Demand, presentment, diligence, protest and notice of nonpayment are
hereby waived by the Borrower.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
B-2
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Promissory Note to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
SIMON PROPERTY GROUP, L.P., a Delaware limited
partnership
By: SIMON PROPERTY GROUP, INC., its general partner
By:_____________________________
David Simon
Chief Executive Officer
B-3
<PAGE>
LOAN AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount Type Amount of
of of Principal Notation
Date Loan Loan Repaid Made By
---- ---- ---- ------ -------
<S> <C> <C> <C> <C>
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
</TABLE>
B-4
<PAGE>
EXHIBIT C
to
Credit Agreement
dated as of September 22, 2000
---------------------------------------------------------
FORM OF NOTICE OF BORROWING
_______, 200_
The Chase Manhattan Bank, as Administrative Agent for the Lenders party to the
Credit Agreement
referred to below
One Chase Manhattan Plaza, 8th floor
New York, New York 10081
Attention: Christina Gould
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
September 22, 2000 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among Simon Property Group, L.P.,
a Delaware limited partnership, and Simon Property Group, Inc. (collectively,
the "Borrower"), the institutions from time to time party thereto as Lenders and
syndication and documentation agents, and The Chase Manhattan Bank, as
Administrative Agent.
The Borrower hereby gives you notice, irrevocably, pursuant to Section
-------
2.1(b) of the Credit Agreement that the Borrower hereby requests a Borrowing
------
under the Credit Agreement and, in that connection, sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required
pursuant to the terms of the Credit Agreement:
The date of the Proposed Borrowing is September 22, 2000.
The amount of the Proposed Borrowing is $475,000,000.
The Proposed Borrowing will be of [Eurodollar Rate Loans] [Base Rate
Loans].
C-1
<PAGE>
The requested Eurodollar Interest Period for
the Proposed Borrowing is from ____________ and
ending ___________ (for a total of _______ months)./1/
The Borrower hereby directs the Administrative Agent to disburse the
proceeds of the Loans comprising the Proposed Borrowing on the Closing Date
therefor as set forth on Schedule 1 attached hereto and made a part hereof,
----------
whereupon the proceeds of such Loans shall be deemed received by or for the
benefit of the Borrower.
________________
/1/ To be specified if the Proposed Borrowing is of Eurodollar Rate Loans.
C-2
<PAGE>
The Borrower hereby certifies that the conditions precedent contained in
Section 6.1 are satisfied on the date hereof and will be satisfied on the
-----------
Funding Date of the Proposed Borrowing.
SIMON PROPERTY GROUP, L.P., a Delaware limited
partnership
By: SIMON PROPERTY GROUP, INC., its general partner
By:_____________________
Name:
Title:
C-3
<PAGE>
SCHEDULE 1
to
Notice of Borrowing
-------------------
dated ______, 200_
[Insert disbursement directions]
C-4
<PAGE>
EXHIBIT D
to
Credit Agreement
dated as of September 22, 2000
8
---------------------------------------------------------
FORM OF NOTICE OF CONVERSION/CONTINUATION
________, 200_
The Chase Manhattan Bank, as Administrative Agent for the Lenders party to the
Credit Agreement
referred to below
380 Madison Avenue
New York, New York
Attention:
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
September 22, 2000 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among Simon Property Group, L.P.
and Simon Property Group, Inc. (collectively, the "Borrower"), the institutions
from time to time party thereto as Lenders and syndication and documentation
agents, and The Chase Manhattan Bank, as Administrative Agent.
The Borrower hereby gives you notice pursuant to Section 5.1(c)(ii) of
------------------
the Credit Agreement that the Borrower hereby elects to/1/:
_______________________
/1/ Include those items that are applicable, completed appropriately for the
circumstances.
D-1
<PAGE>
1. Convert $_________/2/ in aggregate principal amount of Base Rate
Loans from Base Rate Loans to [Eurodollar Rate Loans] on _______________,
200_/3/. [The Eurodollar Interest Period for such Eurodollar Rate Loans is
requested to be ______ month[s]].
2. Convert $________ in aggregate principal amount of Eurodollar Rate
Loans with a current Eurodollar Interest Period ending ___________, 200_/4/ to
[Base Rate Loans].
3. Continue as Eurodollar Rate Loans $_________/5/ in aggregate
principal amount of Eurodollar Rate Loans with a current Eurodollar Interest
Period from _____________ and ending _____________, 200_. The succeeding
Eurodollar Interest period for such Eurodollar Rate Loans is requested to be
_______ month[s].
_______________
/2/ Such amount of conversion to or continuation of Eurodollar Rate Loans must
be in a minimum amount of $5,000,000 and in integral multiples of $100,000 in
excess of that amount, except in the case of a conversion into or a conversion
of an entire Borrowing of Non Pro Rata Loans.
/3/ Date of conversion must be a Business Day.
/4/ The Conversion of Eurodollar Rate Loans to Base Rate Loans shall be made
on, and only on, the last day of the Eurodollar Interest Period for such
converted Loans.
/5/ See footnote 2.
D-2
<PAGE>
The Borrower hereby certifies that on the date hereof there are no
prohibitions under the Credit Agreement to the requested
conversion/continuation, and no such prohibitions will exist on the date of the
requested conversion/continuation.
SIMON PROPERTY GROUP, L.P.
By:SIMON PROPERTY GROUP, INC., its general partner
By:_____________________
Name:
Title:
D-3
<PAGE>
EXHIBIT E
to
Credit Agreement
dated as of September 22, 2000
-------------------------------------
LIST OF CLOSING DOCUMENTS/1/
-------------------------
1 Credit Agreement (the "Credit Agreement"), among Simon Property
Group, L.P. and Simon Property Group, Inc. (collectively, the "Borrower"),
certain financial institutions listed on the signature pages thereof as lenders
(collectively referred to herein, together with their respective successors and
assigns, as the "Lenders"), certain financial institutions listed on the
signature pages thereof as syndication and documentation agents (collectively
referred to herein, together with their respective successors and assigns, as
the "Co-Agents"), and The Chase Manhattan Bank, as Administrative Agent
("Administrative Agent").
2 Exhibits and Schedules to the Credit Agreement as described on
Schedule 1 attached hereto.
----------
3 Promissory Notes (the "Notes") executed by the Borrower and
payable to each Lender evidencing the Loans made by such Lender under the Credit
Agreement.
4 Certificate of the Secretary of each of the Company and SPG dated
the Closing Date (a) in its capacity as general partner of the Borrower
certifying (1) the names and true signatures of the incumbent officers of the
Company authorized to sign the Credit Agreement, the Notes and the other Loan
Documents on behalf of the Borrower, (2) the resolutions of the Company's Board
of Directors approving and authorizing the execution, delivery and performance
of the Credit Agreement, the Notes and all other Loan Documents executed by the
General Partner on behalf of the Borrower, and (3) a copy of the Partnership
Agreement of the Borrower as in effect on the date of such certification, and
(b) a copy of the Certificate of Incorporation of the Company, together with all
amendments thereto, if any, certified by the Secretary of State of Maryland.
___________________________
/1/ Capitalized terms used herein but not otherwise defined herein have the
meaning assigned to such terms in the Credit agreement.
E-1
<PAGE>
5 Copy of the Certificates of Limited Partnership of the Borrower,
together with all amendments thereto, if any, certified by the Secretary of
State of Delaware.
6 Copy of the Articles of Incorporation of the Company, together
with all amendments thereto, if any, certified by the Secretary of State of
Delaware.
7 Opinion of James M. Barkley, General Counsel of the Borrower and
the Company.
8 Opinion of Skadden Arps, et al., regarding the enforceability of
the Credit Agreement under New York law.
9 Notice of Borrowing executed by the Borrower with respect to the
Loans to be made on the Closing Date.
10 Disbursement Direction Authorization executed by the Borrower
pursuant to which the Administrative Agent is directed to disburse the proceeds
of the Loans to be made on the Closing Date as described therein.
11 Officer's Certificate of the General Partners dated the Closing
Date, signed by the President of the Company, certifying, among other things,
satisfaction of the conditions precedent to funding set forth in Section 6.1 of
-----------
the Credit Agreement.
E-2
<PAGE>
SCHEDULE 1
TO LIST OF CLOSING DOCUMENTS
EXHIBITS
--------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Note
Exhibit C -- Form of Notice of Borrowing
Exhibit D -- Form of Notice of Conversion/Continuation
Exhibit E -- List of Closing Documents
Exhibit F -- Form of Officer's Certificate
Exhibit G -- Sample Calculations of Financial Covenants
SCHEDULES
---------
Schedule 1.1.4 -- Permitted Securities Options
Schedule 7.1-A -- Organizational Documents
Schedule 7.1-C -- Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H -- Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I -- Pending Actions
Schedule 7.1-P -- Environmental Matters
Schedule 7.1-Q -- ERISA Matters
Schedule 7.1-T -- Insurance Policies
Schedule 8.8(vi)-- Retained Properties
E-3
<PAGE>
EXHIBIT F
to
Credit Agreement
dated as of September 22, 2000
----------------------------------------
FORM OF OFFICER'S CERTIFICATE TO
ACCOMPANY REPORTS
______, 200_
The Chase Manhattan Bank, as Administrative Agent for the Lenders party to the
Credit Agreement referred to below
380 Madison Avenue
New York, New York
Attention:
Ladies and Gentlemen:
Pursuant to [Section 8.2(a)(iii)] of that certain Credit Agreement
dated as of September 22, 2000 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined) among Simon Property
Group, L.P. and Simon Property Group, Inc. (collectively, the "Borrower"), the
institutions from time to time party thereto as Lenders and as syndication and
documentation agents, and The Chase Manhattan Bank, as Administrative Agent, the
undersigned, __________________, the __________________ of Simon Property Group,
Inc., a Delaware corporation (the "Company") hereby certifies that:
1 The undersigned has reviewed the terms of the Loan Documents, and
has made, or caused to be made under [his/her] supervision, a review in
reasonable detail of the transactions and consolidated and consolidating
financial condition of the Company and its Subsidiaries during the accounting
period covered by the financial statements identified below. To the best of the
undersigned's knowledge, such review has not disclosed the existence during or
at the end of such accounting period, and as of the date hereof the undersigned
does not have knowledge, of the existence of any condition or event which
constitutes an Event of Default or Potential Event of Default./1/
______________________
/1/ If such condition or event exists or existed, specify (i) the nature and
period of such condition or event and (ii) the action taken, being taken or
proposed to be
F-1
<PAGE>
2 The financial statements, reports and copies of certain
instruments and documents attached hereto, namely,
A. Compliance Certificate, dated ____________
B. ______________________, dated ____________
C. ______________________, dated ____________
D. ______________________, dated ____________
are true and complete copies of the aforesaid which constitute part of or are
based upon the customary books and records of the Company, and, to the best of
the undersigned's knowledge and belief, there exist no facts or circumstances
which would materially and adversely affect or vary the information contained in
any of the aforesaid.
___________________________
Name:
Title:
________________________________________________________________________________
taken with respect thereto.
F-2
<PAGE>
EXHIBIT G
to
Credit Agreement
dated as of September 22, 2000
---------------------------------------------------------
SAMPLE CALCULATIONS OF FINANCIAL COVENANTS
Attached.
G-1
<PAGE>
Schedule 15.23
--------------
Retained Properties
-------------------
(1) Ocean County Mall
Toms River, New Jersey
(2) Safeway 1
Tempe, Arizona
(3) Allied Store
Austin, Texas
(4) JC Penney Store
Atlanta, Georgia
i
