<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
<TABLE>
<S> <C>
SIMON PROPERTY GROUP, INC. SPG REALTY CONSULTANTS, INC.
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
Delaware Delaware
(State of incorporation or organization) (State of incorporation or organization)
001-14469 001-14469-01
(Commission File No.) (Commission File No.)
046268599 13-2838638
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
National City Center National City Center
115 West Washington Street, Suite 15 East 115 West Washington Street, Suite 15 East
Indianapolis, Indiana 46204 Indianapolis, Indiana 46204
(Address of principal executive offices) (Address of principal executive offices)
(317) 636-1600 (317) 636-1600
(Registrant's telephone number, including area code) (Registrant's telephone number, including area code)
CORPORATE PROPERTY INVESTORS, INC. CORPORATE REALTY CONSULTANTS, INC.
(Former name of registrant) (Former name of registrant)
Three Dag Hammarskjold Plaza Three Dag Hammarskjold Plaza
307 East 47th Street 307 East 47th Street
New York, New York 10017 New York, New York 10017
(Former address of principal executive offices) (Former address of principal executive offices)
</TABLE>
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES /X/ NO / /
As of November 11, 1998, 163,574,091 shares of common stock, par value $0.0001
per share, 3,200,000 shares of Class B common stock, par value $0.0001 per share
and 4,000 shares of Class C common stock, par value $0.0001 of Simon Property
Group, Inc. were outstanding, and were paired with 1,667,780.91 shares of common
stock, par value $0.0001 per share, of SPG Realty Consultants, Inc. outstanding
on that same date.
1
<PAGE> 2
SIMON PROPERTY GROUP, INC. AND
SPG REALTY CONSULTANTS, INC.
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
PAGE
<S> <C>
PART I - FINANCIAL INFORMATION
Item 1: Financial Statements - Introduction 3
Simon Property Group, Inc. and SPG Realty Consultants, Inc.:
Combined Condensed Balance Sheets as of September 30, 1998 and
December 31, 1997 4
Combined Condensed Statements of Operations for the three-month and
nine-month periods ended September 30, 1998 and 1997 5
Combined Condensed Statements of Cash Flows for the nine-month
periods ended September 30, 1998 and 1997 6
Simon Property Group, Inc.:
Consolidated Condensed Balance Sheets as of September 30, 1998 and
December 31, 1997 7
Consolidated Condensed Statements of Operations for the three-month
and nine-month periods ended September 30, 1998 and 1997 8
Consolidated Condensed Statements of Cash Flows for the nine-month
periods ended September 30, 1998 and 1997 9
SPG Realty Consultants, Inc.:
Consolidated Condensed Balance Sheets as of September 30, 1998 and
December 31, 1997 10
Consolidated Condensed Statements of Operations for the three-month
and nine-month periods ended September 30, 1998 and 1997 11
Consolidated Condensed Statements of Cash Flows for the nine-month
periods ended September 30, 1998 and 1997 12
Notes to Unaudited Condensed Financial Statements 13
Item 2: Management's Discussion and Analysis of Financial Condition and
Results of Operations 25
PART II - OTHER INFORMATION
Items 1 through 6 34
SIGNATURES 35
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS - INTRODUCTION
The following unaudited financial statements of Simon Property Group, Inc.
and its paired-share affiliate, SPG Realty Consultants, Inc., are provided
pursuant to the requirements of this Item. In the opinion of management, all
adjustments necessary for fair presentation, consisting of only normal recurring
adjustments, have been included. The financial statements presented herein have
been prepared in accordance with the accounting policies described in Simon
DeBartolo Group, Inc.'s Annual report on Form 10-K for the year ended December
31, 1997 and the accounting policies described in the notes to Corporate
Property Investors, Inc. and Corporate Realty Consultants, Inc.'s historical
financial statements included in their Registration Statement on Form S-4 filed
August 13, 1998, and should be read in conjunction therewith.
As described in Note 2 to the financial statements, Corporate Property
Investors, Inc. was acquired by Simon DeBartolo Group, Inc. as of the close of
business on September 24, 1998 in a reverse purchase. Although Simon DeBartolo
Group, Inc. became a legal subsidiary of Corporate Property Investors, Inc., the
shareholders of Simon DeBartolo Group, Inc. hold the majority of the outstanding
common stock of Corporate Property Investors, Inc. Accordingly, Simon DeBartolo
Group, Inc. is the predecessor to Simon Property Group, Inc. for accounting and
reporting purposes. In connection with the acquisition, Corporate Property
Investors, Inc. and Corporate Realty Consultants, Inc. were renamed 'Simon
Property Group, Inc.' and 'SPG Realty Consultants, Inc.', respectively. See Note
1 to the financial statements for a description of the basis of presentation of
the following unaudited financial statements.
3
<PAGE> 4
SIMON PROPERTY GROUP, INC. AND
SPG REALTY CONSULTANTS, INC.
COMBINED CONDENSED BALANCE SHEETS
(UNAUDITED AND DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
------------ ------------
ASSETS:
<S> <C> <C>
Investment properties, at cost $ 11,679,790 $ 6,867,354
Less-- accumulated depreciation 645,277 461,792
------------ ------------
11,034,513 6,405,562
Goodwill 62,227 --
Cash and cash equivalents 102,517 109,699
Restricted cash 1,685 8,553
Tenant receivables and accrued revenue, net 216,202 188,359
Notes and advances receivable from Management Company and affiliate 111,391 93,809
Investment in partnerships and joint ventures, at equity 1,206,272 612,140
Investment in Management Company and affiliates 1,334 3,192
Other investment 48,239 53,785
Deferred costs and other assets 229,451 164,413
Minority interest 29,442 23,155
------------ ------------
Total assets $ 13,043,273 $ 7,662,667
============ ============
LIABILITIES:
Mortgages and other indebtedness $ 7,745,917 $ 5,077,990
Accounts payable and accrued expenses 413,903 245,121
Accrued distributions 83,978 --
Cash distributions and losses in partnerships and joint ventures, at equity 25,836 20,563
Other liabilities 78,041 67,694
------------ ------------
Total liabilities 8,347,675 5,411,368
------------ ------------
COMMITMENTS AND CONTINGENCIES (Note 11)
LIMITED PARTNERS' INTEREST IN THE OPERATING PARTNERSHIPS 997,431 694,437
PREFERRED STOCK OF SUBSIDIARY 339,262 --
SHAREHOLDERS' EQUITY:
CAPITAL STOCK OF SIMON PROPERTY GROUP, INC.:
Series B and C cumulative redeemable preferred stock, 0 shares authorized, 0 and
11,000,000 issued and outstanding, respectively -- 339,061
Series A convertible preferred stock, 209,249 shares authorized,
209,249 and 0 issued and outstanding, respectively 267,393 --
Series B convertible preferred stock, 5,000,000 shares authorized,
4,844,331 and 0 issued and outstanding, respectively 450,523 --
Common stock, $.0001 par value, 400,000,000 shares authorized,
and 163,574,091 and 106,439,001 issued and outstanding, respectively 16 10
Class B common stock, $.0001 par value, 12,000,000 shares authorized, 3,200,000
issued and outstanding 1 1
Class C common stock, $.0001 par value, 4,000 shares authorized, issued and
outstanding -- --
CAPITAL STOCK OF SPG REALTY CONSULTANTS, INC.:
Common stock, $.0001 par value, 7,500,000 shares authorized,
1,667,780.91 issued and outstanding -- --
Capital in excess of par value 3,094,125 1,491,908
Accumulated deficit (429,882) (263,308)
Unrealized gain on long-term investment (1,260) 2,420
Unamortized restricted stock award (22,011) (13,230)
------------ ------------
Total shareholders' equity 3,358,905 1,556,862
------------ ------------
Total liabilities, limited partners' interest and shareholders' equity $ 13,043,273 $ 7,662,667
============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
4
<PAGE> 5
SIMON PROPERTY GROUP, INC. AND
SPG REALTY CONSULTANTS, INC.
COMBINED CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED AND DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
For the Three Months Ended September 30, For the Nine Months Ended September 30,
---------------------------------------------------------------------------------
1998 1997 1998 1997
--------- --------- --------- ---------
REVENUE:
<S> <C> <C> <C> <C>
Minimum rent $ 194,623 $ 152,320 $ 565,557 $ 449,693
Overage rent 2,290 8,650 22,773 26,214
Tenant reimbursements 101,927 81,413 283,898 231,444
Other income 23,498 17,400 60,742 39,901
--------- --------- --------- ---------
Total revenue 322,338 259,783 932,970 747,252
--------- --------- --------- ---------
EXPENSES:
Property operating 55,600 46,203 155,858 130,228
Depreciation and amortization 61,107 48,185 177,725 135,668
Real estate taxes 31,428 23,816 90,387 73,166
Repairs and maintenance 12,424 11,107 35,974 28,653
Advertising and promotion 11,283 8,396 28,005 20,296
Provision for (recovery of) credit losses (1,857) (135) 1,598 2,690
Other 4,816 4,639 16,993 12,818
--------- --------- --------- ---------
Total operating expenses 174,801 142,211 506,540 403,519
--------- --------- --------- ---------
OPERATING INCOME 147,537 117,572 426,430 343,733
INTEREST EXPENSE 97,331 68,940 281,751 203,934
--------- --------- --------- ---------
INCOME BEFORE MINORITY INTEREST 50,206 48,632 144,679 139,799
MINORITY INTEREST (1,108) (1,423) (4,704) (3,648)
GAIN (LOSS) ON SALES OF ASSETS (64) -- (7,283) 20
--------- --------- --------- ---------
INCOME BEFORE UNCONSOLIDATED ENTITIES 49,034 47,209 132,692 136,171
INCOME FROM UNCONSOLIDATED ENTITIES 3,817 7,077 8,797 9,590
--------- --------- --------- ---------
INCOME BEFORE EXTRAORDINARY ITEMS 52,851 54,286 141,489 145,761
EXTRAORDINARY ITEMS (22) 27,215 7,002 2,501
--------- --------- --------- ---------
INCOME BEFORE LIMITED PARTNERS' INTERESTS 52,829 81,501 148,491 148,262
LESS:
LIMITED PARTNERS' INTEREST IN
THE OPERATING PARTNERSHIPS 15,789 27,758 45,368 48,522
PREFERRED DIVIDENDS OF SUBSIDIARY 482 -- 482 --
--------- --------- --------- ---------
NET INCOME 36,558 53,743 102,641 99,740
PREFERRED DIVIDENDS (7,592) (9,101) (22,260) (21,914)
--------- --------- --------- ---------
NET INCOME AVAILABLE TO COMMON SHAREHOLDERS $ 28,966 $ 44,642 $ 80,381 $ 77,826
========= ========= ========= =========
BASIC EARNINGS PER PAIRED SHARE:
Income before extraordinary items $ 0.25 $ 0.28 $ 0.67 $ 0.78
Extraordinary items -- 0.17 0.04 0.02
--------- --------- --------- ---------
Net income $ 0.25 $ 0.45 $ 0.71 $ 0.80
========= ========= ========= =========
DILUTED EARNINGS PER PAIRED SHARE:
Income before extraordinary items $ 0.25 $ 0.28 $ 0.67 $ 0.78
Extraordinary items -- 0.17 0.04 0.02
--------- --------- --------- ---------
Net income $ 0.25 $ 0.45 $ 0.71 $ 0.80
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
5
<PAGE> 6
SIMON PROPERTY GROUP, INC. AND
SPG REALTY CONSULTANTS, INC.
COMBINED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED AND DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
For the Nine Months Ended September 30,
----------------------------------------
1998 1997
----------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 102,641 $ 99,740
Adjustments to reconcile net income to net cash provided
by operating activities--
Depreciation and amortization 185,798 140,927
Extraordinary items (7,002) (2,501)
(Gain) loss on sales of assets, net 7,283 (20)
Limited partners' interest in Operating Partnership 45,368 48,522
Straight-line rent (5,892) (6,378)
Minority interest 4,704 3,648
Equity in income of unconsolidated entities (8,797) (9,590)
Changes in assets and liabilities--
Tenant receivables and accrued revenue (3,942) (1,341)
Deferred costs and other assets (10,516) (18,906)
Accounts payable, accrued expenses and other liabilities 41,648 8,151
----------- -----------
Net cash provided by operating activities 351,293 262,252
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisitions (1,881,183) (736,600)
Capital expenditures (233,200) (219,672)
Change in restricted cash 6,868 (8,829)
Cash from acquisitions 17,213 --
Net proceeds from sales of assets 46,087 599
Investments in unconsolidated entities (28,726) (63,656)
Distributions from unconsolidated entities 164,914 22,199
Investments in and advances to Management Company (19,915) --
Other investing activity -- (55,400)
----------- -----------
Net cash used in investing activities (1,927,942) (1,061,359)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from sales of common and convertible preferred stock, net 114,629 327,101
Minority interest distributions, net (10,991) (2,825)
Distributions to shareholders (205,697) (168,263)
Distributions to limited partners (104,139) (91,632)
Mortgage and other note proceeds, net of transaction costs 3,305,199 1,595,202
Mortgage and other note principal payments (1,529,534) (852,906)
Other refinancing transaction -- (21,000)
----------- -----------
Net cash provided by financing activities 1,569,467 785,677
----------- -----------
DECREASE IN CASH AND CASH EQUIVALENTS (7,182) (13,430)
CASH AND CASH EQUIVALENTS, beginning of period 109,699 64,309
----------- -----------
CASH AND CASH EQUIVALENTS, end of period $ 102,517 $ 50,879
=========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
6
<PAGE> 7
SIMON PROPERTY GROUP, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(UNAUDITED AND DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
------------ ------------
ASSETS:
<S> <C> <C>
Investment properties, at cost $ 11,646,393 $ 6,867,354
Less-- accumulated depreciation 634,277 461,792
------------ ------------
11,012,116 6,405,562
Goodwill 62,227 --
Cash and cash equivalents 78,971 109,699
Restricted cash 1,685 8,553
Tenant receivables and accrued revenue, net 215,703 188,359
Notes and advances receivable from Management Company and affiliates 131,956 93,809
Investment in partnerships and joint ventures, at equity 1,203,118 612,140
Investment in Management Company and affiliates 1,334 3,192
Other investment 48,239 53,785
Deferred costs and other assets 228,759 164,413
Minority interest 29,442 23,155
------------ ------------
Total assets $ 13,013,550 $ 7,662,667
============ ============
LIABILITIES:
Mortgages and other indebtedness $ 7,744,926 $ 5,077,990
Accounts payable and accrued expenses 413,903 245,121
Accrued distributions 83,978 --
Cash distributions and losses in partnerships and joint ventures, at equity 25,836 20,563
Other liabilities 74,108 67,694
------------ ------------
Total liabilities 8,342,751 5,411,368
------------ ------------
COMMITMENTS AND CONTINGENCIES (Note 11)
LIMITED PARTNERS' INTEREST IN THE SPG OPERATING PARTNERSHIP 990,378 694,437
PREFERRED STOCK OF SUBSIDIARY 339,262 --
SHAREHOLDERS' EQUITY:
Series B and C cumulative redeemable preferred stock, 0 shares authorized, 0 and
11,000,000 issued and outstanding, respectively -- 339,061
Series A convertible preferred stock, 209,249 shares authorized,
209,249 and 0 issued and outstanding, respectively 267,393 --
Series B convertible preferred stock, 5,000,000 shares authorized,
4,844,331 and 0 issued and outstanding, respectively 450,523 --
Common stock, $.0001 par value, 400,000,000 shares authorized,
and 163,574,091 and 106,439,001 issued and outstanding, respectively 16 10
Class B common stock, $.0001 par value, 12,000,000 shares authorized, 3,200,000
issued and outstanding 1 1
Class C common stock, $.0001 par value, 4,000 shares authorized, issued and
outstanding -- --
Capital in excess of par value 3,066,526 1,491,908
Accumulated deficit (420,029) (263,308)
Unrealized gain on long-term investment (1,260) 2,420
Unamortized restricted stock award (22,011) (13,230)
------------ ------------
Total shareholders' equity 3,341,159 1,556,862
------------ ------------
Total liabilities, limited partners' interest and shareholders' equity $ 13,013,550 $ 7,662,667
============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
7
<PAGE> 8
SIMON PROPERTY GROUP, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED AND DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
For the Three Months Ended September 30, For the Nine Months Ended September 30,
---------------------------------------------------------------------------------
1998 1997 1998 1997
--------- --------- --------- ---------
REVENUE:
<S> <C> <C> <C> <C>
Minimum rent $ 194,597 $ 152,320 $ 565,531 $ 449,693
Overage rent 2,290 8,650 22,773 26,214
Tenant reimbursements 101,935 81,413 283,906 231,444
Other income 23,515 17,400 60,759 39,901
--------- --------- --------- ---------
Total revenue 322,337 259,783 932,969 747,252
--------- --------- --------- ---------
EXPENSES:
Property operating 55,592 46,203 155,850 130,228
Depreciation and amortization 61,092 48,185 177,710 135,668
Real estate taxes 31,428 23,816 90,387 73,166
Repairs and maintenance 12,424 11,107 35,974 28,653
Advertising and promotion 11,283 8,396 28,005 20,296
Provision for (recovery of) credit
losses (1,857) (135) 1,598 2,690
Other 4,812 4,639 16,989 12,818
--------- --------- --------- ---------
Total operating expenses 174,774 142,211 506,513 403,519
--------- --------- --------- ---------
OPERATING INCOME 147,563 117,572 426,456 343,733
INTEREST EXPENSE 97,329 68,940 281,749 203,934
--------- --------- --------- ---------
INCOME BEFORE MINORITY INTEREST 50,234 48,632 144,707 139,799
MINORITY INTEREST (1,108) (1,423) (4,704) (3,648)
GAIN (LOSS) ON SALES OF ASSETS (64) -- (7,283) 20
--------- --------- --------- ---------
INCOME BEFORE UNCONSOLIDATED ENTITIES 49,062 47,209 132,720 136,171
INCOME FROM UNCONSOLIDATED ENTITIES 3,809 7,077 8,789 9,590
--------- --------- --------- ---------
INCOME BEFORE EXTRAORDINARY ITEMS 52,871 54,286 141,509 145,761
EXTRAORDINARY ITEMS (22) 27,215 7,002 2,501
--------- --------- --------- ---------
INCOME BEFORE LIMITED PARTNERS' INTEREST 52,849 81,501 148,511 148,262
LESS:
LIMITED PARTNERS' INTEREST IN
THE SPG OPERATING PARTNERSHIP 15,795 27,758 45,374 48,522
PREFERRED DIVIDENDS OF SUBSIDIARY 482 -- 482 --
--------- --------- --------- ---------
NET INCOME 36,572 53,743 102,655 99,740
PREFERRED DIVIDENDS (7,592) (9,101) (22,260) (21,914)
--------- --------- --------- ---------
NET INCOME AVAILABLE TO COMMON SHAREHOLDERS $ 28,980 $ 44,642 $ 80,395 $ 77,826
========= ========= ========= =========
BASIC EARNINGS PER COMMON SHARE:
Income before extraordinary items $ 0.25 $ 0.28 $ 0.67 $ 0.78
Extraordinary items -- 0.17 0.04 0.02
--------- --------- --------- ---------
Net income $ 0.25 $ 0.45 $ 0.71 $ 0.80
========= ========= ========= =========
DILUTED EARNINGS PER COMMON SHARE:
Income before extraordinary items $ 0.25 $ 0.28 $ 0.67 $ 0.78
Extraordinary items -- 0.17 0.04 0.02
--------- --------- --------- ---------
Net income $ 0.25 $ 0.45 $ 0.71 $ 0.80
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
8
<PAGE> 9
SIMON PROPERTY GROUP, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED AND DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
For the Nine Months Ended September 30,
---------------------------------------
1998 1997
----------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 102,655 $ 99,740
Adjustments to reconcile net income to net cash provided
by operating activities--
Depreciation and amortization 185,798 140,927
Extraordinary items (7,002) (2,501)
(Gain) loss on sales of assets, net 7,283 (20)
Limited partners' interest in Operating Partnership 45,374 48,522
Straight-line rent (5,892) (6,378)
Minority interest 4,704 3,648
Equity in income of unconsolidated entities (8,789) (9,590)
Changes in assets and liabilities--
Tenant receivables and accrued revenue (5,516) (1,341)
Deferred costs and other assets (10,516) (18,906)
Accounts payable, accrued expenses and other liabilities 41,648 8,151
----------- -----------
Net cash provided by operating activities 349,747 262,252
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisitions (1,881,183) (736,600)
Capital expenditures (233,200) (219,672)
Change in restricted cash 6,868 (8,829)
Cash from acquisitions 17,213 --
Net proceeds from sales of assets 46,087 599
Investments in unconsolidated entities (28,726) (63,656)
Distributions from unconsolidated entities 164,914 22,199
Investments in and advances to Management Company (19,915) --
Other investing activity -- (55,400)
----------- -----------
Net cash used in investing activities (1,927,942) (1,061,359)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from sales of common and convertible preferred stock, net 92,629 327,101
Minority interest distributions, net (10,991) (2,825)
Distributions to shareholders (205,697) (168,263)
Distributions to limited partners (104,139) (91,632)
Mortgage and other note proceeds, net of transaction costs 3,305,199 1,595,202
Mortgage and other note principal payments (1,529,534) (852,906)
Other refinancing transaction -- (21,000)
----------- -----------
Net cash provided by financing activities 1,547,467 785,677
----------- -----------
DECREASE IN CASH AND CASH EQUIVALENTS (30,728) (13,430)
CASH AND CASH EQUIVALENTS, beginning of period 109,699 64,309
----------- -----------
CASH AND CASH EQUIVALENTS, end of period $ 78,971 $ 50,879
=========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
9
<PAGE> 10
SPG REALTY CONSULTANTS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(UNAUDITED AND DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
--------------- ---------------
ASSETS:
<S> <C> <C>
Investment properties, at cost $ 33,397 $ 32,146
Less-- accumulated depreciation 11,000 10,613
--------------- ---------------
22,397 21,533
Cash and cash equivalents 23,546 4,147
Tenant Receivables 499 478
Investments in joint ventures, at equity 3,154 18,007
Other 1,158 1,898
--------------- ---------------
Total assets $ 50,754 $ 46,063
=============== ===============
LIABILITIES:
Mortgages and other indebtedness $ 991 $ 1,184
Notes payable to affiliate 20,565 35,634
Deferred taxes 3,374 3,564
Other liabilities 1,025 1,365
--------------- ---------------
Total liabilities 25,955 41,747
--------------- ---------------
COMMITMENTS AND CONTINGENCIES (Note 11)
LIMITED PARTNERS' INTEREST IN THE SRC OPERATING PARTNERSHIP 7,053 --
SHAREHOLDERS' EQUITY:
Common stock, $.0001 par value, respectively, 7,500,000 shares authorized,
1,667,780.91 and 558,730.87 issued and outstanding, respectively -- --
Capital in excess of par value 27,599 13,620
Accumulated deficit (9,853) (9,304)
--------------- ---------------
Total shareholders' equity 17,746 4,316
--------------- ---------------
Total liabilities, limited partners' interest and shareholders' equity $ 50,754 $ 46,063
=============== ===============
</TABLE>
The accompanying notes are an integral part of these statements.
10
<PAGE> 11
SPG REALTY CONSULTANTS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED AND DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
For the Three Months Ended September 30, For the Nine Months Ended September 30,
---------------------------------------- ---------------------------------------
1998 1997 1998 1997
------- ------- ------- -------
REVENUE:
<S> <C> <C> <C> <C>
Minimum rent $ 773 $ 597 $ 2,330 $ 2,370
Tenant reimbursements 165 210 635 779
Management fee income 1 439 4 1,304
Other income 73 41 181 232
------- ------- ------- -------
Total revenue 1,012 1,287 3,150 4,685
------- ------- ------- -------
EXPENSES:
Property operating 759 737 2,126 2,262
Depreciation and amortization 237 236 701 660
Management fees 17 396 94 1,183
Administrative and other 97 72 362 227
------- ------- ------- -------
Total operating expenses 1,110 1,441 3,283 4,332
------- ------- ------- -------
OPERATING INCOME (98) (154) (133) 353
INTEREST EXPENSE 337 340 1,013 1,025
------- ------- ------- -------
INCOME BEFORE GAIN ON SALE OF
PARTNERSHIP INTERESTS (435) (494) (1,146) (672)
GAIN ON SALES OF PARTNERSHIP INTERESTS -- -- -- 1,259
------- ------- ------- -------
INCOME (LOSS) BEFORE UNCONSOLIDATED ENTITIES (435) (494) (1,146) 587
INCOME FROM UNCONSOLIDATED ENTITIES 124 155 398 462
------- ------- ------- -------
INCOME (LOSS) OF THE SRC OPERATING PARTNERSHIP (311) (339) (748) 1,049
LIMITED PARTNERS' INTEREST IN
THE SRC OPERATING PARTNERSHIP (6) -- (6) --
------- ------- ------- -------
INCOME (LOSS) BEFORE INCOME TAXES (305) (339) (742) 1,049
PROVISION (BENEFIT) FOR INCOME TAXES (3) (124) (193) 361
------- ------- ------- -------
NET INCOME $ (302) $ (215) $ (549) $ 688
======= ======= ======= =======
BASIC AND DILUTED EARNINGS PER COMMON SHARE $ (0.50) $ (.38) $ (0.99) $ 1.21
======= ======= ======= =======
</TABLE>
The accompanying notes are an integral part of these statements.
11
<PAGE> 12
SPG REALTY CONSULTANTS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED AND DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
For the Nine Months Ended September 30,
---------------------------------------
1998 1997
-------- --------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income (loss) $ (549) $ 688
Adjustments to reconcile net income to net cash provided
by operating activities--
Depreciation and amortization 701 660
Gain on sale of assets, net -- (1,259)
Limited partners' interest in SRC Operating Partnership 6 --
Equity in income of unconsolidated entities (398) (462)
Changes in assets and liabilities--
Tenant receivables and other assets 719 662
Deferred taxes (190) (299)
Other liabilities (331) 147
-------- --------
Net cash provided by (used in) operating activities (42) 137
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (1,565) (65)
Net proceeds from sales of assets -- 4,231
Investments in unconsolidated entities (3,921) (13,923)
Distributions from unconsolidated entities 13,665 591
-------- --------
Net cash provided by (used in) investing activities 14,753 (9,166)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from sales of common stock, net 14,097 (1,388)
Contributions from limited partners 8,000
Acquisition and retirement of common stock -- (771)
Distributions to shareholders (1,059) (872)
Mortgage and other note proceeds, net of transaction costs 2,408 12,036
Mortgage and other note principal payments (17,670) (117)
-------- --------
Net cash provided (used in) by financing activities 5,776 8,888
-------- --------
CHANGE IN CASH AND CASH EQUIVALENTS 19,399 (141)
CASH AND CASH EQUIVALENTS, beginning of period 4,147 4,797
-------- --------
CASH AND CASH EQUIVALENTS, end of period $ 23,546 $ 4,656
======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
12
<PAGE> 13
SIMON PROPERTY GROUP, INC. AND
SPG REALTY CONSULTANTS, INC.
NOTES TO UNAUDITED CONDENSED FINANCIAL STATEMENTS
(Dollars in thousands, except per share amounts)
NOTE 1 - BASIS OF PRESENTATION
The accompanying combined consolidated financial statements include Simon
Property Group, Inc. ("SPG") and subsidiaries and its paired-share affiliate SPG
Realty Consultants, Inc. ("SRC" and together with SPG, the "Company") and its
subsidiary. All significant intercompany amounts have been eliminated. The
combined balance sheets and statements of operations and cash flows reflect the
purchase of Corporate Property Investors, Inc. ("CPI") and related transactions
(the "CPI Merger") as of the close of business on September 24, 1998. Operating
results prior to the completion of the CPI Merger represent the operating
results of Simon DeBartolo Group, Inc. and subsidiaries ("SDG"), the predecessor
to the Company for financial reporting purposes.
The accompanying consolidated financial statements for SPG include the
accounts of SPG and its subsidiaries. All significant intercompany amounts have
been eliminated. SPG's primary subsidiary is Simon Property Group, L.P. (the
"SPG Operating Partnership"), formerly known as Simon DeBartolo Group, L.P.
("SDG, LP"). The balance sheets and statements of operations and cash flows
reflect the purchase of CPI as of the close of business on September 24, 1998.
Operating results prior to the CPI Merger represent the operating results of
SDG.
The accompanying consolidated financial statements of the paired share
affiliate, SRC, include the accounts of its newly formed subsidiary, SPG Realty
Consultants, L.P. (the "SRC Operating Partnership"). Because the cash
contributed to SRC and the SRC Operating Partnership in exchange for shares of
common stock and units of ownership interests ("Units"), in connection with the
CPI Merger represented equity transactions, SRC, unlike CPI, is not subject to
purchase accounting treatment. The separate statements of SRC represent the
historical results of Corporate Realty Consultants, Inc. ("CRC"), the
predecessor to SRC, for all periods presented.
The SRC Operating Partnership together with the SPG Operating Partnership
are hereafter referred to as the "Operating Partnerships" and together with the
Company, "Simon Group".
The accompanying financial statements have been prepared in accordance
with generally accepted accounting principles, which require management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and revenues and expenses during the reported period.
Actual results could differ from these estimations.
Outstanding common shares of SPG are paired with 1/100th of a share of
SRC. The Company is a self-administrated and self-managed, paired-shared real
estate investment trust ("REIT"), and is engaged primarily in the ownership,
operation, management, leasing, acquisition, expansion and development of real
estate properties, primarily regional malls and community shopping centers. As
of September 30, 1998, Simon Group owned or held a combined interest in 241
income-producing properties, which consisted of 153 regional malls, 76 community
shopping centers, three specialty retail centers, six office and mixed-use
properties and three value-oriented super-regional malls in 35 states (the
"Properties"). Simon Group also owned interests in one regional mall, one
specialty retail center and one value-oriented super-regional mall under
construction, an additional two community centers in the final stages of
pre-development and eight parcels of land held for future development. In
addition, Simon Group holds substantially all of the economic interest in M.S.
Management Associates, Inc. (The "Management Company" - See Note 7). Simon Group
holds substantially all of the economic interest in, and the Management Company
holds substantially all of the voting stock of, DeBartolo Properties Management,
Inc. ("DPMI"), which provides architectural, design, construction and other
services to substantially all of the Properties, as well as certain other
regional malls and community shopping centers owned by third parties. The
Company owned 71.6% and 63.9% of the Operating Partnerships at September 30,
1998 and December 31, 1997, respectively.
NOTE 2 - CPI MERGER
For financial reporting purposes, as of the close of business on
September 24, 1998, pursuant to the Agreement and Plan of Merger dated February
18, 1998, among Simon DeBartolo Group, Inc., Corporate Property Investors,
Inc., and Corporate Realty Consultants, Inc., the CPI Merger was consummated.
13
<PAGE> 14
Pursuant to the terms of the CPI Merger, SPG Merger Sub, Inc., a
substantially wholly-owned subsidiary of CPI, merged with and into SDG with SDG
continuing as the surviving company. SDG became a majority-owned subsidiary of
CPI. The outstanding shares of common stock of SDG were exchanged for a like
number of shares of CPI. Beneficial interests in CRC were acquired for $22,000
in order to pair the common stock of CPI with 1/100th of a share of common stock
of CRC, the paired share affiliate.
Immediately prior to the consummation of the CPI Merger, the holders of
CPI common stock were paid a merger dividend consisting of (i) $90 in cash, (ii)
1.0818 additional shares of CPI common stock and (iii) 0.19 shares of 6.50%
Series B convertible preferred stock of CPI. Immediately prior to the CPI
Merger, there were 25,496,476 shares of CPI common stock outstanding. The
aggregate value associated with the completion of the CPI Merger is
approximately $5.9 billion including transaction costs and liabilities assumed.
To finance the cash portion of the CPI Merger consideration, $1.4 billion
was borrowed under a new unsecured medium term loan which bears interest at
base rate of LIBOR plus 65 basis points and matures in three mandatory
amortization payments (on June 22, 1999, March 24, 2000 and September 24,
2000). An additional $237,000 was also borrowed under the Company's existing
$1.25 billion credit facility. In connection with the CPI Merger, CPI was
renamed 'Simon Property Group, Inc.' Its paired share affiliate, Corporate
Realty Consultants, Inc., was renamed 'SPG Realty Consultants, Inc.'. In
addition SDG and SDG, LP were renamed 'SPG Properties, Inc.', and 'Simon
Property Group, L.P.', respectively.
Upon completion of the CPI Merger, SPG transferred the fair value of
substantially all of the CPI assets acquired, which consisted primarily of 23
regional malls, one community center, two office buildings and one regional mall
under construction (other than one regional mall, Ocean County Mall, and certain
net leased properties valued at approximately $153,100) and liabilities assumed
(except that SPG remains a co-obligor with respect to the Merger Facility) of
approximately $2.3 billion to SPG Operating Partnership or one or more
subsidiaries of the SPG Operating Partnership in exchange for 47,790,550 limited
partnership interests and 5,053,580 preferred partnership interests in SPG
Operating Partnership. The preferred partnership interests carry the same rights
and equal the number of preferred shares issued and outstanding as a direct
result of the CPI Merger. Likewise, the assets of SRC were transferred to the
SRC Operating Partnership in exchange for partnership interests.
As a result of the CPI Merger, the Company, owns a 71.6% interest in the
Operating Partnerships as of September 30, 1998.
The Company accounted for the merger between SDG and the CPI merger
subsidiary as a reverse purchase in accordance with Accounting Principles Board
Opinion No. 16. Although paired shares of the former CPI and CRC were issued to
SDG common stock holders and SDG became a substantially wholly owned subsidiary
of CPI following the CPI Merger, CPI is considered the business acquired for
accounting purposes. SDG is the acquiring company because the SDG common
stockholders hold a majority of the common stock of SPG, post-merger. The value
of the consideration paid by SDG has been allocated on a preliminary basis to
the estimated fair value of the CPI assets acquired and liabilities assumed
which resulted in goodwill of $62,227. Goodwill will be amortized over the
estimated life of the properties, of 35 years. The allocation of the purchase
will be finalized when SPG completes its evaluation of the assets acquired and
liabilities assumed and finalizes its combined operating plan for the Company.
SDG, LP contributed cash to CRC and the SRC Operating Partnership on
behalf of the SDG common stockholders and the limited partners of SDG, LP to
obtain the beneficial interests in CRC, which were paired with the shares of
common stock issued by SPG, and to obtain Units in the SRC Operating Partnership
so that the limited partners of the SDG Operating Partnership would hold the
same proportionate interest in the SRC Operating Partnership that they hold in
the SDG Operating Partnership. The cash contributed to CRC and the SRC
Operating Partnership in exchange for an ownership interest therein have been
appropriately accounted for as capital infusion or equity transactions. The
assets and liabilities of CRC have been reflected at historical cost. Adjusting
said assets and liabilities to fair value would only have been appropriate if
the SDG stockholders' beneficial interests in CRC exceeded 80%.
NOTE 3 - RECLASSIFICATIONS
Certain reclassifications of prior period amounts have been made in the
financial statements to conform to the 1998 presentation. These
reclassifications have no impact on the net operating results previously
reported.
14
<PAGE> 15
NOTE 4 - PER SHARE DATA
In accordance with SFAS No. 128 (Earnings Per Share), basic earnings per
share is based on the weighted average number of shares of common stock
outstanding during the period and diluted earnings per share is based on the
weighted average number of shares of common stock outstanding combined with the
incremental weighted average shares that would have been outstanding if all
dilutive potential common shares would have been converted into shares at the
earliest date possible. The weighted average number of shares of common stock
used in the computation for the three-month periods ended September 30, 1998 and
1997 was 117,149,600 and 98,785,776, respectively. The weighted average number
of shares of common stock used in the computation for the nine-month periods
ended September 30, 1998 and 1997 was 112,956,863 and 97,766,243, respectively.
The diluted weighted average number of shares used in the computation for the
three-month periods ended September 30, 1998 and 1997 was 117,474,932 and
99,170,829, respectively. The diluted weighted average number of shares used in
the computation for the nine-month periods ended September 30, 1998 and 1997 was
113,325,309 and 98,147,087, respectively.
Combined earnings per share is presented in the financial statements based
upon the weighted average number of paired shares outstanding of the Company,
giving effect to the CPI Merger as of the close of business on September 24,
1998. Management believes this presentation provides the shareholders with the
most meaningful presentation of earnings for a single interest in the combined
entities.
Paired Units held by limited partners in the Operating Partnerships may be
exchanged for paired shares of common stock of the Company, on a one-for-one
basis in certain circumstances. If exchanged, the paired Units would not have a
dilutive effect. All of the series of preferred stock issued and outstanding
during the comparative periods either were not convertible or their conversion
would not have had a dilutive effect on earnings per share. The increase in
weighted average shares outstanding under the diluted method over the basic
method in every period presented for the Company is due entirely to the effect
of outstanding options under the Company's stock incentive plan, including
304,210 additional options issued in connection with the CPI Merger. Basic
earnings and diluted earnings were the same for all periods presented.
NOTE 5 - CASH FLOW INFORMATION
Cash paid for interest, net of amounts capitalized, during the nine months
ended September 30, 1998 was $256,611, as compared to $199,285 for the same
period in 1997. Unpaid distributions as of September 30, 1998 totaled $84,496
and included $83,978 to holders of common stock of SPG and $518 to the holders
of the Series B Convertible Preferred stock issued in connection with the CPI
Merger. All accrued distributions were paid as of December 31, 1997. See Notes
1,4 and 9 for information about non-cash transactions during the nine months
ended September 30, 1998.
NOTE 6 - OTHER ACQUISITIONS, DISPOSITIONS AND DEVELOPMENTS
On January 26, 1998, Simon Group acquired Cordova Mall in Pensacola,
Florida for approximately $87,300, which included the assumption of a $28,935
mortgage, which was later retired, and the issuance of 1,713,016 Units, valued
at approximately $55,500. This 874,000 square-foot regional mall is wholly-owned
by Simon Group.
In March of 1998, Simon Group opened the approximately $13,300 Muncie
Plaza in Muncie, Indiana. Simon Group owns 100% of this 196,000 square-foot
community center. In addition, phase I of the approximately $34,000 Lakeline
Plaza opened in April 1998 in Austin, Texas. Phase II of this 360,000
square-foot community center is scheduled to open in 1999. Each of these new
community centers is adjacent to an existing regional mall in Simon Group's
portfolio.
On April 15, 1998, Simon Group purchased the remaining 7.5% ownership
interest in Buffalo Grove Towne Center for $255. This 134,000 square-foot
community center is in Buffalo Grove, Illinois.
Effective May 5, 1998, in a series of transactions, Simon Group acquired
the remaining 50.1% interest in Rolling Oaks Mall for 519,889 shares of SPG's
common stock, valued at approximately $17,176.
Effective June 30, 1998, Simon Group sold Southtown Mall for $3,250 and
recorded a $7,219 loss on the transaction.
On September 29, 1997, Simon Group completed its cash tender offer for all
of the outstanding shares of beneficial interests of The Retail Property Trust
("RPT"), a private REIT. RPT owned 98.8% of Shopping Center Associates ("SCA"),
which owned or had interests in twelve regional malls and one community center,
comprising approximately twelve million square feet of GLA in eight states (the
"SCA Properties"). Following the completion of the tender offer, the SCA
portfolio was restructured. Simon Group exchanged its 50% interests in two SCA
Properties to a third party for similar interests in two other SCA Properties,
in which it had 50% interests, with the result that SCA then owned interests in
a total of eleven Properties. Effective November 30, 1997, Simon Group also
acquired the remaining 50% ownership interest in another of the SCA Properties.
In addition, an affiliate
15
<PAGE> 16
of Simon Group acquired the remaining 1.2% interest in SCA. During 1998, Simon
Group sold the community center and The Promenade for $9,550 and $33,500,
respectively. These Property sales were accounted for as an adjustment to the
allocation of the purchase price. At the completion of these transactions, Simon
Group owns 100% of eight of the nine SCA Properties, and a noncontrolling 50%
ownership interest in the remaining Property.
PRO FORMA
The following unaudited pro forma summary financial information excludes
any extraordinary items and combines the consolidated results of operations of
SPG and SRC as if the CPI Merger and the RPT acquisition had occurred as of
January 1, 1997, and were carried forward through September 30, 1998.
Preparation of the pro forma summary information was based upon assumptions
deemed appropriate by management. The pro forma summary information is not
necessarily indicative of the results which actually would have occurred if the
CPI Merger and the RPT acquisition had been consummated at January 1, 1997, nor
does it purport to represent the results of operations for future periods.
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
1998 1997
------------ ---------------
<S> <C> <C>
Revenue $ 1,240,018 $ 1,153,576
============ ===============
Net income before Limited Partners' interest $ 182,494 $ 236,485
============ ===============
Net income available to common shareholders $ 90,753 $ 128,162
============ ===============
Net income per share $ 0 .55 $ 0.84
============ ===============
Net income per share - assuming dilution $ 0 .55 $ 0.84
============ ===============
Weighted average number of shares of common stock
outstanding 159,580,851 152,379,137
============ ===============
Weighted average number of shares of common stock
outstanding - assuming dilution 159,949,297 152,759,981
============ ===============
</TABLE>
NOTE 7 - INVESTMENT IN UNCONSOLIDATED ENTITIES
Partnerships and Joint Ventures
On February 27, 1998, Simon Group, in a joint venture partnership with The
Macerich Company ("Macerich"), acquired a portfolio of twelve regional malls and
two community centers (the "IBM Properties") comprising approximately 10.7
million square feet of GLA at a purchase price of $974,500, including the
assumption of $485,000 of indebtedness. Simon Group and Macerich, as
noncontrolling 50/50 partners in the joint venture, were each responsible for
one half of the purchase price, including indebtedness assumed and each assumed
leasing and management responsibilities for six of the regional malls and one
community center. Simon Group funded its share of the cash portion of the
purchase price using borrowings from a new $300,000 unsecured revolving credit
facility. (See Note 8)
In March 1998, Simon Group transferred its 50% ownership interest in The
Source, an approximately 730,000 square-foot regional mall, to a newly formed
limited partnership in which it has a 50% ownership interest, with the result
that Simon Group now owns an indirect noncontrolling 25% ownership interest in
The Source. In connection with this transaction, Simon Group's partner in the
newly formed limited partnership is entitled to a preferred return of 8% on its
initial capital contribution, a portion of which was distributed to Simon Group.
Simon Group applied the distribution against its investment in The Source.
On June 4, 1998, Simon Group, Harvard Private Capital Group ("Harvard")
and Argo II, an investment fund established by J.P. Morgan and The O'Connor
Group, announced that they have collectively committed to acquire a 44 percent
ownership position in Groupe BEG, S.A. ("BEG"). BEG is a fully integrated retail
real estate developer, lessor and manager headquartered in Paris, France. Simon
Group and its affiliated Management Company have contributed $15,000 of equity
capital for a noncontrolling 22% ownership interest and are committed to an
additional investment of $37,500 over the next 9 to 15 months, subject to
certain financial and other conditions. The agreement with BEG is structured to
allow Simon Group, Argo II and Harvard to collectively acquire a controlling
interest in BEG over time.
In August 1998, Simon Group sold one-half of its 75% ownership in The
Shops at Sunset Place construction project. Simon Group now holds a 37.5%
noncontrolling interest in this project, which is scheduled to open in December
1998. Simon Group applied the distribution against its investment in the
project.
Through September 30, 1998, in a series of transactions, Simon Group has
acquired additional 30% ownership interests in Lakeline Mall and Lakeline Plaza
for 319,390 Units valued at approximately $10,500 and $2,100 in cash. These
transactions
16
<PAGE> 17
increased Simon Group's ownership interest in these Properties to a
noncontrolling 80%. On October 28, 1998, Simon Group acquired an additional 5%
noncontrolling ownership interest in Lakeline Mall and Lakeline Plaza for
$2,100.
Summary financial information of Simon Group's investment in partnerships
and joint ventures accounted for using the equity method of accounting and a
summary of Simon Group's investment in and share of income from such
partnerships and joint ventures follow:
<TABLE>
<CAPTION>
September 30, December 31,
BALANCE SHEETS 1998 1997
------------ -----------
<S> <C> <C>
ASSETS:
Investment properties at cost, net $4,131,774 $2,880,094
Cash and cash equivalents 144,919 101,582
Tenant receivables 141,360 87,008
Other assets 129,983 71,548
---------- ----------
Total assets $4,548,036 $3,140,232
========== ==========
LIABILITIES AND PARTNERS' EQUITY:
Mortgages and other indebtedness $2,819,094 $1,888,512
Accounts payable, accrued expenses and other 227,631 212,543
liabilities ---------- ----------
Total liabilities 3,046,725 2,101,055
Partners' equity 1,501,311 1,039,177
---------- ----------
Total liabilities and partners' equity $4,548,036 $3,140,232
========== ==========
SIMON GROUP'S SHARE OF:
Total assets $1,803,056 $1,082,232
========== ==========
Partners' equity $ 526,672 $ 297,866
Add Excess Investment (See below) 653,764 293,711
---------- ----------
Simon Group's Net Investment in Joint Ventures $1,180,436 $ 591,577
========== ==========
</TABLE>
<TABLE>
<CAPTION>
For the three months ended For the nine months ended
--------------------------- ---------------------------
September 30, September 30,
--------------------------- ---------------------------
STATEMENTS OF OPERATIONS 1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
REVENUE:
Minimum rent $ 108,924 $ 62,613 $ 306,486 $ 168,817
Overage rent 426 2,319 8,236 5,633
Tenant reimbursements 51,775 27,913 138,433 77,491
Other income 5,985 5,384 17,205 12,747
--------- --------- --------- ---------
Total revenue 167,110 98,229 470,360 264,688
OPERATING EXPENSES:
Operating expenses and other 59,044 33,660 166,547 94,575
Depreciation and amortization 33,324 18,518 94,949 53,579
--------- --------- --------- ---------
Total operating expenses 92,368 52,178 261,496 148,154
--------- --------- --------- ---------
OPERATING INCOME 74,742 46,051 208,864 116,534
INTEREST EXPENSE 45,569 21,577 130,747 63,155
EXTRAORDINARY LOSSES 2,060 -- 2,102 1,182
--------- --------- --------- ---------
NET INCOME 27,113 24,474 76,015 52,197
THIRD PARTY INVESTORS' SHARE OF NET
INCOME 21,811 17,970 55,841 38,347
--------- --------- --------- ---------
SIMON GROUP'S SHARE OF NET INCOME $ 5,302 $ 6,504 $ 20,174 $ 13,850
AMORTIZATION OF EXCESS INVESTMENT (SEE
BELOW) (3,636) (2,823) (9,038) (8,792)
========= ========= ========= =========
INCOME FROM UNCONSOLIDATED ENTITIES $ 1,666 $ 3,681 $ 11,136 $ 5,058
========= ========= ========= =========
</TABLE>
As of September 30, 1998 and December 31, 1997, the unamortized excess of
Simon Group's investment over its share of the equity in the underlying net
assets of the partnerships and joint ventures ("Excess Investment") was $653,764
and $293,711, respectively. This Excess Investment, which resulted primarily
from the CPI Merger and the August 9, 1996 acquisition, through merger (the "DRC
Merger"), of the national shopping center business of DeBartolo Realty
Corporation ("DRC"), is being amortized generally over the life of the related
Properties. Amortization included in income from unconsolidated entities for the
17
<PAGE> 18
three-month periods ended September 30, 1998 and September 30, 1997 was $3,636
and $2,823, respectively. Amortization included in income from unconsolidated
entities for the nine-month periods ended September 30, 1998 and September 30,
1997 was $9,038 and $8,792, respectively.
The net income or net loss for each partnership and joint venture is
allocated in accordance with the provisions of the applicable partnership or
joint venture agreement. The allocation provisions in these agreements are not
always consistent with the ownership interest held by each general or limited
partner or joint venturer, primarily due to partner preferences.
The Management Company
The Management Company, including its consolidated subsidiaries, provides
management, leasing, development, accounting, legal, marketing and management
information systems services to one wholly-owned Property, 41 non-wholly owned
Properties, Melvin Simon & Associates, Inc., and certain other nonowned
properties. Certain subsidiaries of the Management Company provide
architectural, design, construction, insurance and other services primarily to
certain of the Properties. The Management Company also invests in other
businesses to provide other synergistic services to the Properties. Simon
Group's share of consolidated net income (loss) of the Management Company, after
intercompany profit eliminations, was $2,151 and $3,396 for the three-month
periods ended September 30, 1998 and 1997, respectively, and was ($2,339) and
$4,532 for the nine-month periods ended September 30, 1998 and 1997,
respectively.
NOTE 8 - DEBT
On February 28, 1998, Simon Group obtained an unsecured revolving credit
facility in the amount of $300,000, to finance the acquisition of the IBM
Properties (See Note 7). The new facility bore interest at LIBOR plus 0.65% and
had a maturity of August 27, 1998. Simon Group drew $242,000 on this facility
during 1998 and subsequently retired and canceled the facility using borrowing
from the Credit Facility (See below).
On June 18, 1998, Simon Group refinanced a $33,878 mortgage on a regional
mall Property and recorded a $7,024 extraordinary gain on the transaction,
including debt forgiveness of $5,162 and the write-off of a premium of $1,862.
The new mortgage, which totals $35,000, bears interest of 7.33% and matures on
June 18, 2008. The retired mortgage bore interest at 9.25% with a maturity of
January 1, 2011.
On June 22, 1998, Simon Group completed the sale of $1,075,000 of senior
unsecured debt securities. The issuance included three tranches of senior
unsecured notes as follows (1) $375,000 bearing interest at 6.625% and maturing
on June 15, 2003 (2) $300,000 bearing interest at 6.75% and maturing on June 15,
2005 and (3) $200,000 bearing interest at 7.375% and maturing on June 15, 2018.
This offering also included a fourth tranche of $200,000 of 7.00% Mandatory Par
Put Remarketed Securities ("MOPPRS") due June 15, 2028, which are subject to
redemption on June 16, 2008. The premium received relating to the MOPPRS of
approximately $5,302 is being amortized over the life of the debt securities.
The net proceeds of approximately $1,062,000 were combined with approximately
$40,000 of working capital and used to retire and terminate the $300,000
unsecured revolving credit facility (See Above) and to reduce the outstanding
balance of Simon Group's $1,250,000 unsecured revolving credit facility (the
"Credit Facility"). The Credit Facility has an initial maturity of September
1999 with an optional one-year extension. The debt retired had a weighted
average interest rate of 6.29%.
In conjunction with the CPI Merger, the SPG Operating Partnership and SPG,
as co-borrowers, closed a $1,400,000 medium term unsecured line of credit (the
"Merger Facility"). The Merger Facility bears interest at a base rate of LIBOR
plus 65 basis points and will mature at the following intervals (i) $450,000 on
the nine-month anniversary of the closing (ii) $450,000 on the eighteen-month
anniversary of the closing and (iii) $500,000 on the two-year anniversary of the
closing. The Merger Facility is subject to covenants and conditions
substantially identical to those of the Credit Facility. Simon Group drew the
entire $1,400,000 available on the Merger Facility along with $237,000 on the
Credit Facility to pay for the cash portion of the dividend declared in
conjunction with the CPI Merger, as well as certain other costs associated with
the CPI Merger. Financing costs of $9,456, which were incurred to obtain the
Merger Facility, are being amortized over the Merger Facility's average life of
18-months.
In connection with the CPI Merger, RPT, a REIT and 99.999% owned
subsidiary of the SDG Operating Parternship, took title for substantially all
of the CPI assets and assumed $825,000 of resecured notes *the "CPI Notes"), as
described in Note 2. As a result, the CPI Notes are structurally senior in
right of payment to holders of other Simon Group unsecured notes to the extent
of the assets and related cash flow of RPT. The CPI Notes pay interest
semiannually, and bear interest rates ranging from 7.05% to 9.00% (weighted
average of 8.03%), and have various due dates through 2016 (average maturity of
9.6 years). The CPI Notes contain leverage ratios, annual real property
appraisal requirements, debt service coverage ratios and minimum Net Worth
ratios. Additionally, consolidated mortgages totaling $2,093, and a pro-rata
share of $194,952 of nonconsolidated joint venture indebtedness was assumed in
the CPI Merger, and as a result of acquiring the remaining interest in Palm
Beach Mall in connection with the CPI Merger, Simon Group began accounting for
that Property using the consolidated method of accounting, adding
18
<PAGE> 19
$50,700 to consolidated indebtedness. A net premium of $19,165 was recorded in
accordance with the purchase method of accounting to adjust the CPI Notes and
mortgage indebtedness assumed in the CPI Merger to fair value, which is being
amortized over the remaining lives of the related indebtedness.
At September 30, 1998, Simon Group had consolidated debt of $7,745,917, of
which $5,362,285 was fixed-rate debt and $2,383,632 was variable-rate debt.
Simon Group's pro rata share of indebtedness of the unconsolidated joint venture
Properties as of September 30, 1998 and December 31, 1997 was $1,307,974 and
$770,776, respectively. As of September 30, 1998 and December 31, 1997, Simon
Group had interest-rate protection agreements related to $1,224,493 and $415,254
of its pro rata share of indebtedness, respectively. The agreements are
generally in effect until the related variable-rate debt matures. As a result of
the various interest rate protection agreements, consolidated interest savings
were $122 and $285 for the three months ended September 30, 1998 and 1997,
respectively, and were $301 and $1,371 for the nine months ended September 30,
1998 and 1997, respectively.
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<PAGE> 20
NOTE 9 - SHAREHOLDERS' EQUITY
The following table summarizes the changes in the combined shareholders'
equity of the Company and SRC since December 31, 1997.
<TABLE>
<CAPTION>
SPG SPG SRC Unrealized Capital in
Preferred Common Common Gain (Loss) on Excess of Par
Stock Stock Stock Investment(1) Value
--------- ------ ------ -------------- -------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1997 $ 339,061 $ 11 $ 0 $ 2,420 $ 1,491,908
Common stock issued to the
public (2,957,335 shares) 1 91,398
The CPI Merger (2) 717,916 5 -- 1,786,245
Preferred stock of subsidiary (339,061)
Common stock issued in
connection with acquisitions
(519,889 shares) 17,176
Other common stock issued, net
(579,302 shares) 18,332
Amortization of stock incentive
Adjustment to the limited
partners' interest in the
Operating Partnerships (310,934)
Distributions
--------- ------ ------ ----------- -----------
Subtotal 717,916 17 -- 2,420 (3,094,125)
Comprehensive Income:
Unrealized loss on investment (1) (3,680)
Net income
--------- ------ ------ ----------- -----------
Total Comprehensive Income (3,680)
========= ====== ====== =========== ===========
Balance at September 30, 1998 $ 717,916 $ 17 $ -- $ (1,260) $ 3,094,125
========= ====== ====== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
Unamortized Total
Accumulated Restricted Shareholders'
Deficit Stock Award Equity
----------- ----------- -------------
<S> <C> <C> <C>
Balance at December 31, 1997 $ (263,308) $ (13,230) $ 1,556,862
Common stock issued to the
public (2,957,335 shares) 91,399
The CPI Merger (2) (9,839) 2,494,327
Preferred stock of subsidiary (339,061)
Common stock issued in
connection with acquisitions
(519,889 shares) 17,176
Other common stock issued, net
(579,302 shares) (16,080) 2,252
Amortization of stock incentive 7,299 7,299
Adjustment to the limited
partners' interest in the
Operating Partnerships (310,934)
Distributions (259,376) (259,374)
----------- ----------- -----------
Subtotal (532,523) (22,011) 3,259,944
Comprehensive Income:
Unrealized loss on investment (1) (3,680)
Net income 102,641 102,641
----------- ----------- -----------
Total Comprehensive Income 102,641 98,961
=========== =========== ===========
Balance at September 30, 1998 $ (429,882) $ (22,011) $ 3,358,905
=========== =========== ===========
</TABLE>
(1) Amounts consist of the Company's pro rata share of the unrealized gain
resulting from the change in market value of 1,408,450 shares of common
stock of Chelsea GCA Realty, Inc. ("Chelsea"), a publicly traded REIT,
which Simon Group purchased on June 16, 1997. The investment in Chelsea is
being reflected in the accompanying consolidated condensed balance sheets
in other investments.
(2) In connection with the CPI Merger, 53,078,564 shares of common stock were
issued. Notes receivable and permanent restrictions relating to common
shares purchased by former employees of CPI of approximately $26,100 have
been deducted from capital in excess of par.
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<PAGE> 21
Stock Incentive Programs
In March 1995, an aggregate of 1,000,000 shares of restricted stock was
granted to 50 executives, subject to the performance standards, vesting
requirements and other terms of the Stock Incentive Program. Prior to the DRC
Merger, 2,108,000 shares of DRC common stock were deemed available for grant to
certain designated employees of DRC, also subject to certain performance
standards, vesting requirements and other terms of DRC's stock incentive program
(the "DRC Plan"). In April 1998, 492,478 shares were awarded to executives
relating to 1997 performance, and another 24,163 awarded in August 1998. Through
September 30, 1998, 1,290,285 shares of common stock of the Company, net of
forfeitures, were deemed earned and awarded under the Stock Incentive Program
and the DRC Plan. Approximately $2,852 and $1,086 relating to these programs
were amortized in the three-month periods ended September 30, 1998 and 1997,
respectively and approximately $7,299 and $4,110 relating to these programs were
amortized in the nine-month periods ended September 30, 1998 and 1997,
respectively. The cost of restricted stock grants, based upon the stock's fair
market value at the time such stock is earned, awarded and issued, is charged to
shareholders' equity and subsequently amortized against earnings of Simon Group
over the vesting period.
On September 24, 1998, in conjunction with the CPI Merger, a new stock
incentive plan, 'The Simon Property Group 1998 Stock Incentive Plan' ("The 1998
Plan"), was approved by a vote of the Company's shareholders. The 1998 Plan
replaced the existing Stock Incentive Program, the DRC Plan and the existing
employee and director stock option plans. The 1998 Plan provides for the grant
of equity-based awards during the ten-year period following its adoption, in the
form of options to purchase common stock of The Company, stock appreciation
rights, restricted stock awards and performance unit awards. A total of
6,300,000 shares of common stock of the Company have been approved for issuance
under The 1998 Plan, including approximately 2,230,875 shares reserved for the
exercise of options granted and award of restricted stock allocated under the
previously existing Stock Incentive Program and DRC Plan.
Capital Stock
In connection with the CPI Merger, the SPG restated its certificate of
incorporation to, among other things, restate the number of shares and classes
of capital stock authorized for issuance. SPG is now authorized to issue up to
750,000,000 shares, par value $0.0001 per share, of capital stock. The
authorized shares of capital stock consist of 400,000,000 shares of common
stock, 12,000,000 shares of Class B common stock, 4,000 shares of Class C common
stock, 100,000,000 shares of preferred stock, including 209,249 shares of Series
A Convertible Preferred Stock and 5,000,000 shares of Class B Convertible
Preferred Stock, and 237,996,000 shares of excess common stock.
The articles of incorporation of SRC were also restated in conjunction
with the CPI Merger. SRC is now authorized to issue up to 7,500,000 shares, par
value $0.0001 per share, of common stock.
Common Stock Issuances
During 1998, Simon Group issued 2,957,335 shares of its common stock in
private offerings generating combined net proceeds of approximately $91,398. The
net proceeds were contributed to the SPG Operating Partnership in exchange for a
like number of Units. The SPG Operating Partnership used the net proceeds for
general working capital purposes.
Preferred Stock
As a result of the CPI Merger, SPG has issued and outstanding 209,249
shares of 6.50% Series A Convertible Preferred Stock. Each share of Series A
Convertible Preferred Stock is convertible into 37.995 shares of common stock of
the Company, subject to adjustment under certain circumstances including (i) a
subdivision or combination of shares of common stock of the Company, (ii) a
declaration of a distribution of additional shares of common stock of the
Company, issuances of rights or warrants by the Company and (iii) any
consolidation or merger, which the Company is a part of or a sale or conveyance
of all or substantially all of the assets of the Company to another person or
any statutory exchange of securities with another person. The Series A
Convertible Preferred Stock is not redeemable, except as needed to maintain or
bring the direct or indirect ownership of the capital stock of SPG into
conformity with REIT requirements.
In addition, 4,844,331 shares of 6.50% Series B Convertible Preferred
Stock were issued in connection with the CPI Merger. Each share of Series B
Convertible Preferred Stock is convertible into 2.586 shares of common stock of
the Company, subject to adjustment under circumstances identical to those of the
Series A Preferred Stock described above. The Company may redeem the Series B
Preferred Stock on or after September 24, 2003 at a price beginning at 105% of
the liquidation preference plus accrued dividends and declining to 100% of the
liquidation preference plus accrued dividends any time on or after September 24,
2008.
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<PAGE> 22
Preferred Stock of Subsidiary
In connection with the CPI Merger, SPG Properties, Inc., formerly Simon
DeBartolo Group, Inc., became a subsidiary of SPG. Accordingly, the 11,000,000
shares of Series B and Series C cumulative redeemable preferred stock issued by
SPG Properties, Inc. have been reflected outside of equity of SPG and The
Company as Preferred Stock of Subsidiary as of the date of the CPI Merger.
NOTE 10 - RELATED PARTY TRANSACTIONS
SRC receives rental and operating expense recovery income from SPG
Operating Partnership for space leased in the New York City office building, a
portion of which SPG Operating Partnership occupies. Rental and operating
expense recovery income earned from SPG Operating Partnership and CPI, amounted
to approximately $1,660 and $1,531 for the nine months ended September 30, 1998
and 1997, respectively. In addition, SPG Operating Partnership receives ground
rent from SRC on the land, which the New York City office building is built
upon. Ground rent received for the period from the CPI Merger through September
30, 1998 was nominal.
In preparation for the CPI Merger, on July 31, 1998, CPI, with assistance
from SPG Operating Partnership, completed the sale of the General Motors
Building in New York, New York for approximately $800,000. The SPG Operating
Partnership and certain third parties each received a $2,500 brokerage fee from
CPI in connection with the sale.
NOTE 11 - COMMITMENTS AND CONTINGENCIES
LITIGATION
Richard E. Jacobs, et al. v. Simon DeBartolo Group, L.P. On September 3,
1998, a complaint was filed in the Court of Common Pleas in Cuyahoga County,
Ohio, captioned Richard E. Jacobs, et al. v. Simon DeBartolo Group, L.P. The
plaintiffs are all principals or affiliates of The Richard E. Jacobs Group, Inc.
("Jacobs"). The plaintiffs allege in their complaint that Simon DeBartolo Group,
L.P. (now Simon Property Group, L.P. or the SPG Operating Partnership) engaged
in malicious prosecution, abuse of process, defamation, libel, injurious
falsehood/unlawful disparagement, deceptive trade practices under Ohio law,
tortuous interference and unfair competition in connection with the SPG
Operating Partnership's acquisition by tender offer of shares in RPT, a
Massachusetts business trust, and certain litigation instituted in September,
1997, by the SPG Operating Partnership against Jacobs in federal district court
in New York, wherein the SPG Operating Partnership alleged that Jacobs and other
parties had engaged, or were engaging in activity which violated Section 10(b)
of the Securities Exchange Act of 1934, as well as certain rules promulgated
thereunder. Plaintiffs in the Ohio action are seeking compensatory damages in
excess of $200 million, punitive damages and reimbursement for fees and
expenses. It is difficult to predict the ultimate outcome of this action and
there can be no assurance that the SPG Operating Partnership will receive a
favorable verdict. Based upon the information known at this time, in the opinion
of management, it is not expected that this action will have a material adverse
effect on Simon Group.
Carlo Angostinelli et al. v. DeBartolo Realty Corp. et al. On October 16,
1996, a complaint was filed in the Court of Common Pleas of Mahoning County,
Ohio, captioned Carlo Angostinelli et al. v. DeBartolo Realty Corp. et al. The
named defendants are SD Property Group, Inc., a indirect 99%-owned subsidiary of
the Company, and DPMI, and the plaintiffs are 27 former employees of the
defendants. In the complaint, the plaintiffs alleged that they were recipients
of deferred stock grants under the DRC Plan and that these grants immediately
vested under the DRC Plan's "change in control" provision as a result of the DRC
Merger. Plaintiffs asserted that the defendants' refusal to issue them
approximately 661,000 shares of DRC common stock, which is equivalent to
approximately 450,000 shares of common stock of the Company computed at the 0.68
exchange ratio used in the DRC Merger, constituted a breach of contract and a
breach of the implied covenant of good faith and fair dealing under Ohio law.
Plaintiffs sought damages equal to such number of shares of DRC common stock, or
cash in lieu thereof, equal to all deferred stock ever granted to them under the
DRC Plan, dividends on such stock from the time of the grants, compensatory
damages for breach of the implied covenant of good faith and fair dealing, and
punitive damages. The complaint was served on the defendants on October 28,
1996. The plaintiffs and the Company each filed motions for summary judgment. On
October 31, 1997, the Court entered a judgment in favor of the Company granting
the Company's motion for summary judgment. The plaintiffs have appealed this
judgment and the matter is pending. While it is difficult to predict the
ultimate outcome of this action, based on the information known to date, it is
not expected that this action will have a material adverse effect on Simon
Group.
Roel Vento et al v. Tom Taylor et al. An affiliate of the Company is a
defendant in litigation entitled Roel Vento et al v. Tom Taylor et al, in the
District Court of Cameron County, Texas, in which a judgment in the amount of
$7,800 has been entered against all defendants. This judgment includes
approximately $6,500 of punitive damages and is based upon a jury's findings on
four separate theories of liability including fraud, intentional infliction of
emotional distress, tortuous interference with contract and civil conspiracy
arising out of the sale of a business operating under a temporary license
agreement at Valle Vista Mall in Harlingen, Texas. The Company is seeking to
overturn the award and has appealed the verdict. The Company's appeal is
pending.
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<PAGE> 23
Although management is optimistic that the Company may be able to reverse or
reduce the verdict, there can be no assurance thereof. Management, based upon
the advice of counsel, believes that the ultimate outcome of this action will
not have a material adverse effect on the Simon Group.
Simon Group currently is not subject to any other material litigation
other than routine litigation and administrative proceedings arising in the
ordinary course of business. On the basis of consultation with counsel,
management believes that these items will not have a material adverse impact on
Simon Group's financial position or results of operations.
NOTE 12 - NEW ACCOUNTING PRONOUNCEMENTS
During the second quarter of 1998, the Financial Accounting Standards
Board ("FASB") released EITF 98-9, which clarified its position relating to the
timing of recognizing contingent rent. Simon Group adopted this pronouncement
prospectively, beginning May 22, 1998, which has reduced overage rent by
approximately $5,600 through September 30, 1998.
On June 15, 1998, the FASB issued Statement of Financial Accounting
Standards No. 133, Accounting for Derivative Instruments and Hedging Activities.
The Statement establishes accounting and reporting standards requiring that
every derivative instrument (including certain derivative instruments embedded
in other contracts) be recorded in the balance sheet as either an asset or
liability measured at its fair value. The Statement requires that changes in the
derivative's fair value be recognized currently in earnings unless specific
hedge accounting criteria are met. Special accounting for qualifying hedges
allows a derivative's gains and losses to offset related results on the hedged
item in the income statement, and requires that a company must formally
document, designate, and assess the effectiveness of transactions that receive
hedge accounting.
Statement 133 will be effective for Simon Group beginning with the 1999
fiscal year and may not be applied retroactively. Management does not expect the
impact of Statement 133 to be material to the financial statements. However, the
Statement could increase volatility in earnings and other comprehensive income.
In June 1997, the FASB issued Statement of Financial Accounting Standards
No. 131, Disclosure about Segments of an Enterprise and Related Information. The
Statement establishes standards for the way public companies report information
about operating segments in annual financial statements and also requires those
enterprises to report selected information about operating segments in interim
financial reports issued to shareholders. This statement is effective for
financial statements for fiscal years beginning after December 15, 1997.
Management is currently evaluating the impact, if any, the Statement will have
on Simon Group's 1998 annual financial statements.
23
<PAGE> 24
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
SIMON PROPERTY GROUP, INC. AND SPG REALTY CONSULTANTS, INC. COMBINED
Certain statements made in this report may constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual results, performance
or achievements of Simon Group to be materially different from any future
results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, the following:
general economic and business conditions, which will, among other things, affect
demand for retail space or retail goods, availability and creditworthiness of
prospective tenants, lease rents and the terms and availability of financing;
changes in the real estate and retailing markets including, among other things,
competition with other companies and technology; risks of real estate
development and acquisition; governmental actions and initiatives; and
environmental/safety requirements.
OVERVIEW
For financial reporting purposes, as of the cost of business on September
24, 1998, the operating results include the CPI merger described in Note 2 of
the financial statements. As a result, the consolidated results of operations
include an additional 17 regional malls, two office buildings and one community
center, with an additional six regional malls being accounted for using the
equity method of accounting. The impact on 1998 results, however, included
these Properties only in the final six days of the period.
On September 29, 1997, Simon Group completed its cash tender offer for all
of the outstanding shares of beneficial interests of The Retail Property Trust
("RPT"). RPT owned 98.8% of Shopping Center Associates ("SCA"), which owned or
had interests in twelve regional malls and one community center, comprising
approximately twelve million square feet of GLA in eight states. Following the
completion of the tender offer, the SCA portfolio was restructured. Simon Group
exchanged its 50% interests in two SCA properties to a third party for similar
interests in two other SCA properties, in which it had 50% interests, with the
result that SCA then owned interests in a total of eleven properties. Effective
November 30, 1997, Simon Group also acquired the remaining 50% ownership
interest in another of the SCA properties. In addition, an affiliate of Simon
Group acquired the remaining 1.2% interest in SCA. On February 2, 1998, Simon
Group sold the community center for $9.6 million and on June 1, 1998, Simon
Group sold The Promenade, one of the regional malls owned by SCA for $33.5
million. At the completion of these transactions, Simon Group directly or
indirectly now owns 100% of eight of the nine SCA properties, and 50% of the
remaining property.
The following acquisitions and Property openings (the "Property
Transactions"), also impacted Simon Group's results of operations in the
comparative periods. On August 29, 1997, Simon Group opened the 55%-owned, $89
million phase II expansion of The Forum Shops at Caesar's. On December 30, 1997,
Simon Group acquired 100% of The Fashion Mall at Keystone at the Crossing, a
651,671 square-foot regional mall, along with an adjacent 29,140 square-foot
community center, in Indianapolis, Indiana for $124.5 million. On January 26,
1998, Simon Group acquired 100% of Cordova Mall in Pensacola, Florida for
approximately $87.3 million. On May 5, 1998, in a series of transactions, Simon
Group acquired the remaining 50.1% interest in Rolling Oaks Mall for 519,889
shares of the Company's common stock, valued at approximately $17.2 million.
New Accounting Pronouncement
During the second quarter of 1998, the Financial Accounting Standards
Board released EITF 98-9, which clarified its position relating to the timing of
recognizing contingent rent. Simon Group adopted this pronouncement
prospectively, beginning May 22, 1998. The negative impact on earnings for the
three-month and nine-month periods ended September 30, 1998 was approximately
$4.2 million and $5.6 million, respectively. Management expects the negative
impact to reverse in the fourth quarter of 1998 and the first quarter of 1999 as
the tenants' lease years progress. Management has determined that adopting EITF
98-9 retroactively would not have had a material impact on the financial
statements, nor does management expect the adoption to have a material impact on
the 1998 annual financial statements.
24
<PAGE> 25
RESULTS OF OPERATIONS
For the Three Months Ended September 30, 1998 vs. the Three Months Ended
September 30, 1997
Total revenue increased $62.6 million or 24.1% for the three months ended
September 30, 1998, as compared to the same period in 1997. This increase is
primarily the result of the RPT acquisition ($36.9 million), the CPI Merger
($6.7 million), the Property Transactions ($12.7 million) and approximately $3.4
million realized from marketing initiatives throughout the portfolio from Simon
Group's new strategic marketing division, Simon Brand Ventures ("SBV").
Excluding these items, total revenues increased $2.9 million, primarily due to a
$6.9 million increase in minimum rent and an $2.8 million increase in other
income, partially offset by a $7.2 million decrease in overage rent. The minimum
rent increase results from increased occupancy levels and the replacement of
expiring tenant leases with renewal leases at higher minimum base rents. The
$2.8 million increase in other income is primarily the result of a $4.1 million
increase in gains on sales of peripheral properties, and a $2.5 million
brokerage fee received in conjunction with the sale of the General Motors
Building described in Note 10, partially offset by a $1.0 million decrease in
interest and dividend income. The decrease in overage rent is primarily the
result of a change in the timing of recognizing contingent rent as prescribed by
EITF 98-9, which is described above.
Total operating expenses increased $32.6 million, or 22.9%, for the three
months ended September 30, 1998, as compared to the same period in 1997. This
increase is primarily the result of the RPT acquisition ($20.4million), the CPI
Merger ($2.5 million) and the Property Transactions ($8.8 million). Excluding
these transactions, total operating expenses increased only $0.9 million.
Interest expense increased $28.4 million, or 41.2% for the three months
ended September 30, 1998, as compared to the same period in 1997. This increase
is primarily a result of the RPT acquisition ($19.3 million), the CPI Merger
($2.8 million), the Property Transactions ($3.7 million) and incremental
interest on borrowings under the Credit Facility to acquire the IBM Properties
($4.1 million). Excluding these transactions, interest expense has decreased
$1.5 million.
Income from unconsolidated entities decreased from $7.1 million in 1997 to
$3.8 million in 1998, resulting from a decrease in Simon Group's share of income
from the Management Company ($1.2 million), and a decrease in its share of
income from partnerships and joint ventures ($2.0 million).
The three months ended September 30, 1997 included a net extraordinary
gain of $27.2 million, resulting from gains realized on the forgiveness of debt
($31.1 million) and the write-off of net unamortized debt premium ($8.4
million), partially offset by losses on the early extinguishment of debt ($12.3
million).
Income before limited partners' interests was $52.8 million for the three
months ended September 30, 1998, as compared to $81.5 million for the same
period in 1997, reflecting a decrease of $28.7 million, primarily for the
reasons discussed above. Income before limited partners' interests includes
income of the Company from the operations of Ocean County Mall and certain net
lease assets, income of CRC (the predecessor to SRC) and income of the SPG
Operating Partnership and the SRC Operating Partnership. Income from the SPG
Operating Partnership was allocated to the Company based on the Company's
preferred unit preference and ownership interest in the SPG Operating
Partnership during the period. Income of the SRC Operating Partnership was
allocated to SRC based on its ownership interest in the SRC Operating
Partnership during the period.
For the Nine months Ended September 30, 1998 vs. the Nine months Ended
September 30, 1997
Total revenue increased $185.7 million or 24.9% for the nine months ended
September 30, 1998, as compared to the same period in 1997. This increase is
primarily the result of the RPT acquisition ($111.4 million), the CPI Merger
($6.7 million), the Property Transactions ($37.0 million) and approximately $9.6
million realized from SBV marketing initiatives. Excluding these items, total
revenues increased $21.0 million, primarily due to a $14.3 million increase in
minimum rent and a $13.3 million increase in other income, partially offset by a
$7.7 million decrease in overage rents. The minimum rent increase results from
increased occupancy levels and the replacement of expiring tenant leases with
renewal leases at higher minimum base rents. The increase in other income
includes a $6.8 million increase in interest and dividend income, including a
$5.0 million dividend received from DPMI, a $2.5 million fee received in
conjunction with the sale of the General Motors Building described in Note 10,
and a $2.7 million increase in gains on sales of peripheral properties. The
decrease in overage rent is primarily the result of a change in the timing of
recognizing contingent rent as prescribed by EITF 98-9, which is described
above.
Total operating expenses increased $103.0 million, or 25.5%, for the nine
months ended September 30, 1998, as compared to the same period in 1997. This
increase is primarily the result of the RPT acquisition ($61.1 million), the CPI
Merger ($2.5 million) and the Property Transactions ($23.7 million). Excluding
these transactions, total operating expenses
25
<PAGE> 26
increased $15.7 million, primarily due to an $11.9 million increase in
depreciation and amortization and a $2.8 million increase in advertising and
promotion.
Interest expense increased $77.8 million, or 38.2% for the nine months
ended September 30, 1998, as compared to the same period in 1997. This increase
is primarily a result of the RPT acquisition ($56.3 million), the CPI Merger
($2.8 million), the Property Transactions ($12.3 million), and incremental
interest on borrowings under the Credit Facility to acquire the IBM Properties
($9.2 million) and the Chelsea stock ($1.4 million). Excluding these
transactions, interest expense has decreased $4.2 million, primarily resulting
from a decrease in the weighted average interest rates on consolidated
indebtedness and reductions in indebtedness from capital raised in common and
preferred stock offerings.
The $7.3 million loss on the sale of an asset in 1998 is primarily the
result of the June 30, 1998 sale of Southtown Mall for $3.3 million.
The $7.0 million extraordinary gain in 1998 is the result of a gain on
forgiveness of debt of $5.2 million and the write-off of the premium on such
indebtedness $1.8 million. The $2.5 million gain from extraordinary items in
1997 is the result of gains realized on the forgiveness of debt ($31.1 million)
and the write-off of net unamortized debt premium ($8.4 million), partially
offset by the acquisition of the contingent interest feature on four loans
($21.0 million) and prepayment penalties and write-offs of mortgage costs
associated with early extinguishments of debt ($16.0 million).
Income before limited partners' interest was $148.5 million for the nine
months ended September 30, 1998, as compared to $148.3 million for the same
period in 1997, reflecting a decrease of $0.2 million, primarily for the reasons
discussed above. Income before limited partners' interests includes income of
the Company from the operations of Ocean County Mall and certain net lease
assets, income of CRC, (the predecessor to SRC) and income of the SPG Operating
Partnership and the SRC Operating Partnership. Income from the SPG Operating
Partnership was allocated to the Company based on the Company's preferred unit
preference and ownership interest in the SPG Operating Partnership during the
period. Income of the SRC Operating Partnership was allocated to SRC based on
its ownership interest in the SRC Operating Partnership during the period.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1998, Simon Group's balance of unrestricted cash and
cash equivalents was approximately $102.5 million. In addition to its cash
balance, Simon Group has a $1.25 billion unsecured revolving credit facility
(the "Credit Facility") which had $871.8 million available after outstanding
borrowings and letters of credit at September 30, 1998. Simon Group also has
access to public equity and debt markets. The SPG Operating Partnership has a
debt shelf registration statement currently effective, under which $850 million
in debt securities may be issued.
Management anticipates that cash generated from operating performance will
provide the necessary funds on a short- and long-term basis for its operating
expenses, interest expense on outstanding indebtedness, recurring capital
expenditures, and distributions to shareholders in accordance with REIT
requirements. Sources of capital for nonrecurring capital expenditures, such as
major building renovations and expansions, as well as for scheduled principal
payments, including balloon payments, on outstanding indebtedness are expected
to be obtained from: (i) excess cash generated from operating performance; (ii)
working capital reserves; (iii) additional debt financing; and (iv) additional
equity raised in the public markets.
Sensitivity Analysis
Simon Group's future earnings, cash flows and fair values relating to
financial instruments are dependent upon prevalent market rates of interest,
such as LIBOR. Based upon consolidated indebtedness and interest rates at
September 30, 1998, a 1% increase in the market rates of interest would
decrease future earnings and cash flows by approximately $14.8 million per
year, and would decrease the fair value of debt by approximately $1,153
million. A 1% decrease in the market rates of interest would increase future
earnings and cash flows by approximately $15.8 million per year, and would
increase the fair value of debt by approximately $1,679 million.
Financing and Debt
At September 30, 1998, Simon Group had consolidated debt of $7,745.9
million, of which $5,362.3 million is fixed-rate debt bearing interest at a
weighted average rate of 7.71% and $2,383.6 million is variable-rate debt
bearing interest at a weighted average rate of 6.21%. As of September 30, 1998,
Simon Group had interest rate protection agreements related to $1,092.4 million
of consolidated variable-rate debt. Simon Group's hedging activity, as a result
of these interest rate protection
26
<PAGE> 27
agreements, resulted in interest savings of $122 thousand and $285 thousand for
the three months ended September 30, 1998 and 1997, respectively. Interest
savings were $301 thousand and $1,371 thousand for the nine months ended
September 30, 1998 and 1997, respectively. Simon Group's hedging activities did
not materially impact its weighted average borrowing rates.
Scheduled principal payments of SPG's share of indebtedness over the next
five years is $3,601 million, with $4,000 million thereafter. The Company and
SRC's combined ratio of consolidated debt-to-market capitalization was 49.5% at
both September 30, 1998 and December 31, 1997.
On June 18, 1998, Simon Group refinanced a $33.9 million mortgage on a
regional mall Property and recorded a $7.0 million extraordinary gain, including
debt forgiveness of $5.2 million and the write-off of a premium of $1.8 million.
The new mortgage, which totals $35 million, bears interest of 7.33% and matures
on June 18, 2008. The retired mortgage bore interest at 9.25% with a maturity of
January 1, 2011.
On June 22, 1998, Simon Group completed the sale of $1.075 billion of
senior unsecured debt securities. The issuance included three tranches of senior
unsecured notes as follows (1) $375 million bearing interest at 6.625% and
maturing on June 15, 2003 (2) $300 million bearing interest at 6.75% and
maturing on June 15, 2005 and (3) $200 million bearing interest at 7.375% and
maturing on June 15, 2018. This offering also included a fourth tranche of $200
million of 7.00% Mandatory Par Put Remarketed Securities due June 15, 2028,
which are subject to redemption on June 16, 2008. The net proceeds of
approximately $1.062 billion were combined with $40 million of working capital
and used to retire and terminate Simon Group's $300 million unsecured revolving
credit facility and to reduce the outstanding balance of Simon Group's Credit
Facility. The Credit Facility has an initial maturity of September 1999, which
Simon Group may, at its option, extend for up to one year. The debt retired had
a weighted average interest rate of 6.29%.
In conjunction with the CPI Merger, the SPG Operating Partnership and SPG,
as co-obligors, closed a $1.4 billion unsecured bridge loan (the "Merger
Facility"). The Merger Facility bears interest at a base rate of LIBOR plus 65
basis points and will mature at the following intervals (i) $450 million on the
nine-month anniversary of the closing (ii) $450 million on the eighteen-month
anniversary of the closing and (iii) $500 million on the two-year anniversary of
the closing. The Merger Facility is subject to covenants and conditions
substantially identical to those of the Credit Facility. Simon Group drew the
entire $1.4 billion available on the Merger Facility, along with $237 million on
the Credit Facility, to pay for the cash portion of the dividend declared in
conjunction with the CPI Merger, as well as closing costs associated with the
CPI Merger. Financing costs of $9.5 million, which were incurred to obtain the
Merger Facility, are being amortized over 18 months.
In conjunction with the CPI Merger, RPT, a REIT and the 99.999% owned
subsidiary of the SDG Operating Partnership, took title for substantially all
of the CPI assets and assumed $825 million of unsecured notes (the "CPI Notes"),
as described in Note 2. As a result, the CPI Notes are structurally senior in
right of payment to holders of other Simon Group unsecured notes to the extent
of the assets of RPT. The CPI Notes pay interest semiannually, and bear
interest ranging from 7.05% to 9.00% (weighted average of 8.03%), and have
various due dates through 2016 (average maturity of 9.6 years). The CPI Notes
contain leverage ratios, annual real property appraisal requirements, debt
service coverage ratios and minimum Net Worth ratios. Additionally,
consolidated mortgages totaling $2.1 million, and a pro-rata share of $92.0
million of nonconsolidated joint venture indebtedness was assumed in the CPI
Merger, and as a result of acquiring the remaining interest in Palm Beach Mall,
Simon Group began accounting for that Property using the consolidated method of
accounting, adding $50.7 million to consolidated indebtedness. A net premium of
$19.2 million was recorded in accordance with the purchase method of accounting
to adjust the CPI Notes and mortgage indebtedness assumed in the CPI Merger to
fair value, which is being amortized over the remaining lives of the related
indebtedness.
During the second quarter, the Company issued 2,957,335 shares of its
common stock in private offerings generating aggregate net proceeds of
approximately $91.4 million. The net proceeds were contributed to the SPG
Operating Partnership in exchange for a like number of Units. The SPG Operating
Partnership used the net proceeds for general working capital purposes.
Acquisitions and Dispositions
Management continues to actively review and evaluate a number of
individual property and portfolio acquisition opportunities. Management believes
that funds on hand, and amounts available under the Credit Facility, together
with the net proceeds of public and private offerings of debt and equity
securities are sufficient to finance likely acquisitions. No assurance can be
given that Simon Group will not be required to, or will not elect to, even if
not required to, obtain funds from outside sources, including through the sale
of debt or equity securities, to finance significant acquisitions, if any.
27
<PAGE> 28
On January 26, 1998, Simon Group acquired Cordova Mall in Pensacola,
Florida for approximately $87.3 million, which included the assumption of a
$28.9 million mortgage, which was later retired, and the issuance of 1,713,016
Units, valued at approximately $55.5 million. This 874,000 square-foot regional
mall is wholly-owned by Simon Group.
During 1998, in a series of transactions, Simon Group has acquired
additional 35% ownership interests in Lakeline Mall and Lakeline Plaza for
319,390 Units in the SPG Operating Partnership valued at approximately $10.5
million and $4.2 million in cash. These acquisitions increased Simon Group's
ownership interest in these Properties to a noncontrolling 85%.
On February 27, 1998, Simon Group, in a joint venture partnership with
Macerich, acquired a portfolio of twelve regional malls and two community
centers comprising approximately 10.7 million square feet of GLA at a purchase
price of $974.5 million, including the assumption of $485.0 million of
indebtedness. Simon Group and Macerich, as noncontrolling 50/50 partners in the
joint venture, were each responsible for one half of the purchase price,
including indebtedness assumed and each assumed leasing and management
responsibilities for six of the regional malls and one community center. Simon
Group funded its share of the cash portion of the purchase price using
borrowings from a new $300 million unsecured revolving credit facility, which
bore interest at LIBOR plus 0.65% and had a maturity of August 27, 1998.
On April 15, 1998, Simon Group purchased the remaining 7.5% ownership
interest in Buffalo Grove Towne Center for $255 thousand.
Effective May 5, 1998, in a series of transactions, Simon Group acquired
the remaining 50.1% interest in Rolling Oaks Mall for 519,889 shares of the
Company's common stock, valued at approximately $17.2 million. The SPG Operating
Partnership issued 519,889 Units to the Company as consideration for the shares
of common stock.
Effective June 1, 1998, Simon Group sold The Promenade for $33.5 million.
No gain or loss was recognized on this transaction. Effective June 30, 1998,
Simon Group sold Southtown Mall for $3.3 million and recorded a $7.2 million
loss on the transaction.
Portfolio Restructuring. As a continuing part of Simon Group's long-term
strategic plan, management is evaluating the potential sale of Simon Group's
non-retail holdings, along with a number of retail assets that are no longer
aligned with Simon Group's strategic criteria. If these assets are sold,
management expects the sale prices will not differ materially from the carrying
value of the related assets.
Development, Expansions and Renovations. Simon Group is involved in
several development, expansion and renovation efforts.
In March 1998, Simon Group opened the approximately $13.3 million Muncie
Plaza in Muncie, Indiana. Simon Group owns 100% of this 196,000 square foot
community center. In addition, phase I of the approximately $34 million Lakeline
Plaza opened in April 1998 in Austin, Texas. Phase II of this 360,000
square-foot community center is scheduled to open in 1999. Each of these new
community centers is adjacent to an existing regional mall in Simon Group's
portfolio.
Construction continues on the following development projects: The Shops at
Sunset Place, an approximately $150 million, 37.5%-owned, destination-oriented
retail and entertainment project containing approximately 510,000 square feet of
GLA is scheduled to open in December 1998 in South Miami, Florida and Concord
Mills, an approximately $216 million, 50%-owned value-oriented super regional
mall project, is scheduled to open in the fall of 1999 in Concord (Charlotte),
North Carolina.
As part of the CPI Merger, the SPG Operating Partnership assumed CPI's 50%
noncontrolling ownership in the approximately $246 million Mall of Georgia
development project. This approximately 1.5 million square-foot regional mall
development is located in Gwinnet County, Georgia in a suburb of Atlanta. Mall
of Georgia is scheduled to open in August 1999. Adjacent to Mall of Georgia,
Simon Group is also developing a $38 million 444,000 square-foot community
center, The Mall of Georgia Crossing.
In addition, Simon Group began construction on The Shops at North East
Mall in Hurst, Texas during 1998. This 320,000 square-foot community center
project is adjacent to North East Mall, and is scheduled to open in the fall of
1999.
On June 4, 1998, Simon Group, Argo II, an investment fund established by
J.P. Morgan and The O'Connor Group, and Harvard Private Capital Group
("Harvard") announced that they have collectively committed to acquire a 44
percent ownership position in Groupe BEG, S.A. ("BEG"). BEG is a fully
integrated retail real estate developer, lessor and manager headquartered in
Paris, France. Simon Group through and affiliated Management Company have
contributed $15.0 million of equity capital for a noncontrolling 22% ownership
interest and are committed to an additional investment of $37.5 million over
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<PAGE> 29
the next 12 to 18 months, subject to certain financial and other conditions. The
agreement with BEG is structured to allow Simon Group, Argo II and Harvard to
collectively acquire a controlling interest in BEG over time.
October of 1998 marked the opening of BEG's first project in Europe with
the Phase I opening of a development in Krakow, Poland. This project is 100%
leased and committed and features 390,000 square feet of selling space.
A key objective of Simon Group is to increase the profitability and market
share of its Properties through the completion of strategic renovations and
expansions. Simon Group's share of projected costs to fund all renovation and
expansion projects in the fourth quarter of 1998 is approximately $150 million,
with an additional $400 million projected for 1999. It is anticipated that the
cost of these projects will be financed principally with the Credit Facility,
project-specific indebtedness, access to debt and equity markets, and cash
flows from operations. Simon Group currently has six expansion and/or
redevelopment projects under construction and in the preconstruction
development stage with targeted 1998 completion dates and an additional six
with 1999 completion dates. Included in consolidated investment properties at
September 30, 1998 is approximately $221.8 million of construction in progress,
with another $261.7 million in the unconsolidated joint venture investment
properties.
Distributions. The Company declared a distribution of the previous
quarters earnings of $0.5050 per share of common stock in each of the first
three quarters of 1998. A special distribution of $0.4721 per unit was declared
on September 15, 1998 to align the time periods of distributions for the Company
and CPI under the definitive merger agreement. The special distribution is
payable on November 20, 1998 to shareholders of record on September 23, 1998. In
addition, on October 21, 1998, the Company declared a distribution of $0.0329
per paired-share, representing the balance of the Company's regular quarterly
distribution of $0.5050 for the third quarter. This distribution is also payable
on November 20, 1998 to shareholders of record on November 6, 1998. The current
annual distribution rate is $2.02 per share of common stock. Future common stock
distributions will be determined based on actual results of operations and cash
available for distribution. In addition, preferred dividends of $1.6406 per
Series B preferred share and $2.9588 per Series C preferred share were paid
during the first nine months of 1998.
INVESTING AND FINANCING ACTIVITIES
In March 1998, Simon Group transferred its 50% ownership interest in The
Source, an approximately 730,000 square-foot regional mall, to a newly formed
limited partnership in which it has a 50% ownership interest, with the result
that Simon Group now owns an indirect noncontrolling 25% ownership interest in
The Source. In connection with this transaction, Simon Group's partner in the
newly formed limited partnership is entitled to a preferred return of 8% on its
initial capital contribution, a portion of which was distributed to Simon Group.
Simon Group applied the distribution against its investment in The Source.
In August 1998, Simon Group sold one-half of its 75% ownership in The
Shops at Sunset Place construction project for a net sale price of $35,200.
Simon Group now holds a 37.5% noncontrolling interest in this project, which is
scheduled to open in December 1998. Simon Group applied the proceeds against its
investment in the project.
Cash used in investing activities for the nine months ended September 30,
1998 of $1,928 million is primarily the result of the CPI Merger and other
acquisitions of $1,881 million, $233 million of capital expenditures and $20
million of investments in and advances to the Management Company, partially
offset by the net proceeds of $46 million from the sales of Sherwood Gardens,
The Promenade and Southtown Mall and net distributions from unconsolidated
entities of $136 million, which includes $59 million associated with the
refinancing of Florida Mall, $33 million from The Source transactions described
above, $30 million associated with The Shops at Sunset Place transaction
described above and distributions of $8 million from the IBM Properties. The $20
million investment in the Management Company is primarily the $15 million
investment in Group BEG described earlier. In addition to the $1,638 million
paid in connection with the CPI Merger, acquisitions includes $240 million for
the acquisition of the IBM Properties and $3 million for the acquisition of
Cordova Mall. Capital expenditures includes development costs of $59 million,
renovation and expansion costs of approximately $129 million and tenant costs
and other operational capital expenditures of approximately $45 million.
Cash provided by financing activities for the nine months ended September
30, 1998 was $1,569 million and includes net borrowings of $1,776 million
primarily used to fund the CPI Merger and other acquisition and development
activity, net proceeds from sales of common stock of $115 million, partially
offset by distributions of $321 million.
EBITDA -- EARNINGS FROM OPERATING RESULTS BEFORE INTEREST, TAXES,
DEPRECIATION AND AMORTIZATION
Management believes that there are several important factors that
contribute to the ability of Simon Group to increase rent and improve
profitability of its shopping centers, including aggregate tenant sales volume,
sales per square foot, occupancy levels and tenant costs. Each of these factors
has a significant effect on EBITDA. Management believes that
29
<PAGE> 30
EBITDA is an effective measure of shopping center operating performance because:
(i) it is industry practice to evaluate real estate properties based on
operating income before interest, taxes, depreciation and amortization, which is
generally equivalent to EBITDA; and (ii) EBITDA is unaffected by the debt and
equity structure of the property owner. EBITDA: (i) does not represent cash flow
from operations as defined by generally accepted accounting principles; (ii)
should not be considered as an alternative to net income as a measure of
operating performance; (iii) is not indicative of cash flows from operating,
investing and financing activities; and (iv) is not an alternative to cash flows
as a measure of liquidity.
Total EBITDA for the Properties increased from $649.5 million for the nine
months ended September 30, 1997 to $908.0 million for the same period in 1998,
representing a 39.8% increase. This increase is primarily attributable to the
RPT acquisition ($89.6 million), the IBM Properties ($31.6 million), the CPI
Merger ($5.6), SBV initiatives ($9.6 million) and the other Properties opened or
acquired during 1997 and 1998 ($75.3 million). Excluding these items, EBITDA
increased $46.8 million, or 7.2% resulting from aggressive leasing of new and
existing space and increased operating efficiencies. During this period
operating profit margin increased from 64.2% to 64.7%.
FFO-FUNDS FROM OPERATIONS
FFO, as defined by the National Association of Real Estate Investment
Trusts, means the consolidated net income of Simon Group and its subsidiaries
without giving effect to depreciation and amortization, gains or losses from
extraordinary items, gains or losses on sales of real estate, gains or losses on
investments in marketable securities and any provision/benefit for income taxes
for such period, plus the allocable portion, based on Simon Group's ownership
interest, of funds from operations of unconsolidated joint ventures, all
determined on a consistent basis in accordance with generally accepted
accounting principles. Management believes that FFO is an important and widely
used measure of the operating performance of REITs which provides a relevant
basis for comparison among REITs. FFO is presented to assist investors in
analyzing the performance. Simon Group's method of calculating FFO may be
different from the methods used by other REITs. FFO: (i) does not represent cash
flow from operations as defined by generally accepted accounting principles;
(ii) should not be considered as an alternative to net income as a measure of
operating performance or to cash flows from operating, investing and financing
activities; and (iii) is not an alternative to cash flows as a measure of
liquidity.
The following summarizes FFO of Simon Group and reconciles combined net
income available to common shareholders to FFO for the periods presented:
<TABLE>
<CAPTION>
For the Three Months For the Nine months
Ended September 30, Ended September 30,
--------------------------- ---------------------------
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
(In thousands)
FFO of the Simon Portfolio $ 123,584 $ 102,189 $ 348,448 $ 283,413
========= ========= ========= =========
Reconciliation:
Income Before Extraordinary Items $ 52,851 $ 54,286 $ 141,489 $ 145,761
Plus:
Depreciation and amortization
from combined consolidated Properties 60,877 47,981 177,038 135,067
Simon Group's share of
depreciation and amortization
and extraordinary items from
unconsolidated affiliates 19,646 9,995 50,754 28,005
Loss on the sale of real estate 64 -- 7,283 --
Less:
Gain on the sale of real estate -- -- -- (20)
Minority interest portion of
depreciation, amortization and
extraordinary items (1,780) (972) (5,374) (3,486)
Preferred dividends (Including
preferred dividends of Subsidiary) (8,074) (9,101) (22,742) (21,914)
--------- --------- --------- ---------
Combined FFO $ 123,584 $ 102,189 $ 348,448 $ 283,413
========= ========= ========= =========
FFO Allocable to the Company and SRC $ 79,841 $ 63,173 $ 222,575 $ 174,581
========= ========= ========= =========
</TABLE>
PORTFOLIO DATA
The following statistics exclude Charles Towne Square, Richmond Town
Square and Mission Viejo Mall, which are all undergoing extensive
redevelopments. The 1998 occupancy and rent statistics do not include the
Properties acquired in the
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<PAGE> 31
CPI Merger (the "CPI Properties"), as they were only a part of the portfolio for
the final six days of the period. All 1998 year-end statistics will include the
CPI Properties. The value-oriented super-regional mall category consists of
Arizona Mills, Grapevine Mills and Ontario Mills.
Aggregate Tenant Sales Volume. For the nine months ended September 30,
1998 compared to the same period in 1997, total reported retail sales at mall
and freestanding GLA owned by Simon Group ("Owned GLA") in the regional malls
and value-oriented super-regional malls, and all reporting tenants at community
shopping centers increased $1,916 million or 42.2% from $4,541 million to $6,457
million, primarily as a result of the RPT acquisition, the IBM Properties and
other Property additions to the portfolio ($1,598 million), increased
productivity of our existing tenant base and an overall increase in occupancy.
Retail sales at Owned GLA affect revenue and profitability levels because they
determine the amount of minimum rent that can be charged, the percentage rent
realized, and the recoverable expenses (common area maintenance, real estate
taxes, etc.) the tenants can afford to pay.
Occupancy Levels. Occupancy levels for Owned GLA at mall and freestanding
stores in the regional malls increased from 86.0% at September 30, 1997, to
88.2% at September 30, 1998. Excluding the CPI Properties, regional malls were
87.7% occupied at September 30, 1998. Occupancy for value-oriented
super-regional malls was 96.9% at September 30, 1998. Occupancy levels for
community shopping centers decreased from 93.1% at September 30, 1997, to 90.8%
at September 30, 1998. Owned GLA has increased 29.6 million square feet from
September 30, 1997, to September 30, 1998, primarily as a result of the CPI
Merger (12.4 million), the RPT acquisition (5.2 million), and the acquisitions
of the IBM Properties (7.1 million), Cordova Mall, The Fashion Center at
Keystone at the Crossing and the openings of Arizona Mills, Grapevine Mills, The
Source, Muncie Plaza and Lakeline Plaza, partially offset by the sale of
Southtown Mall.
Average Base Rents. Average base rents per square foot of mall and
freestanding Owned GLA at regional malls increased 17.2%, from $21.82 at
September 30, 1997 to $23.20 at September 30, 1998. Average base rents per
square foot of Owned GLA at value-oriented super-regional malls was $16.33 at
September 30, 1998 and average base rents of Owned GLA in the community shopping
centers decreased 3.7%, from $7.78 at September 30, 1997 to $7.47 for the same
period in 1998.
INFLATION
Inflation has remained relatively low during the past few years and has
had a minimal impact on the operating performance of the Properties.
Nonetheless, substantially all of the tenants' leases contain provisions
designed to lessen the impact of inflation. Such provisions include clauses
enabling Simon Group to receive percentage rentals based on tenants' gross
sales, which generally increase as prices rise, and/or escalation clauses, which
generally increase rental rates during the terms of the leases. In addition,
many of the leases are for terms of less than ten years, which may enable Simon
Group to replace existing leases with new leases at higher base and/or
percentage rentals if rents of the existing leases are below the then-existing
market rate. Substantially all of the leases, other than those for anchors,
require the tenants to pay a proportionate share of operating expenses,
including common area maintenance, real estate taxes and insurance, thereby
reducing Simon Group's exposure to increases in costs and operating expenses
resulting from inflation.
However, inflation may have a negative impact on some of Simon Group's
other operating items. Interest and general and administrative expenses may be
adversely affected by inflation as these specified costs could increase at a
rate higher than rents. Also, for tenant leases with stated rent increases,
inflation may have a negative effect as the stated rent increases in these
leases could be lower than the increase in inflation at any given time.
YEAR 2000 COSTS
The Company has undertaken a project to identify and correct problems
arising from the inability of information technology hardware and software
systems to process dates after December 31, 1999. This Year 2000 project
consists of two primary components. The first component focuses on the Company's
key information technology systems (the "IT Component") and the second component
focuses on the information systems of key tenants and key third party service
providers as well as imbedded systems within common areas of approximately 230
Properties (the
"Non-IT Component"). Key tenants include the 20 largest base rent contributors
and anchor tenants with over 25,000 square feet of GLA. Key third party service
providers are those providers whose Year 2000 problems, if not addressed, would
be likely to have a material adverse effect on the Company's operations.
The IT Component of the Year 2000 project is being managed by the
information services department of the Company who have actively involved other
disciplines within the Company who are directly impacted by an IT Component of
the project. The Non-IT Component is being managed by a steering committee of
25 employees, including senior executives of a number of the Company's
departments. In addition, outside consultants have been engaged to assist in
the Non-IT Component.
31
<PAGE> 32
STATUS OF PROJECT
IT Component. The Company's primary operating, financial accounting
and billing systems and the Company's standard primary desktop software
have been determined to be Year 2000 ready. The Company's information
services department has also completed its assessment of other "mission
critical" applications within the Company and is currently implementing
solutions to those applications in order for them to be Year 2000 ready.
It is expected that the implementation of these mission critical solutions
will be complete by September 30, 1999.
Non-IT Component. The Non-IT Component includes the following
phases: (1) an inventory of Year 2000 items which are determined to be
material to the Company's operations; (2) assigning priority to
identified items; (3) assessing Year 2000 compliance status as to all
critical items; (4) developing replacement or contingency plans based on
the information collected in the preceding phases; (5) implementing
replacement and contingency plans; and (6) testing and monitoring of
plans, as applicable.
Phase (1) is ongoing and is 70% complete. Phase (2) is complete and
Phase (3) is in process. The assessment of compliance status of key
tenants is approximately 50% complete, the assessment of compliance status
of key third party service providers is approximately 40% complete and the
assessment of compliance status of inventoried components at the
Properties is approximately 5% complete. The Company expects to complete
phase (3) by December 31, 1998. The development of contingency or
replacement plans (phase (4)) is scheduled to be completed by December 31,
1998. No such plans are currently in place. Implementation of contingency
and replacement plans (phase (5)) is scheduled to commence during the
first quarter of 1999 with any required testing (phase (6)) to be
completed throughout the remainder of 1999.
Costs. The Company estimates that it will spend approximately $1.5 million
in incremental costs for its Year 2000 project. This amount will be incurred
over a period that commenced January in 1997 and is expected to end in September
1999. Costs incurred through September 30, 1998 are estimated at approximately
$500 thousand. Such amounts are expensed as incurred. These estimates do not
include the costs expended by the Company Following its 1996 merger with
DeBartolo Realty Corporation For software, hardware and related costs necessary
to upgrade its primary operating, Financial, accounting and billing systems
which allowed those systems to among other things, become Year 2000 compliant.
Risks. The most reasonably likely worst case scenario for the Company with
respect to the Year 2000 problems would be disruptions in the Company's
operations at the Properties. This could lead to reduced sales at the Properties
and claims by tenants which would in turn adversely affect the Company's results
of operations.
The Company has not yet completed all phases of its Year 2000 project and
the Company is dependent upon key tenants and key third party suppliers to make
their information systems Year 2000 compliant. In addition, disruptions in the
economy generally resulting from Year 2000 problems could have an adverse effect
on the Company's operations.
SEASONALITY
The shopping center industry is seasonal in nature, particularly in the
fourth quarter during the holiday season, when tenant occupancy and retail sales
are typically at their highest levels. In addition, shopping malls achieve most
of their temporary tenant rents during the holiday season. As a result of the
above, earnings are generally highest in the fourth quarter of each year.
32
<PAGE> 33
PART II - OTHER INFORMATION
Item 1: Legal Proceedings
Richard E. Jacobs, et al. v. Simon DeBartolo Group, L.P. On September 3,
1998, a complaint was filed in the Court of Common Pleas in Cuyahoga County,
Ohio, captioned Richard E. Jacobs, et al. v. Simon DeBartolo Group, L.P. The
plaintiffs are all principals or affiliates of The Richard E. Jacobs Group, Inc.
The plaintiffs allege in their complaint that Simon DeBartolo Group, L.P. (now
Simon Property Group, L.P. or the SPG Operating Partnership) engaged in
malicious prosecution, abuse of process, defamation, libel, injurious
falsehood/unlawful disparagement, deceptive trade practices under Ohio law,
tortious interference and unfair competition in connection with the SPG
Operating Partnership's acquisition by tender offer of shares in RPT, a
Massachusetts business trust, and certain litigation instituted in September,
1997, by the SPG Operating Partnership against Jacobs in federal district court
in New York, wherein the SPG Operating Partnership alleged that Jacobs and other
parties had engaged, or were engaging in activity which violated Section 10(b)
of the Securities Exchange Act of 1934, as well as certain rules promulgated
thereunder. Plaintiffs in the Ohio action are seeking compensatory damages in
excess of $200 million, punitive damages and reimbursement for fees and
expenses. It is difficult to predict the ultimate outcome of this action and
there can be no assurance that the SPG Operating Partnership will receive a
favorable verdict. Based upon the information known to the Company at this time,
in the opinion of Management, it is not expected that this action will have a
material adverse effect on the Company.
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits
None.
(b) Reports on Form 8-K
Neither Simon Property Group, Inc., nor SPG Realty
Consultants, Inc. filed reports on Form 8-K during the
current period.
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<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SIMON PROPERTY GROUP, INC. AND
SPG REALTY CONSULTANTS, INC.
/s/ John Dahl
John Dahl,
Senior Vice President
and Chief Accounting Officer
(Principal Accounting Officer)
Date: November 14, 1998
34
<PAGE> 1
EXHIBIT 4.1
CREDIT AGREEMENT
Dated as of September 24, 1998
among
SIMON DeBARTOLO GROUP, L.P.
CORPORATE PROPERTY INVESTORS, INC.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT,
CHASE SECURITIES INC.,
AS ARRANGER AND BOOK MANAGER
UBS AG, NEW YORK BRANCH
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
AS SYNDICATION AGENTS,
NATIONSBANK, N.A.,
AS DOCUMENTATION AGENT,
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
AS CO-DOCUMENTATION AGENT
<PAGE> 2
CREDIT AGREEMENT
This Credit Agreement dated as of September 24, 1998 (as amended,
supplemented or modified from time to time, the "Agreement") is entered into
among SIMON DeBARTOLO GROUP, L.P., a Delaware limited partnership, CORPORATE
PROPERTY INVESTORS, INC., a Delaware corporation, 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,
UBS AG, NEW YORK BRANCH and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Syndication Agents, and NATIONSBANK, N.A., as Documentation Agent, and DRESDNER
BANK AG, NEW YORK AND GRAND CAYMEN BRANCHES, as Co-Documentation Agent.
The parties hereto agree as follows:
ARTICLE
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.
<PAGE> 3
"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:
<TABLE>
<CAPTION>
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)
- - ------------- --------------------- -------------
<S> <C> <C>
below BBB-/Baa3
or unrated 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%
</TABLE>
If at any time the Borrower has a Credit Rating by both Moody's and S&P which
Credit Ratings are split, then: (A)
2
<PAGE> 4
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 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 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.
"Borrower" means, prior to the CPI Merger, collectively Simon DeBartolo
Group, L.P. and CPI, and from and after the CPI Merger, collectively CPI (which
will be renamed Simon Property Group, Inc.) and Simon Property Group, L.P.
(f/k/a Simon DeBartolo Group, L.P.).
3
<PAGE> 5
"Borrower Partnership Agreement" means that certain Fifth Amended and
Restated Limited Partnership Agreement of Simon DeBartolo Group, L.P., dated as
of August 9, 1996, 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, (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
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 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
4
<PAGE> 6
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
one year.
"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. Sections 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
5
<PAGE> 7
"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 24, 1998.
"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 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
6
<PAGE> 8
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, the maximum
amount of which shall be $1,400,000,000, as reduced from time to time pursuant
to Section 4.1.
"Company" means Simon DeBartolo Group, Inc., a Maryland corporation,
which shall be renamed SPG Properties, Inc. immediately after the CPI Merger.
"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.
"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
7
<PAGE> 9
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, exclusive 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
8
<PAGE> 10
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 the 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 or (Y) such other
Person holds an Investment Grade Credit Rating from either Moody's or S&P, 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.
"CPI" means Corporate Property Investors, Inc., a Delaware corporation.
"CPI Merger" means the merger of the Company with and into a
substantially wholly-owned Subsidiary of CPI with the Company surviving as a
Subsidiary of CPI and the share holders of the Company exchanging their shares
in the Company for shares in CPI, which shall be renamed "Simon Property Group,
Inc." immediately thereafter.
"Credit Availability" means, at any particular time, the amount by
which the Maximum Credit Amount at such time exceeds the Loans outstanding at
such time.
9
<PAGE> 11
"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
(i) 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;
(ii) 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, 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;
(iii) 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 $10,000,000; and
10
<PAGE> 12
(iv) Liens against any Property of the Borrower or any Subsidiary
of the Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the
use of Real Property which do not interfere with the ordinary conduct
of the business of the Borrower or any of its Subsidiaries to the
extent it could not result in a Material Adverse Effect.
"Debt Yield" is defined in Section 10.12(d).
"Designee Lender" is defined in Section 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" 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 envi-
11
<PAGE> 13
ronment, 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".
"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. Sections 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
12
<PAGE> 14
"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).
"Eurodollar Interest Rate Determination Date" is defined in Section
5.2(c).
"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
13
<PAGE> 15
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 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).
14
<PAGE> 16
"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:
<TABLE>
<CAPTION>
Range of
Borrower's
Credit Rating Percentage of
S&P/Moody's Ratings Maximum Credit Amount
------------------- ---------------------
<S> <C>
below BBB-/Baa3
or unrated 0.25%
BBB-/Baa3 0.20%
BBB/Baa2 0.20%
BBB+/Baa1 0.15%
A-/A3 0.15%
</TABLE>
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 applicable 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
applicable 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
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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 Administrative Agent or 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.
"Funding Date" means, with respect to any Loan, the date of funding of
such Loan, which in any event shall occur on or before the date which is 90 days
subsequent to the initial funding of Loans hereunder.
"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 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, prior to the CPI Merger,
the Company and SD, and from and after the CPI Merger, Simon Property Group,
Inc. (formerly CPI), SD and SDG Properties, Inc. (f/k/a Simon DeBartolo Group,
Inc.) and any successor general partner(s) of the Borrower.
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"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 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
17
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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.
"Initial Funding Date" means the date on or after , 1998, on
which all of the conditions described in Section 6.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrower.
"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, 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
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<PAGE> 20
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.
"Lender" means each of the Administrative Agent, and 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 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
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<PAGE> 21
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 Section 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 controls 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 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.
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"Loans" means a 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.
"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.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U and Regulation G.
"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.
"Maximum Credit Amount" means, at any particular time, the Commitments
at such time.
"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
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<PAGE> 23
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.
"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.
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"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 corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in the partnership, (iii) the by-laws (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.
Sections 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)
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of ERISA or the Borrower or any ERISA Affiliate has assumed any liability.
"Potential Event of Default" means an event 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. Sections 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 powers, and public places adjoining such land, and any other
interests in property constituting appurtenances to the Premises, or which
hereafter shall in
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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 or corporation 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.
"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.
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"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 whose Pro Rata Shares, in the
aggregate, are greater than sixty-six and two-thirds percent (66.67%); provided,
however, that, in the event any of the Lenders shall have failed to fund its Pro
Rata Share of any Loan requested by the Borrower which such Lenders are
obligated to fund under the terms of this Agreement and any such failure has not
been cured as provided in Section 4.2(b)(v)(B), then for so long as such failure
continues, "Requisite Lenders" means Lenders (excluding all Lenders whose
failure to fund their respective Pro Rata Shares of such Loans have not been so
cured) whose Pro Rata Shares represent more than sixty-six and two-thirds
percent (66.67%) of the aggregate Pro Rata Shares of such Lenders; provided,
further, however, that, in the event that the Commitments have been terminated
pursuant to the terms of this Agreement, "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 8.8(vi) hereto.
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"S&P" means Standard & Poor's Ratings Service.
"SD" means SD Property Group, Inc., an Ohio corporation (formerly known
as DeBartolo Realty Corporation).
"SDGLP" means Simon DeBartolo Group, L.P., which shall be renamed Simon
Property Group, L.P. immediately after the CPI Merger.
"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:
(i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) 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
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(iii) 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
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"SPG Inc." is defined in Section 14.1.
"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.
"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.
"Termination Date" means the earlier to occur of (i) September 24, 2000
(or, if not a Business Day, the next preceding Business Day); and (ii) the date
of acceleration of the Loans 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
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work is performed by or on behalf of the landlord or as part of a Tenant
Allowance.
"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, 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
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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.
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
2.1. Loans.
(a) 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 from time to time during the term hereof, in an amount not to exceed
such Lender's Pro Rata Share of the Credit Availability at such time. 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. Each requested Borrowing of Loans funded on any Funding
Date shall be in a principal amount of at least $5,000,000; provided, however,
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that if the Credit Availability at the time of such requested Borrowing is less
than $5,000,000, then the requested Borrowing shall be for the total amount of
the Credit Availability. Any portion of the Commitments that shall not have been
borrowed as of December 24, 1998, shall be deemed to be cancelled as of such
date.
(b) Notice of Borrowing. When the Borrower desires to borrow under this
Section 2.1, it (it being understood and agreed that the initial Notice of
Borrowing may be delivered by SDGLP only) shall deliver to the Administrative
Agent a Notice of Borrowing, signed by it (i) no later than 12:00 noon (New York
time) on the Business Day immediately preceding the proposed Funding Date, in
the case of a Borrowing of Base Rate Loans, and (ii) no later than 11:00 a.m.
(New York time) at least three (3) Business Days in advance of the proposed
Funding Date, in the case of a Borrowing of Eurodollar Rate Loans; provided,
however, that no Borrowing may be made within less than two (2) Business Days
after any given Borrowing. Such Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), (ii) the amount of the
proposed Borrowing, (iii) the Credit Availability as of the date of such Notice
of Borrowing, (iv) whether the proposed Borrowing will be of Base Rate Loans,
Eurodollar Rate Loans, (v) in the case of Eurodollar Rate Loans, the requested
Eurodollar Interest Period, and (vi) instructions for the disbursement of the
proceeds of the proposed Borrowing. In lieu of delivering such a Notice of
Borrowing (except with respect to a Borrowing of Loans on the Initial Funding
Date), the Borrower may give the Administrative Agent telephonic notice of any
proposed Borrowing by the time required under this Section 2.1(b), if the
Borrower confirms such notice by delivery of the Notice of Borrowing 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. Any Notice of Borrowing (or
telephonic notice in lieu thereof) given pursuant to this Section 2.1(b) shall
be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of a 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 proposed Funding Date for such
Loans,
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or in the case of a Borrowing of Base Rate Loans, shall be at least one (1)
Business Day in advance of the proposed Funding Date for such Loans). 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 respective Funding Date therefor. 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 such Funding Date (or on the date received if later than
such Funding Date) and shall disburse such proceeds in accordance with the
Borrower's disbursement instructions set forth in the applicable Notice of
Borrowing. The failure of any Lender to deposit the amount described above with
the Administrative Agent on the applicable Funding Date shall not relieve any
other Lender of its obligations hereunder to make its Loan on such Funding Date.
In the event the conditions precedent set forth in Section 6.1 or 6.2 are not
fulfilled as of the proposed Funding Date for any 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 applicable Funding Date in
respect of any Borrowing that such Lender does not intend to fund its Loan
requested to be made on such Funding 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 Funding Date therefor, and the Administrative
Agent in its sole discretion may, but shall not be obligated to, disburse a
corresponding amount to the Borrower on the applicable Funding 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 applicable Funding 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 a rate equal to the federal funds rate
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with respect to the first Business Day, and thereafter at a rate equal to 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 corresponding amount. This Section 2.1(c)(ii) does not
relieve any Lender of its obligation to make its Loan on any applicable Funding
Date.
2.2. Intentionally Omitted.
2.3. Use of Proceeds of Loans. The proceeds of the Loans may be used
for the payment of all sums due or to become due in connection with the
transactions required to consummate the CPI Merger, including, without
limitation, any special dividends payable with respect thereto, general
corporate, partnership and working capital needs of the Borrower, inclusive of
repayment of Indebtedness for borrowed money and the acquisition of the equity
interests in CPI.
2.4. Termination Date. The Loans shall be due, and all outstanding
Obligations shall be paid in full, on the Termination Date.
2.5. Intentionally Omitted.
2.6. Maximum Credit Facility. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal Obligations
exceed the Maximum Credit Amount.
2.7. 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 Loans and 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.
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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 a Loan or 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 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
4.1. Prepayments; Reductions in Commitments.
(a) 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 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) and amount 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
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amounts described in Section 5.2(f). Amounts prepaid pursuant to this Section
4.1(a) may not be reborrowed.
(b) Voluntary Reductions In Commitments. The Borrower may, upon at
least fifteen (15) days' prior written notice to the Administrative Agent (which
the Administrative Agent shall promptly transmit to each Lender), at any time
and from time to time, terminate in whole or permanently reduce in part the
Commitments, provided that the Borrower shall have made whatever payment may be
required to reduce the Obligations to an amount less than or equal to the
Commitments as reduced or terminated, which amount shall become due and payable
on the date specified in such notice. Any partial reduction of the Commitments
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of
$1,000,000 in excess of that amount, and shall reduce the Commitment of each
Lender proportionately in accordance with its Pro Rata Share. Any notice of
termination or reduction given to the Administrative Agent under this Section
4.1(b) shall specify the date (which shall be a Business Day) of such
termination or reduction and, with respect to a partial reduction, the aggregate
principal amount thereof. In addition, to the extent that the Commitments shall
not have been borrowed in full on or before the date which is 90 days after the
Initial Funding Date, the Commitments shall be deemed to have been reduced to an
amount equal to the then outstanding Loans.
(c) No Penalty. The prepayments and payments in respect of reductions
and terminations described in clauses (a) and (b) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(d) Mandatory Prepayment. (i) If at any time from and after the Closing
Date: (i) the Borrower merges or consolidates with another Person and the
Borrower is not the surviving entity, or (ii) the Borrower or any Consolidated
Subsidiary 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 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 Subsidiaries exceed 20% of Capitalization Value,
or (iv) the Borrower or the Management Company ceases
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to provide property management and leasing services to 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 Commitment shall be
terminated and 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 Subsidiaries, or
(ii) mortgages secured by Real Property.
(ii) On or before June 24, 1999, Borrower shall be required to prepay
the Loans in an amount equal to $450,000,000. In addition, on or before March
24, 2000, Borrower shall be required to prepay the Loans in an additional amount
equal to $450,000,000. 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.
(iii) Amounts prepaid pursuant to this Section 4.1(d) may not be
reborrowed.
4.2. Payments.
(a) 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
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funds received by the Administrative Agent, including, without limitation, funds
in respect of any Loans to be made on that date, 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.
(b) Apportionment of Payments. (i) Subject to the provisions of Section
4.2(b)(v), 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 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:
(A) 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 Chase for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower,
(B) to pay all other Obligations then due and payable and
(C) 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:
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(A) 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 Chase for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans;
(E) fifth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(F) 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) The Administrative Agent, in its sole discretion subject only to
the terms of this Section 4.2(b)(iii), may pay from the proceeds of Loans made
to the Borrower hereunder, whether made following a request by the Borrower
pursuant to Section 2.1 or a deemed request as provided in this Section
4.2(b)(iii) if the same shall occur prior to December 24, 1998, all amounts
payable by the Borrower hereunder, including, without limitation, amounts
payable with respect to payments of principal, interest, and
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fees and all reimbursements for expenses pursuant to Section 15.2. The Borrower
hereby irrevocably authorizes the Lenders to make Loans, which Loans shall be
Base Rate Loans, in each case, upon notice from the Administrative Agent as
described in the following sentence for the purpose of paying principal,
interest, Reimbursement Obligations and fees due from the Borrower, reimbursing
expenses pursuant to Section 15.2 and paying any and all other amounts due and
payable by the Borrower hereunder or under the Notes, and agrees that all such
Loans so made shall be deemed to have been requested by it pursuant to Section
2.1 as of the date of the aforementioned notice. The Administrative Agent shall
request Loans on behalf of the Borrower as described in the preceding sentence
by notifying the Lenders by facsimile transmission or other similar form of
transmission (which notice the Administrative Agent shall thereafter promptly
transmit to the Borrower), of the amount and Funding Date of the proposed
Borrowing and that such Borrowing is being requested on the Borrower's behalf
pursuant to this Section 4.2(b)(iii). On the proposed Funding Date, the Lenders
shall make the requested Loans in accordance with the procedures and subject to
the conditions specified in Section 2.1.
(iv) Subject to Section 4.2(b)(v), 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.
(v) 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 termi-
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nation 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:
(A) the foregoing provisions of this Section 4.2(b)(v) 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);
(B) 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)(v), and
whether or not the Non Pro Rata Loan with respect thereto has been
repaid, converted or continued;
(C) 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
(D) 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
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Loans or Cure Loans and, third, ratably to Base Rate Loans constituting
Cure Loans.
(c) 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).
4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. SDGLP and CPI, jointly and severally, each hereby
agrees to pay when due the principal amount of each Loan which is made to
either, 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 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).
(b) 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.
(c) 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,
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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.
(d) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) 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 CPI, 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 to
pay money.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
(a) 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:
(i) 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
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as interest accrues, plus (B) the then Applicable Margin for Base Rate
Loans; and
(ii) 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 a 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.
(b) 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 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).
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(c) 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; or (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 $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 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/
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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 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.
(d) 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.
(e) 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.
(f) 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.
5.2. Special Provisions Governing Eurodollar Rate Loans.
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(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall be
in a minimum principal amount of $5,000,000 and in integral multiples of
$100,000 in excess of that amount.
(b) 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 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:
(i) 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 Lenders, a shorter or longer
duration, provided, however, that in order to facilitate the sale of
assets and the repayment of Indebtedness, no more frequently than
twelve (12) times in any twelve (12) month period, the Borrower may
select a Eurodollar Interest Period of less than one month in duration;
(ii) 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;
(iii) 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;
(iv) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Euro-
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dollar Interest Period terminates later than the Termination Date;
(v) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends beyond
a date on which the Borrower is required to make a scheduled payment of
such portion of principal; and
(vi) There shall be no more than [twelve (12)] Interest
Periods in effect at any one time with respect to Eurodollar Rate
Loans.
(c) 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.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
that at least one (1) Business Day before a Eurodollar Interest Rate
Determination Date:
(i) 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
(ii) 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
(iii) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate for Eurodollar Rate Loans comprising such
Borrowing
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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.
(e) 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 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
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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.
(f) 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.
(g) 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 shall be entitled, however, to receive any greater amount under Sections
4.2 or 5.2(f) or Article XIII as a
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<PAGE> 51
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.
(h) 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.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
account the Eurodollar Reserve Percent age 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.
5.3. Fees.
(a) 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 Maximum Credit Amount (whether or not the same
shall be drawn in full), 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)(v)(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.
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(b) Intentionally Omitted.
(c) 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
6.1. Conditions Precedent to the Initial Loans. The obligation of each
Lender on the Initial Funding Date to make any Loan requested to be made by it
shall be subject to the satisfaction of all of the following conditions
precedent:
(a) Documents. The Administrative Agent shall have received on or
before the Initial Funding Date all of the following:
(i) 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
(ii) such additional documentation as the Administrative Agent
may reasonably request.
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(b) 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 Initial Funding
Date or (ii) impose or result in the imposition of a Material Adverse Effect.
(c) 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, 1998, which change, in the
judgment of the Administrative Agent, will have or is reasonably likely to have
a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the Lenders,
since June 30, 1998, 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,
(iii) established compensation or employee benefit plans, or (iv) redeemed or
issued any equity Securities.
(e) No Loss of Material Agreements and Licenses. Since June 30, 1998, 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.
(f) No Market Changes. Since June 30, 1998, no material adverse change
shall have occurred in the conditions in the capital markets or the market for
loan syndications generally.
(g) 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.
(h) Representations and Warranties. All of the representations and
warranties contained in Section 7.1 and
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<PAGE> 54
in any of the other Loan Documents shall be true and correct in all material
respects on and as of the Initial Funding Date.
(i) 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 Initial Funding Date and
all expenses due and payable on or before the Initial Funding Date, including,
without limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
6.2. Conditions Precedent to All Subsequent Loans. The obligation of each
Lender to make any Loan requested to be made by it on any date after the Initial
Funding Date is subject to the following conditions precedent as of each such
date:
(a) Representations and Warranties. As of such date, both before and after
giving effect to the Loans to be made on such date, all of the representations
and warranties of the Borrower contained in Section 7.1 and in any other Loan
Document (other than representations and warranties which expressly speak as of
a different date) shall be true and correct in all material respects.
(b) No Defaults. No Event of Default or Potential Event of Default shall
have occurred and be continuing or would result from the making of the requested
Loan.
(c) No Legal Impediments. No law, regulation, order, judgment or decree of
any Governmental Authority shall, and the Administrative Agent shall not have
received from such Lender notice that, in the judgment of such Lender,
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain, or impose or result in the imposition of any material adverse
condition upon, such Lender's making of the requested Loan.
(d) No Material Adverse Effect. The Borrower has not received written
notice from the Requisite Lenders that an event has occurred since the date of
this Agreement which has had and continues to have, or is reasonably likely to
have, a Material Adverse Effect.
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Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Loan or a Notice of Conversion/Continuation with
respect to any Loan, each acceptance by the Borrower of the proceeds of each
Loan made, converted or continued hereunder, shall constitute a representation
and warranty by the Borrower as of the Funding Date in respect of such Loan, and
the date of conversion or continuation, that all the conditions contained in
this Section 6.2 have been satisfied or waived in accordance with Section 15.7.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. 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:
(a) Organization; Powers. (i) SDGLP (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) CPI (A) is a corporation 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 all requisite corporate power
and authority
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to own and operate its Property and to conduct its business as presently
conducted.
(iii) The Company (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 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) SD (A) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Ohio, (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.
(v) 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.
(vi) Neither the Borrower, the Company nor any of their Affiliates are
"foreign persons" within the meaning of Section 1445 of the Internal Revenue
Code.
(b) Authority. (i) Each General Partner has the requisite power and
authority to execute, deliver and perform this Agreement on behalf of SDGLP and
each of the other Loan Documents which are required to be executed on behalf of
SDGLP as required by this Agreement. Each General Partner is the Person who has
executed this Agreement and such other Loan Documents on behalf of SDGLP and are
the sole general partners of SDGLP.
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(ii) CPI 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 SDGLP and to which
SDGLP is a party and the consummation of the transactions contemplated thereby
are within SDGLP's partnership powers, have been duly authorized by all
necessary partnership action (and, in the case of the General Partners acting on
behalf of SDGLP 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 SDGLP or either
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 CPI and to which CPI
is a party and the consummation of the transactions contemplated thereby are
within CPI's corporate powers, have 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 CPI 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 Initial Funding 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.
(c) 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
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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 on the
Borrower, 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 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.
(d) 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 Borrow-
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er, 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.
(e) 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.
(f) Governmental Regulation. Neither the Borrower nor either 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.
(g) 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, 1997, and (ii) quarterly
financial statements for the Borrower and its Subsidiaries for the fiscal
quarter ending June 30, 1998. 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
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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.
(h) Indebtedness. Schedule 7.1-H sets forth, as of June 30, 1998, all
Indebtedness for borrowed money of each of the Borrower, Company 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, 1998.
(i) Litigation; Adverse Effects. Except as set forth in Schedule 7.1-I,
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.
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(j) No Material Adverse Effect. Since June 30, 1998, there has occurred
no event which has had or is reasonably likely to have a Material Adverse
Effect.
(k) 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, SDGLP'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, 1990 and the appropriate state Governmental Authority in each state
in which the Company's, SDGLP'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, 1990.
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.
(l) 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
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(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 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.
(m) 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.
(n) 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 (n)
with respect to its projections of future events.
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(o) 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.
(p) Environmental Matters.
(i) Except as disclosed on Schedule 7.1-P:
(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;
(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")
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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 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;
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(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.
(q) 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 Subsidiaries
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 Subsidiaries 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
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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 Subsidiaries 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.
(r) Securities Activities. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock.
(s) Solvency. After giving effect to the Loans to be made on
the Initial Funding 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.
(t) 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
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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.
(u) REIT Status. The Company qualifies as a REIT under the
Internal Revenue Code. CPI qualifies as a REIT under the Internal Revenue Code.
(v) 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.
(w) Year 2000 Compliance. The Borrower has commenced a
comprehensive review and assessment of the Borrower's computer applications and
commenced inquiry of the Borrower's key suppliers, vendors, and customers with
respect to the "year 2000 problem" (that is, the risk that computer applications
may not be able to properly perform date sensitive functions after December 31,
1999) and, based on that review and inquiry, the Borrower does not believe that
the year 2000 problem will result in a Material Adverse Effect. The Borrower
anticipates that it will complete such review, assessment and inquiry on or
before June 30, 1999.
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:
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8.1 Borrower Accounting Practices. The Borrower shall maintain, and cause
each of its Subsidiaries to maintain, a system of accounting established and
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.
8.2 Financial Reports. The Borrower shall deliver or cause to be delivered
to the Administrative Agent and the Lenders:
(a) 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
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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 that (1)
the Authorized 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
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forth the details of the "Interest Rate Hedges" required under Section 9.9.
(b) 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 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 certi-
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fied 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 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
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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.
(v) Property Reports. When reasonably requested by the Administrative
Agent or any Lender, a rent roll, tenant sales report and income statement with
respect to any Project.
(vi) Retained Properties. Notwithstanding anything contained in this
Agreement to the contrary, CPI will retain ownership of the Retained Properties,
or, if CPI 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
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any portion thereof to SDGLP or any other entity or distribute any portion
thereof to any of its shareholders.
8.3 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 with respect to a claimed Event of Default or Potential
Event of Default under this Agreement; or (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), 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.
8.4 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
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Administrative Agent and the Lenders, and shall provide such other information
at such time as may be reasonably available to enable 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.
8.5. 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.
8.6. 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 a Termination
Event has occurred, a written statement of the chief financial officer
of the Borrower describing such 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
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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;
(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 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 no-
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tice 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 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.
8.7. 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
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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;
(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.
8.8. 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.
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8.9. 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.
8.10. 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.
8.11. 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 Borrower or its Subsidiaries pursuant to
the Securities Exchange Act and the rules promulgated thereunder.
8.12. 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 either General Partner, the Borrower, or any of its Subsidiaries, as from
time to time may be reasonably requested by the Administrative Agent.
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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:
9.1. 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.
9.2. 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.
9.3. 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 Law affecting such Person or the business, Property,
assets or operations of such Person.
9.4. Payment of Taxes and Claims. (a) The Borrower shall pay, and 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,
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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.
9.5. 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.
9.6. 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 Borrower shall keep
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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.
9.7. 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.
9.8. 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.
9.9. 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
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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.
9.10. Company Status. CPI 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, (3) retain
direct or indirect management and control of SDGLP, and (4) own, directly or
indirectly, no less than ninety-nine percent (99%) of the equity Securities of
SD (or any other General Partner of SDGLP).
9.11. 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:
10.1. 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
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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.
10.2. 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.
10.3. 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.
10.4. 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
obliga-
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tions 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
allocable share of the Investment of such Person in any individual
Project would exceed the limitation described in clause (i)
hereinabove.
10.5. 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.
10.6. 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 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
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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.
10.7. 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 the Borrower is the surviving Person following such
merger.
10.8. 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.
10.9. 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;
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(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.
10.10. 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 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.
Notwithstanding the foregoing, however, Simon DeBartolo Group, L.P. may enter
into the Sixth Amended and Restated Limited Partnership Agreement thereof
substantially in the form previously provided to the Administrative Agent.
10.11. Fiscal Year. Neither the Company, the Borrower nor any of its
Consolidated Subsidiaries 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.
10.12. Other Financial Covenants.
(a) Minimum Combined Equity Value. The Combined Equity Value shall at no
time be less than $5,000,000,000.
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(b) 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.
(c) 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.
(d) 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%.
(e) 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%.
(f) Unencumbered Combined EBITDA to Unsecured Interest Expense. As of the
first day of each fiscal quarter for the immediately preceding 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.
10.13. 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
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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.
(a) 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%.
(b) Combined EBITDA. The pro forma calculation of Annual EBITDA for the
acquired Property shall be added to the calculation of Combined EBITDA.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
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(g) 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 Out
standing Indebtedness.
(h) 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.
(i) 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
11.1. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) 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 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.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Person
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under Sections 8.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, or Article X.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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
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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 creditors or shall be
unable or fail, or admit in writing its inability, to pay its debts as such
debts become due.
(h) 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,
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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.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower decreeing its involuntary dissolution or split up; or the Borrower
shall other wise dissolve or cease to exist except as specifically permitted by
this Agreement.
(j) 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.
(k) 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.
(l) 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.
(m) Intentionally Omitted.
(n) 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 SDGLP, (iii) maintain ownership of no less
than 99% of the equity Securities of any other General Partner of SDGLP, (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
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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.
SD shall fail to (i) continue as the managing general partner of SDGLP
except as a result of the CPI Merger, (ii) remain a Subsidiary of the Company,
(iii) 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, or (iv) 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 SD 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.
(o) Merger or Liquidation of the General Partners or the Borrower.
Subject to Section 14.1, 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) such merger or liquidation would effect an acquisition
of or 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.
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An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 15.7.
11.2. Rights and Remedies.
(a) 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, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder shall immediately
terminate, 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.
(b) Rescission. If at any time after 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 acceleration and their consequences may be rescinded and annulled; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or
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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.
(c) 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 AGENT
12.1. 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 Administrative Agent 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 Administrative Agent 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.
(b) The provisions of this Article XII are solely for the benefit of
the Administrative Agent and the other 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 its respective functions and duties under
this Agreement, the Administrative Agent shall act solely as agent of the
Lenders and does not assume and shall not be deemed to have
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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
Administrative Agent may perform any of its duties hereunder, or under the Loan
Documents, by or through its agents or employees.
12.2. Nature of Duties. The Administrative Agent 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. The Administrative Agent shall not 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 Administrative Agent 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 it from
the Borrower which are reasonably requested by any Lender and promptly notifying
each Lender in writing 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.
12.3. Right to Request Instructions. The Administrative Agent 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
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shall have any right of action whatsoever against the Administrative Agent 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.
12.4. Reliance. The Administrative Agent shall 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, upon advice of legal counsel (including counsel for
the Borrower), independent public accountants and other experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent is
not reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify such Agent solely in its capacity as Administrative 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 the Administrative 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.
12.6. Agent Individually. With respect to its Pro Rata Share of the
Commitments hereunder, if any, and the Loans made by it, if any, the
Administrative Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as
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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 Chase in its individual capacity as a Lender or as
one of the Requisite Lenders. Chase and its Affiliates 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 Chase were not
acting as the Administrative Agent pursuant hereto.
12.7. Successor Agents.
(a) 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. The
Administrative Agent may be removed at the direction of the Requisite Lenders in
the event that the Administrative 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.
(b) Appointment by Requisite Lenders. Upon any such resignation or
removal becoming effective, the Lenders shall have the right to appoint a
successor Administrative Agent selected from among the Lenders.
(c) 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.
(d) 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
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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.
12.8. Relations Among the Lenders. Each Lender agrees that it will not
take any legal action, nor institute any actions or proceedings, against the
Borrower or any other obligor 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
13.1. Taxes.
(a) 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 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
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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.
(b) Indemnification. The Borrower will indemnify each Lender against,
and reimburse each 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 their respective
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.
(c) Receipts. Within thirty (30) days after the date of any payment of
Taxes by the Borrower, it 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.
(d) 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
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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 IRS Form 1001
(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 IRS Form 4224
(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:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax;
(B) 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
(C) that such Lender is no longer capable of receiving
payments hereunder and under the Notes without deduction or withholding
of United 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
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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.
13.2. 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.
13.3. 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 central bank or other Governmental
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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.
13.4. 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
elec-
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tion, (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 this Agreement and the Notes
(including, without limitation, its Commitment, and all Loans owing to it) in
accordance with Section 15.1 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 as aforesaid, 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
CPI MERGER
14.1. The CPI Merger Transactions. The Company has informed the Lenders
that promptly after the Closing, it will effect the CPI Merger with CPI, and the
Company shall thereafter be known as "SPG Properties, Inc.", and that in
connection with the CPI Merger, the shareholders of the Company will receive
shares of stock of CPI. At or prior to Closing all or substantially all of CPI's
assets (other than the Retained Properties) shall be transferred to SDGLP or one
or more of its Subsidiaries. In addition, CPI will thereupon change its name to
"Simon Property Group, Inc." ("SPG Inc.") and SDGLP will change its name to
"Simon Property Group, L.P.". It is anticipated that from and after the CPI
Merger, all or substantially all future business of the combined companies will
be conducted by and through Simon Property Group, L.P. and one or more of its
Subsidiaries. The Company and CPI have requested that the Lenders
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consent to the CPI Merger and the transactions contemplated thereby, and the
Lenders hereby consent thereto. Accordingly, from and after the CPI Merger, all
references herein to the Company shall be deemed to be references to SPG Inc.,
the new managing general partner of SDGLP.
ARTICLE XV
MISCELLANEOUS
15.1. Assignments and Participations.
(a) 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. 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 this Section 15.1.
(b) Limitations on Assignments. For so long as no Event of Default has
occurred and is continuing, each assignment shall be subject to the following
conditions: (i) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations under
this Agreement, (ii) each such assignment shall be to an Eligible Assignee,
(iii) each such assignment shall be in a minimum amount of $5,000,000, unless to
an existing Lender or unless the assigning Lender shall hold less than
$5,000,000, in which event such assignment shall be for the balance of the
assigning Lender's rights and obligations under this Agreement, and (iv) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance. Upon the occurrence and continuance of an Event of Default, none of
the foregoing restrictions on assignments shall apply. 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
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and benefits hereunder as if it were an original Lender hereunder, (B) the
assigning Lender shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party 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.
(c) 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.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed by
the assigning Lender 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 and the other Lenders.
(e) 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 limitation, all or a portion of any or
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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, and
(iv) 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.
(f) Information Regarding the Borrower. 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; provided that, prior to any such disclosure, such
assignee or participant, or proposed assignee or participant, shall agree, in
writing, to preserve in accordance with Section 15.20 the confidentiality of any
confidential information described therein.
(g) 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.
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(h) 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.
15.2. Expenses.
(a) 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 ongoing
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;
(iv) the protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (v) 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; (vi) 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 (vii) any amendments,
consents, waivers, assignments, restatements, or supplements to any of the Loan
Documents and the preparation, negotiation, and execution of the same.
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(b) 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 the 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.
15.3. 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, 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, the management of such
Loans, the use or intended use of the proceeds of the Loans, or any of the other
transactions contemplated by the Loan Documents, or (ii) any Liabilities and
Costs relating to violation of any
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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 asbestos-containing 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.
15.4. 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 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
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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.
15.5. 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.
15.6. 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 3.1(g), 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
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Obligations (excluding the repayment of the fees described in Sections 3.1(g),
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 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.
15.7. Amendments and Waivers.
(a) General Provisions. Unless otherwise provided for or required in
this Agreement, no amendment, waiver 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, how ever, 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
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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.
(b) Amendments, Consents and Waivers by Affected 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 affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1 and 6.2
(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),
(ii) 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
(iv) 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)).
(c) 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:
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(i) postponement of the Termination Date, or increase in the
Maximum Credit Amount to any amount in excess of $1,400,000,000,
(ii) 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,
(iii) amendment of Section 15.6 or this Section 15.7,
(iv) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower, and
(v) waiver of any Event of Default described in Sections
11.1(a), (f), (g), (i), (n), (o) and (p).
(d) 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.
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15.8. 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.
15.9. 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 the passage of time or occurrence of any event and shall
expressly cover time periods when the Administrative Agent or any of the other
Lenders may have come into possession or control of any Property of the Borrower
or any of its Subsidiaries.
15.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of the Administrative Agent, any other Lender 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.
15.11. 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 Bor-
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rower 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.
15.12. 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.
15.13. 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.
15.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
15.15. 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.
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15.16. 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.
15.17. Certain Consents and Waivers of the Borrower.
(a) 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 "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
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<PAGE> 119
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.
(b) 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 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.
(c) 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.
15.18. 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. In the event the Lenders enter into any co-lender
agreement with the Administrative Agent pertaining to the Lenders' respective
rights with respect to voting on any matter referenced in this
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<PAGE> 120
Agreement or the other Loan Documents on which the Lenders have a right to vote
under the terms of this Agreement or the other Loan Documents, such co-lender
agreement shall be construed to the extent reasonable to be consistent with this
Agreement and the other Loan Documents, but to the extent that the terms and
conditions of such co-lender agreement are actually inconsistent with the terms
and conditions of this Agreement and/or the other Loan Documents, such co-lender
agreement shall govern. Notwithstanding the foregoing, any rights reserved to
the Administrative Agent under this Agreement and the other Loan Documents shall
not be varied or in any way affected by such co-lender agreement and the rights
and obligation of the Borrower under the Loan Documents will not be varied.
15.19. 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.
15.20. Confidentiality. Subject to Section 15.1(g), 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 or insurance company
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
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 the
National Association of Insurance Commissioners 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. 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
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<PAGE> 121
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.
15.21. 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 nor 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 inprivity 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.
15.22. Intentionally Omitted.
15.23. 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.
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<PAGE> 122
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first above written.
BORROWER: SIMON DeBARTOLO GROUP, L.P.,
a Delaware limited partnership
By: SD PROPERTY GROUP, INC.
its managing general partner
By:__________________________
David Simon
Chief Executive Officer
By: SIMON DeBARTOLO GROUP, INC.
its general partner
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
121
<PAGE> 123
CORPORATE PROPERTY INVESTORS, INC.
By:
Name:
Title:
Notice Address:
Corporate Property Investors, Inc.
305 West 47th Street
New York, New York 10017
Attn: Mr. Harold Rolf
Telecopy: (212) 759-7087
122
<PAGE> 124
Administrative Agent: THE CHASE MANHATTAN BANK
By:
Name:
Title:
Notice Address, Domestic and
Eurodollar Lending Office:
The Chase Manhattan Bank
Loan and Agency Services
One Chase Manhattan Plaza,
8th floor
New York, New York 10081
Attention: Christina Gould
Telecopy: (212) 552-5701
Reference: Simon DeBartolo Group,
L.P. Loan
with copy of all Notices to:
The Chase Manhattan Bank
380 Madison Avenue, 11th floor
New York, New York 10017
Attention: Fran Nuchims
Telecopy: (212) 622-3380
Reference: Simon DeBartolo
Group, L.P. Loan
Pro Rata Share: 6.57142%
Commitment: $92,000,000
123
<PAGE> 125
Syndication Agent: 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. Bill Lamb
Telecopy: (302) 634-1092
Domestic and Eurodollar
Lending Office:
c/o J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, Delaware 19713-2107
Attn: Ms. Linda Sheehan
Telecopy: (302) 634-1092
Pro Rata Share: 6.57142%
Credit Commitment: $92,000,000
124
<PAGE> 126
Syndication Agent: UBS AG, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
UBS AG, Stamford Branch
677 Washington Avenue
Stamford, Connecticut
with copy of all notices to:
UBS AG, New York Branch
299 Park Avenue
New York, New York 10171
Attention: Xiomara Martez
Telecopy: (212) 821-4138
Ref: Simon DeBartolo
Pro Rata Share: 6.57142%
Credit Commitment: $92,000,000
125
<PAGE> 127
Documentation Agent: NATIONSBANK, N.A.
By:
Name:
Title:
Notice Address and Domestic
Lending Office:
NationsBank
700 Louisiana, 5th Floor
Houston, Texas 77002
Attn: Cynthia Sanford
Telecopy: (713) 247-6124
Eurodollar Lending Office or
Eurodollar Affiliate:
NationsBank
700 Louisiana, 5th Floor
Houston, Texas 77002
Attn: Shelley Coppin
Telecopy: (713) 247-7321
Pro Rata Share: 6.57142%
Credit Commitment: $92,000,000
126
<PAGE> 128
CO-AGENT: DRESDNER BANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
Name:
Title:
By:
Name:
Title:
Notice Address and Domestic and Eurodollar Lending Office:
Dresdner Bank AG, New York and Grand
Cayman Branches
75 Wall Street, 33rd Floor
New York, New York 10005
Attn: Mr. Thomas Nadramia
Telecopy: (212) 429-2130
Reference: Simon Property Group
With copy to: Dresdner Bank AG, Chicago Branch
190 South LaSalle Street
Suite 2700
Chicago, Illinois 60603
Attn: Mr. James Blessing
Telecopy: (312) 444-1305
Reference: Simon Property Group
Borrowing and other administrative
and operational notices:
Dresdner Bank AG
75 Wall Street, 33rd Floor
New York, New York 10005
Attn: Mr. Robert Reddington
Telecopy: (212) 429-2130
Reference: Simon Property Group
Pro Rata Share: 6.57142%
Credit Commitment: $92,000,000
127
<PAGE> 129
Managing Agent: FLEET NATIONAL BANK
By:_______________________
Name: Jane E. McGrath
Title: Vice President
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
Fleet Bank
75 State Street
Mail Stop: MA/BO/F11C
Boston, Massachusetts 02109
Attn: Sharon Gorajec
Telecopy: 617-346-3220
and to:
Fleet Bank
75 State Street
Boston, Massachusetts 02109
Attn: Margaret Mulcahy
Telecopy: (617) 364-3220
Pro Rata Share: 5.35714%
Credit Commitment: $75,000,000
128
<PAGE> 130
Managing Agent: PACIFIC LIFE INSURANCE COMPANY
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
Pacific Life Insurance Company
700 Newport Center Drive
Newport Beach, CA 92660
Attn: T. Anthony Premier
Telecopy: (949) 721-5447
Pro Rata Share: 1.78571%
Credit Commitment: $25,000,000
129
<PAGE> 131
Managing Agent: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
Bank of America National Trust and
Savings Association
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Mr. Ron Phemister
Telecopy: (312) 828-3950
Pro Rata Share: 4.64285%
Credit Commitment: $65,000,000
130
<PAGE> 132
Managing Agent: BAYERISCHE HYPO- UND VEREINSBANK AG
ACTING THROUGH ITS NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
BAYERISCHE HYPO- UND VEREINSBANK AG NEW
YORK BRANCH
150 East 42nd Street
New York, New York 10017
Attn: Mr. Peter T. Hannigan
First Vice President
Telecopy: (212) 672-5527
Pro Rata Share: 4.64285%
Credit Commitment: $65,000,000
131
<PAGE> 133
Managing Agent: CANADIAN IMPERIAL BANK OF COMMERCE
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
Canadian Imperial Bank of Commerce
200 West Madison Street
Suite 2300
Chicago, Illinois 60606
Attn: Joel Gershkon
Telecopy: 312-855-3235
and to:
Canadian Imperial Bank of Commerce
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30309
Attn: Elizabeth Jenkins
Telecopy: 770-319-4950
Pro Rata Share: 4.64285%
Credit Commitment: $65,000,000
132
<PAGE> 134
Managing Agent: CITIBANK, N.A.
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Attn: Mr. Kevin Rodgers
Telecopy: (212) 793-6314
Pro Rata Share: 4.64285%
Credit Commitment: $65,000,000
133
<PAGE> 135
Managing Agent: PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
One PNC Plaza
P1-POPP-19-2
249 Fifth Avenue
Pittsburgh, Pennsylvania
15222-2707
Attn: Terri A. Wyda
Telecopy: (412) 762-6500
and to:
Attn: Matthew L. Koval
Loan Administrator
Telecopy: (412)768-5754
Pro Rata Share: 4.64285%
Credit Commitment: $65,000,000
134
<PAGE> 136
Managing Agent: THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
Notice Address, Domestic
Lending Office and Eurodollar Lending
Office:
The Sumitomo Bank, Limited
277 Park Avenue
New York, New York 10172
Attn: Michael S. Leffelholz
Telecopy: (212) 224-4887
and to:
The Sumitomo Bank, Limited
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606-6448
Attn: Mr. Paul Olson
Telecopy: (312)876-6436
Pro Rata Share: 4.64285%
Credit Commitment: $65,000,000
135
<PAGE> 137
Co-Agent: KBC N.V.
By:
Name:
Title:
By:
Name:
Title:
Notice Address and Domestic
Lending Office:
Kredietbank N.V., New York Branch
125 West 55th Street, 10th floor
New York, New York 10172
Attn: Francis Payne
Telecopy: 212-541-0793
and to:
Attn: Lynda Resuma
Telecopy: 212-956-5580
Eurodollar Lending Office or
Eurodollar Affiliate:
Kredietbank N.V., Grand Cayman Branch
125 West 55th Street, 10th floor
New York, New York
Attn: John Thierfelder
Telecopy: 212-956-5580
and to:
Attn: Lynda Resuma
Telecopy: 212-956-5580
Pro Rata Share: 3.21428%
Credit Commitment: $45,000,000
136
<PAGE> 138
Lender: CREDITANSTALT CORPORATE FINANCE, INC.
By:
Name:
Title:
By:
Name:
Title:
Notice Address and Domestic
Lending Office and Eurodollar Lending
Office or Eurodollar Affiliate:
Creditanstalt Corporate Finance, Inc.
Two Ravinia Drive
Suite 1680
Atlanta, Georgia 30346
Attn: Mr. Stephen Hipp
Telecopy: (770) 390-1851
Pro Rata Share: 2.50000%
Credit Commitment: $35,000,000
137
<PAGE> 139
Lender: HIBERNIA NATIONAL BANK
By:
Name:
Title:
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office or Eurodollar Affiliate::
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attn: Mr. Jack Finn
Telecopy: (504) 533-7168
Pro Rata Share: 2.50000%
Credit Commitment: $35,000,000
138
<PAGE> 140
Lender: THE BANK OF NOVA SCOTIA,
NEW YORK AGENCY
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office or Eurodollar
Affiliates:
The Bank of Nova Scotia
Atlanta Agency, for Nassau
Corporate Branch
600 Peachtree Street NE
Suite 2700
Atlanta, Georgia 30308
Attn: Nadine Bell
Telecopy: (404) 888-8998
Pro Rata Share: 2.50000%
Credit Commitment: $35,000,000
139
<PAGE> 141
Lender: U.S. BANK NATIONAL ASSOCIATION
(formerly known as First Bank)
By:_______________________
Name:_____________________
Title:____________________
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
U.S. Bank National Association
111 East Wacker Drive
Suite 3000
Chicago, Illinois 60601
Attn: Elliott Quigley
Telecopy: (312) 228-9402
and to:
Attn: Paul Castino
Telecopy: 312-228-9437
Pro Rata Share: 2.50000%
Credit Commitment: $35,000,000
140
<PAGE> 142
Lender: ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By:_______________________
Name:_____________________
Title:____________________
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office:
Erste Bank der Oesterreichischen
Sparkassen AG
280 Park Avenue
West Building - 32
New York, New York 10017
Attn: Mr. Paul Judicke
Telecopy: (212) 984-5627
Eurodollar Lending Office or
Eurodollar Affiliate:
Erste Bank der Oesterreichischen
Sparkassen AG
Attn:
Telecopy:
Pro Rata Share: 1.78571%
Credit Commitment: $25,000,000
141
<PAGE> 143
Lender: NEW YORK LIFE INSURANCE COMPANY
By:_______________________
Name:_____________________
Title:____________________
Notice Address, Domestic
Lending Office and Eurodollar
Lending Office:
New York Life Insurance Company
51 Madison Avenue, Room 206
New York, New York 10010
Attn: Ms. Lisa Scuderi
Telecopy: (212) 447-4122
and to:
New York Life Insurance Company
51 Madison Avenue, Room 208
New York, New York 10010
Attn: John Diamond
Telecopy: (212) 447-4160
and to:
New York Life Insurance Company
51 Madison Avenue, Room 209
New York, New York 10010
Attn: Treasury Department,
Securities Income Section
Telecopy: (212) 447-4160
with a copy to:
Investment Section, Office of
General Counsel
Room 1104
Telecopy: (212) 576-8340
Pro Rata Share: 1.78571%
Credit Commitment: $25,000,000
142
<PAGE> 144
Lender: ARGENTARIA
BANCO EXTERIOR DE ESPANA S.A.,
New York Branch
By:_______________________
Name:_____________________
Title:____________________
Notice Address, Domestic
Lending Office and Eurodollar
lending Office:
Argentaria
320 Park Avenue
20th Floor
New York, New York 10022
Attn: Mr. Alan Lefkowitz
Telecopy: (212) 755-4211
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
143
<PAGE> 145
Lender: CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
Chang Hwa Commercial Bank, Ltd.,
New York Branch
One World Trade Center
32nd Floor, Suite 3211
New York, New York 10048
Attn: Mr. Teddy Mou
Telecopy: (212) 390-0120
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
144
<PAGE> 146
Lender: FIRST NATIONAL BANK OF MARYLAND
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
First National Bank of Maryland
25 South Charles Street
Banc Code 101-747
Baltimore, Maryland 21201
Attn: Ms. Carole Stafford
Telecopy: (410) 545-2385
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
145
<PAGE> 147
Lender: GULF INTERNATIONAL BANK
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
Gulf International Bank
380 Madison Avenue
21st Floor
New York, New York 10017
Attn: Mireille Khalidi
Telecopy: (212) 922-2325
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
146
<PAGE> 148
Lender: THE HUNTINGTON NATIONAL BANK
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
The Huntington National Bank
41 South High Street, 8th Floor
Columbus, Ohio 43215
Attn: Mr. Eric Riedinger
Telecopy: (614) 480-3698
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
147
<PAGE> 149
Lender: MELLON BANK, N.A.
By:_______________________
Name:_____________________
Title:____________________
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
Mellon Bank, N.A.
One Mellon Bank Center
Room 2940
Pittsburgh, Pennsylvania
15259-0001
Attn: Mr. David Tetrick
Telecopy: (412) 234-8657
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
148
<PAGE> 150
Lender: STAR BANK
By:
Name:
Title:
Notice Address and Domestic
Lending Office:
Star Bank
1350 Euclid Avenue
Suite 211
Cleveland, Ohio 44115
Attn: Perry Quick
Telecopy: (216) 241-0164
Eurodollar Lending Office:
Star Bank, N.A.
6 East Fourth Street, ML 9150
Cincinnati, Ohio 45201
Attn: Catherine Siegel
Telecopy: (513) 632-2965
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
149
<PAGE> 151
Lender: THE SUMITOMO TRUST AND BANKING
COMPANY, Limited
By:
Name:
Title:
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
The Sumitomo Trust & Banking Co. Ltd.
527 Madison Avenue
6th Floor
New York, New York 10022
Attn: Ms. Fran Wynne
Telecopy: (212) 418-4848
Pro Rata Share: 1.42857%
Credit Commitment: $20,000,000.00
150
<PAGE> 152
Lender: BAYERISCHE LANDESBANK GIROZENTRALE
By:
Name:
Title:
By:
Name:
Title:
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
Bayerische Landesbank Girozentrale
560 Lexington Avenue
New York, New York 10022
Attn: Mr. John Wain
Telecopy: (212) 310-9868
Pro Rata Share: 1.07142%
Credit Commitment: $15,000,000.00
151
<PAGE> 153
Lender: LASALLE NATIONAL BANK
By:_______________________
Name: John C. Hein
Title: Vice President
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
LaSalle National Bank
135 South LaSalle St.
Chicago, Illinois 60674-9135
Attn: John C. Hein
Telecopy: 312-904-6691
Pro Rata Share: 1.07142%
Credit Commitment: $15,000,000.00
152
<PAGE> 154
Lender: NATIONAL CITY BANK
By:
Name:
Title:
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
National City Bank
101 West Washington Street
Indianapolis, Indiana 46255
Attn: Ms. Kim Kord
Telecopy: (317) 267-3987
Pro Rata Share: 1.07142%
Credit Commitment: $15,000,000.00
153
<PAGE> 155
Lender: BANK POLSKA
By:
Name:
Title:
Notice Address and Domestic
Lending Office, and Eurodollar
Lending Office:
Bank Polska
470 Park Avenue
15th Floor
New York, New York 10016
Attn: Mr. William Shea
Telecopy: (212) 67-5910
Pro Rata Share: 0.71428%
Credit Commitment: $10,000,000.00
154
<PAGE> 156
LIST OF EXHIBITS AND SCHEDULES
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 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 8.2(vi) -- Retained Properties
i
<PAGE> 1
Exhibit 4.2
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement" is made and entered into
as of the 15th day of September, 1998 by and among THE RENTAIL PROPERTY TRUST,
and SIMON DeBARTOLO GROUP, L.P., a Delaware limited partnership (the
"Transferee"), and, for purposes of Sections2, 4 and 5 hereof, Charles Mall
Company Limited Partnership ("Charles Mall").
WHEREAS, Transferor owns a 98.8% general partnership interest in
Shipping Center Associates ("SCA Interest"), pursuant to a Fourth Amended and
Restated Partnership Agreement, dated as of August 13,1991, as amended, between
Charles Mall, as successor, and Transferor (the "SCA Partnership Agreement");
and
WHEREAS, Transferor desires to contribute, and Transferee desires to
acquire from Transferor, all Transferor's right, title and interest in and to
the SCA Interest in return for the issuance toTransferor of units of limited
partnership interests in Transferee.
NOW, THEREFORE, in consideration of the mutua promises, covenants and
conditions hereinafter set forth, the parties hereby agree as follows:
1. Contribution of SCA Interest; Adoption of SCA Partnership Agreement.
(a) Transferor hereby contributes, transfers and assigns to Transferee
all right, title and interest of Transferor in and to the SCA Interest, the SCA
Partnership Agreement and SCA.
(b) Transferor and Transferee intend that, effective as of the date
hereof, Transferee shall be substituted as a general partner in SCA in the place
and stead of Transferor.
(c) Transferee hereby (I) accepts the assignment to it of all of
Transferor's right, title and interest of Transferor in and to the SCA Interest,
(ii) agrees to become a substituted general partner in SCA from and after the
date hereof and (iii) accepts and adopts the terms and provisions of, and
assumes the obligations of Transferor under, the SCA Partnership Agreement.
<PAGE> 2
2. Charles Mall Consent. Charles Mall hereby (I) consents to the
assignment, contribution and transfer of the SCA Interest from Transferor to
Transferee and (ii) confirms the admission and substitution of Transferee and
(ii) confirms the admission and substitution of Transferee as general partner in
SCA in place of Transferor.
3. Admission of Transferor as limited Partner in Transferee; Issuance
of Units. Transferor hereby agrees to become a limited partner of Transferee and
to be bound by all of the terms and conditions of the Fifth Amended and Restated
Limited Partnership Agreement of Transferee, dated as of August 9,1996 (the
"Simon Partnership Agreement"), and Transferee hereby admits Transferor as a
limited partner of Transferee and hereby issues to Transferor 23,747,642 Units
(as defined in the Simon Partnership Agreement) Transferor hereby forever waives
any conversion rights it would otherwise have pursuant to Article XI of the
Simon Partnership Agreement.
4. Further Assurances. Transferor, Transferee and Charles Mall hereby
agree, at any time and from time to time after the date hereof, to execute,
acknowledge where appropriate and deliver such other actions as any other party
may reasonably request in order to carry out the intents and purposes of this
Agreement.
5. Representations and Warranties. Each party hereto represents and
warrants (I) that this Agreement has been duly authorized, executed and
delivered on its behalf and constitutes its legal, valid and binding obligation
and (ii) that the execution, delivery and performance of this Agreement by such
party does and will not violate applicable law or regulation.
6. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York, without reference to its conflicts of laws principles.
7. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto in separate counterparts, each of
which when executed shall constitute one and the same instrument.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001063761
<NAME> SIMON PROPERTY GROUP INC
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 78,971
<SECURITIES> 0
<RECEIVABLES> 215,703
<ALLOWANCES> 0<F1>
<INVENTORY> 0
<CURRENT-ASSETS> 0<F2>
<PP&E> 11,646,393
<DEPRECIATION> 634,277
<TOTAL-ASSETS> 13,013,550
<CURRENT-LIABILITIES> 0<F2>
<BONDS> 7,744,926
0
717,916
<COMMON> 17
<OTHER-SE> 2,623,159
<TOTAL-LIABILITY-AND-EQUITY> 13,013,550<F3>
<SALES> 0
<TOTAL-REVENUES> 932,969
<CGS> 0
<TOTAL-COSTS> 504,915
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1,598
<INTEREST-EXPENSE> 281,749
<INCOME-PRETAX> 141,509
<INCOME-TAX> 141,509
<INCOME-CONTINUING> 141,509
<DISCONTINUED> 0
<EXTRAORDINARY> 7,002
<CHANGES> 0
<NET-INCOME> 102,655
<EPS-PRIMARY> 0.72
<EPS-DILUTED> 0.72
<FN>
<F1>Receivables are stated net of allowances.
<F2>The Company does not report using a classified balance sheet.
<F3>Includes limited partner's interest in the Operating Partnership of $990,445,
and preferred stock of subsidiary of $339,262.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001067173
<NAME> SPG REALTY CONSULTANTS INC
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 23,546
<SECURITIES> 0
<RECEIVABLES> 499<F1>
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0<F2>
<PP&E> 33,397
<DEPRECIATION> 11,000
<TOTAL-ASSETS> 50,754
<CURRENT-LIABILITIES> 0<F2>
<BONDS> 991
0
0
<COMMON> 2
<OTHER-SE> 17,744
<TOTAL-LIABILITY-AND-EQUITY> 50,754<F3>
<SALES> 0
<TOTAL-REVENUES> 3,150
<CGS> 0
<TOTAL-COSTS> 3,283
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,013
<INCOME-PRETAX> (742)
<INCOME-TAX> (193)
<INCOME-CONTINUING> (549)
<DISCONTINUED> (549)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (549)
<EPS-PRIMARY> (0.99)
<EPS-DILUTED> (0.99)
<FN>
<F1>Receivables are stated net of allowances.
<F2>The Company does not report using a classified balance sheet.
<F3>Includes limited partner's interest in the SRC Operating Partnership of $7,053.
</FN>
</TABLE>
