SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended: March 31, 1997
Commission File No. 1-11530
Taubman Centers, Inc.
---------------------------------------------------------
(An exact name of registrant as specified in its charter)
Michigan 38-2033632
---------------------------------- ---------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 East Long Lake Road, Suite 300, P.O. Box 200, Bloomfield Hills, Michigan
----------------------------------------------------------------------------
(Address of principal executive offices) 48303-0200
------------
(Zip Code)
(810) 258-6800
---------------------------------------------------------------------------
(Registrant's telephone number, including area code)
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 May 9, 1997, there were outstanding 50,720,358 shares of the
Company's common stock, par value $0.01 per share.
<PAGE>
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements.
The following financial statements of Taubman Centers, Inc. (the Company) are
provided pursuant to the requirements of this item. The financial statements of
The Taubman Realty Group Limited Partnership (TRG) are also provided.
INDEX TO FINANCIAL STATEMENTS
TAUBMAN CENTERS, INC.
- ---------------------
Balance Sheet as of December 31, 1996 and March 31, 1997...................... 2
Statement of Operations for the three months ended March 31, 1996 and 1997.... 3
Statement of Cash Flows for the three months ended March 31, 1996 and 1997.... 4
Notes to Financial Statements................................................. 5
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
- --------------------------------------------
Consolidated Balance Sheet as of December 31, 1996 and March 31, 1997......... 9
Consolidated Statement of Operations for the three months ended
March 31, 1996 and 1997.................................................... 10
Consolidated Statement of Cash Flows for the three months ended
March 31, 1996 and 1997.................................................... 11
Notes to Consolidated Financial Statements................................... 12
- 1 -
<PAGE>
TAUBMAN CENTERS, INC.
BALANCE SHEET
(in thousands, except share data)
December 31 March 31
----------- --------
1996 1997
---- ----
Assets:
Investment in TRG (Note 2) $ 369,131 $ 363,992
Cash and cash equivalents 9,388 9,317
Other assets 8 43
--------- ---------
$ 378,527 $ 373,352
========= =========
Liabilities:
Accounts payable and accrued liabilities $ 351 $ 417
Dividends payable 11,666 11,666
--------- ---------
$ 12,017 $ 12,083
Commitments and Contingencies (Note 3)
Shareowners' Equity:
Common Stock $ 507 $ 507
$0.01 par value, 250,000,000 shares authorized,
50,720,358 shares issued and outstanding
at December 31, 1996 and March 31, 1997
Additional paid-in capital 468,590 468,590
Dividends in excess of net income (102,587) (107,828)
--------- ---------
$ 366,510 $ 361,269
--------- ---------
$ 378,527 $ 373,352
========= =========
See notes to financial statements.
- 2 -
<PAGE>
TAUBMAN CENTERS, INC.
STATEMENT OF OPERATIONS
(in thousands, except share data)
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Income:
Equity in TRG's income (Note 2) $5,414 $6,606
Interest and other 68 73
------ ------
$5,482 $6,679
Operating Expenses:
General and administrative $ 175 $ 191
Management fee 63 63
------ ------
$ 238 $ 254
------ ------
Net Income $5,244 $6,425
====== ======
Net Income per common share $ .12 $ .13
====== ======
Cash dividends declared per common share $ .22 $ .23
====== ======
Weighted average number of common
shares outstanding 44,111,232 50,720,358
========== ==========
See notes to financial statements.
- 3 -
<PAGE>
TAUBMAN CENTERS, INC.
STATEMENT OF CASH FLOWS
(in thousands)
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Cash Flows From Operating Activities:
Net Income $ 5,244 $ 6,425
Adjustments to reconcile net income to net
cash provided by operating activities:
Increase in other assets (30) (35)
Increase in accounts payable and
other liabilities 89 66
-------- --------
Net Cash Provided By Operating Activities $ 5,303 $ 6,456
-------- --------
Cash Flows Provided by Investing Activities -
Distributions from TRG in excess of net income $ 4,784 $ 5,139
-------- --------
Cash Flows From Financing Activities:
Cash dividends $ (9,710) $(11,666)
Purchases of stock (347)
-------- --------
Net Cash Used in Financing Activities $(10,057) $(11,666)
-------- --------
Net Increase (Decrease) In Cash $ 30 $ (71)
Cash and Cash Equivalents at Beginning of Period 7,886 9,388
-------- --------
Cash and Cash Equivalents at End of Period $ 7,916 $ 9,317
======== ========
See notes to financial statements.
- 4 -
<PAGE>
TAUBMAN CENTERS, INC.
NOTES TO FINANCIAL STATEMENTS
Three months ended March 31, 1997
Note 1 - Interim Financial Statements
The unaudited interim financial statements should be read in conjunction with
the audited financial statements and related notes included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1996. In the opinion
of management, all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the financial statements for the interim
periods have been made. The results for interim periods are not necessarily
indicative of the results for a full year.
Note 2 - Investment in TRG
The Company's investment in TRG at December 31, 1996 and March 31, 1997
consists of a 36.68% managing general partnership interest. Net income and
distributions are allocable to the general and limited TRG partners in
accordance with their percentage ownership. The Company's ownership percentage
in TRG for the three months ended March 31, 1996 and 1997 was 35.10% and 36.68%,
respectively.
The excess of the Company's cost of its investment in TRG over its
proportionate share of TRG's accumulated deficiency in assets at December 31,
1996 and March 31, 1997 was $476.3 million and $474.2 million, respectively. The
Company's proportionate share of TRG's net income for the three months ended
March 31, 1996 and 1997 was $7.3 million and $8.7 million, respectively, reduced
by $1.9 million and $2.0 million, respectively, representing adjustments arising
from the Company's additional basis in TRG's net assets.
TRG's summarized balance sheet and results of operations information (in
thousands) are presented below, followed by information about TRG's beneficial
interest in the operations of its unconsolidated joint ventures. Beneficial
interest is calculated based on TRG's ownership interest in each of the joint
ventures.
- 5 -
<PAGE>
TAUBMAN CENTERS, INC.
NOTES TO FINANCIAL STATEMENTS-- (Continued)
December 31 March 31
----------- --------
1996 1997
---- ----
Assets:
Properties $1,126,873 $1,147,060
Accumulated depreciation and amortization 234,030 241,394
---------- ----------
$ 892,843 $ 905,666
Other assets 76,440 66,889
---------- ----------
$ 969,283 $ 972,555
========== ==========
Liabilities:
Unsecured notes payable $ 786,705 $ 786,746
Mortgage notes payable 159,703 159,703
Other notes payable 54,997 57,041
Capital lease obligation 39,849 44,339
Accounts payable and other liabilities 84,505 94,074
Distributions in excess of net income of
unconsolidated joint ventures 135,662 131,225
---------- ----------
$1,261,421 $1,273,128
Accumulated deficiency in assets (292,138) (300,573)
---------- ----------
$ 969,283 $ 972,555
========== ==========
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Revenues $59,732 $72,542
------- -------
Operating costs other than interest and
depreciation and amortization $26,803 $34,069
Interest expense 17,102 17,284
Depreciation and amortization 8,322 10,102
------- -------
$52,227 $61,455
------- -------
Equity in net income of unconsolidated
joint ventures 13,363 12,497
------- -------
Net Income $20,868 $23,584
======= =======
Three Months Ended March 31
---------------------------
1996 1997
---- ----
TRG's beneficial interest
in unconsolidated joint ventures' operations:
Revenues less recoverable and other
operating expenses $23,317 $21,799
Interest expense (7,172) (6,589)
Depreciation and amortization (2,782) (2,713)
------- -------
Net Income $13,363 $12,497
======= =======
- 6 -
<PAGE>
TAUBMAN CENTERS, INC.
NOTES TO FINANCIAL STATEMENTS-- (Continued)
Note 3 - Commitments and Contingencies
At the time of the Company's initial public offering (IPO) and acquisition of
its interest in TRG, the Company entered into an agreement with A. Alfred
Taubman and the General Motors Hourly-Rate Employes Pension Trust and the
General Motors Salaried Employes Pension Trust (the GM Trusts), each of whom
indirectly owns an interest in TRG, whereby each has the annual right to tender
to the Company units of partnership interest in TRG (provided that the aggregate
value is at least $50 million) and cause the Company to purchase the tendered
interests at a purchase price based on a market valuation of the Company on the
trading date immediately preceding the date of the tender (the Cash Tender
Agreement). The Company will have the option to pay for these interests from
available cash, borrowed funds or from the proceeds of an offering of the
Company's common stock. Generally, the Company expects to finance these
purchases through the sale of new shares of its stock. The tendering partners
will bear the costs of sale. Any proceeds of the offering in excess of the
purchase price will be for the sole benefit of the Company. At A. Alfred
Taubman's election, his family and Robert C. Larson and his family may
participate in tenders. The GM Trusts will be entitled to receive from TRG an
amount (not to exceed $10.9 million in the aggregate over the term of the
Partnership) equal to 5.5% of the amounts that the Company pays to the GM Trusts
under the Cash Tender Agreement.
Based on a market value at December 31, 1996 and March 31, 1997 of $12.875 and
$13.00 per common share, the aggregate value of interests in TRG which may be
tendered under the Cash Tender Agreement was approximately $954 million and $963
million, respectively. Purchase of these interests would result in the Company
owning an additional 53% interest in TRG.
The Company has made a continuing, irrevocable offer to all present holders
(other than certain excluded holders, including A. Alfred Taubman and the GM
Trusts), assignees of all present holders, those future holders of partnership
interests in TRG as the Company may, in its sole discretion, agree to include in
the continuing offer, and all existing and future optionees under TRG's
incentive option plan (described below) to exchange shares of common stock for
partnership interests in TRG (the Continuing Offer). The number of shares of
common stock to be exchanged is based on a market valuation of the Company on
the trading date immediately preceding the date of exchange. The offer is
subject to certain restrictions relating to the minimum value of interest
exchanged and ownership limitations.
The GM Trusts and the AT&T Master Pension Trust are able to sell shares of
common stock that they acquired in connection with the IPO through a registered
offering. Pursuant to a registration rights agreement with the Company, each of
the Trusts has the annual right to cause the Company to register and publicly
sell their shares of common stock (provided that the shares have an aggregate
value of at least $50 million and subject to certain other restrictions). The
annual right is deemed to be exercised if they initiate or participate in a sale
pursuant to the Cash Tender Agreement, as described above. All expenses of such
a registration are to be borne by the Company, other than the underwriting
discounts or selling commissions, which will be borne by the exercising party.
- 7 -
<PAGE>
TAUBMAN CENTERS, INC.
NOTES TO FINANCIAL STATEMENTS-- (Continued)
Currently, 4,500 units of partnership interest may be issued under TRG's
incentive option plan for employees of The Taubman Company Limited Partnership
(the Manager). The Manager, which is approximately 99% beneficially owned by
TRG, provides various administrative, management, accounting, shareowner
relations, and other services to the Company and TRG. The exercise price of all
outstanding options is equal to market value on the date of grant. Incentive
options generally become vested to the extent of one-third of the units on each
of the third, fourth and fifth anniversaries of the date of grant. Options
expire ten years from the date of grant. Under the Continuing Offer, one unit of
partnership interest would be exchangeable for approximately 2,000 shares of the
Company's common stock at March 31, 1997. During the first quarter of 1997,
options for 51 units were issued at an exercise price of $26.0 thousand. There
were no cancellations or exercises during the first quarter of 1997. As of March
31, 1997, there were outstanding options for 3,587 units with a weighted average
exercise price of $22.2 thousand. As of March 31, 1997, options for 2,062 units
were vested with a weighted average exercise price of $22.4 thousand.
- 8 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
CONSOLIDATED BALANCE SHEET
(in thousands)
December 31 March 31
----------- --------
1996 1997
---- ----
Assets:
Properties $1,126,873 $1,147,060
Accumulated depreciation and amortization 234,030 241,394
---------- ----------
$ 892,843 $ 905,666
Cash and cash equivalents 7,902 2,202
Accounts and notes receivable, less allowance
for doubtful accounts of $393 and $252
in 1996 and 1997 20,751 17,046
Accounts receivable from related parties 6,293 6,530
Deferred charges and other assets 41,494 41,111
---------- ----------
$ 969,283 $ 972,555
========== ==========
Liabilities:
Unsecured notes payable $ 786,705 $ 786,746
Mortgage notes payable 159,703 159,703
Other notes payable 54,997 57,041
Capital lease obligation 39,849 44,339
Accounts payable and other liabilities 84,505 94,074
Distributions in excess of net income of
unconsolidated Joint Ventures (Note 2) 135,662 131,225
---------- ----------
$1,261,421 $1,273,128
Commitments and Contingencies (Note 4)
Accumulated deficiency in assets (292,138) (300,573)
---------- ----------
$ 969,283 $ 972,555
========== ==========
Allocation of accumulated deficiency in assets:
General Partners $ (226,242) $ (232,774)
Limited Partners (65,896) (67,799)
---------- ----------
$ (292,138) $ (300,573)
========== ==========
See notes to financial statements.
- 9 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF OPERATIONS
(in thousands, except units data)
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Revenues:
Minimum rents $34,763 $42,850
Percentage rents 1,027 1,454
Expense recoveries 19,607 22,705
Other 2,534 3,924
Revenue from management, leasing and
development services 1,801 1,609
------- -------
$59,732 $72,542
------- -------
Operating Costs:
Recoverable expenses $15,586 $18,998
Other operating 5,219 8,492
Management, leasing and development
services 1,245 923
General and administrative 4,753 5,656
Interest expense 17,102 17,284
Depreciation and amortization 8,322 10,102
------- -------
$52,227 $61,455
------- -------
Income before equity in net income
of unconsolidated Joint Ventures $ 7,505 $11,087
Equity in net income of unconsolidated
Joint Ventures (Note 2) 13,363 12,497
------- -------
Net Income $20,868 $23,584
======= =======
Allocation of Net Income:
General Partners $16,698 $18,264
Limited Partners 4,170 5,320
------- -------
$20,868 $23,584
======= =======
Net Income per Unit of Partnership Interest $ 329 $ 337
======= =======
Weighted Average Number of Units of
Partnership Interest Outstanding 63,521 69,998
======= =======
See notes to financial statements.
- 10 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF CASH FLOWS
(in thousands)
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Cash Flows From Operating Activities:
Net Income $ 20,868 $ 23,584
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation and amortization 8,322 10,102
Provision for losses on accounts receivable 387 225
Amortization of deferred financing costs 565 591
Gain on sale of land (65)
Other 248 149
Increase (decrease) in cash attributable
to changes in assets and liabilities:
Receivables, deferred charges and other assets (3,648) 1,163
Accounts payable and other liabilities (1,816) 9,569
-------- --------
Net Cash Provided By Operating Activities $ 24,926 $ 45,318
-------- --------
Cash Flows From Investing Activities:
Additions to properties $ (4,292) $(16,895)
Proceeds from sale of land 289
Distributions from unconsolidated
Joint Ventures in excess of net income 1,107 4,216
Contributions to unconsolidated Joint Ventures (661) (8,653)
-------- --------
Net Cash Used In Investing Activities $ (3,846) $(21,043)
-------- --------
Cash Flows From Financing Activities:
Debt proceeds $ 9,542 $ 2,044
Debt payments (9)
Cash distributions (29,056) (32,019)
-------- --------
Net Cash Used In Financing Activities $(19,523) $(29,975)
-------- --------
Net Increase (Decrease) In Cash $ 1,557 $ (5,700)
Cash and Cash Equivalents at Beginning of Period 16,836 7,902
-------- --------
Cash and Cash Equivalents at End of Period $ 18,393 $ 2,202
======== ========
Interest on mortgage notes and other loans paid during the three months ended
March 31, 1996 and 1997, net of amounts capitalized of $1,212 and $1,994, was
$6,401 and $5,003, respectively.
See notes to financial statements.
- 11 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Three months ended March 31, 1997
Note 1 - Interim Financial Statements
The Taubman Realty Group Limited Partnership (TRG) engages in the ownership,
operation, management, leasing, acquisition, development, redevelopment,
expansion, financing and refinancing of regional retail shopping centers
(Taubman Shopping Centers) and interests therein. Taubman Centers, Inc. is the
managing general partner of TRG. GMPTS Limited Partnership, TG Partners Limited
Partnership and Taub-Co Management, Inc. are also general partners.
The unaudited interim financial statements should be read in conjunction with
the audited financial statements and related notes included in TRG's Annual
Report on Form 10-K for the year ended December 31, 1996. In the opinion of
management, all adjustments (consisting only of normal recurring adjustments)
necessary for a fair presentation of the financial statements for the interim
periods have been made. The results for interim periods are not necessarily
indicative of the results for a full year.
Note 2 - Investments in Joint Ventures
Certain Taubman Shopping Centers are partially owned through joint ventures
(Joint Ventures). TRG is also the managing general partner of these Joint
Ventures. TRG's interest in each Joint Venture is as follows:
TRG's %
Ownership
as of
Joint Venture Taubman Shopping Center March 31, 1997
--------------------------------------------------------------------------
Arizona Mills, L.L.C. Arizona Mills
(under construction) 37%
Fairfax Associates Fair Oaks 50
Lakeside Mall Limited
Partnership Lakeside 50
Rich-Taubman Associates Stamford Town Center 50
Taubman-Cherry Creek
Limited Partnership Cherry Creek 50
Taubman MacArthur Associates MacArthur Center
Limited Partnership (under construction) 70
Twelve Oaks Mall Limited
Partnership Twelve Oaks Mall 50
West Farms Associates Westfarms 79
Woodfield Associates Woodfield 50
Woodland Woodland 50
- 12 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued)
TRG reduces its investment in Joint Ventures to eliminate intercompany
profits on sales of services that are capitalized by the Joint Ventures. As a
result, the carrying value of TRG's investment in Joint Ventures is less than
TRG's share of the deficiency in assets reported in the combined balance sheet
of the unconsolidated Joint Ventures by $8.6 million and $8.9 million at
December 31, 1996 and at March 31, 1997, respectively. These differences are
amortized over the useful lives of the related assets.
Combined balance sheet and results of operations information are presented
below (in thousands) for all Joint Ventures, followed by TRG's beneficial
interest in the combined information. Beneficial interest is calculated based on
TRG's ownership interest in each of the Joint Ventures.
December 31 March 31
----------- --------
1996 1997
---- ----
Assets:
Properties, net $ 461,658 $ 476,102
Other assets 71,278 64,119
--------- ---------
$ 532,936 $ 540,221
========= =========
Liabilities and partners' accumulated
deficiency in assets:
Debt $ 724,162 $ 748,892
Capital lease obligations 5,000 6,995
Other liabilities 53,817 36,209
TRG accumulated deficiency in assets (127,097) (122,293)
Joint Venture Partners' accumulated
deficiency in assets (122,946) (129,582)
--------- ---------
$ 532,936 $ 540,221
========= =========
TRG accumulated deficiency in assets (above) $(127,097) $(122,293)
Elimination of intercompany profit (8,565) (8,932)
--------- ---------
Distributions in excess of net income
of unconsolidated Joint Ventures $(135,662) $(131,225)
========= =========
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Revenues $70,032 $60,681
------- -------
Recoverable and other operating expenses $27,485 $22,357
Interest expense 13,850 12,367
Depreciation and amortization 5,673 5,284
------- -------
Total operating costs $47,008 $40,008
------- -------
Net income $23,024 $20,673
======= =======
Net income attributable to TRG $12,041 $11,406
Realized intercompany profit 1,322 1,091
------- -------
Equity in net income of unconsolidated
Joint Ventures $13,363 $12,497
======= =======
- 13 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued)
Three Months Ended March 31
---------------------------
1996 1997
---- ----
TRG's beneficial interest
in unconsolidated Joint Ventures' operations:
Revenues less recoverable and other
operating expenses $23,317 $21,799
Interest expense (7,172) (6,589)
Depreciation and amortization (2,782) (2,713)
------- -------
Net Income $13,363 $12,497
======= =======
Note 3 - Beneficial Interest in Debt and Interest Expense
In March 1997, TRG completed the renegotiation of the terms of its unsecured
revolving credit facility available for general partnership purposes. The new
terms increased the facility to $300 million from $200 million, reduced the
current contractual interest rate by 60 basis points to LIBOR plus 90 basis
points and extended the maturity until March 2000. Included in the credit
facility is a competitive bid option program, which allows TRG to hold auctions
among the banks participating in the facility for short term borrowings of up to
$150 million.
In January 1997, Arizona Mills, L.L.C. closed on a secured $145 million
construction facility maturing in 2002. The loan bears interest at one month
LIBOR plus 1.3%. The loan is hedged until maturity at a one month LIBOR cap rate
of 9.5%. The payment of the principal and interest is recourse to each of the
owners of Arizona Mills, L.L.C. to the extent of its respective ownership
percentage. Proceeds totaling $13.1 million were distributed to the owners as
reimbursement for amounts previously expended on construction costs, of which
TRG's share was $4.8 million. Borrowings on the facility at March 31, 1997 were
$20.9 million. TRG owns a 37% interest in Arizona Mills, L.L.C.
TRG's beneficial interest in the debt (excluding capital lease obligations),
capitalized interest, and interest expense (net of capitalized interest) of TRG,
its consolidated subsidiaries and its unconsolidated Joint Ventures is
summarized as follows:
TRG's Share TRG's TRG's
Joint of Joint Consolidated Beneficial
Ventures Ventures Subsidiaries Interest
-------- -------- ------------ -------
Debt as of:
December 31, 1996 $724,162 $396,962 $1,001,405 $1,398,367
March 31, 1997 748,892 407,847 1,003,490 1,411,337
Capitalized interest:
Three months ended
March 31, 1996 $ 871 $ 561 $ 1,212 $ 1,773
Three months ended
March 31, 1997 1,980 1,267 1,994 3,261
Interest expense
(Net of capitalized interest):
Three months ended
March 31, 1996 $ 13,850 $ 7,172 $ 17,102 $ 24,274
Three months ended
March 31, 1997 12,367 6,589 17,284 23,873
- 14 -
<PAGE>
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued)
Note 4 - Incentive Option Plan
TRG has an incentive option plan for employees of the Manager. Currently,
4,500 units of partnership interest may be issued under the plan. The exercise
price of all outstanding options is equal to market value on the date of grant.
Incentive options generally become vested to the extent of one-third of the
units on each of the third, fourth and fifth anniversaries of the date of grant.
Options expire ten years from the date of grant. During the first quarter of
1997, options for 51 units were issued at an exercise price of $26.0 thousand.
There were no cancellations or exercises during the first quarter of 1997. As of
March 31, 1997, there were outstanding options for 3,587 units with a weighted
average exercise price of $22.2 thousand. As of March 31, 1997, options for
2,062 units were vested with a weighted average exercise price of $22.4
thousand.
- 15 -
<PAGE>
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
- ---------------------------------------------
The following discussion should be read in conjunction with the accompanying
Financial Statements of Taubman Centers, Inc. and the Notes thereto and the
Consolidated Financial Statements of The Taubman Realty Group Limited
Partnership and the Notes thereto.
General Background and Performance Measurement
The Company, through its interest in and as managing general partner of TRG,
participates in TRG's Managed Businesses. TRG's Managed Businesses include: (i)
wholly owned Taubman Shopping Centers, development projects for future regional
shopping centers (Development Projects) and The Taubman Company Limited
Partnership (the Manager), (collectively, the Consolidated Businesses); and (ii)
Taubman Shopping Centers partially owned through joint ventures (Joint
Ventures).
TRG consolidates the wholly owned Taubman Shopping Centers, the Development
Projects, and the Manager. The Joint Ventures are accounted for under the equity
method in TRG's Consolidated Financial Statements.
Certain aspects of the performance of the Managed Businesses are best
understood by measuring their performance as a whole, without regard to TRG's
ownership interest. For example, mall tenant sales and shopping center occupancy
trends fit this category and are so analyzed below. In addition, trends in
certain items of revenue and expense are often best understood in the same
fashion, and the discussions following take this approach when appropriate. When
relevant, these items are also discussed separately with regard to the
Consolidated Businesses and the Joint Ventures.
Seasonality
The regional shopping center industry is seasonal in nature, with mall tenant
sales highest in the fourth quarter due to the Christmas season, and with
lesser, though still significant, sales fluctuations associated with the Easter
holiday and back-to-school events. While minimum rents and recoveries are
generally not subject to seasonal factors, most leases are scheduled to expire
in the first quarter, and the majority of new stores open in the second half of
the year in anticipation of the Christmas selling season. Accordingly, revenues
and occupancy levels are generally highest in the fourth quarter.
The following table summarizes certain quarterly operating data for TRG's
Managed Businesses for 1996 and the first quarter of 1997:
<TABLE>
<CAPTION>
1st 2nd 3rd 4th 1st
Quarter Quarter Quarter Quarter Total Quarter
1996 1996 1996 1996 1996 1997
------------------------------------------------------------
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Mall tenant sales $591,677 $617,821 $627,791 $989,956 $2,827,245 $600,709
Revenues 129,764 128,497 129,730 138,250 526,241 130,322
Occupancy
Average Occupancy 87.8% 87.3% 86.8% 87.6% 87.4% 86.5%
Ending Occupancy 87.7% 87.3% 86.8% 88.0% 88.0% 86.4%
Leased Space 89.5% 88.2% 87.6% 89.0% 89.0% 88.7%
</TABLE>
- 16 -
<PAGE>
Because the seasonality of sales contrasts with the generally fixed nature of
minimum rents and recoveries, mall tenant occupancy costs (the sum of minimum
rents, percentage rents and expense recoveries) relative to sales are
considerably higher in the first three quarters than they are in the fourth
quarter. The following table summarizes occupancy costs, excluding utilities,
for mall tenants as a percentage of sales for 1996 and the first quarter of
1997:
1st 2nd 3rd 4th 1st
Quarter Quarter Quarter Quarter Total Quarter
1996 1996 1996 1996 1996 1997
-------------------------------------------------
Minimum rents 12.3% 11.7% 11.7% 7.6% 10.4% 12.6%
Percentage rents 0.3 0.3 0.3 0.3 0.3 0.2
Expense recoveries 5.6 5.0 4.6 3.5 4.5 5.2
---- ---- ---- ---- ---- ----
Mall tenant occupancy costs 18.2% 17.0% 16.6% 11.4% 15.2% 18.0%
==== ==== ==== ==== ==== ====
Rental Rates
Average base rent per square foot for all mall tenants at the 18 Centers owned
and open for at least five years was $38.25 for the twelve months ended March
31, 1997, compared to $36.73 for the twelve months ended March 31, 1996.
As leases have expired in the Taubman Shopping Centers, TRG has generally been
able to rent the available space, either to the existing tenant or a new tenant,
at rental rates that are higher than those of the expired leases. In a period of
increasing sales, rents on new leases will tend to rise as tenants' expectations
of future growth become more optimistic. In periods of slower growth or
declining sales, rents on new leases will grow more slowly or will decline for
the opposite reason. However, Center revenues nevertheless increase as older
leases roll over or are terminated early and replaced with new leases negotiated
at current rental rates that are usually higher than the average rates for
existing leases.
The annual spread between average annualized base rent of stores opening and
closing, excluding renewals, has ranged between six and eleven dollars per
square foot during the past five years. TRG anticipates that the spread between
opening and closing rents for the 1997 fiscal year will narrow from the nine
dollars per square foot achieved in 1996. This statistic is difficult to predict
in part because TRG's leasing policies and practices may result in early lease
terminations with actual average closing rents which may vary from the average
rent per square foot of scheduled lease expirations. In addition, the opening or
closing of large tenant spaces, which generally pay a lower rent per square
foot, can significantly change the spread in a given year.
Results of Operations
Comparison of the Three Months Ended March 31, 1997 to the Three Months Ended
March 31, 1996
Taubman Centers, Inc.
The Company is the managing general partner of TRG and shares in TRG's
financial performance to the extent of its ownership percentage. The Company's
ownership of TRG was 36.68% for the three months ended March 31, 1997, and
35.10% for the three months ended March 31, 1996. As of March 31, 1997, the
Company had 50.7 million shares outstanding, up from 44.1 million at March 31,
1996.
- 17 -
<PAGE>
Equity in income of TRG consists of the Company's $8.7 million proportionate
share of TRG's net income for the three months ended March 31, 1997 and $7.3
million for the same period in 1996. These amounts were reduced by $2.0 million
and $1.9 million, respectively, representing adjustments arising from the
Company's additional basis in TRG's net assets. Net income for the three months
ended March 31, 1997 was $6.4 million, or $0.13 per share, compared to $5.2
million, or $0.12 per share, for the first quarter of 1996.
TRG
1996 Transactions
During 1996, TRG completed the following acquisitions: Paseo Nuevo in June,
the remaining 75% interest in Fairlane Town Center (Fairlane) previously held by
a Joint Venture Partner in July, and La Cumbre Plaza (La Cumbre) in December.
Also during 1996, TRG issued new units of partnership interest to the former
Joint Venture Partner of Fairlane in connection with TRG's acquisition of
Fairlane, and to the Company in connection with an offering of the Company's
common stock and the exercise of incentive options. The net proceeds from the
issuances were used to repay short term borrowings and to acquire La Cumbre.
In November 1996, TRG entered into an agreement to lease Memorial City Mall
(Memorial City) while TRG investigates the redevelopment opportunities of the
center (See Liquidity and Capital Resources -- Capital Spending). As a
development project, Memorial City has been excluded from all operating
statistics in this report, and Memorial City's results of operations have been
presented as a net line item in the following tabular comparison of TRG's
results of operations for the first quarter of 1997 compared to the prior year's
comparable period.
Occupancy and Mall Tenant Sales
The average occupancy rate in the Taubman Shopping Centers was 86.5% for the
three months ended March 31, 1997 compared to 87.8% for the comparable period in
1996. TRG expects that it will not achieve year over year increases in average
occupancy before the fourth quarter of 1997. The ending occupancy rate for the
Taubman Shopping Centers at March 31, 1997 was 86.4% versus 87.7% at the same
date in 1996. Leased space at March 31, 1997 was 88.7% compared to 89.5% at the
same date in 1996.
Total sales for Taubman Shopping Center mall tenants in the three months ended
March 31, 1997 were $600.7 million, a 1.5% increase from $591.7 million in the
first quarter of 1996. Mall tenant sales per square foot increased 0.4% over the
first quarter of 1996. Mall tenant sales for centers owned and open for all of
the first quarters of 1997 and 1996 (which excludes Paseo Nuevo and La Cumbre)
were $578.4 million in the first quarter of 1997, a 2.3% decrease from the first
quarter of 1996. Sales statistics for the first quarter of 1997 were negatively
affected by new competition near certain centers. TRG expects that the effect of
the competition on sales will moderate late in 1997 after the anniversary date
of the opening of the competing centers. In addition, sales in the first quarter
of 1996 were favorably impacted as most retailers reported five weeks of sales
for January (this extra week occurs every five to six years). The compound
annual growth rate on sales per square foot for the two year period ending March
31, 1997 was 4.2%.
- 18 -
<PAGE>
The following table sets forth operating results for TRG's Managed Businesses
for the three months ended March 31, 1996 and 1997, showing the results of the
Consolidated Businesses and Joint Ventures:
<TABLE>
<CAPTION>
Three Months Ended March 31, 1996 Three Months Ended March 31, 1997
----------------------------------------- -----------------------------------------
TRG TOTAL: TRG TOTAL:
CONSOLIDATED JOINT MANAGED CONSOLIDATED JOINT MANAGED
BUSINESSES VENTURES(1) BUSINESSES BUSINESSES(2) VENTURES(1) BUSINESSES
----------------------------------------- -----------------------------------------
(in millions of dollars)
<S> <C> <C> <C> <C> <C> <C>
REVENUES:
Minimum rents 34.8 41.0 75.8 40.8 37.6 78.5
Percentage rents 1.0 0.8 1.8 1.4 0.3 1.7
Expense recoveries 19.6 26.3 45.9 21.9 21.5 43.5
Other 4.3 1.9 6.2 5.5 1.2 6.7
----- ----- ----- ----- ----- -----
Total revenues 59.7 70.0 129.7 69.6 60.7 130.3
OPERATING COSTS:
Recoverable expenses 15.6 22.5 38.1 18.0 18.3 36.3
Other operating 5.2 3.2 8.4 6.5 2.7 9.2
Management, leasing and
development 1.2 1.2 0.9 0.9
General and administrative 4.8 4.8 5.7 5.7
Interest expense 17.1 14.0 31.1 17.3 12.5 29.8
Depreciation and amortization 8.3 5.5 13.8 10.0 5.1 15.2
----- ----- ----- ----- ----- -----
Total operating costs 52.2 45.2 97.4 58.4 38.6 97.0
Net results of Memorial City(2) (0.1) (0.1)
----- ----- ----- ----- ----- -----
7.5 24.8 32.3 11.1 22.1 33.2
===== ===== ===== =====
Equity in net income of Joint Ventures 13.4 12.5
----- -----
NET INCOME 20.9 23.6
===== =====
SUPPLEMENTAL INFORMATION(3)
EBITDA contribution 32.9 23.3 56.2 38.5 21.8 60.3
TRG's Beneficial Interest Expense (17.1) (7.2) (24.3) (17.3) (6.6) (23.9)
Non-real estate depreciation (0.5) (0.5) (0.5) (0.5)
----- ----- ----- ----- ----- -----
Distributable Cash Flow contribution 15.4 16.1 31.5 20.7 15.2 35.9
===== ===== ===== ===== ===== =====
(1) With the exception of the Suplemental Information, amounts represent 100% of
the Joint Ventures. Amounts are net of intercompany profits.
(2) The results of operations of Memorial City are presented net in this table.
TRG expects that Memorial City's net operating income will approximate the
ground rent payable under the lease for the immediate future.
(3) EBITDA, TRG's Beneficial Interest Expense and Distributable Cash Flow are
defined and discussed in Liquidity and Capital Resources - Distributions.
(4) Amounts in the table may not add due to rounding.
</TABLE>
- 19 -
<PAGE>
TRG --Consolidated Businesses
- -----------------------------
Total revenues for the three months ended March 31, 1997 were $69.6 million, a
$9.9 million or 16.6% increase over the comparable period in 1996. Minimum rents
increased $6.0 million, of which $5.4 million was caused by the Fairlane, Paseo
Nuevo, and La Cumbre acquisitions. The results of Fairlane have been
consolidated in TRG's results subsequent to the acquisition date in July 1996
(prior to that date Fairlane was accounted for under the equity method as a
Joint Venture). The increase in expense recoveries was primarily due to
Fairlane, Paseo Nuevo, and La Cumbre, offset by decreases at certain other
Centers. Other revenue increased $1.2 million primarily due to an insurance
recovery and a litigation settlement, partially offset by a decrease in lease
cancellation revenue.
Total operating costs increased $6.2 million, or 11.9%, to $58.4 million.
Recoverable, other operating, and depreciation and amortization expenses
increased primarily due to the Fairlane, Paseo Nuevo, and La Cumbre
acquisitions. General and administrative expense increased by $0.9 million
primarily due to increases in compensation, including the continuing phase-in of
the long-term compensation plan, and professional fees.
Revenues and expenses as presented in the preceding table differ from the
amounts shown in TRG's consolidated income statements by the amounts
representing Memorial City's revenues and expenses, which are presented in the
preceding table as a net amount.
Joint Ventures
- --------------
Total revenues for the three months ended March 31, 1997 were $60.7 million, a
$9.3 million, or 13.3%, decrease from the comparable period of 1996, of which
$7.0 million was caused by the change of Fairlane from a Joint Venture to a
Consolidated Business. The decrease in minimum rents was primarily due to
Fairlane. The decrease in expense recoveries was due to Fairlane and a decrease
in recoverable expenses. Other income decreased by $0.7 million primarily due to
decreases in lease cancellation and interest income.
Total operating costs decreased by $6.6 million, or 14.6%, to $38.6 million
for the three months ended March 31, 1997, including a $4.7 million decrease due
to Fairlane. Recoverable expenses decreased $4.2 million primarily due to
Fairlane and decreases in utilities and maintenance costs. Other operating costs
decreased primarily due to Fairlane and a decrease in bad debt expense. Interest
expense decreased $1.5 million primarily due to a decrease in debt related to
Fairlane and an increase in capitalized interest, partially offset by an
increase in debt used to finance capital expenditures. Operating costs as
presented in the preceding table differ from the amounts shown in the combined,
summarized financial statements of the unconsolidated Joint Ventures (Note 2 to
TRG's financial statements) by the amount of intercompany profit.
As a result of the foregoing, net income of the Joint Ventures decreased by
$2.7 million, or 10.9%, to $22.1 million. TRG's equity in net income of the
Joint Ventures was $12.5 million, a 6.7% decrease from the comparable period in
1996.
Net Income
- ----------
As a result of the foregoing, net income for the first quarter of 1997 was
$23.6 million, a 12.9% increase from the comparable period in 1996.
- 20 -
<PAGE>
Liquidity and Capital Resources
Taubman Centers, Inc.
As of March 31, 1997, the Company had a cash balance of $9.3 million, the
source of which was primarily TRG's distributions, and had incurred no
indebtedness. During the first three months of 1997 and 1996, the Company
received distributions from TRG of $11.7 million and $10.2 million,
respectively. On March 5, 1997, the Company declared a quarterly dividend of
$0.23 per common share payable April 18, 1997 to shareholders of record March
31, 1997.
The Company pays regular quarterly dividends to its shareowners. The Company's
ability to pay dividends is affected by several factors, most importantly, the
receipt of distributions from TRG (see Distributions below). Dividends by the
Company are at the discretion of the Board of Directors and depend on the cash
available to the Company, its financial condition, capital and other
requirements, and such other factors as the Board of Directors deems relevant.
The tax status of total 1997 dividends declared and to be declared, assuming
continuation of a $0.23 per common share quarterly dividend, is estimated to be
approximately 35% return of capital, and approximately 65% of ordinary income.
This is a forward-looking statement and certain significant factors could cause
the actual results to differ materially, including: 1) the amount of dividends
declared; 2) changes in the Company's share of anticipated taxable income of TRG
due to the actual results of TRG; 3) changes in the number of the Company's
outstanding shares; 4) property acquisitions or dispositions; 5) financing
transactions, including refinancing of existing debt; and 6) changes in the
Internal Revenue Code or its application.
The Company's Board of Directors has authorized the purchase of up to 750
thousand shares of the Company's common stock in the open market. The stock may
be purchased from time to time as market conditions warrant. In the first
quarter of 1996, the Company purchased 36.8 thousand shares for approximately
$0.3 million. There were no purchases during the first quarter of 1997. As of
March 31, 1997, the Company had purchased a cumulative total of 491.8 thousand
shares of its common stock for approximately $4.7 million. Funding for the
purchases was provided by excess cash that otherwise would have been invested in
cash equivalents.
As of March 31, 1997, the Company had 50.7 million shares outstanding compared
to 44.1 million at March 31, 1996.
TRG
As of March 31, 1997, TRG had a cash balance of $2.2 million. In March 1997,
TRG completed the renegotiation of the terms of its unsecured revolving credit
facility available for general partnership purposes. The new terms increased the
facility to $300 million from $200 million, reduced the current contractual
interest rate by 60 basis points to LIBOR plus 90 basis points and extended the
maturity until March 2000. Included in the credit facility is a competitive bid
option program, which allows TRG to hold auctions among the banks participating
in the facility for short term borrowings of up to $150 million. There were no
borrowings under this facility at March 31, 1997. TRG also has available an
unsecured bank line of credit of up to $30 million with borrowings of $12.2
million at March 31, 1997. This line expires in August 1998. TRG also has
available a secured commercial paper facility of up to $75 million, with
borrowings of $45 million at March 31, 1997. Commercial paper is generally sold
with a 30 day maturity. This facility is supported by a line of credit facility,
which is renewable quarterly for a twelve month period.
Proceeds from short term borrowings of $2.0 million provided funding for the
first three months of 1997 compared to $9.5 million in the comparable period of
1996.
- 21 -
<PAGE>
TRG has issued a total of $287 million of notes since the inception of TRG's
medium-term note program in 1995 under TRG's $500 million shelf registration
statement. There were no medium-term note issuances in the first quarters of
1997 and 1996.
In January 1997, Arizona Mills, L.L.C. closed on a secured $145 million
construction facility maturing in 2002. The loan bears interest at one month
LIBOR plus 1.3%. The loan is hedged until maturity at a one month LIBOR cap rate
of 9.5%. The payment of the principal and interest is recourse to each of the
owners of Arizona Mills, L.L.C. to the extent of its respective ownership
percentage. Proceeds totaling $13.1 million were distributed to the owners as
reimbursement for amounts previously expended on construction costs, of which
TRG's share was $4.8 million. Borrowings on the facility at March 31, 1997 were
$20.9 million. TRG owns a 37% interest in Arizona Mills, L.L.C.
At March 31, 1997, TRG's debt and its beneficial interest in the debt of its
Joint Ventures (excluding $48.2 million of capital lease obligations) totaled
$1,411.3 million. As shown in the following table, there was no unhedged
floating rate debt at March 31, 1997. Interest rates shown do not include
amortization of debt issuance costs and interest rate hedging costs. These items
are reported as interest expense in TRG's results of operations. In the
aggregate, these costs added 0.39% to the effective rate of interest on TRG's
beneficial interest in debt at March 31, 1997. Included in TRG's beneficial
interest in debt at March 31, 1997 is debt used to fund development and
expansion costs. TRG's beneficial interest in assets on which interest is being
capitalized totaled $186.7 million as of March 31, 1997. TRG's beneficial
interest in capitalized interest was $3.3 million for the three months ended
March 31, 1997.
Beneficial Interest in Debt
------------------------------------------------
Amount Interest LIBOR Frequency LIBOR
(In millions Rate at Cap of Rate at
of dollars) 3/31/97 Rate Resets 3/31/97
---------- -------- ---- ------ --------
Total beneficial interest
in fixed rate debt 1,113.1(1) 7.55%(2)
Floating rate debt hedged via
interest rate caps:
Through July 1997 19.7(3) 7.10 9.60% Monthly 5.69%
Through January 1998 100.0 6.19(2) 6.50 Monthly 5.69
Through January 1998 65.0 6.19 6.50 Monthly 5.69
Through July 1998 41.5 6.19(2) 8.35 Monthly 5.69
Through October 1998 39.3 6.06 6.00 Three Months 5.81
Through October 2001 25.0 5.89 8.55 Monthly 5.69
Through January 2002 7.7 6.83 9.50 Monthly 5.69
-------
Total beneficial interest
in debt 1,411.3 7.27 (2)
=======
(1) Includes TRG's $100 million floating rate notes due in November 1997, which
were swapped to a fixed rate of 6.15% until maturity. The interest rate on
the refinancing of this debt is hedged via an interest rate cap for the
period November 1997 to December 1998 at a three month LIBOR cap rate of
6.5%.
(2) Denotes weighted average interest rate.
(3) This debt is additionally hedged via an interest rate cap for the period
July 1997 through July 2002 at a one month LIBOR cap rate of 9.95%.
TRG's loan agreements and indenture contain various restrictive covenants,
including limitations on the amount of secured and unsecured debt and minimum
debt service coverage ratios, the latter being the most restrictive. TRG is in
compliance with all of such covenants.
- 22 -
<PAGE>
Distributions
A principal factor considered by TRG in deciding upon distributions to
partners is an amount, which TRG defines as Distributable Cash Flow, equal to
EBITDA less TRG's Beneficial Interest Expense and non-real estate depreciation
and amortization. This measure of performance is influenced not only by
operations but also by capital structure. EBITDA is defined as TRG's beneficial
interest in revenues, less operating costs before interest, depreciation and
amortization, meaning TRG's pro rata share of this result for each of the
Managed Businesses, after recording appropriate intercompany eliminations. TRG's
Beneficial Interest Expense is defined as 100% of the interest expense of TRG's
Consolidated Businesses and TRG's pro rata share of the interest expense on the
debt of the Joint Ventures. Funds from Operations is calculated by adding the
Company's beneficial interest in TRG's Distributable Cash Flow to the Company's
other income, less the Company's operating expenses. EBITDA, Distributable Cash
Flow and Funds from Operations do not represent cash flows from operations, as
defined by generally accepted accounting principles, and should not be
considered to be an alternative to net income as an indicator of operating
performance or to cash flows from operations as a measure of liquidity. However,
the National Association of Real Estate Investment Trusts (NAREIT) suggests that
Funds from Operations is a useful supplemental measure of operating performance
for REITs.
The following table summarizes TRG's Distributable Cash Flow and the Company's
Funds from Operations for the three months ended March 31, 1996 and 1997:
<TABLE>
<CAPTION>
Three months ended Three months ended
March 31, 1996 March 31, 1997
------------------------------------- ------------------------------------
TRG TRG
Consolidated Joint Consolidated Joint
Businesses Ventures(1) Total Businesses Ventures(1) Total
------------------------------------- ------------------------------------
(in millions of dollars)
<S> <C> <C> <C> <C> <C> <C>
TRG's Net Income (2) 20.9 23.6
Depreciation and amortization (3)(4) 11.1 12.8
TRG's Beneficial Interest Expense (3) 24.3 23.9
----- -----
EBITDA 32.9 23.3 56.2 38.5 21.8 60.3
TRG's Beneficial Interest Expense(3) (17.1) (7.2) (24.3) (17.3) (6.6) (23.9)
Non-real estate depreciation (0.5) (0.5) (0.5) (0.5)
----- ----- ----- ----- ----- -----
Distributable Cash Flow 15.4 16.1 31.5 20.7 15.2 35.9
===== ===== ===== ===== ===== =====
The Company's share of Distributable
Cash Flow 11.1 13.2
Other income/expenses, net (0.2) (0.2)
----- -----
Funds from Operations 10.9 13.0
===== =====
(1) Amounts represent TRG's beneficial interest in the operations of its Joint
Ventures.
(2) Includes TRG's share of a gain on a peripheral land sale of $65 thousand in
the first quarter of 1997. There were no land sales in the first quarter of
1996.
(3) Amounts represent TRG's and TRG's beneficial interest in the Joint Ventures'
extraordinary items, depreciation and amortization, and interest expense.
(4) Includes $0.9 million of amortization of mall tenant allowances in the first
quarter of 1996 and 1997, respectively.
(5) Amounts may not add due to rounding.
</TABLE>
For the first quarter of 1997, EBITDA and Distributable Cash Flow were $60.3
million and $35.9 million, compared to $56.2 million and $31.5 million for the
same period in 1996. TRG distributed $32.0 million to its partners in the first
quarter of 1997, compared to $29.1 million in the same period of 1996. The
Company's Funds from Operations for the first quarter of 1997 was $13.0 million,
compared to $10.9 million for the same period in 1996.
- 23 -
<PAGE>
The Partnership Committee of TRG makes an annual determination of appropriate
distributions for each year. The determination is based on anticipated
Distributable Cash Flow, as well as financing considerations and such other
factors as the Partnership Committee considers appropriate. Further, the
Partnership Committee has decided that the growth in distributions will be less
than the growth in Distributable Cash Flow for the immediate future.
Except under unusual circumstances, TRG's practice is to distribute equal
monthly installments of the determined amount of distributions throughout the
year. Due to seasonality and the fact that cash available to TRG for
distributions may be more or less than net cash provided from operating
activities plus distributions from Joint Ventures during the year, TRG may
borrow from unused credit facilities (described in Liquidity and Capital
Resources -- TRG above) to enable it to distribute the amount decided upon by
TRG's Partnership Committee.
Distributions by each Joint Venture may be made only in accordance with the
terms of its partnership agreement. TRG acts as the managing partner in each
case and, in general, has the right to determine the amount of cash available
for distribution from the Joint Venture. In general, the provisions of these
agreements require the distribution of all available cash (as defined in each
partnership agreement), but most do not allow borrowing to finance distributions
without approval of the Joint Venture Partner.
As a result, distribution policies of many Joint Ventures will not parallel
those of TRG. While TRG may not, therefore, receive as much in distributions
from each Joint Venture as it intends to distribute with respect to that Joint
Venture, the Company does not believe this will impede TRG's intended
distribution policy because of TRG's overall access to liquid resources,
including borrowing capacity.
Any inability of TRG or its Joint Ventures to secure financing as required to
fund maturing debts, capital expenditures and changes in working capital,
including development activities and expansions, may require the utilization of
cash to satisfy such obligations, thereby possibly reducing distributions to
partners of TRG and funds available to the Company for the payment of dividends.
In addition, if the GM Trusts exercise their rights under the Cash Tender
Agreement (see Liquidity and Capital Resources -- Cash Tender Agreement below),
TRG will be required to pay the GM Trusts $10.9 million and may borrow to
finance such expenditures.
- 24 -
<PAGE>
Capital Spending
Capital spending for routine maintenance of the Taubman Shopping Centers is
generally recovered from tenants. Assuming no acquisitions, planned capital
spending by the Managed Businesses not recovered from tenants for 1997 is
summarized in the following table:
1997
--------------------------------------------
Consolidated Joint TRG's Share of
Businesses Ventures(1) Joint Ventures(1)
--------------------------------------------
(in millions of dollars)
Development, renovation, and expansion 61.5 (2) 225.1 (3) 120.3
Mall tenant allowances 5.8 3.7 2.2
Pre-construction development and
other 10.7 (4) 1.0 0.6
---- ----- -----
Total 78.0 229.8 123.1
==== ===== =====
(1) Costs are net of intercompany profits.
(2) Includes costs related to leasehold improvements at The Mall at Tuttle
Crossing; excludes capital lease assets.
(3) Includes costs related to expansion projects at Westfarms and Cherry Creek.
Also includes construction costs for MacArthur Center and Arizona Mills.
(4) Includes costs to explore the possibilities of building an enclosed 1.7
million square foot value super-regional mall in Auburn Hills, Michigan.
The cost of building this Center would approximate $210 million. TRG's
share of the project would be approximately $170 million. Also includes
the costs to evaluate the redevelopment of Memorial City and required
property expenditures under the terms of the lease.
An expansion at Westfarms, which will open in the summer of 1997, will add
approximately 135,000 square feet of mall GLA and Nordstrom as an anchor.
Approximately 75% of this space has been leased or has leases out for
signatures. The expansion is expected to cost approximately $100 million. An
expansion at Cherry Creek will include a newly constructed Lord & Taylor store,
which will open in the fall of 1997, and the addition of 132,000 square feet of
mall GLA, which will open in the fall of 1998. The expansion is expected to cost
approximately $50 million. TRG has a 79% and 50% ownership interest in Westfarms
and Cherry Creek, respectively.
A project is now under construction to add approximately 48,000 square feet of
new mall tenant space in the building vacated when Saks Fifth Avenue moved to
the I. Magnin site at Biltmore. The new stores will open beginning in the spring
of 1997 and will be fully open in the fall of 1997. The project is expected to
cost approximately $8 million.
The Mall at Tuttle Crossing, a 980,000 square foot Center in northwest
Columbus, Ohio, will be anchored by Marshall Field's, Lazarus, JCPenney and
Sears. TRG is leasing the land and mall buildings from Tuttle Holding Co., which
owns the land on which the Center is being built. TRG will make ninety annual
minimum lease payments of $4.4 million beginning when the Center opens in July
1997. Substantially all of each payment in the first ten years of operation will
be recognized as interest expense. TRG will also pay additional rent based on
achieved levels of net operating income, a measure of operating performance
before rent payments, as specified in the agreement (NOI); 100% of the portion
of NOI which is over $11.6 million but less than or equal to $14.4 million, 30%
of the portion of NOI between $14.4 million and $18.3 million, and 50% of the
portion of NOI over $18.3 million. TRG estimates this additional rent, which
will be recognized as other operating expense, will approximate $2 million to $3
million annually beginning in 1999. Substantially all of the Center's mall GLA
has been leased. The Center is expected to cost approximately $115 million,
including capital lease assets of $55 million.
- 25 -
<PAGE>
Arizona Mills, an enclosed value super-regional mall in Tempe, Arizona, is
opening in November 1997. TRG has a 37% ownership interest in Arizona Mills. The
leasing of the Center is proceeding on schedule with leases on approximately 68%
of the in-line tenant space signed or out for signature. The 1.2 million square
foot value-oriented mall is expected to cost approximately $180 million.
MacArthur Center, a new Center being developed by TRG in Norfolk, Virginia, is
expected to open in the spring of 1999. The Center is expected to total 1.1
million square feet and will initially be anchored by Nordstrom and Dillard's.
This Center will be owned by a joint venture in which TRG has a 70% interest and
is projected to cost approximately $150 million.
In 1996, TRG entered into an agreement to lease Memorial City Mall, a 1.4
million square foot shopping center located in Houston, Texas. Memorial City is
anchored by Sears, Foley's, Montgomery Ward and Mervyn's. TRG has the option to
terminate the lease after the third full year by paying $2 million to the
lessor. TRG is using this option period to evaluate the redevelopment
opportunities of the Center. Under the terms of the lease, TRG has agreed to
invest a minimum of $3 million during the three year option period. If the
redevelopment proceeds, TRG is required to invest an additional $22 million in
property expenditures not recoverable from tenants during the first 10 years of
the lease term.
TRG's share of costs for development and expansion projects currently under
construction and scheduled to be completed in 1998 and 1999 is anticipated to be
as much as $60 million in 1998 and $19 million in 1999.
TRG's estimates regarding capital expenditures presented above are
forward-looking statements and certain significant factors could cause the
actual results to differ materially, including but not limited to: 1) actual
results of negotiations with anchors, tenants and contractors; 2) changes in the
scope of projects; 3) cost overruns; 4) timing of expenditures; and 5) actual
time to complete projects.
Capital Resources
TRG believes that its net cash provided by operating activities, together with
distributions from the Joint Ventures, the unutilized portion of its credit
facilities and its ability to generate cash from the issuance of medium-term
notes under TRG's shelf registration statement, other securities offerings or
mortgage financings, assure adequate liquidity to conduct its operations in
accordance with its distribution and financing policies.
The financing of TRG is intended to maintain an investment grade credit rating
for TRG and (i) minimize, to the extent practical, secured indebtedness
encumbering TRG's wholly owned properties, (ii) mitigate TRG's exposure to
increases in floating interest rates, (iii) assure that the amount of debt
maturing in any future year will not pose a significant refinancing risk, (iv)
provide for additional capital and liquidity resources, and (v) maintain average
maturities for TRG's debt obligations of between five and ten years. TRG's
intent to continue to minimize secured indebtedness is dependent on actions
taken by credit rating agencies and market conditions.
TRG expects to finance its capital requirements, including development,
expansions and working capital, with available cash, borrowings under its lines
of credit and cash from future securities offerings under its medium-term note
program, other securities offerings, or mortgage financings. TRG's acquisition
activities are discretionary in nature, and will only be undertaken by TRG after
arranging adequate financing on terms that are consistent with TRG's financing
policies. TRG's Joint Ventures expect to finance development and expansion
spending with secured debt to the extent it is available.
TRG's borrowings are not and will not be recourse to the Company without its
consent.
- 26 -
<PAGE>
Cash Tender Agreement
A. Alfred Taubman and the GM Trusts each have the annual right to tender to
the Company units of partnership interest in TRG (provided that the aggregate
value is at least $50 million) and cause the Company to purchase the tendered
interests at a purchase price based on a market valuation of the Company on the
trading date immediately preceding the date of the tender (the Cash Tender
Agreement). The Company will have the option to pay for these interests from
available cash, borrowed funds, or from the proceeds of an offering of the
Company's common stock. Generally, the Company expects to finance these
purchases through the sale of new shares of its stock. The tendering partners
will bear all market risk if the market price at closing is less than the
purchase price. Any proceeds of the offering in excess of the purchase price
will be for the sole benefit of the Company. At A. Alfred Taubman's election,
his family, and Robert C. Larson and his family may participate in tenders. The
GM Trusts will be entitled to receive from TRG an amount (not to exceed $10.9
million in the aggregate over the term of the Partnership) equal to 5.5% of the
amounts that the Company pays to the GM Trusts under the Cash Tender Agreement.
Based on a market value at December 31, 1996 and March 31, 1997 of $12.875 and
$13.00 per common share, the aggregate value of interests in TRG that may be
tendered under the Cash Tender Agreement was approximately $954 million and $963
million, respectively. Purchase of these interests at March 31, 1997 would have
resulted in the Company owning an additional 53% interest in TRG.
Although certain partners in TRG have pledged, and other partners may pledge,
their units of partnership interest, the Company is not aware of any present
intention of any partner to sell its interest in TRG.
- 27 -
<PAGE>
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
4 -- Amended and Restated Revolving Loan Agreement dated as of
March 5, 1997 (the "Revolving Loan Agreement"), among The
Taubman Realty Group Limited Partnership, as Borrower, Union
Bank of Switzerland, (New York Branch), as a Bank, the other
Banks signatory to the Revolving Loan Agreement, each as a
Bank, and Union Bank of Switzerland (New York Branch), as
Administrative Agent.
10 -- Employment Agreement between The Taubman Company Limited
Partnership and Lisa A. Payne.
11 -- Statement Re: Computation of Per Share Earnings.
12 -- Statement Re: Computation of Ratios of Earnings to Fixed
Charges.
27 -- Financial Data Schedule.
b) Current Reports on Form 8-K.
None
- 28 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
TAUBMAN CENTERS, INC.
Date: May 12, 1997 By: /s/ Lisa A. Payne
----------------------------
Lisa A. Payne
Executive Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit
Number
-------
4 -- Amended and Restated Revolving Loan Agreement dated as of
March 5, 1997 (the "Revolving Loan Agreement"), among The
Taubman Realty Group Limited Partnership, as Borrower, Union
Bank of Switzerland, (New York Branch), as a Bank, the other
Banks signatory to the Revolving Loan Agreement, each as a
Bank, and Union Bank of Switzerland (New York Branch), as
Administrative Agent.
10 -- Employment Agreement between The Taubman Company Limited
Partnership and Lisa A. Payne.
11 -- Statement Re: Computation of Per Share Earnings.
12 -- Statement Re: Computation of Ratios of Earnings to Fixed
Charges.
27 -- Financial Data Schedule.
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
REVOLVING LOAN AGREEMENT
dated as of March 5, 1997
among
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP,
as Borrower,
UNION BANK OF SWITZERLAND
(New York Branch),
as a Bank,
the other Banks signatory hereto, each as a Bank
and
UNION BANK OF SWITZERLAND
(New York Branch),
as Administrative Agent
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; ETC.
Section 1.01 Definitions........................................... 1
-----------
Section 1.02 Accounting Terms...................................... 18
----------------
Section 1.03 Computation of Time Periods........................... 18
---------------------------
Section 1.04 Rules of Construction................................. 18
---------------------
ARTICLE II. THE LOANS
Section 2.01 The Loans; Bid Rate Loans; Purpose.................... 18
----------------------------------
Section 2.02 Bid Rate Loans........................................ 19
--------------
Section 2.03 Advances, Generally................................... 22
-------------------
Section 2.04 Procedures for Advances............................... 23
-----------------------
Section 2.05 Intentionally Omitted................................. 23
---------------------
Section 2.06 Interest Periods; Renewals............................ 23
--------------------------
Section 2.07 Interest.............................................. 24
--------
Section 2.08 Fees.................................................. 24
----
Section 2.09 Notes................................................. 25
-----
Section 2.10 Prepayments........................................... 26
-----------
Section 2.11 Changes of Commitments................................ 26
----------------------
Section 2.12 Method of Payment..................................... 26
-----------------
Section 2.13 Elections, Conversions or Continuation
--------------------------------------
of Loans............................................. 27
--------
Section 2.14 Minimum Amounts....................................... 27
---------------
Section 2.15 Certain Notices Regarding Elections,
------------------------------------
Conversions and Continuations of Loans............... 27
--------------------------------------
Section 2.16 Intentionally Omitted................................. 28
---------------------
Section 2.17 Late Payment Premium.................................. 28
--------------------
Section 2.18. Letters of Credit.................................... 28
-----------------
ARTICLE III. YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs...................................... 30
----------------
Section 3.02 Limitation on Types of Loans.......................... 31
----------------------------
Section 3.03 Illegality............................................ 32
----------
Section 3.04 Treatment of Affected Loans........................... 32
---------------------------
Section 3.05 Certain Compensation.................................. 33
--------------------
Section 3.06 Capital Adequacy...................................... 34
----------------
Section 3.07 Substitution of Banks................................. 34
---------------------
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Initial
-----------------------------------
Advance.............................................. 36
-------
Section 4.02 Conditions Precedent to Advances After
--------------------------------------
the Initial Advance.................................. 37
-------------------
Section 4.03 Deemed Representations................................ 38
----------------------
i
<PAGE>
Page
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Section 5.01 Due Organization...................................... 38
----------------
Section 5.02 Power and Authority; No Conflicts;
----------------------------------
Compliance With Laws................................. 38
--------------------
Section 5.03 Legally Enforceable Agreements........................ 39
------------------------------
Section 5.04 Litigation............................................ 39
----------
Section 5.05 Good Title to Properties.............................. 39
------------------------
Section 5.06 Taxes................................................. 39
-----
Section 5.07 ERISA................................................. 39
-----
Section 5.08 No Default on Outstanding Judgments or
--------------------------------------
Orders............................................... 40
------
Section 5.09 No Defaults on Other Agreements....................... 40
-------------------------------
Section 5.10 Government Regulation................................. 40
---------------------
Section 5.11 Environmental Protection.............................. 40
------------------------
Section 5.12 Solvency.............................................. 41
--------
Section 5.13 Financial Statements.................................. 41
--------------------
Section 5.14 Valid Existence of Affiliates......................... 41
-----------------------------
Section 5.15 Insurance............................................. 41
---------
Section 5.16 Accuracy of Information; Full
-----------------------------
Disclosure........................................... 41
----------
ARTICLE VI. AFFIRMATIVE COVENANTS
Section 6.01 Maintenance of Existence.............................. 42
------------------------
Section 6.02 Maintenance of Records................................ 42
----------------------
Section 6.03 Maintenance of Insurance.............................. 42
------------------------
Section 6.04 Compliance with Laws; Payment of Taxes................ 42
--------------------------------------
Section 6.05 Right of Inspection................................... 42
-------------------
Section 6.06 Compliance With Environmental Laws.................... 42
----------------------------------
Section 6.07 Payment of Costs...................................... 43
----------------
Section 6.08 Maintenance of Properties............................. 43
-------------------------
Section 6.09 Reporting and Miscellaneous Document
------------------------------------
Requirements......................................... 43
------------
ARTICLE VII. NEGATIVE COVENANTS
Section 7.01 Mergers Etc........................................... 47
-----------
Section 7.02 Investments........................................... 47
-----------
Section 7.03 Sale of Assets........................................ 47
--------------
Section 7.04 Interest Rate Hedging................................. 47
---------------------
Section 7.05 Partnership Committee of Borrower..................... 48
---------------------------------
SECTION 7.06 ENCUMBRANCE OF CERTAIN ASSETS......................... 48
-----------------------------
ARTICLE VIII. FINANCIAL COVENANTS
Section 8.01 Net Worth............................................. 48
---------
Section 8.02 Relationship of Total Outstanding
----------------------------------
Indebtedness to Gross Asset Value.................... 48
---------------------------------
ii
<PAGE>
Page
Section 8.03 Relationship of Secured Indebtedness to
---------------------------------------
Gross Asset Value.................................... 49
-----------------
Section 8.04 Relationship of Combined EBITDA to
----------------------------------
Interest Expense..................................... 49
----------------
Section 8.05 Relationship of Combined EBITDA to
----------------------------------
Adjusted Total Outstanding Indebtedness.............. 49
---------------------------------------
Section 8.06 Combined EBTDA........................................ 49
--------------
Section 8.07 Unsecured Debt Yield.................................. 49
--------------------
Section 8.08 Relationship of Unencumbered Combined
-------------------------------------
EBITDA to Interest Expense on Unsecured
---------------------------------------
Indebtedness.......................................... 49
------------
ARTICLE IX. EVENTS OF DEFAULT
Section 9.01 Events of Default..................................... 49
-----------------
Section 9.02 Remedies.............................................. 52
--------
ARTICLE X. THE ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS
Section 10.01 Appointment, Powers and Immunities of
-------------------------------------
Administrative Agent................................. 52
--------------------
Section 10.02 Reliance by Administrative Agent...................... 53
--------------------------------
Section 10.03 Defaults.............................................. 53
--------
Section 10.04 Rights of Administrative Agent as a
-----------------------------------
Bank................................................. 54
----
Section 10.05 Indemnification of Administrative Agent............... 54
---------------------------------------
Section 10.06 Non-Reliance on Administrative Agent and
----------------------------------------
Other Banks.......................................... 54
-----------
Section 10.07 Failure of Administrative Agent to Act................ 55
--------------------------------------
Section 10.08 Resignation or Removal of Administrative
----------------------------------------
Agent................................................ 55
-----
Section 10.09 Amendments Concerning Agency Function................. 56
-------------------------------------
Section 10.10 Liability of Administrative Agent..................... 56
---------------------------------
Section 10.11 Transfer of Agency Function........................... 56
---------------------------
Section 10.12 Non-Receipt of Funds by Administrative
--------------------------------------
Agent................................................ 56
-----
Section 10.13 Withholding Taxes..................................... 57
-----------------
Section 10.14 Minimum Commitment by UBS............................. 57
-------------------------
Section 10.15 Pro Rata Treatment.................................... 57
------------------
Section 10.16 Sharing of Payments Among Banks....................... 57
-------------------------------
Section 10.17 Possession of Documents............................... 58
-----------------------
ARTICLE XI. NATURE OF OBLIGATIONS
Section 11.01 Absolute and Unconditional Obligations................ 58
--------------------------------------
Section 11.02 Non-Recourse to TRG Partners.......................... 58
----------------------------
iii
<PAGE>
ARTICLE XII. MISCELLANEOUS
Section 12.01 Binding Effect of Request for Advance................. 59
-------------------------------------
Section 12.02 Amendments and Waivers................................ 59
----------------------
Section 12.03 Usury................................................. 60
-----
Section 12.04 Expenses; Indemnification............................. 60
-------------------------
Section 12.05 Assignment; Participation............................. 61
-------------------------
Section 12.06 Documentation Satisfactory............................ 63
--------------------------
Section 12.07 Notices............................................... 63
-------
Section 12.08 Setoff................................................ 63
------
Section 12.09 Table of Contents; Headings........................... 64
---------------------------
Section 12.10 Severability.......................................... 64
------------
Section 12.11 Counterparts.......................................... 64
------------
Section 12.12 Integration........................................... 64
-----------
SECTION 12.13 GOVERNING LAW......................................... 64
-------------
Section 12.14 Waivers............................................... 64
-------
SECTION 12.15 JURISDICTION; IMMUNITIES.............................. 65
------------------------
EXHIBIT A - Facility Fee Amounts
EXHIBIT B - Authorization Letter
EXHIBIT C-1 - Ratable Loan Note
EXHIBIT C-2 - Bid Rate Loan Note
EXHIBIT D - List of Affiliates
EXHIBIT E - Solvency Certificate
EXHIBIT F - Assignment and Assumption Agreement
EXHIBIT G-1 - Bid Rate Quote Request
EXHIBIT G-2 - Invitation for Bid Rate Quotes
EXHIBIT G-3 - Bid Rate Quote
EXHIBIT G-4 - Borrower's Acceptance of Bid Rate Quote
iv
<PAGE>
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT ("this Agreement")
dated as of March 5, 1997 among THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP, a
limited partnership organized and existing under the laws of the State of
Delaware ("Borrower"), UNION BANK OF SWITZERLAND (New York Branch), as agent for
the Banks (in such capacity, together with its successors in such capacity, the
"Administrative Agent"), and UNION BANK OF SWITZERLAND (New York Branch) (in its
individual capacity and not as the Administrative Agent, "UBS") and the lenders
signatory hereto (UBS, said other lenders signatory hereto, and the lenders who
from time to time become Banks pursuant to Section 3.07 or 12.05, each a "Bank"
and collectively, the "Banks").
Borrower, UBS and the Administrative Agent entered into a Revolving
Loan Agreement dated as of April 29, 1994 (the "Prior Credit Agreement"), which
provided for a revolving line of credit in the amount of up to One Hundred Fifty
Million Dollars ($150,000,000) in favor of Borrower. The Prior Credit Agreement
was amended by letter agreements dated July 21, 1994, August 10, 1994 (which,
among other things, increased the amount of the credit provided thereby to up to
Two Hundred Million Dollars ($200,000,000)) and June 20, 1995. In addition,
pursuant to the terms and provisions of the Prior Credit Agreement, the lenders
who are identified on the signature pages hereof have become "Banks" thereunder.
Borrower, has now requested certain additional amendments to the
Prior Credit Agreement (as heretofore modified as set forth above) to, among
other things, (i) increase the amount of the credit provided thereby to up to
Three Hundred Million Dollars ($300,000,000) and (ii) extend the Maturity Date
thereof to March 5, 2000. The Administrative Agent and the Banks have agreed to
Borrower's request pursuant to the terms and conditions of this Amended and
Restated Revolving Loan Agreement, which supersedes the Prior Credit Agreement
(as previously modified) in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and conditions hereinafter set forth, the Prior Credit
Agreement (as previously modified) is hereby amended and restated in its
entirety and Borrower, the Administrative Agent and each of the Banks agree as
follows:
ARTICLE I. DEFINITIONS; ETC.
Section 1.01 Definitions. As used in this Agreement the following
terms have the following meanings (except as otherwise provided, terms defined
in the singular to have a correlative meaning when used in the plural and vice
versa):
"Acquisition Indebtedness Adjustment" means, as of any date, the
aggregate, for all acquisitions that occurred during the twelve (12)-month
period ending on such date, of the product of (1) the increase in Total
Outstanding Indebtedness as a result of indebtedness assumed and/or incurred in
connection with the acquisition and which is still outstanding as of such date,
multiplied by (2) the ratio of (A) three hundred sixty five (365)
<PAGE>
minus the number of days between the closing of the acquisition and such date to
(B) three hundred sixty five (365).
"Acquisition Unsecured Indebtedness Adjustment" means, as of any
date, the aggregate, for all acquisitions that occurred during the twelve
(12)-month period ending on such date, of the product of (1) the increase in
Unsecured Indebtedness as a result of unsecured indebtedness assumed and/or
incurred in connection with the acquisition and which is still outstanding as of
such date, multiplied by (2) the ratio of (A) three hundred sixty five (365)
minus the number of days between the closing of the acquisition and such date to
(B) three hundred sixty five (365).
"Adjusted Total Outstanding Indebtedness" means, as of any date,
Total Outstanding Indebtedness plus the Disposition Indebtedness Adjustment less
the Acquisition Indebtedness Adjustment.
"Adjusted Unsecured Indebtedness" means, as of any date, Unsecured
Indebtedness plus the Disposition Unsecured Indebtedness Adjustment less the
Acquisition Unsecured Indebtedness Adjustment.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means the Administrative Agent's
address located at 299 Park Avenue, New York, NY 10171, or such other address in
the United States as the Administrative Agent may designate by written notice to
Borrower and the Banks.
"Affiliate" means, with respect to any Person (the "first Person"),
any other Person: (1) which directly or indirectly controls, or is controlled
by, or is under common control with the first Person; or (2) ten percent (10%)
or more of the beneficial interest in which is directly or indirectly owned or
held by the first Person. The term "control" means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agreement" means this Revolving Loan Agreement, as amended,
supplemented or modified from time to time.
"Applicable Lending Office" means, for each Bank and for its LIBOR
Loan, Bid Rate Loan(s) or Base Rate Loan, as applicable, the lending office of
such Bank (or of an Affiliate of such Bank) designated as such on its signature
page hereof or in the applicable Assignment and Assumption Agreement, or such
other office of such Bank (or of an Affiliate of such Bank) as such Bank may
from time to time specify to the Administrative Agent and Borrower as the office
by which its LIBOR Loan, Bid
2
<PAGE>
Rate Loan(s) or Base Rate Loan, as applicable, is to be made and maintained.
"Applicable Margin" means, with respect to Base Rate Loans and LIBOR
Loans, the respective rates per annum determined, at any time, based on
Borrower's Credit Rating at the time, in accordance with the following table.
Any change in Borrower's Credit Rating causing it to move to a different range
on the table shall effect an immediate change in the Applicable Margin.
================================================================================
Borrower's Credit Rating Applicable Margin Applicable Margin
(S&P/Moody's/Duff & for Base Rate Loans for LIBOR Loans
Phelps/Fitch Ratings) (% per annum) (% per annum)
- --------------------------------------------------------------------------------
A/A2/A/A or higher 0.00 0.60
- --------------------------------------------------------------------------------
A-/A3/A-/A- 0.00 0.70
- --------------------------------------------------------------------------------
BBB+/Baal/BBB+/BBB+ 0.00 0.80
- --------------------------------------------------------------------------------
BBB/Baa2/BBB/BBB 0.00 0.90
- --------------------------------------------------------------------------------
BBB-/Baa3/BBB-/BBB- 0.00 1.00
- --------------------------------------------------------------------------------
Below BBB-/Baa3/BBB-/BBB-
or unrated 0.35 1.35
================================================================================
"Assignee" has the meaning specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT F hereto, pursuant to
which a Bank assigns and an Assignee assumes rights and obligations in
accordance with Section 12.05.
"Authorization Letter" means a letter agreement executed by Borrower
in the form of EXHIBIT B hereto.
"Available Total Loan Commitment" has the meaning specified in
Section 2.01(b).
"Bank" and "Banks" have the respective meanings specified in the
preamble.
"Bank Parties" means the Administrative Agent and the Banks.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, a Bid Rate Loan, an Interest Period with respect to a
LIBOR Loan or a Bid Rate Loan, or notice with respect to a LIBOR Loan or a Bid
Rate Loan, a day on which dealings in Dollar deposits are also carried
3
<PAGE>
out in the London interbank market and banks are open for business in London.
"Banks' Valuation Consultant" means Landauer Associates, Inc. or
such other appraisal firm(s) selected by the Administrative Agent and reasonably
acceptable to Borrower.
"Base Rate" means, for any day, the higher of (1) the Federal Funds
Rate for such day plus one-half percent (.50%), or (2) the Prime Rate for such
day.
"Base Rate Loan" means all or any portion (as the context requires)
of a Bank's Ratable Loan which shall accrue interest at a rate determined in
relation to the Base Rate.
"Bid Borrowing Limit" means fifty percent (50%) of the Total Loan
Commitment.
"Bid Rate Loan" has the meaning specified in Section 2.01(c).
"Bid Rate Loan Note" has the meaning specified in Section 2.09.
"Bid Rate Quote" means an offer by a Bank to make a Bid Rate Loan in
accordance with Section 2.02.
"Bid Rate Quote Request" has the meaning specified in Section
2.02(a).
"Borrower's Accountants" means Deloitte & Touche, or such other
accounting firm(s) selected by Borrower and reasonably acceptable to the
Required Banks.
"Borrower" has the meaning specified in the preamble.
"Borrower's Credit Rating" means the lower of the two (2) ratings
(if there are only two (2) ratings) or the lower of the two (2) highest ratings
(if there are more than two (2) ratings) assigned from time to time to
Borrower's unsecured and unsubordinated long-term indebtedness by, respectively,
S&P, Moody's, Duff & Phelps and Fitch. Unless such indebtedness of Borrower is
rated by at least two (2) of the rating agencies identified above, at least one
(1) of which must be either S&P or Moody's, "Borrower's Credit Rating" shall be
considered unrated for purposes of determining both the Applicable Margin and
Commitment Fee Rate.
"Capital Lease" means any lease which has been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Closing Date" means the date this Agreement has been executed by
all parties.
4
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Combined EBTDA" means, for any period of time, Combined EBITDA less
Interest Expense.
"Combined EBITDA" means, for any period of time, (1) revenues less
operating costs before interest, depreciation and amortization and unusual items
for Borrower and its Consolidated Businesses (based on the accounting principles
reflected in the TRG Consolidated Financial Statements as of and for the year
ended December 31, 1995 contained in the Form 10-K for such period of TRG, and
assuming that any dividends paid on any equity security shall not be deducted in
calculating Combined EBITDA unless such equity security may be converted into a
debt security at any time or is mandatorily redeemable for cash within twenty
(20) years from its initial issuance) plus (2) Borrower's beneficial interest in
revenues less operating costs before interest, depreciation and amortization and
unusual items (after eliminating appropriate intercompany amounts) applicable to
each of the UJVs.
"Commitment Fee Rate" means the rate per annum determined, at any
time, based on Borrower's Credit Rating, in accordance with the following table.
Any change in Borrower's Credit Rating which causes it to move into a different
range on the table shall effect an immediate change in the Commitment Fee Rate.
Borrower's Credit Rating Commitment Fee Rate
(S&P/Moody's/Duff & Phelps/Fitch Ratings) (% per annum)
A/A2/A/A or higher 0.15
A-/A3/A-/A- 0.15
BBB+/Baa1/BBB+/BBB+ 0.20
BBB/Baa2/BBB/BBB 0.20
BBB-/Baa3/BBB-/BBB- 0.25
Below BBB-/Baa3/BBB-/BBB- or unrated 0.25
"Consolidated Businesses" means, collectively (1) each Affiliate of
Borrower, all of the equity interests of which are, or, under GAAP, are deemed
to be, owned by Borrower and (2) Taub- Co Management Inc., The Taubman Company
Limited Partnership and their respective Affiliates so long as more than 90% of
the equity interests in the entities referred to in this clause (2) are owned
directly or indirectly by Borrower.
"Consolidated Outstanding Indebtedness" means, as of any time,
mortgage notes payable and other notes payable of
5
<PAGE>
Borrower and its Consolidated Businesses, as reflected in the TRG Consolidated
Financial Statements.
"Contingent Liabilities" means the sum of (1) those liabilities, as
determined in accordance with GAAP, set forth and quantified as contingent
liabilities in the notes to the TRG Consolidated Financial Statements and (2)
contingent liabilities, other than those described in the foregoing clause (1),
which represent direct payment guaranties of Borrower; provided, however, that
Contingent Liabilities shall exclude contingent liabilities which represent the
"Other Party's Share" of "Duplicated Obligations" (as such quoted terms are
hereinafter defined). "Duplicated Obligations" means, collectively, all those
payment guaranties in respect of Debt of UJVs for which Borrower and another
party are jointly and severally liable, where the other party is, in the sole
judgment of the Required Banks, capable of satisfying the Other Party's Share of
such obligation. "Other Party's Share" means such other party's fractional
beneficial interest in the UJV in question.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.13 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion
pursuant to Section 2.13 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan
into a Base Rate Loan, each of which may be accompanied by the transfer by a
Bank (at its sole discretion) of all or a portion of its Ratable Loan from one
Applicable Lending Office to another.
"Debt" means: (1) indebtedness or liability for borrowed money, or
for the deferred purchase price of property or services (including trade
obligations); (2) obligations as lessee under Capital Leases; (3) current
liabilities in respect of unfunded vested benefits under any Plan; (4)
obligations under letters of credit issued for the account of any Person; (5)
all obligations arising under bankers' or trade acceptance facilities; (6) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase any of the
items included in this definition, to provide funds for payment, to supply funds
to invest in any Person, or otherwise to assure a creditor against loss; (7) all
obligations secured by any Lien on property owned by the Person whose Debt is
being measured, whether or not the obligations have been assumed; and (8) all
obligations under any agreement providing for contingent participation or other
hedging mechanisms with respect to interest payable on any of the items
described above in this definition.
"Default" means any event which with the giving of notice or lapse
of time, or both, would become an Event of Default.
6
<PAGE>
"Default Rate" means a rate per annum equal to: (1) with respect to
Base Rate Loans, a variable rate three percent (3%) above the rate of interest
then in effect thereon (including the Applicable Margin); and (2) with respect
to LIBOR Loans and Bid Rate Loans, a fixed rate three percent (3%) above the
rate(s) of interest in effect thereon (including the Applicable Margin or LIBOR
Bid Margin, as the case may be) at the time of Default until the end of the then
current Interest Period therefor and, thereafter, a variable rate three percent
(3%) above the rate of interest for a Base Rate Loan (including the Applicable
Margin).
"Disposition" means a sale (whether by assignment, transfer or
Capital Lease) of an asset.
"Disposition Indebtedness Adjustment" means, as of any date, the
aggregate, for all Dispositions that occurred during the twelve (12)-month
period ending on such date, of the product of (1) the reduction in Total
Outstanding Indebtedness as a result of indebtedness repaid in connection with
the Disposition, multiplied by (2) the ratio of (A) three hundred sixty five
(365) minus the number of days between the closing of the Disposition and such
date to (B) three hundred sixty five (365).
"Disposition Unsecured Indebtedness Adjustment" means, as of any
date, the aggregate, for all Dispositions that occurred during the twelve
(12)-month period ending on such date, of the product of (1) the reduction in
Unsecured Indebtedness as a result of unsecured indebtedness repaid in
connection with the Disposition, multiplied by (2) the ratio of (A) three
hundred sixty five (365) minus the number of days between the closing of the
Disposition and such date to (B) three hundred sixty five (365).
"Documentation Agent" means Morgan Guaranty Trust Company of New
York.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Duff & Phelps" means Duff & Phelps Credit Rating Company.
"Elect", "Election" and "Elected" refer to election, if any, by
Borrower pursuant to Section 2.13 to have all or a portion of an advance of the
Ratable Loans be outstanding as LIBOR Loans.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any Law relating to pollution or the
environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of
7
<PAGE>
Hazardous Materials into the work place, the community or the environment, or
otherwise relating to the generation, manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person (1)
affecting or relating to Borrower's compliance with any Environmental Law in
connection with any activity or operations at any time conducted by Borrower,
(2) relating to the occurrence or presence of or exposure to or possible or
threatened or alleged occurrence or presence of or exposure to Environmental
Discharges or Hazardous Materials at any of Borrower's locations or facilities,
including, without limitation: (a) the existence of any contamination or
possible or threatened contamination at any such location or facility and (b)
remediation of any Environmental Discharge or Hazardous Materials at any such
location or facility or any part thereof; and (3) any violation or alleged
violation of any relevant Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, including any rules and regulation promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business which
is a member of the same controlled group of organizations (within the meaning of
Section 414(b) of the Code) as Borrower or is under common control (within the
meaning of Section 414(c) of the Code) with Borrower.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means, for any day, the rate per annum
(expressed on a 360-day basis of calculation) equal to the weighted average of
the rates on overnight federal funds transactions as published by the Federal
Reserve Bank of New York for such day provided that (1) if such day is not a
Banking Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the immediately preceding Banking Day as so published on the
next succeeding Banking Day, and (2) if no such rate is so published on such
next succeeding Banking Day, the Federal Funds Rate for such day shall be the
average of the rates quoted by three (3) Federal Funds brokers to the
Administrative Agent on such day on such transactions.
"Fiscal Year" means each period from January 1 to December 31.
"Fitch" means Fitch Investors Service, L.P.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time,
8
<PAGE>
applied on a basis consistent with those used in the preparation of the
financial statements referred to in Section 5.13 (except for changes concurred
in by Borrower's Accountants).
"Good Faith Contest" means the contest of an item if: (1) the item
is diligently contested in good faith, and, if appropriate, by proceedings
timely instituted; (2) adequate reserves are established with respect to the
contested item; (3) during the period of such contest, the enforcement of any
contested item is effectively stayed; and (4) the failure to pay or comply with
the contested item during the period of the contest is not likely to result in a
Material Adverse Change.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Gross Asset Value" means, as of any time, an amount, determined
annually as of June 30th of each year and effective for the twelve (12)-month
period beginning on the day after such date, equal to the sum of:
(i) the lesser of (1) the aggregate book value of the long-term
assets of Borrower, as reflected in the TRG Consolidated Financial
Statements as of and for the year ended such June 30th, other than those
assets described in clause (ii) below, or (2) five percent (5%) of the
amount determined pursuant to said clause (ii); and
(ii) the amount, determined by Borrower with the concurrence of the
Banks' Valuation Consultant, equal to the aggregate of the then-current
values, on a free and clear basis, of the real properties owned or leased,
directly or indirectly, in whole or part, by Borrower, which are included
in the TRG Consolidated Financial Statements as of and for the year ended
as of such June 30th, multiplied by Borrower's respective beneficial
interests in such assets (it being understood that the Banks' Valuation
Consultant shall not determine the fractional beneficial interest of
Borrower in such real properties);
in each case, as adjusted for any Dispositions or acquisitions subsequent to the
most recent annual determination of Gross Asset Value by:
(1) in the case of Dispositions of assets described in clause (i)
above, deducting the book value of the asset disposed of, as reflected in
such annual determination, less
9
<PAGE>
the excess, if any, of the amount determined pursuant to clause (i)(1)
above over the amount determined pursuant to clause (i)(2) above (in each
case, prior to the Disposition in question),
(2) in the case of Dispositions of assets described in clause (ii)
above, deducting the value for the asset determined pursuant to clause
(ii) above,
(3) in the case of acquisitions of assets described in clause (i)
above, adding the Purchase Price for the acquired asset, and
(4) in the case of acquisitions of assets described in clause (ii)
above, adding the lesser of (A) the Purchase Price for the acquired asset
or (B) the acquired asset's trailing twelve (12)-month net operating
income, less any management fee adjustment, if applicable, capitalized at
a rate of 8% per annum; provided, however, that at Borrower's request and
expense, the Administrative Agent shall promptly cause the Banks'
Valuation Consultant to appraise the acquired asset and, upon the
completion of such appraisal, provided such appraisal is reasonably
satisfactory to the Administrative Agent, the appraised value of the
acquired asset as determined in such appraisal shall be substituted for
the amount calculated pursuant to clauses (A) and (B) above.
In no event shall any adjustment pursuant to clauses (2) or (3) above cause the
component of Gross Asset Value determined pursuant to clause (i) above to exceed
five percent (5%) of the component determined pursuant to clause (ii) above. Any
adjustment, pursuant to the operation of clauses (2) or (4) above, to the amount
determined pursuant to clause (ii) above shall also effect an automatic
adjustment to the component of Gross Asset Value determined pursuant to clause
(i) above by reason of the operation of clause (i)(2).
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Initial Advance" means the first advance of proceeds of the Loans.
"Interest Expense" means, for any period of time, the consolidated
interest expense (without deduction of consolidated interest income) of Borrower
and its Consolidated Businesses (based on the accounting principles reflected in
the TRG Consolidated Financial Statements as of and for the year ended December
31, 1995 contained in the Form 10-K for such period of
10
<PAGE>
TRG), including, without limitation or duplication (or, to the extent not so
included, with the addition of), (1) the portion of any rental obligation in
respect of any Capital Lease obligation allocable to interest expense in
accordance with GAAP; (2) the amortization of Debt discounts; (3) any payments
or receipts (other than up-front fees) with respect to interest rate swap or
similar agreements; (4) any dividends attributable to any equity security which
may be converted into a debt security of Borrower at any time or is mandatorily
redeemable for cash within twenty (20) years from its initial issuance; and (5)
the interest expense and items listed in clauses (1) through (4) above
applicable to each of the UJVs multiplied by Borrower's respective beneficial
interests in the UJVs (it being understood that the items listed in clauses (1),
(2) and (3) above shall be considered part of Interest Expense even if, due to a
change in GAAP, such items would no longer be considered interest expense under
GAAP).
"Interest Period" means, (1) with respect to any LIBOR Loan, the
period commencing on the date the same is advanced, converted from a Base Rate
Loan or Continued, as the case may be, and ending, as Borrower may select
pursuant to Section 2.06, on the numerically corresponding day in the first,
second or third calendar month thereafter, provided that each such Interest
Period which commences on the last Banking Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Banking Day of the appropriate
calendar month; and (2) with respect to any Bid Rate Loan, the period commencing
on the date the same is advanced and ending, as Borrower may select pursuant to
Section 2.02, on the numerically corresponding day in the first, second, third,
sixth or twelfth calendar month thereafter, provided that each such Interest
Period which commences on the last Banking Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Banking Day of the appropriate
calendar month.
"Invitation for Bid Rate Quotes" has the meaning specified in
Section 2.02(b).
"Law" means any federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof by a
Governmental Authority or otherwise, including any judicial or administrative
order, consent decree or judgment.
"Letter of Credit" has the meaning specified in Section 2.18(a).
"LIBOR Base Rate" means, with respect to any Interest Period
therefor, the rate per annum (rounded upwards if necessary
11
<PAGE>
to the nearest 1/16 of 1%) quoted at approximately 11:00 a.m., New York time, by
the principal New York branch of UBS two (2) Banking Days prior to the first day
of such Interest Period for the offering to leading banks in the London
interbank market of Dollar deposits in immediately available funds, for a
period, and in an amount, comparable to such Interest Period and principal
amount of the LIBOR Loan or Bid Rate Loan, as the case may be, in question
outstanding during such Interest Period.
"LIBOR Bid Margin" has the meaning specified in Section 2.02(c)(2).
"LIBOR Bid Rate" means the rate per annum equal to the sum of (1)
the LIBOR Interest Rate for the Bid Rate Loan and Interest Period in question
and (2) the LIBOR Bid Margin.
"LIBOR Interest Rate" means, for any LIBOR Loan or Bid Rate Loan, a
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Administrative Agent to be equal to the quotient of (1) the
LIBOR Base Rate for such LIBOR Loan or Bid Rate Loan, as the case may be, for
the Interest Period therefor divided by (2) one minus the LIBOR Reserve
Requirement for such LIBOR Loan or Bid Rate Loan, as the case may be, for such
Interest Period.
"LIBOR Loan" means all or any portion (as the context requires) of
any Bank's Ratable Loan which shall accrue interest at rate(s) determined in
relation to LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan or Bid Rate
Loan, the rate at which reserves (including any marginal, supplemental or
emergency reserves) are actually required to be maintained during the Interest
Period for such LIBOR Loan or Bid Rate Loan under Regulation D by the applicable
Bank against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the LIBOR Reserve Requirement
shall also reflect any other reserves actually required to be maintained by any
Bank by reason of any Regulatory Change against (1) any category of liabilities
which includes deposits by reference to which the LIBOR Base Rate is to be
determined as provided in the definition of "LIBOR Base Rate" in this Section
1.01 or (2) any category of extensions of credit or other assets which include
loans the interest rate on which is determined on the basis of rates referred to
in said definition of "LIBOR Base Rate".
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment for collateral purposes, deposit arrangement, lien
(statutory or other), or other security agreement or charge of any kind or
nature whatsoever of any third party (excluding any right of setoff but
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing,
12
<PAGE>
and the filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction to evidence any of the foregoing).
"Loan" means, with respect to each Bank, its Ratable Loan and Bid
Rate Loan(s), collectively.
"Loan Commitment" means, with respect to each Bank, the obligation
to make a Ratable Loan in the principal amount set forth below or in such
Assignment and Assumption Agreement, as such amount may be reduced from time to
time in accordance with the provisions of Section 2.11 or pursuant to an
Assignment and Assumption Agreement:
Bank Loan Commitment
- ----------------------------------------- ---------------
UBS $ 31,000,000
Morgan Guaranty Trust Company of New York 31,000,000
Comerica Bank 31,000,000
Bayerische Hypotheken-und Wechsel-Bank 31,000,000
Aktiengesellschaft (New York Branch)
PNC Bank, National Association 25,000,000
Dresdner Bank AG 24,000,000
Bayerische Landesbank 14,000,000
Commerzbank Aktiengesellschaft, Chicago Branch 24,000,000
The First National Bank of Chicago 14,000,000
Fleet National Bank 24,000,000
NationsBank of Texas, N.A. 17,000,000
Landesbank Hessen-Thuringen Girozentrale, 24,000,000
New York Branch
The Sumitomo Bank Limited, acting 10,000,000
through its New York Branch ------------
Total $300,000,000
============
"Loan Documents" means this Agreement, the Notes and the Solvency
Certificates.
"Material Adverse Change" means either (1) a material adverse change
in the status of the business, results of operations, financial condition,
property or prospects of Borrower or (2) any event or occurrence of whatever
nature which is likely to have a material adverse effect on the ability of
Borrower to perform its obligations under the Loan Documents.
"Maturity Date" means March 5, 2000.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan defined as such in Section 3(37)
of ERISA to which contributions have been made by Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
13
<PAGE>
"Net Worth" means the excess of Gross Asset Value over Total
Outstanding Indebtedness.
"Note" and "Notes" have the respective meanings specified in Section
2.09.
"Obligations" means each and every obligation, covenant and
agreement of Borrower, now or hereafter existing, contained in this Agreement,
and any of the other Loan Documents, whether for principal, reimbursement
obligations, interest, fees, expenses, indemnities or otherwise, and any
amendments or supplements thereto, extensions or renewals thereof or
replacements therefor, including but not limited to all indebtedness,
obligations and liabilities of Borrower to the Administrative Agent and any Bank
now existing or hereafter incurred under or arising out of or in connection with
the Notes, this Agreement, the other Loan Documents, and any documents or
instruments executed in connection therewith; in each case whether direct or
indirect, joint or several, absolute or contingent, liquidated or unliquidated,
now or hereafter existing, renewed or restructured, whether or not from time to
time decreased or extinguished and later increased, created or incurred, and
including all indebtedness of Borrower, under any instrument now or hereafter
evidencing or securing any of the foregoing.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower or any ERISA
Affiliate of Borrower and which is covered by Title IV of ERISA or to which
Section 412 of the Code applies.
"presence", when used in connection with any Environmental Discharge
or Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time announced
by UBS at its Principal Office as its prime commercial lending rate.
14
<PAGE>
"Principal Office" means the principal office of UBS in the United
States, presently located at 299 Park Avenue, New York, New York 10171.
"Pro Rata Share" means, for purposes of this Agreement and with
respect to each Bank, a fraction, the numerator of which is the amount of such
Bank's Loan Commitment and the denominator of which is the Total Loan
Commitment.
"Prohibited Transaction" means any transaction set forth in Section
406 of ERISA or Section 4975 of the Code.
"Purchase Price" means, with respect to an acquisition, the total
consideration paid, including in the amount of such consideration (without
duplication) (1) any Debt that, at the time of such acquisition, is directly or
indirectly secured by a Lien on all or any portion of the property so acquired
and any Debt to which such property is subject, including, in the case of an
acquisition of any Person, any Debt of such Person, regardless of whether such
Debt is secured or unsecured, or recourse or non-recourse to such Person and (2)
the fair market value of any other non-cash consideration.
"Ratable Loan" has the meaning specified in Section
2.01(b).
"Ratable Loan Note" has the meaning specified in
Section 2.09.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time, or any similar Law from time to time in effect.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Bank, any change
after the date of this Agreement in United States federal, state, municipal or
foreign laws or regulations (including Regulation D) or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of banks including such Bank of or under any United States, federal,
state, municipal or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA.
"Required Banks" means at any time the Banks having Pro Rata Shares
aggregating at least sixty six and two-thirds percent
15
<PAGE>
(66-2/3%); provided, however, that during the existence of an Event of Default,
the "Required Banks" shall be the Banks holding at least sixty six and
two-thirds percent (66-2/3%) of the then aggregate unpaid principal amount of
the Loans.
"Secured Indebtedness" means that portion of Total Outstanding
Indebtedness that is secured.
"Solvency Certificate" means a certificate in substantially the form
of EXHIBIT E hereto, to be delivered by Borrower pursuant to the terms of this
Agreement.
"Solvent" means, when used with respect to any Person, that (1) the
fair value of the property of such Person, on a going concern basis, is greater
than the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person; (2) the present fair saleable value of the assets
of such Person, on a going concern basis, is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they
become absolute and matured; (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; (4) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged; and (5) such Person has sufficient
resources, provided that such resources are prudently utilized, to satisfy all
of such Person's obligations. Contingent liabilities will be computed at the
amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"S&P" means Standard & Poor's Ratings Services, a division of
McGraw-Hill Companies.
"Supplemental Fee Letter" means that certain letter agreement, dated
the date hereof, between the Administrative Agent and Borrower.
"TCI" means Taubman Centers, Inc., a Michigan corporation.
"Total Loan Commitment" means Three Hundred Million Dollars
($300,000,000).
"Total Outstanding Indebtedness" means the sum, without duplication,
of (1) Consolidated Outstanding Indebtedness, (2) TRG's Share of UJV Combined
Outstanding Indebtedness and (3) Contingent Liabilities.
16
<PAGE>
"TRG Consolidated Financial Statements" means the consolidated
balance sheet and related consolidated statement of operations, accumulated
deficiency in assets and cash flows, and footnotes thereto, of Borrower,
prepared in accordance with GAAP.
"TRG's Share of UJV Combined Outstanding Indebtedness" means the sum
of the indebtedness of each of the UJVs contributing to UJV Combined Outstanding
Indebtedness multiplied by Borrower's respective beneficial interests in each
such UJV.
"UJV Combined Outstanding Indebtedness" means, as of any time, the
sum of (1) mortgage notes payable and (2) other notes payable, of the UJVs, on a
combined basis, as reflected in the balance sheets of each of the UJVs, prepared
in accordance with GAAP.
"UJVs" means the unconsolidated joint ventures in which Borrower
owns a beneficial interest and which are accounted for under the equity method
in the TRG Consolidated Financial Statements.
"Unencumbered Combined EBITDA" means that portion of Combined EBITDA
attributable to Unencumbered Wholly-Owned Assets.
"Unencumbered Wholly-Owned Assets" means assets, reflected on the
TRG Consolidated Financial Statements, wholly owned, directly or indirectly, by
Borrower and not subject to any Lien to secure all or any portion of Secured
Indebtedness; provided, however, that, for purposes of this definition only, the
loans described in the following table, so long as the documents in respect of
the same permit secondary financing, shall not be considered part of Secured
Indebtedness:
================================================================================
Description of
Debt Obligation Obligor Affected Asset Amount ($)
- --------------- ------- -------------- ----------
- --------------------------------------------------------------------------------
UDAG Loan TL-Columbus Columbus City Center 8,175,465
Associates
- --------------------------------------------------------------------------------
Assessment Bonds - Richmond Hilltop land 981,545
City of Richmond Associates
- --------------------------------------------------------------------------------
Assessment Bonds - Stoneridge Stoneridge land 1,363,046
City of Pleasanton Properties
- --------------------------------------------------------------------------------
Assessment Bond - Biltmore Shopping Biltmore land 2,625,000
City of Phoenix Center Partners
- --------------------------------------------------------------------------------
Assessment Bond - Biltmore Shopping Biltmore land 557,742
City of Phoenix Center Partners
================================================================================
"Unsecured Debt Yield" means, for any calendar quarter, the ratio,
expressed as a percentage, of (1) Unencumbered Combined EBITDA for the twelve
(12)-month period ending with such
17
<PAGE>
calendar quarter to (2) Adjusted Unsecured Indebtedness as of the end of such
calendar quarter.
"Unsecured Indebtedness" means that portion of Total Outstanding
Indebtedness that is unsecured.
Section 1.02 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise
provided herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. When used in this Agreement: (1)
"or" is not exclusive; (2) a reference to a Law includes any amendment or
modification to such Law; (3) a reference to a Person includes its permitted
successors and permitted assigns; (4) except as provided otherwise, all
references to the singular shall include the plural and vice versa; (5) except
as provided in this Agreement, a reference to an agreement, instrument or
document shall include such agreement, instrument or document as the same may be
amended, modified or supplemented from time to time in accordance with its terms
and as permitted by the Loan Documents; (6) all references to Articles or
Sections shall be to Articles and Sections of this Agreement unless otherwise
indicated; and (7) all Exhibits to this Agreement shall be incorporated into
this Agreement.
ARTICLE II. THE LOANS
Section 2.01 The Loans; Bid Rate Loans; Purpose. (a) Subject to the
terms and conditions of this Agreement, the Banks agree to make loans to
Borrower as provided in this Section.
(b) Each of the Banks severally agrees to make a loan to Borrower
(each such loan by a Bank, a "Ratable Loan") in an amount up to its Loan
Commitment pursuant to which the Bank shall from time to time advance and
re-advance to Borrower an amount equal to its Pro Rata Share of the excess (the
"Available Total Loan Commitment") of the Total Loan Commitment over the sum of
(1) all previous advances (including Bid Rate Loans) made by the Banks which
remain unpaid and (2) the outstanding amount of all Letters of Credit. Within
the limits set forth herein, Borrower may borrow from time to time under this
paragraph (b) and prepay from time to time pursuant to Section 2.10 (subject,
however, to the restrictions on prepayment set forth in said Section), and
thereafter re-borrow pursuant to this paragraph (b) or paragraph (c) below. The
Ratable Loans may be outstanding as: (1) Base Rate Loans; (2) LIBOR Loans; or
(3) a combination of the
18
<PAGE>
foregoing, as Borrower shall elect and notify the Administrative Agent in
accordance with Section 2.15. The LIBOR Loan and Base Rate Loan of each Bank
shall be maintained at such Bank's Applicable Lending Office for its LIBOR Loan
and Base Rate Loan, respectively.
(c) In addition to Ratable Loans pursuant to paragraph (b), one (1)
or more Banks may, at Borrower's request and in their sole discretion, make
non-ratable loans which shall bear interest at the LIBOR Bid Rate in accordance
with Section 2.02 (such loans being referred to in this Agreement as "Bid Rate
Loans"). Borrower may borrow Bid Rate Loans from time to time pursuant to this
paragraph (c) in an amount up to the Available Total Loan Commitment at the time
of the borrowing (taking into account any repayments of the Loans made
simultaneously therewith) and shall repay such Bid Rate Loans as required by
Section 2.09, and it may thereafter re-borrow pursuant to this paragraph (c) or
paragraph (b) above; provided, however, that the aggregate outstanding principal
amount of Bid Rate Loans at any particular time shall not exceed the Bid
Borrowing Limit.
(d) The obligations of the Banks under this Agreement are several,
and no Bank shall be responsible for the failure of any other Bank to make any
advance of a Loan to be made by such other Bank. However, the failure of any
Bank to make any advance of the Loan to be made by it hereunder on the date
specified therefor shall not relieve any other Bank of its obligation to make
any advance of its Loan specified hereby to be made on such date.
(e) Borrower shall use the proceeds of the Loans for general
partnership purposes of Borrower and its Consolidated Businesses and UJVs,
including costs incurred in connection with acquisitions. In no event shall
proceeds of the Loans be used for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulation
U.
Section 2.02 Bid Rate Loans. (a) When Borrower wishes to request
offers from the Banks to make Bid Rate Loans, it shall transmit to the
Administrative Agent by facsimile a request (a "Bid Rate Quote Request")
substantially in the form of EXHIBIT G-1 hereto so as to be received not later
than 10:30 A.M. (New York time) on the fifth Banking Day prior to the date for
funding of the Bid Rate Loan(s) proposed therein, specifying:
(1) the proposed date of funding of the Bid Rate
Loan(s), which shall be a Banking Day;
(2) the aggregate amount of the Bid Rate Loans requested, which
shall be Twenty Five Million Dollars ($25,000,000) or a larger integral
multiple of One Million Dollars ($1,000,000); and
19
<PAGE>
(3) the duration of the Interest Period(s) applicable thereto,
subject to the provisions of the definition of "Interest Period" in
Section 1.01.
Borrower may request offers to make Bid Rate Loans for more than one (1)
Interest Period in a single Bid Rate Quote Request. No funding of a Bid Rate
Loan shall occur sooner than twenty eight (28) days after the funding of any
other Bid Rate Loan.
(b) Promptly upon receipt of a Bid Rate Quote Request, the
Administrative Agent shall send to the Banks by facsimile an invitation (an
"Invitation for Bid Rate Quotes") substantially in the form of EXHIBIT G-2
hereto, which shall constitute an invitation by Borrower to the Banks to submit
Bid Rate Quotes offering to make Bid Rate Loans to which such Bid Rate Quote
Request relates in accordance with this Section.
(c) (1) Each Bank may submit a Bid Rate Quote containing an offer or
offers to make Bid Rate Loans in response to any Invitation for Bid Rate Quotes.
Each Bid Rate Quote must comply with the requirements of this paragraph (c) and
must be submitted to the Administrative Agent by facsimile not later than 2:00
P.M. (New York time) on the fourth Banking Day prior to the proposed date of the
Bid Rate Loan(s); provided that Bid Rate Quotes submitted by UBS (or any
Affiliate of the Administrative Agent) in its capacity as a Bank may be
submitted, and may only be submitted, if UBS or such Affiliate notifies Borrower
of the terms of the offer or offers contained therein not later than one (1)
hour prior to the deadline for the other Banks. Any Bid Rate Quote so made shall
(subject to Borrower's satisfaction of the conditions precedent set forth in
this Agreement to its entitlement to an advance) be irrevocable except with the
written consent of the Administrative Agent given on the instructions of
Borrower.
(2) Each Bid Rate Quote shall be in substantially the form of
EXHIBIT G-3 hereto and shall in any case specify:
(i) the proposed date of funding of the Bid Rate Loan(s);
(ii) the principal amount of the Bid Rate Loan(s) for which each
such offer is being made, which principal amount (w) may be greater than
or less than the Loan Commitment of the quoting Bank, (x) must be in the
aggregate Five Million Dollars ($5,000,000) or a larger integral multiple
of One Million Dollars ($1,000,000), (y) may not exceed the principal
amount of Bid Rate Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of Bid Rate
Loans for which offers being made by such quoting Bank may be accepted;
(iii) the margin above or below the applicable LIBOR Interest Rate
(the "LIBOR Bid Margin") offered for each such
20
<PAGE>
Bid Rate Loan, expressed as a percentage per annum (specified to the
nearest 1/1,000th of 1%) to be added to (or subtracted from) the
applicable LIBOR Interest Rate;
(iv) the applicable Interest Period;
(v) the identity of the quoting Bank; and
(vi) the LIBOR Reserve Requirement then applicable to such Bank, if
any.
A Bid Rate Quote may set forth up to three (3) separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Bid Rate Quotes.
(3) Any Bid Rate Quote shall be disregarded if it:
(i) is not substantially in conformity with EXHIBIT G-3 hereto or
does not specify all of the information required by sub-paragraph (c)(2)
above;
(ii) contains qualifying, conditional or similar language (except
for an aggregate limitation as provided in sub-paragraph (c)(2)(ii)
above);
(iii) proposes terms other than or in addition to those set forth in
the applicable Invitation for Bid Rate Quotes; or
(iv) arrives after the time set forth in sub-paragraph (c)(1)
above.
(d) The Administrative Agent shall on the Banking Day of receipt
thereof notify Borrower in writing of the terms of (x) any Bid Rate Quote
submitted by a Bank that is in accordance with paragraph (c) and (y) any Bid
Rate Quote that amends, modifies or is otherwise inconsistent with a previous
Bid Rate Quote submitted by such Bank with respect to the same Bid Rate Quote
Request. Any such subsequent Bid Rate Quote shall be disregarded by the
Administrative Agent unless such subsequent Bid Rate Quote is submitted solely
to correct a manifest error in such former Bid Rate Quote or modifies the terms
of such previous Bid Rate Quote to provide terms more favorable to Borrower. The
Administrative Agent's notice to Borrower shall specify (A) the aggregate
principal amount of Bid Rate Loans for which offers have been received for each
Interest Period specified in the related Bid Rate Quote Request, (B) the
respective principal amounts and LIBOR Bid Margins so offered and (C) if
applicable, limitations on the aggregate principal amount of Bid Rate Loans for
which offers in any single Bid Rate Quote may be accepted.
(e) Not later than 9:30 A.M. (New York time) on the third Banking
Day prior to the proposed date of funding of the Bid Rate Loan, Borrower shall
notify the Administrative Agent of
21
<PAGE>
its acceptance or non-acceptance of the offers so notified to it pursuant to
paragraph (d). A notice of acceptance shall be substantially in the form of
EXHIBIT G-4 hereto and shall specify the aggregate principal amount of offers
for each Interest Period that are accepted. Borrower may accept any Bid Rate
Quote in whole or in part; provided that:
(i) the principal amount of each Bid Rate Loan may not exceed the
applicable amount set forth in the related Bid Rate Quote Request;
(ii) acceptance of offers with respect to a particular Interest
Period may only be made on the basis of ascending LIBOR Bid Margins
offered for such Interest Period from the lowest effective cost; and
(iii) Borrower may not accept any offer that is described in
sub-paragraph (c)(3) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two (2) or more Banks with the same LIBOR
Bid Margins, for a greater aggregate principal amount than the amount in respect
of which such offers are accepted for the related Interest Period, the principal
amount of Bid Rate Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as nearly as possible (in
multiples of One Hundred Thousand Dollars ($100,000), as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amounts of
such offers. The Administrative Agent shall promptly (and in any event within
one (1) Banking Day after such offers are accepted) notify Borrower and each
such Bank in writing of any such allocation of Bid Rate Loans. Determinations by
the Administrative Agent of the allocation of Bid Rate Loans shall be conclusive
in the absence of manifest error.
(g) In the event that Borrower accepts the offer(s) contained in one
(1) or more Bid Rate Quotes in accordance with paragraph (e), the Bank(s) making
such offer(s) shall make a Bid Rate Loan in the accepted amount (as allocated,
if necessary, pursuant to paragraph (f)) on the date specified therefor, in
accordance with the procedures specified in Section 2.04.
(h) Notwithstanding anything to the contrary contained herein, each
Bank shall be required to fund its Pro Rata Share of the Available Total Loan
Commitment in accordance with Section 2.01(b) despite the fact that any Bank's
Loan Commitment may have been or may be exceeded as a result of such Bank's
making Bid Rate Loans.
Section 2.03 Advances, Generally. The Initial Advance shall be in
the minimum amount of Two Million Dollars ($2,000,000) and in integral multiples
of One Hundred Thousand Dollars ($100,000) above such amount and shall be made
upon
22
<PAGE>
satisfaction of the conditions set forth in Section 4.01. Subsequent advances
shall be made no more frequently than weekly thereafter, upon satisfaction of
the conditions set forth in Section 4.02. The amount of each advance subsequent
to the Initial Advance shall be in the minimum amount of Two Million Dollars
($2,000,000) (unless less than Two Million Dollars ($2,000,000) is available for
disbursement pursuant to the terms hereof at the time of any subsequent advance,
in which case the amount of such subsequent advance shall be equal to such
remaining availability) and in integral multiples of One Hundred Thousand
Dollars ($100,000) above such amount. Additional restrictions on the amounts and
timing of, and conditions to the making of, advances of Bid Rate Loans are set
forth in Section 2.02.
Section 2.04 Procedures for Advances. In the case of advances of
Ratable Loans, Borrower shall submit to the Administrative Agent a request for
each advance, stating the amount requested, and certifying the purpose for which
such advance is to be used, no later than 10:00 a.m. (New York time) on the date
three (3) Banking Days prior to the date the advance is to be made. In the case
of advances of Bid Rate Loans, Borrower shall submit a Bid Rate Quote Request at
the time specified in Section 2.02, accompanied by a certification of the
purpose for which such advance is to be used. The Administrative Agent, upon its
receipt and approval of the requisite documents for the advance, will so notify
the Banks either by telephone or by facsimile. Not later than 10:00 a.m. (New
York time) on the date of each advance, each Bank (in the case of Ratable Loans)
or the applicable Bank(s) (in the case of Bid Rate Loans) shall, through its
Applicable Lending Office and subject to the conditions of this Agreement, make
the amount to be advanced by it on such day available to the Administrative
Agent, at the Administrative Agent's Office and in immediately available funds
for the account of Borrower. The amount so received by the Administrative Agent
shall, subject to the conditions of this Agreement, be made available to
Borrower, in immediately available funds, by the Administrative Agent's
crediting an account of Borrower designated by Borrower and maintained with the
Administrative Agent at the Administrative Agent's Office.
Section 2.05 Intentionally Omitted.
Section 2.06 Interest Periods; Renewals. In the case of the LIBOR
Loans, Borrower shall select an Interest Period of any duration in accordance
with the definition of Interest Period in Section 1.01, subject to the following
limitations: (1) no Interest Period may extend beyond the Maturity Date; (2) if
an Interest Period would end on a day which is not a Banking Day, such Interest
Period shall be extended to the next Banking Day, unless such Banking Day would
fall in the next calendar month, in which event such Interest Period shall end
on the immediately preceding Banking Day; and (3) only five (5) discrete
segments of a Bank's Ratable Loan bearing interest at a LIBOR Interest Rate,
23
<PAGE>
for a designated Interest Period, pursuant to a particular Election, Conversion
or Continuation, may be outstanding at any one time (each such segment of each
Bank's Ratable Loan corresponding to a proportionate segment of each of the
other Banks' Ratable Loans).
Upon notice to the Administrative Agent as provided in Section 2.15,
Borrower may Continue any LIBOR Loan on the last day of the Interest Period of
the same or different duration in accordance with the limitations provided
above. If Borrower shall fail to give notice to the Administrative Agent of such
a Continuation, such LIBOR Loan shall automatically become a Base Rate Loan on
the last day of the current Interest Period.
Section 2.07 Interest. Borrower shall pay interest to the
Administrative Agent for the account of the applicable Bank on the outstanding
and unpaid principal amount of the Loans, at a rate per annum as follows: (1)
for Base Rate Loans at a rate equal to the Base Rate plus the Applicable Margin;
(2) for LIBOR Loans at a rate equal to the applicable LIBOR Interest Rate plus
the Applicable Margin; and (3) for Bid Rate Loans at a rate equal to the
applicable LIBOR Bid Rate. Any principal amount not paid when due (when
scheduled, at acceleration or otherwise) shall bear interest thereafter, payable
on demand, at the Default Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest on Base Rate Loans, LIBOR Loans and Bid Rate Loans shall not
exceed the maximum amount permitted under applicable law. Interest shall be
calculated for the actual number of days elapsed on the basis of, in the case of
Base Rate Loans, LIBOR Loans and Bid Rate Loans, three hundred sixty (360) days.
Accrued interest shall be due and payable in arrears (x) in the case
of the Base Rate Loans and LIBOR Loans, on the first Banking Day of each
calendar month and (y) in the case of Bid Rate Loans, at the expiration of the
Interest Period applicable thereto; provided, however, that interest accruing at
the Default Rate shall be due and payable on demand.
Section 2.08 Fees. (a) Borrower shall, during the term of the Loans,
pay to the Administrative Agent for the account of each Bank a commitment fee
computed on the daily Loan Commitment of such Bank, at a rate per annum equal to
the daily Commitment Fee Rate, calculated on the basis of a year of three
hundred sixty (360) days for the actual number of days elapsed. The accrued
commitment fee shall be due and payable in arrears on the tenth (10th) day of
March, June, September and December of each year, commencing on the first such
date after the Closing Date, and upon the Maturity Date or earlier termination
of the Loan Commitments.
24
<PAGE>
(b) Borrower shall pay to the Administrative Agent, for the account
of the Administrative Agent, on the Closing Date and on each anniversary of the
Closing Date thereafter, an annual administration fee in the amount of One
Hundred Thousand Dollars ($100,000).
(c) Borrower shall pay to the Administrative Agent, for the accounts
of the parties specified therein, the fees provided for, on the dates specified,
in the Supplemental Fee Letter.
Section 2.09 Notes. The Ratable Loan made by each Bank under this
Agreement shall be evidenced by, and repaid with interest in accordance with, a
promissory note of Borrower in the form of EXHIBIT C-1 hereto duly completed and
executed by Borrower, in the principal amount equal to such Bank's Loan
Commitment, payable to such Bank for the account of its Applicable Lending
Office (each such note, as the same may hereafter be amended, modified,
extended, severed, assigned, substituted, renewed or restated from time to time,
including any substitute note pursuant to Section 3.07 or 12.05, a "Ratable Loan
Note"). The Bid Rate Loans of the Banks shall be evidenced by a single global
promissory note of Borrower in the form of EXHIBIT C-2 hereto, duly completed
and executed by Borrower, in the principal amount of One Hundred Fifty Million
Dollars ($150,000,000), payable to the Administrative Agent for the account of
the respective Banks making Bid Rate Loans (such note, as the same may hereafter
be amended, modified, extended, severed, assigned, substituted, renewed or
restated from time to time, the "Bid Rate Loan Note". A particular Bank's
Ratable Loan Note, together with its interest, if any, in the Bid Rate Loan
Note, are referred to collectively in this Agreement as such Bank's "Note"; all
such Ratable Loan Notes and interests are referred to collectively in this
Agreement as the "Notes". The Ratable Loan Notes shall mature, and all
outstanding principal and accrued interest and other sums thereunder shall be
paid in full, on the Maturity Date, as the same may be accelerated or extended.
The outstanding principal amount of each Bid Rate Loan evidenced by the Bid Rate
Loan Note, and all accrued interest and other sums with respect thereto, shall
become due and payable to the Bank making such Bid Rate Loan at the earlier of
the expiration of the Interest Period applicable thereto or the Maturity Date,
as the same may be accelerated or extended.
Each Bank is hereby authorized by Borrower to endorse on the
schedule attached to the Ratable Loan Note held by it, the amount of each
advance, and each payment of principal received by such Bank for the account of
its Applicable Lending Office(s) on account of its Ratable Loan, which
endorsement shall, in the absence of manifest error, be conclusive as to the
outstanding balance of the Ratable Loan made by such Bank. The Administrative
Agent is hereby authorized by Borrower to endorse on the schedule attached to
the Bid Rate Loan Note the amount of each Bid Rate Loan, the name of the Bank
making the same, the
25
<PAGE>
date of the advance thereof, the interest rate applicable thereto and the
expiration of the Interest Period applicable thereto (i.e., the maturity date
thereof). The failure by the Administrative Agent or any Bank to make such
notations with respect to the Loans or each advance or payment shall not limit
or otherwise affect the obligations of Borrower under this Agreement or the
Notes.
Section 2.10 Prepayments. Borrower may, upon at least one (1)
Banking Day's notice to the Administrative Agent in the case of the Base Rate
Loans, and at least two (2) Banking Days' notice to the Administrative Agent in
the case of LIBOR Loans, prepay the Ratable Loans, provided that (1) any partial
prepayment under this Section shall be in integral multiples of One Million
Dollars ($1,000,000); (2) a LIBOR Loan may be prepaid only on the last day of
the Applicable Interest Period for such LIBOR Loan; and (3) each prepayment
under this Section shall include all interest accrued on the amount of principal
prepaid through the date of prepayment.
Section 2.11 Changes of Commitments. (a) At any time, Borrower shall
have the right, without premium or penalty, to terminate the unused Loan
Commitments, in whole or in part, from time to time, provided that: (1) Borrower
shall give notice of each such termination to the Administrative Agent,
specifying the amount of the termination, no later then 10:00 a.m. (New York
time) on the date which is fifteen (15) days prior to the effectiveness of such
termination; (2) the Loan Commitments of each of the Banks must be terminated
ratably and simultaneously with those of the other Banks; and (3) each partial
termination of the Loan Commitments as a whole (and corresponding reduction of
the Total Loan Commitment) shall be in an integral multiple of One Million
Dollars ($1,000,000).
(b) The Loan Commitments, to the extent terminated, may not be
reinstated.
Section 2.12 Method of Payment. Borrower shall make each payment
under this Agreement and under the Notes not later than 11:00 A.M. (New York
time) on the date when due in Dollars to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. The Administrative
Agent will thereafter, on the day of its receipt of each such payment, cause to
be distributed to each Bank (1) such Bank's appropriate share (based upon the
respective outstanding principal amounts and rate(s) of interest under the Notes
of the Banks) of the payments of principal and interest in like funds for the
account of such Bank's Applicable Lending Office; and (2) fees payable to such
Bank in accordance with the terms of this Agreement. Borrower hereby authorizes
the Administrative Agent and the Banks, if and to the extent payment by Borrower
is not made when due under this Agreement or under the Notes, to charge from
time to time against any account Borrower maintains with the Administrative
Agent or
26
<PAGE>
any Bank any amount so due to the Administrative Agent and/or the Banks.
Except to the extent provided in this Agreement, whenever any
payment to be made under this Agreement or under the Notes is due on any day
other than a Banking Day, such payment shall be made on the next succeeding
Banking Day, and such extension of time shall in such case be included in the
computation of the payment of interest and other fees, as the case may be.
Section 2.13 Elections, Conversions or Continuation of Loans.
Subject to the provisions of Article III and Sections 2.06 and 2.14, Borrower
shall have the right to Elect to have all or a portion of any advance of the
Ratable Loans be LIBOR Loans, to Convert Base Rate Loans into LIBOR Loans, to
Convert LIBOR Loans into Base Rate Loans, or to Continue LIBOR Loans as LIBOR
Loans, at any time or from time to time, provided that: (1) Borrower shall give
the Administrative Agent notice of each such Election, Conversion or
Continuation as provided in Section 2.15; and (2) a LIBOR Loan may be Converted
or Continued only on the last day of the applicable Interest Period for such
LIBOR Loan. Except as otherwise provided in this Agreement, each Election,
Continuation and Conversion shall be applicable to each Bank's Ratable Loan in
accordance with its Pro Rata Share.
Section 2.14 Minimum Amounts. With respect to the Ratable Loans as a
whole, each Election and each Conversion shall be in an amount at least equal to
Two Million Dollars ($2,000,000) and in integral multiples of One Hundred
Thousand Dollars ($100,000).
Section 2.15 Certain Notices Regarding Elections, Conversions and
Continuations of Loans. Notices by Borrower to the Administrative Agent of
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by the Administrative Agent not later than
10:00 a.m. (New York time) on the number of Banking Days prior to the date of
the relevant Election, Conversion or Continuation specified below:
Number of
Notice Banking Days Prior
- -------------------------------- ------------------
Conversions into Base Rate Loans two (2)
Elections of, Conversions into
or Continuations as, LIBOR Loans three (3)
Promptly following its receipt of any such notice, the Administrative Agent
shall so advise the Banks either by telephone or by facsimile. Each such notice
of Election shall specify the portion of the amount of the advance that is to be
27
<PAGE>
LIBOR Loans (subject to Section 2.14) and the duration of the Interest Period
applicable thereto (subject to Section 2.06); each such notice of Conversion
shall specify the LIBOR Loans or Base Rate Loans to be Converted; and each such
notice of Conversion or Continuation shall specify the date of Conversion or
Continuation (which shall be a Banking Day), the amount thereof (subject to
Section 2.14) and the duration of the Interest Period applicable thereto
(subject to Section 2.06). In the event that Borrower fails to Elect to have any
portion of an advance of the Ratable Loans be LIBOR Loans, the entire amount of
such advance shall constitute Base Rate Loans. In the event that Borrower fails
to Continue LIBOR Loans within the time period and as otherwise provided in this
Section, such LIBOR Loans will be automatically Converted into Base Rate Loans
on the last day of the then current applicable Interest Period for such LIBOR
Loans.
Section 2.16 Intentionally Omitted.
Section 2.17 Late Payment Premium. Borrower shall, at the
Administrative Agent's option, pay to the Administrative Agent for the account
of the Banks a late payment premium in the amount of 4% of any payments of
interest under the Loans made more than fifteen (15) days after the due date
thereof, which shall be due with any such late payment.
Section 2.18. Letters of Credit. 1. Borrower may request, in lieu of
advances of proceeds of the Ratable Loans, that the Administrative Agent issue
unconditional, irrevocable standby letters of credit (each, a "Letter of
Credit") for the account of Borrower, payable by sight drafts, for such
beneficiaries and with such other terms as Borrower shall specify.
(b) The amount of any such Letter of Credit shall be limited to the
lesser of (1) One Hundred Million Dollars ($100,000,000) less the amount of all
other Letters of Credit then issued and outstanding or (2) the Available Total
Loan Commitment, it being understood that the amount of each Letter of Credit
issued and outstanding shall effect a reduction, by an equal amount, of the
Available Total Loan Commitment as provided in Section 2.01(b) (such reduction
to be allocated to each Bank's Ratable Loan ratably in accordance with the
Banks' respective Pro Rata Shares).
(c) The amount of each Letter of Credit shall be further subject to
the limitations applicable to amounts of advances set forth in Section 2.03 and
the procedures for the issuance of each Letter of Credit shall be the same as
the procedures applicable to the making of advances as set forth in the first
sentence of Section 2.04. Upon the Administrative Agent's receipt of a request
for the issuance of, and upon its issuance of, each Letter of Credit, it shall
promptly notify each of the Banks.
28
<PAGE>
(d) The Administrative Agent's issuance of each Letter of Credit
shall be subject to Borrower's satisfaction of all conditions precedent to its
entitlement to an advance of proceeds of the Loans.
(e) Each Letter of Credit shall expire no later than the earlier of
the Maturity Date or one (1) year after the date of its issuance.
(f) In connection with, and as a further condition to the issuance
of, each Letter of Credit, Borrower shall execute and deliver to the
Administrative Agent an application for the Letter of Credit on the
Administrative Agent's standard form therefor, together with such other
documents, opinions and assurances as the Administrative Agent shall reasonably
require.
(g) In connection with each Letter of Credit, Borrower hereby
covenants to pay to the Administrative Agent the following fees, each payable
quarterly in arrears (on the first Banking Day of each calendar quarter
following the issuance of the Letter of Credit): (i) a fee, payable to the
Administrative Agent for the account of the Banks, computed daily on the amount
of the Letter of Credit issued and outstanding at a rate per annum equal to the
"Banks' L/C Fee Rate" (as hereinafter defined) and (ii) a fee, payable to the
Administrative Agent for its own account, computed daily on the amount of the
Letter of Credit issued and outstanding at a rate per annum of 0.125%. For
purposes of this Agreement, the "Banks' L/C Fee Rate" shall mean, at any time, a
rate per annum equal to the Applicable Margin for LIBOR Loans less 0.125% per
annum. It is understood and agreed that the last installment of the fees
provided for in this paragraph (g) with respect to any particular Letter of
Credit shall be due and payable on the first day of the calendar quarter
following the return, undrawn, or cancellation of such Letter of Credit.
(h) The parties hereto acknowledge and agree that, immediately upon
notice from the Administrative Agent of any drawing under a Letter of Credit,
each Bank shall, notwithstanding the existence of a Default or Event of Default
or the non-satisfaction of any conditions precedent to the making of an advance
of the Loans, advance proceeds of its Ratable Loan, in an amount equal to its
Pro Rata Share of such drawing, which advance shall be made to the
Administrative Agent to reimburse the Administrative Agent, for its own account,
for such drawing. Each of the Banks further acknowledges that its obligation to
fund its Pro Rata Share of drawings under Letters of Credit as aforesaid shall
survive the Banks' termination of this Agreement or enforcement of remedies
hereunder or under the other Loan Documents.
(i) Borrower agrees, upon the occurrence of an Event of Default and
at the request of the Administrative Agent, (i) to deposit with the
Administrative Agent cash collateral in the amount of all the outstanding
Letters of Credit, which cash
29
<PAGE>
collateral shall be held by the Administrative Agent as security for Borrower's
obligations in connection with the Letters of Credit and (ii) to execute and
deliver to the Administrative Agent such documents as the Administrative Agent
requests to confirm and perfect the assignment of such cash collateral to the
Administrative Agent.
ARTICLE III. YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to each
Bank from time to time on demand such amounts as such Bank may determine to be
necessary to compensate it for any increased costs which such Bank determines
are attributable to its making or maintaining a LIBOR Loan or Bid Rate Loan, or
its obligation to make or maintain a LIBOR Loan or Bid Rate Loan, or its
obligation to Convert a Base Rate Loan to a LIBOR Loan hereunder, or any
reduction in any amount receivable by such Bank hereunder in respect of its
LIBOR Loan or Bid Rate Loan(s) or such obligations (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"), in
each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such
Bank under this Agreement or the Notes in respect of any such LIBOR Loan
or Bid Rate Loan (other than changes in the rate of general corporate,
franchise, branch profit, net income or other income tax imposed on such
Bank or its Applicable Lending Office by the jurisdiction in which such
Bank has its principal office or such Applicable Lending Office); or
(2) (other than to the extent the LIBOR Reserve Requirement is taken
into account in determining the LIBOR Rate at the commencement of the
applicable Interest Period) imposes or modifies any reserve, special
deposit, deposit insurance or assessment, minimum capital, capital ratio
or similar requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Bank
(including any LIBOR Loan or Bid Rate Loan or any deposits referred to in
the definition of "LIBOR Interest Rate" in Section 1.01), or any
commitment of such Bank (including such Bank's Loan Commitment hereunder);
or
(3) imposes any other condition affecting this Agreement or the
Notes (or any of such extensions of credit or liabilities).
Notwithstanding the foregoing, in the event that any Bank determines that it
shall incur Additional Costs in maintaining a LIBOR Loan, such Bank shall
provide written notice thereof to Borrower (with a copy to Administrative
Agent), which notice shall include the dollar amount of the Additional Costs,
and Borrower shall have the option, which option must be exercised
30
<PAGE>
within five (5) Banking Days of Borrower's receipt of such notice, to prepay
such LIBOR Loan or to Convert such LIBOR Loan into a Base Rate Loan, subject,
however, to the provisions of Section 3.05.
Without limiting the effect of the provisions of the first paragraph
of this Section, in the event that, by reason of any Regulatory Change, any Bank
either (1) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits of other liabilities of
such Bank which includes deposits by reference to which the LIBOR Interest Rate
is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Bank which includes loans based on the LIBOR
Interest Rate or (2) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to Borrower (with a copy to the Administrative Agent), the
obligation of such Bank to permit Elections of, to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended (in which case the provisions of
Section 3.04 shall be applicable) until such Regulatory Change ceases to be in
effect.
Determinations and allocations by a Bank for purposes of this
Section of the effect of any Regulatory Change pursuant to the first or second
paragraph of this Section, on its costs or rate of return of making or
maintaining its Loan or portions thereof or on amounts receivable by it in
respect of its Loan or portions thereof, and the amounts required to compensate
such Bank under this Section, shall be conclusive absent manifest error.
To the extent that changing the jurisdiction of a Bank's Applicable
Lending Office would have the effect of minimizing Additional Costs, each such
Bank shall use reasonable efforts to make such a change, provided that same
would not otherwise be disadvantageous to each such Bank.
No Bank shall be entitled to any compensation pursuant to this
Section relating to any period more than ninety (90) days prior to the date
notice thereof is given to Borrower by such Bank.
Section 3.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of the LIBOR
Interest Rate for any Interest Period:
(1) the Administrative Agent determines (which determination shall
be conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "LIBOR Interest Rate" in Section 1.01 are
not being provided in the relevant amounts or for the relevant maturities
for purposes of determining rates of interest for
31
<PAGE>
the LIBOR Loans or Bid Rate Loans as provided in this Agreement; or
(2) a Bank determines (which determination shall be conclusive) and
promptly notifies the Administrative Agent that the relevant rates of
interest referred to in the definition of "LIBOR Interest Rate" in Section
1.01 upon the basis of which the rate of interest for LIBOR Loans or Bid
Rate Loans for such Interest Period is to be determined do not adequately
cover the cost to such Bank of making or maintaining such LIBOR Loan or
Bid Rate Loan for such Interest Period;
then the Administrative Agent shall give Borrower prompt notice thereof, and so
long as such condition remains in effect, the Banks (or, in the case of the
circumstances described in clause (2) above, the affected Bank) shall be under
no obligation to permit Elections of LIBOR Loans, to Convert Base Rate Loans
into LIBOR Loans or to Continue LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the affected outstanding LIBOR
Loans or Bid Rate Loans, either (x) prepay the affected LIBOR Loans or Bid Rate
Loans or (y) Convert the affected LIBOR Loans into Base Rate Loans in accordance
with Section 2.13 or convert the rate of interest under the affected Bid Rate
Loans to the rate applicable to Base Rate Loans by following the same procedures
as are applicable for Conversions into Base Rate Loans set forth in Section
2.13.
Section 3.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain a LIBOR Loan or a Bid
Rate Loan hereunder, to allow Elections of a LIBOR Loan or to Convert a Base
Rate Loan into a LIBOR Loan, then such Bank shall promptly notify the
Administrative Agent and Borrower thereof and such Bank's obligation to make or
maintain a LIBOR Loan or Bid Rate Loan, or to permit Elections of, to Continue,
or to Convert its Base Rate Loan into, a LIBOR Loan shall be suspended (in which
case the provisions of Section 3.04 shall be applicable) until such time as such
Bank may again make and maintain a LIBOR Loan or Bid Rate Loan.
Section 3.04 Treatment of Affected Loans. If the obligations of any
Bank to make or maintain a LIBOR Loan or a Bid Rate Loan, or to permit an
Election of a LIBOR Loan, to Continue its LIBOR Loan, or to Convert its Base
Rate Loan into a LIBOR Loan, are suspended pursuant to Sections 3.01 or 3.03
(each LIBOR Loan or Bid Rate Loan so affected being herein called an "Affected
Loan"), such Bank's Affected Loan shall be automatically Converted into a Base
Rate Loan (or, in the case of an Affected Loan that is a Bid Rate Loan, the
interest rate thereon shall be converted to the rate applicable to Base Rate
Loans) on the last day of the then current Interest Period for the Affected Loan
(or, in the case of a Conversion (or
32
<PAGE>
conversion) required by Sections 3.01 or 3.03, on such earlier date as such Bank
may specify to Borrower).
To the extent that such Bank's Affected Loan has been so Converted
(or the interest rate thereon so converted), all payments and prepayments of
principal which would otherwise be applied to such Bank's Affected Loan shall be
applied instead to its Base Rate Loan (or to its Bid Rate Loan bearing interest
at the converted rate) and such Bank shall have no obligation to Convert its
Base Rate Loan into a LIBOR Loan.
In the event that the conditions giving rise to the suspension of
any Bank's obligations to permit an Election of a LIBOR Loan, to Continue its
LIBOR Loan, or to Convert its Base Rate Loan into a LIBOR Loan shall cease to
exist, such Bank shall provide Borrower with prompt written notice of same (with
a copy to Administrative Agent), and such Bank shall again be obligated to
permit an Election of a LIBOR Loan, to Continue its LIBOR Loan, or to Convert
its Base Rate Loan into a LIBOR Loan in accordance with this Agreement.
Section 3.05 Certain Compensation. Borrower shall pay to the
Administrative Agent for the account of the applicable Bank, upon the request of
such Bank through the Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Bank) to compensate it for any
loss, cost or expense which such Bank determines is attributable to:
(1) any payment or prepayment of a LIBOR Loan or Bid Rate Loan made
by such Bank, or any Conversion or Continuation of a LIBOR Loan or Bid
Rate Loan made by such Bank, in any such case on a date other than the
last day of an applicable Interest Period, whether by reason of
acceleration or otherwise; or
(2) any failure by Borrower for any reason to Convert or Continue a
LIBOR Loan to be Converted or Continued by such Bank on the date specified
therefor in the relevant notice under Section 2.15; or
(3) any failure by Borrower to borrow (or to qualify for a borrowing
of) a LIBOR Loan or Bid Rate Loan which would otherwise be made hereunder
on the date specified in the relevant Election notice under Section 2.15
or Bid Rate Quote acceptance under Section 2.02(e) given or submitted by
Borrower.
Without limiting the foregoing, such compensation shall include an
amount equal to the present value (using as the discount rate an interest rate
equal to the rate determined under (2) below) of the excess, if any, of (1) the
amount of interest which otherwise would have accrued on the principal amount so
paid, prepaid, Converted or Continued (or not Converted, Continued or borrowed)
for the period from the date of such
33
<PAGE>
payment, prepayment, Conversion or Continuation (or failure to Convert, Continue
or borrow) to the last day of the then current applicable Interest Period (or,
in the case of a failure to Convert, Continue or borrow, to the last day of the
applicable Interest Period which would have commenced on the date specified
therefor in the relevant notice) at the applicable rate of interest for the
LIBOR Loan or Bid Rate Loan provided for herein, over (2) the amount of interest
(as reasonably determined by such Bank) based upon the interest rate which such
Bank would have bid in the London interbank market for Dollar deposits, for
amounts comparable to such principal amount and maturities comparable to such
period. A determination of any Bank as to the amounts payable pursuant to this
Section shall be conclusive absent manifest error.
Section 3.06 Capital Adequacy. If any Bank shall have determined
that, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to the Administrative
Agent), Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction. A certificate of
any Bank claiming compensation under this Section, setting forth in reasonable
detail the basis therefor, shall be conclusive absent manifest error.
Section 3.07 Substitution of Banks. If any Bank (an "Affected Bank")
(i) makes demand upon Borrower for (or if Borrower is otherwise required to pay)
Additional Costs pursuant to Section 3.01 or (ii) is unable to make or maintain
a LIBOR Loan or Bid Rate Loan as a result of a condition described in Section
3.03 or clause (2) of Section 3.02, Borrower may, within ninety (90) days of
receipt of such demand or notice (or the occurrence of such other event causing
Borrower to be required to pay Additional Costs or causing said Section 3.03 or
clause (2) of Section 3.02 to be applicable), as the case may be, give notice (a
"Replacement Notice") to the Administrative Agent (which will promptly forward a
copy of such notice to each Bank) of Borrower's intention either (x) to prepay
in full the Affected Bank's Note and to terminate the Affected Bank's entire
Loan Commitment or (y) to replace the Affected Bank with another
34
<PAGE>
financial institution (the "Replacement Bank") designated in such
Replacement Notice.
In the event Borrower opts to give the notice provided for in clause
(x) above, and if the Affected Bank shall not agree within thirty (30) days of
its receipt thereof to waive the payment of the Additional Costs in question or
the effect of the circumstances described in Section 3.03 or clause (2) of
Section 3.02, then, so long as no Default or Event of Default shall exist,
Borrower may (notwithstanding the provisions of clause (2) of Section 2.11(a))
terminate the Affected Bank's entire Loan Commitment, provided that in
connection therewith it pays to the Affected Bank all outstanding principal and
accrued and unpaid interest under the Affected Bank's Note, together with all
other amounts, if any, due from Borrower to the Affected Bank, including all
amounts properly demanded and unreimbursed under Sections 3.01 and 3.05.
In the event Borrower opts to give the notice provided for in clause
(y) above, and if (i) the Administrative Agent shall, within thirty (30) days of
its receipt of the Replacement Notice, notify Borrower and each Bank in writing
that the Replacement Bank is reasonably satisfactory to the Administrative Agent
and (ii) the Affected Bank shall not, prior to the end of such thirty (30)-day
period, agree to waive the payment of the Additional Costs in question or the
effect of the circumstances described in Section 3.03 or clause (2) of Section
3.02, then the Affected Bank shall, so long as no Default or Event of Default
shall exist, assign its Note and all of its rights and obligations under this
Agreement to the Replacement Bank, and the Replacement Bank shall assume all of
the Affected Bank's rights and obligations, pursuant to an agreement,
substantially in the form of an Assignment and Assumption Agreement, executed by
the Affected Bank and the Replacement Bank. In connection with such assignment
and assumption, the Replacement Bank shall pay to the Affected Bank an amount
equal to the outstanding principal amount under the Affected Bank's Note plus
all interest accrued thereon, plus all other amounts, if any (other than the
Additional Costs in question), then due and payable to the Affected Bank;
provided, however, that prior to or simultaneously with any such assignment and
assumption, Borrower shall have paid to such Affected Bank all amounts properly
demanded and unreimbursed under Sections 3.01 and 3.05. Upon the effective date
of such assignment and assumption, the Replacement Bank shall become a Bank
Party to this Agreement and shall have all the rights and obligations of a Bank
as set forth in such Assignment and Assumption Agreement, and the Affected Bank
shall be released from its obligations hereunder, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this Section, a substitute Ratable Loan Note shall be issued to the
Replacement Bank by Borrower, in exchange for the return of the Affected Bank's
Ratable Loan Note. The obligations evidenced by such substitute note shall
constitute "Obligations" for all purposes of this Agreement and
35
<PAGE>
the other Loan Documents. If the Replacement Bank is not incorporated under the
laws of the United States of America or a state thereof, it shall, prior to the
first date on which interest or fees are payable hereunder for its account,
deliver to Borrower and the Administrative Agent certification as to exemption
from deduction or withholding of any United States federal income taxes in
accordance with Section 10.13.
Borrower, the Administrative Agent and the Banks shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Initial Advance. The
obligations of the Banks hereunder and the obligation of each Bank to make the
Initial Advance are subject to the condition precedent that the Administrative
Agent shall have received on or before the Closing Date each of the following
documents, and each of the following requirements shall have been fulfilled:
(1) Fees and Expenses. The payment of (A) the first instalment of
the annual administration fee required by Section 2.08(b); (B) all fees
and expenses incurred by the Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel); (C) the
Facility Fees specified in EXHIBIT A, for the account of the respective
Banks; and (D) those fees specified in the Supplemental Fee Letter to be
paid on or before the Closing Date;
(2) Note. The Notes for UBS and each of the other Banks signatory
hereto, duly executed by Borrower;
(3) Financials of Borrower. Audited TRG Consolidated Financial
Statements as of and for the year ended December 31, 1995 and unaudited
TRG Consolidated Financial Statements as of and for the quarter ended
September 30, 1996, each acceptable to the Banks;
(4) Evidence of Formation of Borrower. Certified (as of the Closing
Date) copies of Borrower's certificate and agreement of limited
partnership, with all amendments thereto, and a certificate of the
Secretary of State of the jurisdiction of formation as to its good
standing therein;
(5) Evidence of All Partnership Action. Certified (as of the Closing
Date) copies of all documents evidencing partnership action taken by
Borrower authorizing the execution, delivery and performance of the Loan
Documents
36
<PAGE>
and each other document to be delivered by or on behalf of Borrower
pursuant to this Agreement;
(6) Incumbency and Signature Certificate of Borrower. A certificate
(dated as of the Closing Date) of the Secretary of the Partnership
Committee of Borrower certifying the names and true signatures of each
person authorized to sign on behalf of Borrower;
(7) Solvency Certificate. A Solvency Certificate, duly executed,
from Borrower;
(8) Opinion of Counsel for Borrower. A favorable opinion, dated the
Closing Date, of Miro Weiner & Kramer, counsel for Borrower, as to such
matters as the Administrative Agent may reasonably request;
(9) Authorization Letter. The Authorization Letter, duly executed by
Borrower;
(10) Request for Advance. A request for an advance in accordance
with Section 2.04;
(11) Certificate. The following statements shall be true and the
Administrative Agent shall have received a certificate dated the Closing
Date signed by a duly authorized signatory of Borrower stating, to the
best of the certifying party's knowledge, the following:
(a) All representations and warranties contained in this
Agreement and in each of the other Loan Documents are true and
correct on and as of the Closing Date as though made on and as of
such date, and
(b) No Default or Event of Default has occurred and is
continuing, or could result from the transactions contemplated by
this Agreement and the other Loan Documents;
(12) Supplemental Fee Letter. The Supplemental Fee Letter, duly
executed by Borrower; and
(13) Additional Documentation. Such other approvals, opinions or
documents as the Administrative Agent or any Bank may reasonably request.
Section 4.02 Conditions Precedent to Advances After the Initial
Advance. The obligation of each Bank to make advances of the Loans subsequent to
the Initial Advance shall be subject to satisfaction of the following conditions
precedent:
(1) All conditions of Section 4.01 shall have been and remain
satisfied as of the date of the advance;
37
<PAGE>
(2) No Default or Event of Default shall have occurred and be
continuing as of the date of the advance;
(3) Each of the representations and warranties contained in this
Agreement and in each of the other Loan Documents shall be true and
correct as of the date of the advance; and
(4) The Administrative Agent shall have received a request for an
advance in accordance with Section 2.04.
Section 4.03 Deemed Representations. Each request by Borrower for,
and acceptance by Borrower of, an advance of proceeds of the Loans shall
constitute a representation and warranty by Borrower that, as of both the date
of such request and the date of the advance (1) no Default or Event of Default
has occurred and is continuing, and (2) if any representation or warranty
contained in this Agreement or the other Loan Documents is untrue or incorrect,
the condition giving rise to such untruthfulness or incorrectness is not likely
to result in a Material Adverse Change.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Administrative Agent and
each Bank as follows:
Section 5.01 Due Organization. Borrower is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has the partnership power and authority to own its assets and to
transact the business in which it is now engaged, and, if applicable, is duly
qualified as a foreign partnership and in good standing under the laws of each
other jurisdiction in which such qualification is required.
Section 5.02 Power and Authority; No Conflicts; Compliance With
Laws. The execution, delivery and performance of the obligations required to be
performed by Borrower of the Loan Documents does not and will not (a) require
the consent or approval of its partners or such consent or approval has been
obtained, (b) contravene its partnership agreement, (c) violate any provision
of, or require any filing, registration, consent or approval under, any Law
(including, without limitation, Regulation U), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it, (d) result in a breach of or constitute a default under or
require any consent under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which it may be a party or by which it or its
properties may be bound or affected except for consents which have been
obtained, (e) result in, or require, the creation or imposition of any Lien,
upon or with respect to any of its properties now owned or hereafter
38
<PAGE>
acquired, or (f) cause it to be in default under any such Law, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument; to the best of its knowledge, Borrower is in
compliance with all Laws applicable to it where the failure to be in compliance
would cause a Material Adverse Change to occur.
Section 5.03 Legally Enforceable Agreements. Each Loan Document is a
legal, valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
Section 5.04 Litigation. There are no actions, suits or proceedings
pending or, to its knowledge, threatened against Borrower or any of its
Affiliates before any court or arbitrator or any Governmental Authority except
actions, suits or proceedings which have been disclosed to the Administrative
Agent and the Banks in writing and which are fully covered by insurance or
would, if adversely determined, not substantially impair the ability of Borrower
to pay when due any amounts which may become payable under the Notes or to
otherwise pay and perform its obligations in connection with the Loan.
Section 5.05 Good Title to Properties. Borrower and each of its
Affiliates have good, marketable and legal title to all of the properties and
assets each of them purports to own (including, without limitation, those
reflected in the December 31, 1995 financial statements referred to in Section
5.13) and, in the case of all of Borrower's shopping center properties, only
with exceptions which do not materially detract from the value of such property
or assets or the use thereof in Borrower's and such Affiliate's business, and
except to the extent that any such properties and assets have been encumbered or
disposed of since the date of such financial statements without violating any of
the covenants contained in Article VII or elsewhere in this Agreement. Borrower
and its Affiliates enjoy peaceful and undisturbed possession of all leased
property necessary in any material respect in the conduct of their respective
businesses. All such leases are valid and subsisting and are in full force and
effect.
Section 5.06 Taxes. Borrower has filed all tax returns (federal,
state and local) required to be filed and has paid all taxes, assessments and
governmental charges and levies due and payable without the imposition of a
penalty, including interest and penalties, except to the extent they are the
subject of a Good Faith Contest.
Section 5.07 ERISA. Borrower is in compliance in all material
respects with all applicable provisions of ERISA. Neither a Reportable Event nor
a Prohibited Transaction has occurred with respect to any Plan; no notice of
intent to
39
<PAGE>
terminate a Plan has been filed nor has any Plan been terminated within the past
five (5) years; no circumstance exists which constitutes grounds under Section
4042 of ERISA entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, a Plan, nor has the PBGC instituted any such
proceedings; Borrower and the ERISA Affiliates thereof have not completely or
partially withdrawn under Sections 4201 or 4204 of ERISA from a Multiemployer
Plan; Borrower and the ERISA Affiliates thereof have met the minimum funding
requirements of each under ERISA with respect to the plans of each and there are
no unfunded vested liabilities with respect to any plan established or
maintained by each; and Borrower and the ERISA Affiliates thereof have not
incurred any liability to the PBGC under ERISA.
Section 5.08 No Default on Outstanding Judgments or Orders. Borrower
has satisfied all judgments which are not being appealed and is not in default
with respect to any judgment, order, writ, injunction, decree, rule or
regulation of any court, arbitrator or federal, state, municipal or other
Governmental Authority, commission, board, bureau, agency or instrumentality,
domestic or foreign.
Section 5.09 No Defaults on Other Agreements. Except as disclosed to
the Bank Parties in writing, including anything disclosed on financial
statements, Borrower, to the best of its knowledge, is not a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any partnership, trust or other restriction which is
likely to result in a Material Adverse Change. To the best of its knowledge,
Borrower is not in default in any respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument which is likely to result in a Material Adverse Change.
Section 5.10 Government Regulation. Borrower is not subject to
regulation under the Investment Company Act of 1940, the Interstate Commerce
Act, the Federal Powers Act or any statute or regulation limiting any such
Person's ability to incur indebtedness for money borrowed as contemplated
hereby.
Section 5.11 Environmental Protection. To the best of Borrower's
knowledge, none of Borrower's or its Affiliates' properties contains any
Hazardous Materials that, under any Environmental Law currently in effect, (1)
would impose liability on Borrower that is likely to result in a Material
Adverse Change, or (2) is likely to result in the imposition of a Lien on any
assets of Borrower or its Affiliates, in each case if not properly handled in
accordance with applicable Law. To the best of Borrower's knowledge, neither it
nor any of its Affiliates is in violation of, or subject to any existing,
pending or threatened investigation or proceeding by any Governmental Authority
under, any Environmental Law.
40
<PAGE>
Section 5.12 Solvency. Borrower is, and upon consummation of the
transactions contemplated by this Agreement, the other Loan Documents and any
other documents, instruments or agreements relating thereto, will be, Solvent.
Section 5.13 Financial Statements. The TRG Consolidated Financial
Statements most recently delivered to the Banks pursuant to the terms of this
Agreement are in all material respects complete and correct and fairly present
the financial condition of the subjects thereof as of the dates of and for the
periods covered by such statements, all in accordance with GAAP, and there has
been no Material Adverse Change since the date of such most recently delivered
TRG Consolidated Financial Statements.
Section 5.14 Valid Existence of Affiliates. As of the Closing Date,
the only material Affiliates of Borrower which own or lease operating shopping
centers or shopping centers under construction are listed on EXHIBIT D hereto.
Each such Affiliate is a partnership, limited liability company or joint venture
duly organized and existing in good standing under the laws of the jurisdiction
of its formation. As to each such Affiliate, its correct name, the jurisdiction
of its formation and Borrower's percentage of beneficial interest therein are
set forth on said EXHIBIT D. Borrower and each of such Affiliates have the power
to own their respective properties and to carry on their respective businesses
now being conducted. Each of Borrower and such Affiliates is duly qualified as a
foreign partnership, company or venture to do business and is in good standing
in every jurisdiction in which the nature of the respective businesses conducted
by it or its respective properties, owned or held under lease, make such
qualification necessary.
Section 5.15 Insurance. Borrower and each of its Affiliates has in
force paid insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated.
Section 5.16 Accuracy of Information; Full Disclosure. Neither this
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
to the Administrative Agent or any Bank in connection with the negotiation of
this Agreement or the consummation of the transactions contemplated hereby, or
required herein to be furnished by or on behalf of Borrower, contains any untrue
or misleading statement of a material fact or omits a material fact necessary to
make the statements herein or therein not misleading. There is no fact which
Borrower has not disclosed to the Administrative Agent and the Banks in writing
which materially affects adversely nor, so far as Borrower can now foresee, will
materially affect adversely the business, prospects, profits or financial
condition of Borrower or the
41
<PAGE>
ability of Borrower to perform this Agreement and the other Loan Documents.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to any
Bank hereunder or under any other Loan Document, Borrower shall:
Section 6.01 Maintenance of Existence. Preserve and maintain its
legal existence and, if applicable, good standing in the jurisdiction of
organization and, if applicable, qualify and remain qualified as a foreign
partnership in each jurisdiction in which such qualification is required, except
to the extent that failure to so qualify is not likely to result in a Material
Adverse Change.
Section 6.02 Maintenance of Records. Keep adequate records and books
of account, in which complete entries will be made in accordance with GAAP,
reflecting all of its financial transactions.
Section 6.03 Maintenance of Insurance. At all times, maintain and
keep in force, and cause each of its Affiliates to maintain and keep in force,
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibility from coverage thereof.
Section 6.04 Compliance with Laws; Payment of Taxes. Comply in all
respects with all Laws applicable to it or to any of its properties or any part
thereof, such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments and governmental charges imposed upon
it or upon its property, except to the extent they are the subject of a Good
Faith Contest.
Section 6.05 Right of Inspection. At any reasonable time and from
time to time upon reasonable notice, permit the Administrative Agent or any Bank
or any agent or representative thereof (provided that a representative of any
Bank must, at Borrower's request, be accompanied by a representative of
Borrower), to examine and make copies and abstracts from the records and books
of account of, and visit the properties of, Borrower and to discuss the affairs,
finances and accounts of Borrower with the independent accountants of Borrower.
Section 6.06 Compliance With Environmental Laws. Comply in all
material respects with all applicable Environmental Laws and immediately pay or
cause to be paid all costs and
42
<PAGE>
expenses incurred in connection with such compliance, except to the extent there
is a Good Faith Contest.
Section 6.07 Payment of Costs. Pay all costs and expenses required
for the satisfaction of the conditions of this Agreement.
Section 6.08 Maintenance of Properties. Borrower will do all things
reasonably necessary to maintain, preserve, protect and keep its and its
Affiliates' properties in good repair, working order and condition.
Section 6.09 Reporting and Miscellaneous Document
Requirements. Furnish directly to each of the Banks:
(1) Annual Financial Statements. As soon as available and in any
event within ninety (90) days after the end of each Fiscal Year, the TRG
Consolidated Financial Statements as of the end of and for such Fiscal Year, in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year and audited by Borrower's
Accountants;
(2) Quarterly Financial Statements. As soon as available and in any
event within forty-five (45) days after the end of each calendar quarter (other
than the last quarter of the Fiscal Year), the unaudited TRG Consolidated
Financial Statements as of the end of and for such calendar quarter, in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year;
(3) Statement of Gross Asset Value. As soon as available and in any
event within ninety (90) days after June 30th of each year, (a) a statement by
Borrower setting forth the calculation of Gross Asset Value, including
individual ten (10)- year projections for each asset (described in clause (ii)
of the definition of Gross Asset Value in Section 1.01) contributing to Gross
Asset Value and a summary of material assumptions, accompanied by a concurrence
letter from the Banks' Valuation Consultant confirming that, based on their
review of all relevant materials, there is no more than a ten percent (10%)
variation between the contribution to Gross Asset Value from all the assets
described in clause (ii) of the definition of Gross Asset Value in Section 1.01,
as determined by Borrower, and the contribution from said assets to Gross Asset
Value if the same had been estimated by the reviewer in a full appraisal of the
same interests, which concurrence letter shall contain a one (1)-page summary of
its analysis for each of the individual assets contributing to Gross Asset
Value;
(4) Certificate of No Default and Financial Compliance. Within forty
five (45) days after the end of each of the first three quarters of each Fiscal
Year and within ninety (90) days after the end of each Fiscal Year, a
certificate of
43
<PAGE>
Borrower's chief financial officer or Treasurer (a) stating that, to the best of
his or her knowledge, no Default or Event of Default has occurred and is
continuing, or if a Default or Event of Default has occurred and is continuing,
specifying the nature thereof and the action which is proposed to be taken with
respect thereto; (b) stating that the covenants contained in Sections 7.02,
7.03, 7.04 and 7.06 and in Article VIII have been complied with (or specifying
those that have not been complied with) and including computations demonstrating
such compliance (or non-compliance); and (c) setting forth the details of all
items comprising Total Outstanding Indebtedness (including amount, maturity,
interest rate and amortization requirements), Unencumbered Combined EBITDA,
Unsecured Interest Expense and Unsecured Indebtedness;
(5) Certificate of Borrower's Accountants. Simultaneously with the
delivery of the annual financial statements required by paragraph (1) of this
Section, a statement of Borrower's Accountants who audited such financial
statements comparing the computations set forth in the financial compliance
certificate required by paragraph (4) of this Section to the audited financial
statements required by paragraph (1) of this Section (where such information
appears in such financial statements);
(6) Notice of Litigation. Promptly after the commencement and
knowledge thereof, notice of all actions, suits, and proceedings before any
court or arbitrator, affecting Borrower which, if determined adversely to
Borrower is likely to result in a Material Adverse Change;
(7) Notices of Defaults and Events of Default. As soon as possible
and in any event within ten (10) days after Borrower becomes aware of the
occurrence of a material Default or any Event of Default a written notice
setting forth the details of such Default or Event of Default and the action
which is proposed to be taken with respect thereto;
(8) Dispositions or Acquisitions of Assets. Within thirty (30) days
after the occurrence thereof, written notice of any Disposition or acquisition
of assets (other than acquisitions or Dispositions of investments such as
certificates of deposit, Treasury securities and money market deposits in the
ordinary course of Borrower's cash management) in excess of Twenty Five Million
Dollars ($25,000,000), together with, in the case of any acquisition of such an
asset, (i) copies of the agreements governing the acquisition, (ii) historical
balance sheets (to the extent available) and statements of income and cash flows
with respect to the property acquired for at least the preceding three (3) years
and Borrower's revenue and expense projections for the property acquired for at
least the next five (5) years (all of the foregoing to be in form and detail
satisfactory to the Administrative Agent), (iii) a certificate, of the sort
required by paragraph (4)(b) of this Section, containing covenant
44
<PAGE>
compliance calculations that include the pro-forma adjustments set forth at the
end of this Section, which calculations shall demonstrate Borrower's compliance,
on a pro-forma basis, as of the end of the most recently ended calendar quarter
for which financial results are required hereunder to have been reported by
Borrower, with all covenants enumerated in said paragraph (4)(b) and (iv) such
other information relating to the acquisition as the Administrative Agent may
reasonably request;
(9) Material Adverse Change. As soon as is practicable and in any
event within five (5) days after knowledge of the occurrence of any event or
circumstance which is likely to result in or has resulted in a Material Adverse
Change, written notice thereof;
(10) Bankruptcy of Tenants. Promptly after becoming aware of the
same, written notice of the bankruptcy, insolvency or cessation of operations of
any tenant in any property of Borrower or in which Borrower has an interest to
which five percent (5%) or more of minimum rent payable to Borrower directly or
through its Consolidated Businesses or UJVs is attributable;
(11) Offices. Thirty (30) days' prior written notice of any change
in the chief executive office or principal place of business of Borrower;
(12) Environmental and Other Notices. As soon as possible and in any
event within five (5) days after receipt, copies of all Environmental Notices
received by Borrower which are not received in the ordinary course of business
and which relate to a situation which is likely to result in a Material Adverse
Change;
(13) Insurance Coverage. Promptly, such information concerning
Borrower's insurance coverage as the Administrative Agent may reasonably
request;
(14) Change in Borrower's Credit Rating. Within two (2) Banking Days
after any change in Borrower's Credit Rating, written notice of such change; and
(15) General Information. Promptly, such other information
respecting the condition or operations, financial or otherwise, of Borrower or
any properties of Borrower as the Administrative Agent may from time to time
reasonably request.
In connection with each acquisition of assets that is required to be
reported pursuant to paragraph (8) of this Section, the following pro-forma
adjustments shall be made to the covenant compliance calculations required as of
the end of the most recently ended calendar quarter for which financial results
are required hereunder to have been reported by Borrower:
45
<PAGE>
(i) Gross Asset Value shall be adjusted by adding thereto the
lesser of (A) the Purchase Price Borrower paid for the acquired asset or
(B) the acquired asset's trailing twelve (12)-month net operating income,
less any management fee adjustment, if applicable, capitalized at a rate
of 8% per annum; provided, however, that, at Borrower's request and
expense, the Administrative Agent shall promptly cause the Banks'
Valuation Consultant to appraise the acquired asset and, upon the
completion of such appraisal, provided such appraisal is reasonably
satisfactory to the Administrative Agent, the appraised value of the
acquired asset as determined in such appraisal shall be substituted for
the amount calculated pursuant to clauses (A) and (B) above.
(ii) Total Outstanding Indebtedness, Secured Indebtedness and
Unsecured Indebtedness shall be adjusted by adding thereto, respectively,
all indebtedness, secured indebtedness and unsecured indebtedness that is
assumed and/or incurred by Borrower in connection with the acquisition.
For purposes of such adjustments, indebtedness, secured indebtedness and
unsecured indebtedness in connection with the acquisition shall be treated
in a manner consistent with the treatment of Total Outstanding
Indebtedness, Secured Indebtedness and Unsecured Indebtedness in the TRG
Consolidated Financial Statements.
(iii) Combined EBITDA, for any period, shall be adjusted by adding
(or subtracting, in the case of a loss) thereto actual revenues less
operating costs before interest, depreciation, amortization and
extraordinary items, for the same period (based on the same accounting
principles and assumptions as are set forth in the definition of "Combined
EBITDA" in Section 1.01, to the extent possible based on information
reasonably available with respect to the acquired asset), from the
acquired asset.
(iv) If, upon its acquisition, the acquired asset becomes part of
Unencumbered Wholly-Owned Assets, Unencumbered Combined EBITDA, for any
period, shall be adjusted by adding (or subtracting, in the case of a
loss) thereto actual income before interest expense, income taxes,
depreciation, amortization and extraordinary items, for the same period,
from the acquired asset.
(v) Interest Expense and Unsecured Interest Expense, for any
period, shall be adjusted by adding thereto interest expense to be
incurred on, respectively, all indebtedness and unsecured indebtedness
that is assumed and/or incurred by Borrower in connection with the
acquisition, assuming, for purposes of this calculation, that such
indebtedness were to bear interest at a rate 1.75% per annum in excess of
the rate of interest that would be payable on a ten (10)-
46
<PAGE>
year United States Treasury Note issued as of the date of the acquisition.
ARTICLE VII. NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to the
Administrative Agent or any Bank hereunder or under any other Loan Document,
Borrower shall not do any or all of the following:
Section 7.01 Mergers Etc. Merge or consolidate with (except where
Borrower or a Person wholly-owned by Borrower is the surviving entity), or sell,
assign, lease or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) (or enter into any agreement to do any of the foregoing).
Section 7.02 Investments. Make any loan or advance to any Person or
purchase or otherwise acquire any capital stock, assets, obligations or other
securities of, make any capital contribution to, or otherwise invest in, or
acquire any interest in, any Person (any such transaction, an "Investment") if
(1) the Investment is in connection with something other than a retail shopping
center and the amount of any single such Investment (or the aggregate amount of
any single such Investment together with all related Investments), would exceed
twenty percent (20%) of Net Worth; (2) except to the extent permitted by clause
(3) below, such Investment constitutes the acquisition of a minority interest in
a Person (a "Minority Interest") and the amount of such Investment, together
with the value of all other Minority Interests acquired after the Closing Date
contributing to Gross Asset Value, would exceed ten percent (10%) of Net Worth,
or (3) such Investment constitutes the acquisition of a Minority Interest in a
regional shopping center or portfolio of regional shopping centers and the
amount of such Investment, together with the value of all other such Minority
Interests, would exceed twenty percent (20%) of Net Worth. A fifty percent (50%)
beneficial interest in a Person, in connection with which the holder thereof
exercises joint control over such Person with the holder(s) of the other fifty
percent (50%) beneficial interest, shall not constitute a "Minority Interest"
for purposes of this Section.
Section 7.03 Sale of Assets. Effect a Disposition of any of its now
owned or hereafter acquired assets, including assets in which Borrower owns a
beneficial interest through its ownership of interests in joint ventures,
aggregating more than forty percent (40%) of Gross Asset Value.
Section 7.04 Interest Rate Hedging. At any time, permit or suffer
more than twenty five percent (25%) of Total
47
<PAGE>
Outstanding Indebtedness not to be "hedged"; for purposes of this Section,
"hedged" shall mean bearing interest at an effective fixed rate, either pursuant
to the debt instrument itself or through the operation of a "cap", "collar",
"swap" or comparable interest rate protection contract, such debt instrument, or
instrument creating the "cap", "collar", "swap" or comparable interest rate
protection contract, as the case may be, having an original term of at least
twelve (12) months.
Section 7.05 Partnership Committee of Borrower. At any time, permit
or suffer the failure or inability of any one (1) or more of (1) TG Partners
Limited Partnership and/or Taub-Co Management, Inc.; (2) the General Motors
Hourly-Rate Employees Pension Trust and/or the General Motors Salaried Employees
Pension Trust, directly or indirectly (or a single "GMPTS Transferee," as such
quoted term is defined in Borrower's Amended and Restated Agreement of Limited
Partnership); and (3) TCI, to designate a majority of Borrower's partnership
committee.
SECTION 7.06 ENCUMBRANCE OF CERTAIN ASSETS. AT ANY TIME, EFFECT A
DISPOSITION OF, MORTGAGE, HYPOTHECATE OR OTHERWISE ENCUMBER TO SECURE A DEBT (IT
BEING UNDERSTOOD THAT, FOR PURPOSES OF THIS SECTION, AN ASSET SHALL BE DEEMED
"ENCUMBERED" IF IT IS THE SUBJECT OF A PLEDGE NOT TO ENCUMBER), (1) THE
BRIARWOOD SHOPPING CENTER IN ANN ARBOR, MICHIGAN, (2) THE BILTMORE SHOPPING
CENTER IN PHOENIX, ARIZONA, (3) THE MARLEY STATION SHOPPING CENTER IN GLEN
BURNIE, MARYLAND OR (4) MEADOWOOD MALL SHOPPING CENTER IN RENO, NEVADA, OR ANY
PORTION OF ITS INTEREST IN ANY OF THE FOREGOING. IT IS UNDERSTOOD IN CONNECTION
WITH THE FOREGOING COVENANT THAT BORROWER SHALL HAVE THE RIGHT TO SUBSTITUTE ONE
(1) OR MORE COMPARABLE SHOPPING CENTER PROPERTIES FOR ANY OF THE FOUR (4)
PROPERTIES IDENTIFIED ABOVE, SUBJECT TO THE PRIOR WRITTEN APPROVAL OF THE
REQUIRED BANKS, WHICH APPROVAL MAY BE GRANTED OR DENIED IN THE SOLE AND ABSOLUTE
DISCRETION OF THE REQUIRED BANKS.
ARTICLE VIII. FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to the
Administrative Agent or any Bank under this Agreement or under any other Loan
Document, Borrower shall not permit or suffer:
Section 8.01 Net Worth. At any time, Net Worth to be less than One
Billion Dollars ($1,000,000,000); or
Section 8.02 Relationship of Total Outstanding Indebtedness to Gross
Asset Value. At any time, Total Outstanding Indebtedness to exceed fifty percent
(50%) of Gross Asset Value; or
48
<PAGE>
Section 8.03 Relationship of Secured Indebtedness to Gross Asset
Value. At any time, Secured Indebtedness to exceed thirty five percent (35%) of
Gross Asset Value; or
Section 8.04 Relationship of Combined EBITDA to Interest Expense. As
of the end of any calendar quarter, the ratio of (1) Combined EBITDA to (2)
Interest Expense, each for the twelve (12)-month period then ended and taken as
a whole, to be less than 1.85 to 1.0; or
Section 8.05 Relationship of Combined EBITDA to Adjusted Total
Outstanding Indebtedness. As of the end of any calendar quarter, the ratio
(expressed as a percentage) of (1) Combined EBITDA for the twelve (12)-month
period then ended and taken as a whole to (2) Adjusted Total Outstanding
Indebtedness as of the end of such calendar quarter to be less than thirteen
percent (13%); or
Section 8.06 Combined EBTDA. As of the end of any calendar quarter,
Combined EBTDA for such calendar quarter to be less than Twelve Million Five
Hundred Thousand Dollars ($12,500,000); or
Section 8.07 Unsecured Debt Yield. As of the end of
any calendar quarter, Unsecured Debt Yield for such calendar
quarter to be less than eleven and one half percent (11-1/2%); or
Section 8.08 Relationship of Unencumbered Combined EBITDA to
Interest Expense on Unsecured Indebtedness. As of the end of any calendar
quarter, the ratio of (1) Unencumbered Combined EBITDA to (2) that portion of
Interest Expense attributable to Unsecured Indebtedness, each for the prior
twelve (12)-month period then ended and taken as a whole, to be less than 1.50
to 1.00.
ARTICLE IX. EVENTS OF DEFAULT
Section 9.01 Events of Default. Any of the following events shall be
an "Event of Default":
(1) If Borrower shall: fail to pay the principal of any Notes as and
when due; or fail to pay interest accruing on any Notes as and when due and such
failure to pay shall continue unremedied for five (5) days after the due date of
such amount; or fail to pay any fee or interest or any other amount due under
this Agreement or any other Loan Document as and when due and such failure to
pay shall continue unremedied for two (2) days after notice by the
Administrative Agent of such failure to pay; or
(2) If any representation or warranty made by Borrower in this
Agreement or in any other Loan Document or which is contained in any
certificate, document, opinion, financial or
49
<PAGE>
other statement furnished at any time under or in connection with a Loan
Document shall prove to have been incorrect in any material respect on or as of
the date made; or
(3) If Borrower shall fail (a) to perform or observe any term,
covenant or agreement contained in Article VII or Article VIII; or (b) to
perform or observe any term, covenant or agreement contained in Article VI or
otherwise contained in this Agreement (other than obligations specifically
referred to elsewhere in this Section) or any Loan Document, or any other
document executed by Borrower and delivered to the Administrative Agent and/or
the Banks in connection with the transactions contemplated hereby and such
failure shall remain unremedied for thirty (30) consecutive calendar days after
the occurrence thereof (or such shorter cure period as may be expressly
prescribed in the applicable Loan Document); provided, however, that if any such
default under clause (b) above cannot by its nature be cured within such thirty
(30) day, or shorter, as the case may be, grace period and so long as Borrower
shall have commenced cure within such thirty (30) day, or shorter, as the case
may be, grace period and shall, at all times thereafter, diligently prosecute
the same to completion, Borrower shall have an additional period, not to exceed
sixty (60) days, to cure such default; in no event, however, is the foregoing
intended to effect an extension of the Maturity Date; or
(4) If Borrower shall fail (a) to pay any Debt (other than the
payment obligations described in paragraph (1) of this Section) in an amount
equal to or greater than Ten Million Dollars ($10,000,000) when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise), or
(b) to perform or observe any material term, covenant, or condition under any
agreement or instrument relating to any such Debt, when required to be performed
or observed, if the effect of such failure to perform or observe is to
accelerate, or to permit the acceleration of, after the giving of notice or the
lapse of time, or both (other than in cases where, in the judgment of the
Required Banks, meaningful discussions likely to result in (i) a waiver or cure
of the failure to perform or observe, or (ii) otherwise averting such
acceleration are in progress between Borrower and the obligee of such Debt), the
maturity of such Debt, or any such Debt shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled or otherwise
required prepayment), prior to the stated maturity thereof; or
(5) If Borrower, or any Affiliate of Borrower to which One Hundred
Fifty Million Dollars ($150,000,000) or more of Gross Asset Value is
attributable, shall: (a) generally not, or be unable to, or shall admit in
writing its inability to, pay its debts as such debts become due; or (b) make an
assignment for the benefit of creditors, petition or apply to any tribunal for
the appointment of a custodian, receiver or trustee for it or a substantial part
of its assets; or (c) commence any proceeding
50
<PAGE>
under any bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or (d) have had any such petition or application filed or
any such proceeding shall have been commenced, against it, in which an
adjudication or appointment is made or order for relief is entered, or which
petition, application or proceeding remains undismissed or unstayed for a period
of sixty (60) days or more; or (e) be the subject of any proceeding under which
all or a substantial part of its assets may be subject to seizure, forfeiture or
divestiture; or (f) by any act or omission indicate its consent to, approval of
or acquiescence in any such petition, application or proceeding or order for
relief or the appointment of a custodian, receiver or trustee for all or any
substantial part of its property; or (g) suffer any such custodianship,
receivership or trusteeship for all or any substantial part of its property, to
continue undischarged for a period of sixty (60) days or more; or
(6) If one or more judgments, decrees or orders for the payment of
money in excess of Ten Million Dollars ($10,000,000) in the aggregate shall be
rendered against Borrower, and any such judgments, decrees or orders shall
continue unsatisfied and in effect for a period of thirty (30) consecutive days
without being vacated, discharged, satisfied or stayed or bonded pending appeal;
or
(7) If any of the following events shall occur or exist with respect
to Borrower, or any ERISA Affiliate of Borrower: (a) any Prohibited Transaction
involving any Plan; (b) any Reportable Event with respect to any Plan: (c) the
filing under Section 4041 of ERISA of a notice of intent to terminate any Plan
or the termination of any Plan; (d) any event or circumstance which might
constitute grounds entitling the PBGC to institute proceedings under Section
4042 of ERISA for the termination of, or for the appointment of a trustee to
administer, any Plan, or the institution by the PBGC of any such proceedings; or
(e) complete or partial withdrawal under Section 4201 or 4204 of ERISA from a
Multiemployer Plan or the reorganization, insolvency, or termination of any
Multiemployer Plan; and in each case above, if such event or conditions, if any,
could in the opinion of any Bank subject Borrower or any ERISA Affiliate of
Borrower to any tax, penalty, or other liability to a Plan, Multiemployer Plan,
the PBGC or otherwise (or any combination thereof) which in the aggregate
exceeds or may exceed Fifty Thousand Dollars ($50,000); or
(8) If at any time TCI is not a qualified real estate investment
trust under Sections 856 through 860 of the Code or is not listed on the New
York Stock Exchange or the American Stock Exchange; or
51
<PAGE>
(9) If at any time Borrower fails to operate as a real estate
operating company for ERISA purposes (within the meaning of C.F.R.
ss.2510.3-101); or
(10) If the Taubman Company Limited Partnership, the entity
presently providing property management and leasing services for all the
regional shopping center properties in which Borrower has an ownership interest,
shall discontinue providing such services for twenty five percent (25%) or more
of the regional shopping center properties then owned in whole or in part by
Borrower.
Section 9.02 Remedies. If any Event of Default shall occur and be
continuing, the Administrative Agent shall, upon request of the Required Banks,
by notice to Borrower, (1) declare the outstanding Notes, all interest thereon,
and all other amounts payable under this Agreement, and any other Loan Documents
to be forthwith due and payable, whereupon the Notes, all such interest, and all
such amounts due under this Agreement, and under any other Loan Document shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by
Borrower; and/or (2) exercise any remedies provided in any of the Loan Documents
or by law.
ARTICLE X. THE ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS
Section 10.01 Appointment, Powers and Immunities of Administrative
Agent. Each Bank hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent hereunder and under any other Loan Document with such
powers as are specifically delegated to the Administrative Agent by the terms of
this Agreement and any other Loan Document, together with such other powers as
are reasonably incidental thereto. The Administrative Agent shall have no duties
or responsibilities except those expressly set forth in this Agreement and any
other Loan Document or required by law, and shall not by reason of this
Agreement be a fiduciary or trustee for any Bank except to the extent that the
Administrative Agent acts as an agent with respect to the receipt or payment of
funds (nor shall Administrative Agent have any fiduciary duty to Borrower nor
shall any Bank have any fiduciary duty to Borrower or to any other Bank). The
Administrative Agent shall not be responsible to the Banks for any recitals,
statements, representations or warranties made by Borrower or any officer,
partner or official of Borrower or any other Person contained in this Agreement
or any other Loan Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document or instrument referred to or
provided for herein or therein, for the perfection or priority of
52
<PAGE>
any Lien securing the Obligations or for any failure by Borrower to perform any
of its obligations hereunder or thereunder. The Administrative Agent may employ
agents and attorneys-in-fact and shall not be responsible, except as to money or
securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible for any action
taken or omitted to be taken by it or them hereunder or under any other Loan
Document or in connection herewith or therewith, except for its or their own
gross negligence or willful misconduct. Borrower shall pay any fee agreed to by
Borrower and the Administrative Agent with respect to the Administrative Agent's
services hereunder.
Section 10.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat each Bank as
the holder of the Loan made by it for all purposes hereof and shall not be
required to deal with any Person who has acquired a participation in any Loan or
participation from a Bank. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by the Required Banks, and such instructions
of the Required Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks and any other holder of all or any portion
of any Loan or participation.
Section 10.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge of the occurrence of a Default or Event of Default unless the
Administrative Agent has received notice from a Bank or Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or Event of Default, the Administrative Agent shall
give prompt notice thereof to the Banks. The Administrative Agent, following
consultation with the Banks, shall (subject to Section 10.07) take such action
with respect to such Default or Event of Default which is continuing as shall be
directed by the Required Banks; provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may take such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in the best interest
of the Banks; and provided further that the Administrative Agent shall not send
a notice of Default or acceleration to Borrower
53
<PAGE>
without the approval of the Required Banks. In no event shall the Administrative
Agent be required to take any such action which it determines to be contrary to
law.
Section 10.04 Rights of Administrative Agent as a Bank. With respect
to its Loan Commitment and the Loan provided by it, the Administrative Agent in
its capacity as a Bank hereunder shall have the same rights and powers hereunder
as any other Bank and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Administrative Agent in its capacity as a Bank.
The Administrative Agent and its Affiliates may (without having to account
therefor to any Bank) accept deposits from, lend money to (on a secured or
unsecured basis), and generally engage in any kind of banking, trust or other
business with Borrower (and any Affiliates of Borrower) as if it were not acting
as the Administrative Agent.
Section 10.05 Indemnification of Administrative Agent. Each Bank
agrees to indemnify the Administrative Agent (to the extent not reimbursed under
Section 12.04 or under the applicable provisions of any other Loan Document, but
without limiting the obligations of Borrower under Section 12.04 or such
provisions), for its Pro Rata Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, any other Loan Document or any other documents
contemplated by or referred to herein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses which Borrower is
obligated to pay under Section 12.04) or under the applicable provisions of any
other Loan Document or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided that no Bank shall be
liable for (1) any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified, (2) any loss of
principal or interest with respect to the Administrative Agent's Loan or (3) any
loss suffered by the Administrative Agent in connection with a swap or other
interest rate hedging arrangement entered into with Borrower.
Section 10.06 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
Borrower and the decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this
54
<PAGE>
Agreement or any other Loan Document. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by Borrower
of this Agreement or any other Loan Document or any other document referred to
or provided for herein or therein or to inspect the properties or books of
Borrower. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of Borrower (or any Affiliate of Borrower) which
may come into the possession of the Administrative Agent or any of its
Affiliates. The Administrative Agent shall not be required to file this
Agreement, any other Loan Document or any document or instrument referred to
herein or therein, for record or give notice of this Agreement, any other Loan
Document or any document or instrument referred to herein or therein, to anyone.
Section 10.07 Failure of Administrative Agent to Act. Except for
action expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall have received further assurances
(which may include cash collateral) of the indemnification obligations of the
Banks under Section 10.05 in respect of any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Section 10.08 Resignation or Removal of Administrative Agent. The
Administrative Agent hereby agrees not to unilaterally resign except in the
event it becomes an Affected Bank and is removed or replaced as a Bank pursuant
to Section 3.07, in which event it shall have the right to resign. The
Administrative Agent may be removed at any time with or without cause by the
Required Banks, provided that Borrower and the other Banks shall be promptly
notified thereof. Upon any such removal, the Required Banks shall have the right
to appoint a successor Administrative Agent which successor Administrative
Agent, so long as it is reasonably acceptable to the Required Banks, shall be
that Bank then having the greatest Loan Commitment. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within thirty (30) days after the Required
Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be one of the Banks. The Required Banks or the
retiring Administrative Agent, as the case may be, shall upon the appointment of
a successor Administrative Agent promptly so notify Borrower and the other
Banks. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the
55
<PAGE>
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's removal hereunder as the Administrative Agent, the
provisions of this Article X shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
Section 10.09 Amendments Concerning Agency Function. Notwithstanding
anything to the contrary contained in this Agreement, the Administrative Agent
shall not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its duties, rights, and/or
function hereunder or thereunder unless it shall have given its prior written
consent thereto.
Section 10.10 Liability of Administrative Agent. The Administrative
Agent shall not have any liabilities or responsibilities to Borrower on account
of the failure of any Bank to perform its obligations hereunder or to any Bank
on account of the failure of Borrower to perform its obligations hereunder or
under any other Loan Document.
Section 10.11 Transfer of Agency Function. Without the consent of
Borrower or any Bank, the Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices wherever located in the United States, provided that the Administrative
Agent shall promptly notify Borrower and the Banks thereof.
Section 10.12 Non-Receipt of Funds by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Bank or Borrower
(either one as appropriate being the "Payor") prior to the date on which such
Bank is to make payment hereunder to the Administrative Agent of the proceeds of
a Loan or Borrower is to make payment to the Administrative Agent, as the case
may be (either such payment being a "Required Payment"), which notice shall be
effective upon receipt, that the Payor will not make the Required Payment in
full to the Administrative Agent, the Administrative Agent may assume that the
Required Payment has been made in full to the Administrative Agent on such date,
and the Administrative Agent in its sole discretion may, but shall not be
obligated to, in reliance upon such assumption, make the amount thereof
available to the intended recipient on such date. If and to the extent the Payor
shall not have in fact so made the Required Payment in full to the
Administrative Agent, the recipient of such payment shall repay to the
Administrative Agent forthwith on demand such amount made available to it
together with interest thereon, for each day from the date such amount was so
made available by the Administrative Agent until the date the Administrative
Agent recovers such amount, at the customary rate set by the Administrative
Agent for the correction of errors among Banks for three (3) Banking Days and
thereafter at the Base Rate.
56
<PAGE>
Section 10.13 Withholding Taxes. Each Bank represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Administrative Agent such forms,
certifications, statements and other documents as the Administrative Agent or
Borrower may request from time to time to evidence such Bank's exemption from
the withholding of any tax imposed by any jurisdiction or to enable the
Administrative Agent to comply with any applicable Laws or regulations relating
thereto. Without limiting the effect of the foregoing, if any Bank is not
created or organized under the laws of the United States of America or any state
thereof, such Bank will furnish to the Administrative Agent Form 4224 or Form
1001 of the Internal Revenue Service, or such other forms, certifications,
statements or documents, duly executed and completed by such Bank as evidence of
such Bank's exemption from the withholding of U.S. tax with respect thereto. The
Administrative Agent shall not be obligated to make any payments hereunder to
such Bank in respect of any Loan or participation or such Bank's Loan Commitment
or obligation to purchase participations until such Bank shall have furnished to
the Administrative Agent the requested form, certification, statement or
document.
Section 10.14 Minimum Commitment by UBS. Subsequent to the Closing
Date, UBS hereby agrees to maintain a Loan Commitment in an amount no less than
Thirty Million Dollars ($30,000,000), provided there exists no Event of Default,
and further agrees to hold and not to participate or assign any of such amount
other than an assignment to a Federal Reserve Bank or to the Parent or a
majority-owned subsidiary of UBS.
Section 10.15 Pro Rata Treatment. Except to the extent otherwise
provided, (1) each advance of proceeds of the Ratable Loans shall be made by the
Banks, (2) each reduction of the amount of the Total Loan Commitment under
Section 2.11 shall be applied to the Loan Commitments of the Banks, and (3) each
payment of the commitment fee accruing under Section 2.08(a) shall be made for
the account of the Banks, ratably according to the amounts of their respective
Loan Commitments.
Section 10.16 Sharing of Payments Among Banks. If a Bank shall
obtain payment of any principal of or interest on any Loan made by it through
the exercise of any right of setoff, banker's lien, counterclaim, or by any
other means (including direct payment), and such payment results in such Bank
receiving a greater payment than it would have been entitled to had such payment
been paid directly to the Administrative Agent for disbursement to the Banks,
then such Bank shall promptly purchase for cash from the other Banks
participations in the Loans made by the other Banks in such amounts, and make
such other adjustments from time to time as shall be equitable to the end that
all the Banks shall share ratably the benefit of such payment. To such end the
Banks shall make appropriate adjustments among themselves
57
<PAGE>
(by the resale of participations sold or otherwise) if such payment is rescinded
or must otherwise be restored. Borrower agrees that any Bank so purchasing a
participation in the Loans made by other Banks may exercise all rights of
setoff, banker's lien, counterclaim or similar rights with respect to such
participation. Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness of
Borrower.
Section 10.17 Possession of Documents. Each Bank shall keep
possession of its own Note. The Administrative Agent shall hold all the other
Loan Documents and related documents in its possession and maintain separate
records and accounts with respect thereto, and shall permit the Banks and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
ARTICLE XI. NATURE OF OBLIGATIONS
Section 11.01 Absolute and Unconditional Obligations. Borrower
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of: (1) any lack of validity or enforceability of any of the
Obligations, any Loan Documents, or any agreement or instrument relating
thereto; (2) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Obligations, or any other amendment
or waiver of or consent to any departure from any Loan Documents or any other
documents or instruments executed in connection with or related to the
Obligations; (3) any exchange or release of any collateral, or of any other
Person from all or any of the Obligations; or (4) any other circumstances which
might otherwise constitute a defense available to, or a discharge of, Borrower
or any other Person in respect of the Obligations.
The obligations and liabilities of Borrower under this Agreement and
other Loan Documents shall not be conditioned or contingent upon the pursuit by
any Bank or any other Person at any time of any right or remedy against Borrower
or any other Person which may be or become liable in respect of all or any part
of the Obligations or against any collateral or security or guarantee therefor
or right of setoff with respect thereto.
Section 11.02 Non-Recourse to TRG Partners. Notwithstanding anything
to the contrary contained in this Agreement, in any of the other Loan Documents,
or in any other instruments, certificates, documents or agreements executed in
connection with the Loans (all of the foregoing, for purposes of this Section,
hereinafter referred to, individually and collectively, as the "Relevant
Documents"), no recourse under or upon any Obligation, representation, warranty,
promise or other
58
<PAGE>
matter whatsoever shall be had against any of the constituent partners of
Borrower or their successors or assigns (said constituent partners and their
successors and assigns, for purposes of this Section, hereinafter referred to,
individually and collectively, as the "TRG Partners") and each Bank expressly
waives and releases, on behalf of itself and its successors and assigns, all
right to assert any liability whatsoever under or with respect to the Relevant
Documents against, or to satisfy any claim or obligation arising thereunder
against, any of the TRG Partners or out of any assets of the TRG Partners,
provided, however, that nothing in this Section shall be deemed to: (1) release
Borrower from any personal liability pursuant to, or from any of its respective
obligations under, the Relevant Documents, or from personal liability for its
fraudulent actions or fraudulent omissions; (2) release any TRG Partner from
personal liability for its or his own fraudulent actions or fraudulent
omissions; (3) constitute a waiver of any obligation evidenced or secured by, or
contained in, the Relevant Documents or affect in any way the validity or
enforceability of the Relevant Documents; or (4) limit the right of the
Administrative Agent and/or the Banks to proceed against or realize upon any
collateral hereafter given for the Loans or any and all of the assets of
Borrower (notwithstanding the fact that the TRG Partners have an ownership
interest in Borrower and, thereby, an interest in the assets of Borrower) or to
name Borrower (or, to the extent that the same are required by applicable law or
are determined by a court to be necessary parties in connection with an action
or suit against Borrower or any collateral hereafter given for the Loans, any of
the TRG Partners) as a party defendant in, and to enforce against any collateral
hereafter given for the Loans and/or assets of Borrower any judgment obtained by
the Administrative Agent and/or the Banks with respect to, any action or suit
under the Relevant Documents so long as no judgment shall be taken (except to
the extent taking a judgment is required by applicable law or determined by a
court to be necessary to preserve the Administrative Agent's and/or Banks'
rights against any collateral hereafter given for the Loans or Borrower, but not
otherwise) or shall be enforced against the TRG Partners, their successors and
assigns, or their assets.
ARTICLE XII. MISCELLANEOUS
Section 12.01 Binding Effect of Request for Advance. Borrower agrees
that, by its acceptance of any advance of proceeds of the Loans under this
Agreement, it shall be bound in all respects by the request for advance
submitted on its behalf in connection therewith with the same force and effect
as if Borrower had itself executed and submitted the request for advance and
whether or not the request for advance is executed and/or submitted by an
authorized person.
Section 12.02 Amendments and Waivers. No amendment or material
waiver of any provision of this Agreement or any other
59
<PAGE>
Loan Document nor consent to any material departure by Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Required Banks and, solely for purposes of its acknowledgment thereof, the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given, provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Banks do any of the following: (1) reduce the principal of, or
interest on, the Notes or any fees due hereunder or any other amount due
hereunder or under any Loan Document; (2) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees due hereunder or
under any Loan Document, or waive any default in the payment of principal,
interest or any other amount due hereunder or under any Loan Documents; (3)
change the definition of Required Banks; (4) amend this Section or any other
provision requiring the consent of all the Banks; or (5) waive any default under
paragraph (5) of Section 9.01. Any advance of proceeds of the Loans made prior
to or without the fulfillment by Borrower of all of the conditions precedent
thereto, whether or not known to the Administrative Agent and the Banks, shall
not constitute a waiver of the requirement that all conditions, including the
non- performed conditions, shall be required with respect to all future
advances. No failure on the part of the Administrative Agent or any Bank to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof or preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 12.03 Usury. Anything herein to the contrary
notwithstanding, the obligations of Borrower under this Agreement and the Notes
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would be contrary to provisions of
law applicable to a Bank limiting rates of interest which may be charged or
collected by such Bank.
Section 12.04 Expenses; Indemnification. Borrower agrees to
reimburse the Administrative Agent on demand for all costs, expenses, and
charges (including, without limitation, all reasonable fees and charges of
engineers, appraisers and external legal counsel) incurred by the Administrative
Agent in connection with the Loans and to reimburse each of the Banks for
reasonable legal costs, expenses and charges incurred by each of the Banks in
connection with the performance or enforcement of this Agreement, the Notes, or
any other Loan Documents; provided, however, that Borrower is not responsible
for costs, expenses and charges incurred by the Bank Parties in connection with
the administration or syndication of the Loans (other than the administration
fee required by Section 2.08(b)). Borrower agrees to indemnify the
Administrative Agent and each Bank and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses,
60
<PAGE>
liabilities, claims, damages or expenses incurred by any of them arising out of
or by reason of (x) any claims by brokers due to acts or omissions by Borrower,
or (y) any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to any
actual or proposed use by Borrower of the proceeds of the Loans, including
without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
The obligations of Borrower under this Section shall survive the
repayment of all amounts due under or in connection with any of the Loan
Documents and the termination of the Loans.
Section 12.05 Assignment; Participation. This Agreement shall be
binding upon, and shall inure to the benefit of, Borrower, the Administrative
Agent, the Banks and their respective successors and permitted assigns. Borrower
may not assign or transfer its rights or obligations hereunder.
Subject to the provisions of Section 10.14, any Bank may at any time
grant to one or more banks or other institutions (each a "Participant")
participating interests in its Loan (the "Participations") subject to Borrower's
consent, provided there exists no Event of Default, which consent shall not be
unreasonably withheld or delayed. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not Borrower or the
Administrative Agent was given notice, such Bank shall remain responsible for
the performance of its obligations hereunder, and Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations hereunder. Any agreement
pursuant to which any Bank may grant such a participating interest shall provide
that such Bank shall retain the sole right and responsibility to enforce the
obligations of Borrower hereunder and under any other Loan Document including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement or any other Loan Document; provided that
such participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in Section 12.02
without the consent of the Participant.
Subject to the provisions of Section 10.14, any Bank having a Loan
Commitment in an amount exceeding Fifteen Million Dollars ($15,000,000) may at
any time assign to any bank or other institution with the acknowledgment of the
Administrative Agent and, provided there exists no Event of Default, the consent
of Borrower, which consent shall not be unreasonably withheld or delayed (such
assignee, a "Consented Assignee"), or to one or more banks or other institutions
which are majority owned
61
<PAGE>
subsidiaries of a Bank or to the Parent of a Bank (each Consented Assignee or
subsidiary bank or institution, an "Assignee") all, or a proportionate part of
all, of its rights and obligations under this Agreement and its Note, and such
Assignee shall assume rights and obligations, pursuant to an Assignment and
Assumption Agreement executed by such Assignee and the assigning Bank, provided
that, in each case, after giving effect to such assignment, the Assignee's Loan
Commitment, and, in the case of a partial assignment, the assigning Bank's Loan
Commitment, each will be equal to or greater than Five Million Dollars
($5,000,000). Upon (i) execution and delivery of such instrument, (ii) payment
by such Assignee to the Bank of an amount equal to the purchase price agreed
between the Bank and such Assignee and (iii) payment by such Assignee to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $2,500, on account of Administrative Agent's fees and expenses in
connection with such assignment, such Assignee shall be a Bank Party to this
Agreement and shall have all the rights and obligations of a Bank as set forth
in such Assignment and Assumption Agreement, and the assigning Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this paragraph, substitute Ratable Loan Notes
shall be issued to the assigning Bank and Assignee by Borrower, in exchange for
the return of the original Ratable Loan Note. The obligations evidenced by such
substitute notes shall constitute "Obligations" for all purposes of this
Agreement and the other Loan Documents. If the Assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall,
prior to the first date on which interest or fees are payable hereunder for its
account, deliver to Borrower and the Administrative Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 10.13.
Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
Borrower recognizes that in connection with a Bank's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In addition, such documentation
etc. may be exhibited to and retained by Affiliates of a Bank. In connection
with a Bank's delivery of any financial statements and appraisals to any such
Participant or assignee or prospective Participant or assignee, such Bank shall
also deliver its standard confidentiality statement indicating that the same are
delivered on a confidential basis. Borrower agrees to provide all assistance
reasonably requested by a Bank to enable
62
<PAGE>
such Bank to sell Participations or make assignments of its Loan as permitted by
this Section. Each Bank agrees to provide Borrower with notice of all
Participations sold by such Bank.
Notwithstanding the foregoing provisions of this Section, no Bank
shall assign, grant, convey, or transfer all or any portion of or interest
(participation or otherwise) in the Loan to any Person if such Person is (i) a
greater than 10% partner (determined in accordance with Treasury Regulations
Section 1.752-2(d)(1) of the Code) of Borrower (a "Greater than 10% Partner"),
(ii) an 80% or greater partner, member or shareholder of any Greater than 10%
Partner or (iii) a person who is under 80% or greater common ownership with (x)
a Greater than 10% Partner or (y) a shareholder, member or partner of any
Greater than 10% Partner. For purposes of clauses (ii) and (iii), percentage
ownership shall be determined pursuant to Sections 267(b) and 707(b) of the Code
as modified by Treasury Regulations Section 1.752-4. Any Person described above
is referred to as a "Disqualified Person". Any Person who becomes a Bank or
Participant in accordance with the terms of this Agreement agrees to be bound by
the provisions of this Section and, other than obtaining, in connection with a
bankruptcy proceeding of a constituent partner of Borrower, any interest as (a)
a partner in Borrower or (b) an 80% or greater interest as a partner, member or
shareholder of any partner of Borrower, agrees not to take any action that would
make it a Disqualified Person. In addition, any Bank or Participant shall be a
"qualified person" within the meaning of Section 465(b)(6)(D)(i) and
49(a)(1)(D)(iv) of the Code.
Section 12.06 Documentation Satisfactory. All documentation required
from or to be submitted on behalf of Borrower in connection with this Agreement
and the documents relating hereto shall be subject to the prior approval of, and
be satisfactory in form and substance to, the Administrative Agent, its counsel
and, where specifically provided herein, the Banks. In addition, the persons or
parties responsible for the execution and delivery of, and signatories to, all
of such documentation, shall be acceptable to, and subject to the approval of,
the Administrative Agent and its counsel and the Banks.
Section 12.07 Notices. Unless the party to be notified otherwise
notifies the other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to the
Administrative Agent by telephone, confirmed by writing, and to the Banks and to
Borrower by ordinary mail or overnight courier addressed to such party at its
address on the signature page of this Agreement. Notices shall be effective: (1)
if by telephone, at the time of such telephone conversation, (2) if given by
mail, three (3) days after mailing; and (3) if given by overnight courier, upon
receipt.
63
<PAGE>
Section 12.08 Setoff. Borrower agrees that, in addition to (and
without limitation of) any right of setoff, bankers' lien or counterclaim a Bank
may otherwise have, each Bank shall be entitled, at its option, to offset
balances (general or special, time or demand, provisional or final) held by it
for the account of Borrower at any of such Bank's offices, in Dollars or in any
other currency, against any amount payable by Borrower to such Bank under this
Agreement or such Bank's Note, or any other Loan Document which is not paid when
due (regardless of whether such balances are then due to Borrower), in which
case it shall promptly notify Borrower and the Administrative Agent thereof;
provided that such Bank's failure to give such notice shall not affect the
validity thereof. Payments by Borrower hereunder or under the other Loan
Documents shall be made without setoff or counterclaim.
Section 12.09 Table of Contents; Headings. Any table of contents and
the headings and captions hereunder are for convenience only and shall not
affect the interpretation or construction of this Agreement.
Section 12.10 Severability. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 12.11 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Agreement by signing any
such counterpart.
Section 12.12 Integration. The Loan Documents and Supplemental Fee
Letter set forth the entire agreement among the parties hereto relating to the
transactions contemplated thereby and supersede any prior oral or written
statements or agreements with respect to such transactions.
SECTION 12.13 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Section 12.14 Waivers. In connection with the obligations and
liabilities as aforesaid, Borrower hereby waives: (1) promptness and diligence;
(2) notice of any actions taken by any Bank Party under this Agreement, any
other Loan Document or any other agreement or instrument relating thereto except
to the extent otherwise provided herein; (3) all other notices, demands and
protests, and all other formalities of every kind in
64
<PAGE>
connection with the enforcement of the Obligations, the omission of or delay in
which, but for the provisions of this Section, might constitute grounds for
relieving Borrower of its obligations hereunder; (4) any requirement that any
Bank Party protect, secure, perfect or insure any Lien on any collateral or
exhaust any right or take any action against Borrower or any other Person or any
collateral; (5) any right or claim of right to cause a marshalling of the assets
of Borrower; and (6) all rights of subrogation or contribution, whether arising
by contract or operation of law (including, without limitation, any such right
arising under the Federal Bankruptcy Code) or otherwise by reason of payment by
Borrower, either jointly or severally, pursuant to this Agreement or other Loan
Documents.
SECTION 12.15 JURISDICTION; IMMUNITIES. BORROWER, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW
YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR
ANY OTHER LOAN DOCUMENT. BORROWER, THE ADMINISTRATIVE AGENT, AND EACH BANK
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE OR UNITED STATES FEDERAL COURT.
BORROWER, THE ADMINISTRATIVE AGENT, AND EACH BANK IRREVOCABLY CONSENT TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS TO BORROWER, THE ADMINISTRATIVE AGENT OR EACH BANK, AS
THE CASE MAY BE, AT THE ADDRESSES SPECIFIED HEREIN. BORROWER, THE ADMINISTRATIVE
AGENT AND EACH BANK AGREE 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. BORROWER, THE ADMINISTRATIVE
AGENT AND EACH BANK FURTHER WAIVE ANY OBJECTION TO VENUE IN THE STATE OF NEW
YORK AND ANY OBJECTION TO AN ACTION OR PROCEEDING IN THE STATE OF NEW YORK ON
THE BASIS OF FORUM NON CONVENIENS. BORROWER, THE ADMINISTRATIVE AGENT AND EACH
BANK AGREE THAT ANY ACTION OR PROCEEDING BROUGHT AGAINST BORROWER, THE
ADMINISTRATIVE AGENT OR ANY BANK, AS THE CASE MAY BE, SHALL BE BROUGHT ONLY IN A
NEW YORK STATE COURT SITTING IN NEW YORK CITY OR A UNITED STATES FEDERAL COURT
SITTING IN NEW YORK CITY.
Nothing in this Section shall affect the right of Borrower, the
Administrative Agent or any Bank to serve legal process in any other manner
permitted by law.
To the extent that Borrower, the Administrative Agent or any Bank
have or hereafter may acquire any immunity from jurisdiction of any court or
from any legal process (whether from service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, Borrower, the Administrative Agent and each Bank
hereby irrevocably waive such immunity in respect of its obligations under this
Agreement, the Notes and any other Loan Document.
65
<PAGE>
BORROWER, THE ADMINISTRATIVE AGENT AND EACH BANK WAIVE ANY RIGHT
EACH SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOANS. IN
ADDITION, BORROWER HEREBY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO THE
NOTES, ANY RIGHT BORROWER MAY HAVE TO (1) INTERPOSE ANY COUNTERCLAIM THEREIN
(OTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE SUIT, ACTION OR PROCEEDING
BROUGHT BY THE ADMINISTRATIVE AGENT OR THE BANKS COULD NOT BE BROUGHT IN A
SEPARATE SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO DISMISSAL OR SIMILAR
DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING
BROUGHT BY THE ADMINISTRATIVE AGENT OR THE BANKS) OR (2) HAVE THE SAME
CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING
HEREIN CONTAINED SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR
MAINTAINING A SEPARATE ACTION AGAINST THE ADMINISTRATIVE AGENT OR THE BANKS WITH
RESPECT TO ANY ASSERTED CLAIM.
66
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: /s/ Richard B. McGlinn
----------------------------
Richard B. McGlinn
----------------------,
its authorized signatory
Address for Notices:
c/o The Taubman Company
Limited Partnership
200 East Long Lake Road - Suite 300
Bloomfield Hills, Michigan 48304
Attention: Mr. Shire Rothbart
with copy to:
Miro Weiner & Kramer
500 North Woodward Avenue
Suite 100 - P.O. Box 908
Bloomfield Hills, Michigan 48303-0908
Attention: Martin L. Katz, Esq.
UNION BANK OF SWITZERLAND
(New York Branch)
(as Bank and Administrative Agent)
By: /s/ Joseph Bassil
---------------------------------
Name: Joseph Bassil
Title: Vice President
By: /s/ Albert Rabil III
---------------------------------
Name: Albert Rabil III
Title: Managing Director
Address for notices and Applicable
Lending Office:
299 Park Avenue - 32nd Floor
New York, New York 10171
Attention: Ms. Xiomara Martez
Telephone: (212) 821-3872
with copy to:
Dewey Ballantine
1301 Avenue of the Americas
New York, New York 10019-6092
Attention: George C. Weiss, Esq.
67
<PAGE>
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Timothy V. O'Donovan
---------------------------------
Name: Timothy V. O'Donovan
Title: Vice President
Address for notices and Applicable
Lending Office:
60 Wall Street
New York, New York 10260
Attention: Mr. Timothy V. O'Donovan
Telephone: (212) 648-8111
COMERICA BANK
By: /s/ James R. Grossett
---------------------------------
Name: James R. Grossett
Title: Vice President
Address for notices and Applicable
Lending Office:
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Mr. James Grossett
Telephone: (313) 222-5502
BAYERISCHE HYPOTHEKEN- UND
WECHSEL-BANK AKTIENGESELLSCHAFT
New York Branch)
By: /s/ Stephen G. Melidones
---------------------------------
Name: Stephen G. Melidones
Title: Assistant Vice President
By: /s/ Fred Perreten
---------------------------------
Name: Fred Perreten
Title: Assistant Treasurer
Address for notices and Applicable
Lending Office:
Financial Square
32 Old Slip
New York, New York 10005
Attention: Mr. William Rogers
Telephone: (212) 440-0836
68
<PAGE>
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE, New York Branch
By: /s/ Heiga Blum
---------------------------------
Name: Heiga Blum
Title: Assistant Vice President
By: /s/ Robert W. Becker
---------------------------------
Name: Robert W. Becker
Title: Vice President
Address for notices and Applicable
Lending Office:
420 Fifth Avenue, 24th Floor
New York, New York 10018
Attention: Mr. Andrew Hastings
Telephone: (212) 703-5222
DRESDNER BANK AG, New York and Grand
Cayman Branch
By: /s/ Christopher E. Sarisky
---------------------------------
Name: Christopher E. Sarisky
Title: Assistant Treasurer
By: /s/ Thomas J. Nadramia
---------------------------------
Name: Thomas J. Nadramia
Title: Vice President
Address for Notices:
190 S. LaSalle Street - Suite 2700
Chicago, Illinois 60603
Attention: Mr. Brian J. Brodeur
Telephone: (312) 444-1319
Applicable Lending Office for Base
Rate Loan:
DRESDNER BANK AG (Chicago Branch)
190 S. LaSalle Street - Suite 2700
Chicago, Illinois 60603
Applicable Lending Office for
LIBOR Loan and Bid Rate Loans:
DRESDNER BANK AG (Grand Cayman Branch)
c/o DRESDNER BANK AG (Chicago Branch) 190
S. LaSalle Street - Suite 2700
Chicago, Illinois 60603
69
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Dina Muth
---------------------------------
Name: Dina Muth
Title: Real Estate Officer
Address for notices and Applicable
Lending Office:
249 Fifth Avenue
1 PNC Plaza
P1-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Ms. Dina Muth
Telephone: (412) 762-9118
THE SUMITOMO BANK, LIMITED, acting
through its New York Branch
By: /s/ Takeo Yamori
--------------------------------
Name: Takeo Yamori
Title: Joint General manager
Address for notices and Applicable
Lending Office:
The Sumitomo Bank, Limited, acting
through its New York Branch
c/o The Sumitomo Bank, Limited
233 South Wacker Drive - Suite 4800
Chicago, Illinois 60606
Attention: Mr. Thomas Batterham
Telephone: (312) 876-6454
BAYERISCHE LANDESBANK
By: /s/ John Wain
---------------------------------
Name: John Wain
Title: Vice President
By: /s/ Peter Obermann
---------------------------------
Name: Peter Oberman
Title: Senior Vice President
Manager Lending Division
Address for notices and
Applicable Lending Office:
560 Lexington Avenue
New York, New York 10022
Attention: Mr. John Wain
Telephone: (212) 310-9829
70
<PAGE>
COMMERZBANK AKTIENGELLSCHAFT,
CHICAGO BRANCH
By: /s/ Douglas P. Traynor
---------------------------------
Name: Douglas P. Traynor
Title: Vice President
By: /s/ James J. Henry
---------------------------------
Name: James J. Henry
Title: Vice President
Address for notices and Applicable
Lending Office for Base Rate Loans:
Commerzbank Aktiengesellschaft,
Chicago Branch
311 South Wacker Drive - Suite 5800
Chicago, Illinois 60606
Attention: Mr. Scott McIntosh
Telephone: (312) 408-6935
Applicable Lending Office for
LIBOR Loan and Bid Rate Loans:
Commerzbank Aktiengesellschaft,
Grand Cayman Branch
c/o Commerzbank Aktiengesellschaft,
Chicago Branch
311 South Wacker Drive - Suite 5800
Chicago, Illinois 60606
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Gregory A. Gilbert
---------------------------------
Name: Gregory A. Gilbert
Title: Vice President
Address for notices and
Applicable Lending Office:
One First National Plaza
Suite 0151 1-14
Chicago, Illinois 60670
Attention: Mr. Gregory A. Gilbert
Telephone: (312) 732-2107
71
<PAGE>
FLEET NATIONAL BANK
By: /s/ Margaret A. Mulcahy
---------------------------------
Name: Margaret A. Mulcahy
Title: Vice President
Address for notices and
Applicable Lending Office:
75 State Street
MA BOF 11-C
Boston, Massachusetts 02109
Attention: Ms. Margaret Mulcahy
Telephone: (617) 346-4291
NATIONSBANK OF TEXAS, N.A.
By: /s/ Eugene W. Bynum
--------------------------------
Name: Eugene W. Bynum
Title: Senior Vice President
Address for notices and
Applicable Lending Office:
901 Main Street - 51st Floor
Dallas, Texas 75202
Attention: Mr. Michael Ernst
Telephone: (214) 508-1512
72
<PAGE>
EXHIBIT A
---------
FACILITY FEE AMOUNTS
Bank Amount
---- ------
UBS $28,417
Morgan Guaranty Trust Company of New York 28,417
Comerica Bank 28,417
Bayerische Hypotheken-und Wechsel-Bank 28,417
Aktiengesellschaft (New York Branch)
PNC Bank, National Association 22,917
Dresdner Bank AG 22,875
Bayerische Landesbank 21,000
Commerzbank Aktiengesellschaft, Chicago Branch 36,000
The First National Bank of Chicago 21,000
Fleet National Bank 36,000
NationsBank of Texas, N.A. 25,500
Landesbank Hessen-Thuringen Girozentrale, 24,917
New York Branch
The Sumitomo Bank Limited, acting 9,458
through its New York Branch
(A-1)
<PAGE>
EXHIBIT B
---------
AUTHORIZATION LETTER
---------------, 1997
Union Bank of Switzerland
(New York Branch)
299 Park Avenue
New York, New York 10171
Re: Amended and Restated Revolving Loan Agreement dated as of
--------------, 1997 (the "Loan Agreement"; capitalized terms
not otherwise defined herein shall have the meanings ascribed
to such terms in the Loan Agreement) among us, as Borrower,
the Banks named therein, and you, as Administrative Agent for
said Banks
Gentlemen:
In connection with the captioned Loan Agreement, we hereby designate
any of the following persons to give to you instructions, including notices
required pursuant to the Agreement, orally, by telephone or teleprocess, or in
writing:
Lisa A. Payne
Richard B. McGlinn
Shire Rothbart
Mary K. Zebrowski.
Instructions may be honored on the oral, telephonic, teleprocess or
written instructions of anyone purporting to be any one of the above designated
persons even if the instructions are for the benefit of the person delivering
them. We will furnish you with confirmation of each such instruction either by
telex (whether tested or untested) or in writing signed by any person designated
above (including any telecopy which appears to bear the signature of any person
designated above) on the same day that the instruction is provided to you but
your responsibility with respect to any instruction shall not be affected by
your failure to receive such confirmation or by its contents.
Without limiting the foregoing, we hereby unconditionally authorize
any one of the above-designated persons
(B-1)
<PAGE>
to execute and submit requests for advances of proceeds of the Loans, and
notices of Elections, Conversions and Continuations to you under the Loan
Agreement with the identical force and effect in all respects as if executed and
submitted by us.
You shall be fully protected in, and shall incur no liability to us
for, acting upon any instructions which you in good faith believe to have been
given by any person designated above, and in no event shall you be liable for
special, consequential or punitive damages. In addition, we agree to hold you
and your agents harmless from any and all liability, loss and expense arising
directly or indirectly out of instructions that we provide to you in connection
with the Loan Agreement except for liability, loss or expense occasioned by the
gross negligence or willful misconduct of you or your agents.
Upon notice to us, you may, at your option, refuse to execute any
instruction, or part thereof, without incurring any responsibility for any loss,
liability or expense arising out of such refusal if you in good faith believe
that the person delivering the instruction is not one of the persons designated
above or if the instruction is not accompanied by an authentication method that
we have agreed to in writing.
We will promptly notify you in writing of any change in the persons
designated above and, until you have actually received such written notice and
have had a reasonable opportunity to act upon it, you are authorized to act upon
instructions, even though the person delivering them may no longer be
authorized.
Very truly yours,
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP, a Delaware
limited partnership
By:
-----------------------------
------------------, its
authorized signatory
(B-2)
<PAGE>
EXHIBIT C-1
-----------
RATABLE LOAN NOTE
$___________ New York, New York
__________, 199_
For value received, The Taubman Realty Group Limited Partnership, a
Delaware limited partnership ("Borrower"), hereby promises to pay to the order
of ___________ or its successors or assigns (collectively, the "Bank"), at the
principal office of Union Bank of Switzerland (New York Branch) located at 299
Park Avenue, New York, New York 10171 (the "Administrative Agent") for the
account of the Applicable Lending Office at the Bank, the principal sum of
________ Dollars ($____________), or if less, the amount loaned by the Bank
under its Ratable Loan to Borrower pursuant to the Loan Agreement (as defined
below) and actually outstanding, in lawful money of the United States and in
immediately available funds, in accordance with the terms set forth in the Loan
Agreement. Borrower also promises to pay interest on the unpaid principal
balance hereof, for the period such balance is outstanding, in like money, at
said office for the account of said Applicable Lending Office, at the time and
at a rate per annum as provided in the Loan Agreement. Any amount of principal
hereof which is not paid when due, whether at stated maturity, by acceleration,
or otherwise, shall bear interest from the date when due until said principal
amount is paid in full, payable on demand, at the rate set forth in the Loan
Agreement.
The date and amount of each advance of the Ratable Loan made by the
Bank to Borrower under the Loan Agreement referred to below, and each payment of
said Ratable Loan, shall be recorded by the Bank on its books and, prior to any
transfer of this Note (or, at the discretion of the Bank, at any other time),
may be endorsed by the Bank on the schedule attached hereto and any continuation
thereof.
This Note is one of the Ratable Loan Notes referred to in the
Amended and Restated Revolving Loan Agreement dated as of ______________, 1997
(as the same may be amended from time to time, the "Loan Agreement") among
Borrower, the Banks named therein (including the Bank) and the Administrative
Agent, as administrative agent for the Banks. All of the terms, conditions and
provisions of the Loan Agreement are hereby incorporated by reference. All
capitalized terms used herein and not defined herein shall have the meanings
given to them in the Loan Agreement.
(C-1-1)
<PAGE>
The Loan Agreement contains, among other things, provisions for the
prepayment of and acceleration of this Note upon the happening of certain stated
events.
No recourse shall be had under this Note against the TRG Partners
except as and to the extent set forth in Section 11.02 of the Loan Agreement.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by the laws of the State of New York,
provided that, as to the maximum lawful rate of interest which may be charged or
collected, if the laws applicable to the Bank permit it to charge or collect a
higher rate than the laws of the State of New York, then such law applicable to
the Bank shall apply to the Bank under this Note.
THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP, a
Delaware limited partnership
By:
----------------------------
an authorized signatory
(C-1-2)
<PAGE>
Amount Amount Balance
Date of Advance of Payment Outstanding Notation By
- ---- ---------- ---------- ----------- -----------
(C-1-3)
<PAGE>
EXHIBIT C-2
-----------
BID RATE LOAN NOTE
$150,000,000 New York, New York
__________, 199_
For value received, The Taubman Realty Group Limited Partnership, a
Delaware limited partnership ("Borrower"), hereby promises to pay to the order
of Union Bank of Switzerland (New York Branch) (the "Administrative Agent") for
the account of the respective Banks making Bid Rate Loans or their respective
successors or assigns (for the further account of their respective Applicable
Lending Offices), at the principal office of the Administrative Agent located at
299 Park Avenue, New York, New York 10171, the principal sum of One Hundred
Fifty Million Dollars ($150,000,000), or if less, the amount loaned by said
Banks under their respective Bid Rate Loans to Borrower pursuant to the Loan
Agreement (as defined below) and actually outstanding, in lawful money of the
United States and in immediately available funds, in accordance with the terms
set forth in the Loan Agreement. Borrower also promises to pay interest on the
unpaid principal balance hereof, for the period such balance is outstanding, in
like money, at said office for the account of said Banks for the further account
of their respective Applicable Lending Offices, at the times and at the rates
per annum as provided in the Loan Agreement. Any amount of principal hereof
which is not paid when due, whether at stated maturity, by acceleration, or
otherwise, shall bear interest from the date when due until said principal
amount is paid in full, payable on demand, at the rate set forth in the Loan
Agreement.
The date and amount of each Bid Rate Loan to Borrower under the Loan
Agreement referred to below, the name of the Bank making the same, the interest
rate applicable thereto and the maturity date thereof (i.e., the end of the
Interest Period Applicable thereto) shall be recorded by the Administrative
Agent on its records and may be endorsed by the Administrative Agent on the
schedule attached hereto and any continuation thereof.
This Note is the Bid Rate Loan Note referred to in the Amended and
Restated Revolving Loan Agreement dated as of ______________, 1997 (as the same
may be amended from time to time, the "Loan Agreement") among Borrower, the
Banks named therein and the Administrative Agent, as administrative agent for
the Banks. All of the terms, conditions and provisions of the Loan Agreement are
hereby incorporated by reference. All capitalized terms used herein and not
defined herein shall have the meanings given to them in the Loan Agreement.
(C-2-1)
<PAGE>
The Loan Agreement contains, among other things, provisions for the
prepayment of and acceleration of this Note upon the happening of certain stated
events.
No recourse shall be had under this Note against the TRG Partners
except as and to the extent set forth in Section 11.02 of the Loan Agreement.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by the laws of the State of New York,
provided that, as to the maximum lawful rate of interest which may be charged or
collected, if the laws applicable to a particular Bank permit it to charge or
collect a higher rate than the laws of the State of New York, then such law
applicable to such Bank shall apply to such Bank under this Note.
THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP, a
Delaware limited partnership
By:
-----------------------------
an authorized signatory
(C-2-2)
<PAGE>
Bid Maturity (i.e.,
Rate Date of Principal Interest Expiration of
Loan # Bank Advance Amount Rate Interest Period)
- ------ ---- ------- --------- -------- ----------------
(C-2-3)
<PAGE>
EXHIBIT D
LIST OF CERTAIN AFFILIATES
================================================================================
Shopping Center Owner % Owned
by TRG
- --------------------------------------------------------------------------------
1. Arizona Mills Arizona Mills, L.L.C., a Delaware 36.8421%
limited liability company
- --------------------------------------------------------------------------------
2. Beverly Center LaCienega Associates, a California 70%
general partnership
- --------------------------------------------------------------------------------
3. Biltmore Fashion Biltmore Shopping Center Partners, an 100%
Park Arizona general partnership
- --------------------------------------------------------------------------------
4. Briarwood Briarwood, a Michigan co-partnership 100%
- --------------------------------------------------------------------------------
5. Cherry Creek Taubman-Cherry Creek Limited Partnership, 50%
a Colorado limited partnership
- --------------------------------------------------------------------------------
6. Columbus City TL-Columbus Associates, a Michigan co- 100%
Center partnership
- --------------------------------------------------------------------------------
7. Fairlane Town Fairlane Town Center, a Michigan co- 100%
Center partnership
- --------------------------------------------------------------------------------
8. Fair Oaks Fairfax Associates, a Virginia general 50%
partnership
- --------------------------------------------------------------------------------
9. Hilltop Security Trust Company, as Trustee Under 100%
Trust No. 1861-0, for the benefit of
Richmond Associates, a Michigan co-
partnership
- --------------------------------------------------------------------------------
10. La Cumbre Plaza La Cumbre Shopping Center Associates, a 100%
California general partnership
- --------------------------------------------------------------------------------
11. Lakeforest Lakeforest Associates, a Maryland 100%
general partnership
- --------------------------------------------------------------------------------
12. Lakeside Lakeside Mall Limited Partnership, a 50%
Michigan limited partnership
- --------------------------------------------------------------------------------
13. Marley Station TKL-East, a Michigan co-partnership 100%
- --------------------------------------------------------------------------------
14. Meadowood Mall Taubman Western Associates No. 2, a 100%
Michigan co-partnership
- --------------------------------------------------------------------------------
15. MacArthur Center Taubman MacArthur Associates Limited 70%
Partnership, a Delaware limited
partnership
- --------------------------------------------------------------------------------
16. Memorial City Mall Katy-Gessner Associates Limited 100%
Partnership, a Delaware limited
partnership
- --------------------------------------------------------------------------------
- 1-
<PAGE>
================================================================================
Shopping Center Owner % Owned
by TRG
- --------------------------------------------------------------------------------
17. Paseo Nuevo Paseo Nuevo Associates, a California 100%
general partnership
- --------------------------------------------------------------------------------
18. The Mall at Short Short Hills Associates (f/k/a Prutaub 100%
Hills Joint Venture), a New Jersey general
partnership
- --------------------------------------------------------------------------------
19. Stamford Town Rich-Taubman Associates, a Connecticut 50%
Center general partnership
- --------------------------------------------------------------------------------
20. Stoneridge Security Trust Company, as Trustee Under 100%
Trust No. 1860-0, for the benefit of
Stoneridge Properties, a California
limited partnership
- --------------------------------------------------------------------------------
21. The Mall at Tuttle Tuttle Crossing Associates, an Ohio 100%
Crossing general partnership
- --------------------------------------------------------------------------------
22. Twelve Oaks Mall Twelve Oaks Mall Limited Partnership, a 50%
Michigan limited partnership
- --------------------------------------------------------------------------------
23. Westfarms West Farms Associates, a Connecticut 79%
general partnership
- --------------------------------------------------------------------------------
24. Woodfield Chicago Title and Trust Company, as 50%
Trustee Under Trust No. 46746, for the
benefit of Woodfield Associates, an
Illinois co-partnership
- --------------------------------------------------------------------------------
25. Woodland Woodland, a Michigan co-partnership 50%
================================================================================
- 2-
<PAGE>
EXHIBIT E
---------
SOLVENCY CERTIFICATE
The __________ executing this certificate is the _______________ of
_____________________, a ___________ ("__________"), and said ___________ is
familiar with its properties, assets and businesses, and is duly authorized to
execute this certificate on behalf of The Taubman Realty Group Limited
Partnership, a Delaware limited partnership ("Borrower") pursuant to Section
4.01(7) of the Amended and Restated Revolving Loan Agreement dated as of
_______________, 1997 (the "Loan Agreement") among Borrower, the banks party
thereto (each a "Bank" and collectively, the "Banks") and Union Bank of
Switzerland (New York Branch), as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent"). In executing this
Certificate, such ________ is acting solely in [his] [her] capacity as the
_________ of ________, and not in [his] [her] individual capacity. Unless
otherwise defined herein, terms defined in the Loan Agreement are used herein as
therein defined.
The undersigned further certifies that [he] [she] has carefully
reviewed the Loan Agreement and the other Loan Documents and the contents of
this Certificate and, in connection herewith, has made such investigation and
inquiries as [he] [she] deems necessary and prudent therefor. The undersigned
further certifies that the financial information and assumptions which underlie
and form the basis for the representations made in this Certificate were
reasonable when made and were made in good faith and continue to be reasonable
as of the date hereof.
The undersigned understands that the Agent is relying on the truth
and accuracy of this Certificate in connection with the transactions
contemplated by the Loan Agreement.
The undersigned certifies that ___________ is Solvent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
_____________, 1997.
------------------------------
(E-1)
<PAGE>
EXHIBIT F
---------
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of __________, 199_,
among [insert name of assigning Bank] ("Assignor"), [insert name of Assignee]
("Assignee"), The Taubman Realty Group Limited Partnership, a Delaware limited
partnership ("Borrower") and Union Bank of Switzerland (New York Branch), as
administrative agent for the Banks referred to below (in such capacity, together
with its successors in such capacity, the "Administrative Agent").
Preliminary Statement
---------------------
1. This Assignment and Assumption Agreement (this "Agreement")
relates to the Amended and Restated Revolving Loan Agreement (as the same may be
amended from time to time, the "Loan Agreement") dated _____________, 1997 among
Borrower, the banks party thereto (each a "Bank" and, collectively, the "Banks")
and the Administrative Agent. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan
Agreement, Assignor has made a Loan Commitment to Borrower in an aggregate
principal amount of ___________ Dollars ($____________) ("Assignor's Loan
Commitment").
3. The aggregate outstanding principal amount of Assignor's Ratable
Loan made pursuant to Assignor's Loan Commitment at commencement of business on
the date hereof is __________ Dollars ($__________). The aggregate outstanding
principal amount of Bid Rate Loans made by Assignor to Borrower at the
commencement of business on the date hereof is ______________________________
Dollars ($______________).
4. Assignor desires to assign to Assignee (a) all of the rights of
Assignor under the Loan Agreement in respect of a portion of its (i) Ratable
Loan and Loan Commitment thereunder in an amount equal to __________
($__________) and (ii) Bid Rate Loans in an amount equal to
______________________ Dollars ($__________________) (collectively, the
"Assigned Loan and Commitment"); and Assignee desires to accept assignment of
such rights and assume the corresponding obligations from Assignor on such
terms.
(F-1)
<PAGE>
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee
all of the rights of Assignor under the Loan Agreement in and to the Assigned
Loan and Commitment, and Assignee hereby accepts such assignment from Assignor
and assumes all of the obligations of Assignor under the Loan Agreement with
respect to the Assigned Loan and Commitment. Upon the execution and delivery
hereof by Assignor, Assignee, Borrower and the Administrative Agent and the
payment of the amount specified in Section 2 hereof required to be paid on the
date hereof, (1) Assignee shall, as of the commencement of business on the date
hereof, succeed to the rights and obligations of a Bank under the Loan Agreement
with a Loan and a Loan Commitment in amounts equal to the Assigned Loan and
Commitment, and (2) the Loan and Loan Commitment of Assignor shall, as of the
commencement of business on the date hereof, be reduced correspondingly and
Assignor released from its obligations under the Loan Agreement to the extent
such obligations have been assumed by Assignee. The assignment provided for
herein shall be without recourse to Assignor.
SECTION 2. Payments. As consideration for the assignment and sale
contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date
hereof in immediately available funds an amount equal to __________
($___________) [insert the amount of that portion of Assignor's Loan being
assigned]. It is understood that any fees paid to Assignor under the Loan
Agreement are for the account of Assignor. Each of Assignor and Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 3. [Consent of Borrower and Acknowledgment by the
Administrative Agent;] Execution and Delivery of Note. [This Agreement is
conditioned upon the consent of Borrower and acknowledgment by the
Administrative Agent pursuant to Section 12.05 of the Loan Agreement. The
execution of this Agreement by Borrower and the Administrative Agent is evidence
of this consent and acknowledgment, respectively. Only necessary if Assignee is
not a majority owned subsidiary of a Bank or of the Parent of a Bank] Pursuant
to Section 12.05 of the Loan Agreement, Borrower has agreed to execute and
deliver Ratable Loan Notes payable to the respective orders of Assignee and
Assignor to evidence the assignment and assumption provided for herein.
(F-2)
<PAGE>
SECTION 4. Non-Reliance on Assignor. Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of Borrower or
any other party to any Loan Document, or the validity and enforceability of the
obligations of Borrower or any other party to a Loan Document in respect of the
Loan Agreement or any other Loan Document. Assignee acknowledges that it has,
independently and without reliance on Assignor, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of Borrower and the other parties to the Loan Documents.
SECTION 5. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York.
SECTION 6. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(F-3)
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By:
----------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By:
----------------------------
Name:
Title:
Applicable Lending Office:
Address for Notices:
[Assignee]
[Address]
Attention:
-------------------
Telephone: ( )
------------------
THE TAUBMAN REALTY GROUP
LIMITED PARTNERSHIP, a
Delaware limited partnership
By:
----------------------------
an authorized signatory
UNION BANK OF SWITZERLAND
(New York Branch)
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
(F-4)
<PAGE>
EXHIBIT G-1
-----------
BID RATE QUOTE REQUEST
[Date]
To: Union Bank of Switzerland (New York Branch), as
Administrative Agent (the "Administrative Agent")
From: [Borrower]
Re: Revolving Loan Agreement (the "Loan Agreement") dated
as of _____________, 199_ among [Borrower], the Banks
parties thereto and the Administrative Agent
We hereby give notice pursuant to Section 2.02 of the Loan Agreement
that we request Bid Rate Quotes for the following proposed Bid Rate Loans:
Date of Borrowing: _______________________
Principal Amount* Interest Period**
- ---------------- ---------------
$
Such Bid Rate Quotes should offer a LIBOR Bid Margin.
Terms used herein have the meanings assigned to them in the Loan
Agreement.
[BORROWER]
By:
----------------------------
Name:
Title:
- -------------
* Subject to the minimum amount and other requirements set forth in Section
2.02(a) of the Loan Agreement.
** Subject to the provisions of the definition of "Interest Period" in the Loan
Agreement.
(G-1-1)
<PAGE>
EXHIBIT G-2
-----------
INVITATION FOR BID RATE QUOTES
To: [Bank]
Re: Invitation for Bid Rate Quotes to [Borrower]
("Borrower")
Pursuant to Section 2.02 of the Revolving Loan Agreement dated as of
_____________, 199_ among Borrower, the Banks parties thereto and the
undersigned, as Administrative Agent, we are pleased on behalf of Borrower to
invite you to submit Bid Rate Quotes to Borrower for the following proposed Bid
Rate Loans:
Date of Borrowing:
------------------------------
Principal Amount Interest Period
- ---------------- ---------------
$
Such Bid Rate Quotes should offer a LIBOR Bid Margin.
Please respond to this invitation by no later than 2:00 P.M. (New
York time) on [date].
UNION BANK OF SWITZERLAND
(New York Branch), as
Administrative Agent
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
(G-2-1)
<PAGE>
EXHIBIT G-3
-----------
BID RATE QUOTE
To: Union Bank of Switzerland (New York Branch), as
Administrative Agent
Re: Bid Rate Quote to [Borrower] ("Borrower")
In response to your invitation on behalf of Borrower dated
_______________, 19__, we hereby make the following Bid Rate Quote on the
following terms:
1. Quoting Bank:
2. Person to contact at quoting Bank:
--------------------------------------------
3. Date of borrowing: ____________________________*
4. We hereby offer to make Bid Rate Loan(s) in the following
principal amounts, for the following Interest Periods and at
the following rates:
Principal Interest LIBOR Bid
Amount** Period*** Margin****
$
$
[Provided, that the aggregate principal amount of Bid Rate Loans for which
the above offers may be accepted shall not exceed $____________.]
5. LIBOR Reserve Requirement, if any: _____________________.
- ------------------
* As specified in the related Invitation for Bid Rate Quotes.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend.
Amounts of bids are subject to the requirements of Section 2.02(c)
of the Loan Agreement.
*** No more than three (3) bids are permitted for each Interest Period.
**** Margin over or under the LIBOR Interest Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/1,000
of 1%) and specify whether "PLUS" or "MINUS".
(G-3-1)
<PAGE>
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the
Revolving Loan Agreement (the "Loan Agreement") dated as of ____________,
199_ among [Borrower], the Banks parties thereto, and you, as
Administrative Agent, irrevocably obligates us to make the Bid Rate
Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Date: By:
----------------------- -----------------------------
Authorized Officer
(G-3-2)
<PAGE>
EXHIBIT G-4
-----------
ACCEPTANCE OF BID RATE QUOTE
To: Union Bank of Switzerland (New York Branch), as
Administrative Agent (the "Administrative Agent")
From: [Borrower]
Re: Revolving Loan Agreement (the "Loan Agreement") dated
as of _____________, 199_ among [Borrower], the Banks
parties thereto and the Administrative Agent
We hereby accept the offers to make Bid Rate Loan(s) set forth in
the Bid Rate Quote(s) identified below:
Date of Bid Principal Interest LIBOR Bid
Bank Rate Quote Amount Period Margin
- ---- ---------- ------ ------ ---------
Very truly yours,
[BORROWER]
By:
-----------------------------
Name:
Title:
(G-4-1)
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT is entered into as of January 3, 1997 by and between
The Taubman Company Limited Partnership, a Michigan limited partnership (the
"Company"), and Lisa A. Payne ("Payne").
WHEREAS, the Company desires to employ Payne, and Payne desires to
be employed by the Company, upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties hereto hereby agree as
follows:
Article I. (a) The Company hereby employs Payne as an Executive Vice
President and its Chief Financial Officer, and Payne accepts such employment and
agrees to perform such services and duties as may be reasonably assigned or
delegated to her from time to time by the Chief Executive Officer of the
Company, the Partnership Committee (the "Partnership Committee") of The Taubman
Realty Group Limited Partnership, a Delaware limited partnership ("TRG"), or the
General Partner of the Company, upon the terms and conditions set forth herein,
during the Employment Period (as defined hereinafter). In addition to the
foregoing capacities, she shall serve TRG as a member of the Partnership
Committee as an appointee of Taub-Co Management, Inc. or TG Partners Limited
Partnership to serve as such in accordance with the Partnership Agreement of
TRG, and shall serve Taubman Centers, Inc. ("TCI") as an Executive Vice
President, its Chief Financial Officer and, subject to the ByLaws of TCI and if
designated in the first instance by the Board of Directors of TCI to fill the
vacancy created by the resignation of Bernard Winograd and thereafter if elected
by the Shareholders of TCI, as a member of its Board of Directors.
(b) Payne's term of employment shall commence as of a
date mutually acceptable to the Company and Payne, which shall not be later than
January 31,
<PAGE>
1997, and continue through the third anniversary of the commencement of
employment (the "Initial Term"). On the second anniversary of the commencement
of employment and on each anniversary thereafter, the term of Payne's employment
under this Agreement shall automatically be extended for an additional one-year
period (each, an "Extension Term"), unless prior to any such anniversary either
the Company or Payne provides written notice to the other of such party's
intention that Payne's employment under this Agreement not be so extended. As
used herein, the term "Employment Period" means the Initial Term and each
Extension Term. In the event that Payne's employment with the Company is
terminated as provided in Article III hereof, the Employment Period shall
terminate as of the termination of such employment, except for the continuation
of payments as provided in Article III(a) hereof.
Article II. (a) During the Employment Period, the Company shall pay to
Payne for all services rendered under this Agreement a base salary of not less
than $500,000, payable in accordance with the general payroll practices of the
Company (the "Base Salary"). The Company will review the amount of such Base
Salary annually with consideration to an upward adjustment; however, nothing
contained herein obligates the Company to increase the Base Salary. Once
increased by the Company, the Base Salary may not be decreased.
(b) During the Employment Period, Payne shall
participate in the Senior Short Term Incentive Plan of the Company (the "SSTI"),
having a target of $250,000 and a maximum annual award of $375,000, it being
understood that all amounts payable under the SSTI shall be paid by March 15 of
the year following the year in which the award was made in accordance with
normal Company practice. For the year ended December 31, 1997, the Company
hereby agrees that the award to Payne under the SSTI will be at least $250,000.
2
<PAGE>
(c) During the Employment Period, Payne shall
participate in the Company's Long-Term Performance Compensation Plan (the
"LTPC") with a "Basic Grant Amount" for her initial grant under the LTPC of 7.25
"Notional Units", such initial grant to be made at the March 1997 meeting of the
Compensation Committee of TRG (the "Compensatio Committee") or the Partnership
Committee (the "March Meeting").
(d) No later than the March Meeting, Payne shall be
granted an option to purchase the equivalent in Units of Partnership of TRG of
100,000 shares of Common Stock of TCI pursuant to the TRG 1992 Incentive Option
Plan (the "Incentive Option Plan").
(e) During the Employment Period, Payne shall be
eligible to participate in all the Company's employee benefit programs as the
same may be in effect from time to time and shall be entitled to receive the
same perquisites provided to other senior executives of the Company. Article
III. (a) If Payne's employment with the Company terminates for any reason other
than Payne's voluntary termination of her employment hereunder, death or
"disability" (as that term is defined in the LTPC), or other than the Company's
termination for "cause" (as hereinafter defined), Payne shall have no further
obligations hereunder and in addition to any and all benefits under this
Agreement that have accrued to the date of termination of the employment, shall
be entitled to receive, subject to Section (d) below, her Base Salary and target
bonus under the SSTI, in either case, in effect at the time of such termination
(which shall continue to be payable in the same manner as prior to such
termination) for the remainder of the Employment Period. In addition, all
benefits under the various compensatory plans of the Company that Payne is
participating in shall immediately vest in accordance with the terms of such
compensatory plans, it being understood, however,
3
<PAGE>
that the Company shall recommend to the Compensation Committee that the
Compensation Committee take the following action: (i) with respect to the LTPC,
that at the time of the grant of the "Basic Grant Amount", such "Basic Grant
Amount" shall automatically vest pursuant to Section 5.5 of the LTPC in the
event Payne's employment with the Company terminates for any reason other than
Payne's voluntary termination of her employment hereunder, death or
"disability", or other than the Company's termination for "cause" or in the
event that the Initial Term is not automatically renewed pursuant to Article
I(b) hereof; and (ii) with respect to the Incentive Option Plan, that at the
time of the grant contemplated by Article II(d) hereof, such grant shall
automatically vest pursuant to Section 7.6 of the Incentive Option Plan 6 months
and 1 day following the date of such grant in the event Payne's employment with
the Company terminates for any reason other than Payne's voluntary termination
of her employment hereunder, death or "disability", or other than the Company's
termination for "cause" and shall be exercisable for a period of 90 days
thereafter, provided that such termination of employment occurs not sooner than
6 months and 1 day following the date of such grant, or in the event that the
Initial Term is not automatically renewed pursuant to Article 1(b) hereof . For
purposes hereof and for purposes of Article III(c) hereof, Payne shall not be
deemed to have voluntarily terminated her employment hereunder if she leaves the
employ of the Company for any reason within 90 days following (i) a "Change in
Control Event" as that term is defined in the LTPC, (ii) a substantial
diminution of duties or responsibilities, (iii) a change in title without
Payne's consent or (iv) a change in location of Payne's place of employment
outside of the metropolitan Detroit area.
(b) The Company may terminate Payne's employment for
"cause" in which event neither the Company nor Payne shall have any further
obligations to the other hereunder other than the Company's obligation to Payne
for any and all benefits
4
<PAGE>
under this Agreement that have accrued to the date of termination of employment
and as provided in the applicable compensatory plans of the Company. "Cause" is
hereby defined to mean the willful and continual failure to substantially
perform her duties with the Company or the engagement in conduct (including any
peculation) which is demonstrably and materially injurious to the Company,
monetarily or otherwise ("Termination for Cause"); provided, that such
termination shall be effective only if it shall have been preceded by a notice
specifying the facts and circumstances claimed to provide a basis for
Termination for Cause. For purposes hereof, no act, or failure to act, on
Payne's part shall be considered "willful" unless done, or omitted to be done,
by Payne not in good faith and without reasonable belief that her action or
omission was in the best interests of the Company.
(c) In the event that Payne's employment with the
Company terminates by reason of her voluntary termination of her employment
hereunder, death or "disability", neither the Company nor Payne shall have any
further obligations to the other hereunder other than the Company's obligation
to Payne for any and all benefits under this Agreement that have accrued to the
date of termination of employment and as provided in the applicable compensatory
plans of the Company. (d) If during the payout period provided in Article III
(a) (other than in connection with a "Change in Control Event" in which event
this Article III(d) shall not apply) Payne shall accept employment with a
person, corporation or other entity other than the Company, then any amounts to
be paid to Payne thereafter pursuant to this Article III shall be reduced by the
amount of any compensation paid to Payne by such other person, corporation or
other entity during the balance of the payout period, provided, however, if the
event resulting in the termination payments to Payne under Article III(a) hereof
occurs during the first two years of the Initial Term, such reduction shall only
take into account the amount
5
<PAGE>
of base salary received by Payne from her new employer. As a condition to the
continued receipt by Payne of payments pursuant to Article III, Payne shall, at
the written request from time to time of the Company, certify to the Company
either (i) that she has not accepted employment; or (ii) if she has accepted
employment, the total compensation to be paid to her by such other corporation,
person or entity during such balance of the payout period.
Article IV. It is the intent of the Company and Payne that Payne relocate
her family residence to the Bloomfield Hills, Michigan area (the "New
Residence") as soon as possible after the commencement of employment. In this
regard, the Company and Payne hereby agree as follows:
(a) The Relocation - Current Employees policy (the
"Policy") of the Company (a copy of which is attached hereto) shall apply
to the relocation of Payne with the following exceptions:
(i) Temporary Living Expenses. The 30 day
limitation in the Policy with respect to temporary living expenses is hereby
changed to six months, subject to such reasonable increase(s) as the Company and
Payne may agree to in the future; and
(ii) Relocation Loan Allowance. This portion of
the Policy shall not be applicable to Payne's relocation.
(b) In addition to the foregoing, in the event that
Payne sells her Brooklyn Heights, New York residence (the "Old Residence") for
less than $1,650,000 (including a sale pursuant to that portion of the Policy
relating to Home Sale Assistance), the Company shall pay to Payne one-half the
difference between $1,650,000 and the actual selling price in connection with
such sale up to a maximum of $175,000 upon the presentment to the Company of an
executed closing statement reflecting the sale price of the Old Residence.
Notwithstanding anything to the contrary contained herein, this section 4(b)
shall
6
<PAGE>
continue to apply after the termination of the Employment Period for any reason
until such time as the Old Residence is sold.
Article V. During the Employment Period, Payne shall devote her best
efforts and her full time and attention during normal business hours (except for
usual vacation periods and periods of illness or other incapacities) to the
business and affairs of the Company.
Article VI. (a) This Agreement shall inure to the benefit of and be
enforceable by Payne's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If Payne
should die during the Employment Period all amounts payable hereunder shall be
paid in accordance with the terms of this Agreement to her devisee, legatee or
other designee or if there is no such designee, to her estate. Payne may not
assign, pledge or encumber her interest in this Agreement without the written
consent of the Company.
(b) This Agreement may not be assigned by either party
hereto without the prior written consent of the other, and no such consent shall
operate as a waiver of any other rights pursuant to this Agreement.
Article VII. All notices required or contemplated under this Agreement
shall be delivered (a) personally, (b) by next day courier service, or (c) by
certified or registered mail, return receipt requested, addressed as follows (or
to such other address as any party may provide in writing to the other):
If to the Company:
The Taubman Company Limited Partnership
200 East Long Lake Road
Suite 200
Bloomfield Hills, Michigan 48304
Attention: Mr. Robert S. Taubman
7
<PAGE>
with a copy to:
Miro Weiner & Kramer
500 North Woodward Avenue
Suite 100
Bloomfield Hills, Michigan 48304
Attention: Kenneth H. Gold, Esq.
If to Payne:
Lisa A. Payne
99 Battery Place Apt. 9F
New York, New York 10280
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Alan G. Berkshire, Esq.
All notices under this Agreement shall be deemed received when personally
delivered, on the first business day after depositing with a next day courier
service, or on the third day after mailing, as the case may be.
Article VIII. This Agreement shall be construed according to the laws of
the State of Michigan (excluding the choice of law rules thereof).
Article IX. This Agreement contains the entire agreement of the parties
hereto relating to the employment of Payne by the Company and supersedes all
oral or written agreements, commitments or understandings between the parties
hereto with respect to the matters provided herein. No amendment, modification
or waiver of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the party against whom enforcement of the
amendment, modification or waiver is sought (which in the case of the Company
must be signed by its President), and then any such waiver shall be effective
only
8
<PAGE>
in the specific instance and for the specific purpose for which given. The
parties hereby expressly agree that there are no implied contracts, promises,
covenants, or conditions governing their employment relationship.
Article X. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
THE TAUBMAN COMPANY LIMITED PARTNERSHIP
By : /s/ Robert S. Taubman
------------------------------------------------
Its: President
------------------------------------------------
/s/ Lisa A. Payne
------------------------------------------------
Lisa A. Payne
9
Exhibit 11
TAUBMAN CENTERS, INC.
Computation of Earnings Per Share
(in thousands, except share data)
Three Months Ended Three Months Ended
March 31, 1996 March 31, 1997
-------------- --------------
Primary
- -------
Net income as reported $5,244 $6,425
Effect of partnership units issuable under
The Taubman Realty Group Limited Partnership's
1992 Incentive Option Plan 0 (74)
------ ------
Net income for purposes of calculating primary
earnings per share $5,244 $6,351
====== ======
Average number of shares outstanding 44,111,232 50,720,358
========== ==========
Primary earnings per share $ .12 $ .13
===== =====
Fully diluted
- -------------
Net income as reported $5,244 $6,425
Effect of partnership units issuable under
The Taubman Realty Group Limited Partnership's
1992 Incentive Option Plan (1) (74)
------ ------
Net income for purposes of calculating fully
diluted earnings per share $5,243 $6,351
====== ======
Average number of shares outstanding 44,111,232 50,720,358
========== ==========
Fully diluted earnings per share $ .12 $ .13
===== =====
Exhibit 12
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
Computation of Ratios of Earnings to Fixed Charges
(in thousands, except ratios)
Three Months Ended March 31
---------------------------
1996 1997
---- ----
Net Earnings from Continuing Operations $20,868 $23,584
Add back:
Fixed charges 27,535 29,262
Amortization of previously capitalized
interest (1) 491 476
Distributions in excess of equity in net
income of 25% owned Joint Venture (576) 0
Deduct:
Capitalized interest (1) (1,773) (3,261)
------- -------
Earnings Available for Fixed Charges $46,545 $50,061
======= =======
Fixed Charges
Mortgage notes and other $17,102 $17,284
Capitalized interest 1,212 1,994
Interest portion of rent expense 1,272 1,880
Proportionate share of Joint Ventures'
fixed charges 7,949 8,104
------- -------
Total Fixed Charges $27,535 $29,262
======= =======
Ratio of earnings to fixed charges 1.7 1.7
- -----------------
(1) Amounts include TRG's pro rata share of capitalized interest and
amortization of previously capitalized interest of the Joint Ventures.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
TAUBMAN CENTERS, INC. BALANCE SHEET AS OF MARCH 31, 1997 (UNAUDITED) AND THE
TAUBMAN CENTERS, INC. STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH
31, 1997 (UNAUDITED) AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000890319
<NAME> TAUBMAN CENTERS, INC.
<MULTIPLIER> 1,000 <F1>
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<EXCHANGE-RATE> 1
<CASH> 9,317
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0 <F2>
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 373,352
<CURRENT-LIABILITIES> 0 <F2>
<BONDS> 0
0
0
<COMMON> 507
<OTHER-SE> 360,762
<TOTAL-LIABILITY-AND-EQUITY> 373,352
<SALES> 0
<TOTAL-REVENUES> 6,679 <F3>
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 63
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 6,425
<INCOME-TAX> 0
<INCOME-CONTINUING> 6,425
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,425
<EPS-PRIMARY> .13
<EPS-DILUTED> .13
<FN>
<F1> EXCEPT FOR SHARE DATA.
<F2> THE COMPANY HAS AN UNCLASSIFIED BALANCE SHEET.
<F3> THE COMPANY'S PRIMARY ASSET IS AN EQUITY INVESTMENT IN THE TAUBMAN
REALTY GROUP LIMITED PARTNERSHIP.
</FN>
</TABLE>
