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, 2000 Commission file number 1-12278
URBAN SHOPPING CENTERS, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 36-3886885
- ------------------------ -------------------
(State of incorporation) (I.R.S. Employer
Identification No.)
900 North Michigan Avenue, Suite 1500, Chicago, Illinois 60611
- -------------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 915-2000
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 [ ]
The number of shares of Common Stock and Unit Voting Common Stock, $.01 par
value, outstanding on May 9, 2000 were 17,725,818 and 407,935,
respectively.
<PAGE>
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Financial Statements . . . . . . . . . . . . . . . . 3
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations. . . . . 15
PART II OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . 23
Item 7A. Quantitative and Qualitative Disclosures about
Market Risk. . . . . . . . . . . . . . . . . . . . . . 28
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
URBAN SHOPPING CENTERS, INC.
CONSOLIDATED BALANCE SHEETS
MARCH 31, 2000 AND DECEMBER 31, 1999
(Unaudited)
($000's omitted, except share amounts)
ASSETS
------
MARCH 31, DECEMBER 31,
2000 1999
------------ -----------
Investment properties:
Land, including peripheral
land parcels . . . . . . . . . . . . $ 208,420 $ 209,304
Buildings and improvements . . . . . . 1,440,010 1,433,252
Equipment, furniture and fixtures. . . 6,047 5,944
Construction in progress . . . . . . . 110,635 75,568
------------ -----------
1,765,112 1,724,068
Accumulated depreciation . . . . . . . (220,890) (207,720)
------------ -----------
Investment properties, net of
accumulated depreciation . . . . . 1,544,222 1,516,348
Investment property held for sale. . . . 13,101 13,083
Investments in unconsolidated
partnerships . . . . . . . . . . . . . 228,853 230,367
Investment in the Management Company . . 51,216 49,967
Cash, cash equivalents and
short-term investments . . . . . . . . 3,166 4,125
Interest, rents and other receivables. . 17,844 20,597
Deferred expenses and other assets . . . 14,826 13,831
------------ -----------
$ 1,873,228 $ 1,848,318
============ ===========
<PAGE>
URBAN SHOPPING CENTERS, INC.
CONSOLIDATED BALANCE SHEETS - CONTINUED
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
MARCH 31, DECEMBER 31,
2000 1999
------------ -----------
Liabilities:
Mortgage notes payable . . . . . . . . $ 1,103,143 $ 1,080,452
Land sale-leaseback proceeds . . . . . 75,000 75,000
Deferred lease accrual . . . . . . . . 23,359 22,874
Accounts payable and other
liabilities. . . . . . . . . . . . . 76,366 68,982
Investments in unconsolidated
partnerships . . . . . . . . . . . . 44,659 43,074
Commitments and contingencies
----------- -----------
Total liabilities. . . . . . . 1,322,527 1,290,382
Minority interest. . . . . . . . . . . . 242,322 245,017
Stockholders' equity:
Preferred stock, $.01 par value,
authorized 5,000,000 shares,
issued and outstanding 3,772,915
shares in 2000 and 1999 (liquida-
tion preference of $125,000) . . . . 38 38
Common stock, $.01 par value,
authorized 140,000,000 shares,
issued and outstanding 17,651,318
shares in 2000 and 17,523,484
shares in 1999 . . . . . . . . . . . 177 176
Unit voting stock, $.01 par value,
authorized 5,000,000 shares,
issued and outstanding 407,935
shares in 2000 and 1999. . . . . . . 4 4
Additional paid-in capital . . . . . . 497,535 495,196
Retained earnings (deficit). . . . . . (189,375) (182,495)
------------ -----------
Total stockholders' equity . . 308,379 312,919
------------ -----------
$ 1,873,228 $ 1,848,318
============ ===========
See accompanying notes to consolidated financial statements.
<PAGE>
URBAN SHOPPING CENTERS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2000 AND 1999
(UNAUDITED)
($000's omitted, except share amounts)
2000 1999
---------- ----------
Revenues:
Shopping center revenues:
Minimum rents. . . . . . . . . . . . $ 39,158 $ 31,252
Percentage rents . . . . . . . . . . 809 645
Recoveries from tenants. . . . . . . 21,025 16,327
Other. . . . . . . . . . . . . . . . 2,895 1,487
---------- ----------
63,887 49,711
Interest income. . . . . . . . . . . . 128 181
---------- ----------
64,015 49,892
---------- ----------
Expenses:
Shopping center expenses . . . . . . . 23,245 18,311
Mortgage and other interest. . . . . . 17,104 11,976
Ground rent. . . . . . . . . . . . . . 1,131 1,087
Depreciation and amortization. . . . . 14,112 10,845
General and administrative . . . . . . 1,513 1,504
---------- ----------
57,105 43,723
---------- ----------
Operating income . . . . . . . 6,910 6,169
Income from unconsolidated
partnerships . . . . . . . . . . . . . 3,002 2,501
Income from the Management Company . . . 1,249 32
----------- -----------
Income before other gains,
minority interest and
extraordinary items. . . . . 11,161 8,702
Other gains. . . . . . . . . . . . . . . 259 --
Minority interest. . . . . . . . . . . . (5,421) (2,603)
----------- -----------
Income before extra-
ordinary items . . . . . . . 5,999 6,099
Extraordinary items (net of
taxes and minority interest) . . . . . -- (1,132)
----------- -----------
Net income . . . . . . . . . . 5,999 4,967
Dividends on preferred stock . . . . . . (2,226) (2,113)
----------- -----------
Income applicable to
common and unit voting
common stock . . . . . . . . $ 3,773 $ 2,854
=========== ===========
<PAGE>
URBAN SHOPPING CENTERS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS - CONTINUED
2000 1999
---------- ----------
Basic income per common and unit
voting common share:
Before extraordinary items . . . . . . $ .21 $ .22
Extraordinary items. . . . . . . . . . -- (.06)
---------- ----------
Net income . . . . . . . . . . $ .21 $ .16
========== ==========
Diluted income per common and unit
voting common share:
Before extraordinary items . . . . . . $ .21 .22
Extraordinary items. . . . . . . . . . -- (.06)
---------- ----------
Net income . . . . . . . . . . $ .21 $ .16
========== ==========
Weighted-average common and unit
voting common shares outstanding:
Basic. . . . . . . . . . . . . . . . 18,051,319 17,885,675
========== ==========
Diluted. . . . . . . . . . . . . . . 18,189,155 18,099,093
========== ==========
Dividends declared and paid per
common and unit voting
common share . . . . . . . . . . . . . $ .59 $ .56
========== ==========
See accompanying notes to consolidated financial statements.
<PAGE>
URBAN SHOPPING CENTERS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED MARCH 31, 2000 AND 1999
(UNAUDITED)
($000's omitted, except share amounts)
2000 1999
----------- -----------
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . $ 5,999 $ 4,967
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization. . . . . . 14,112 10,845
Recovery of (provision for)
losses on accounts receivable. . . . . (168) 167
Income from unconsolidated
partnerships . . . . . . . . . . . . . (3,002) (2,501)
Income from the Management Company . . . (1,249) (32)
Minority interest. . . . . . . . . . . . 5,421 2,603
Deferred lease accrual . . . . . . . . . 485 536
Extraordinary items. . . . . . . . . . . -- 1,132
Other gains. . . . . . . . . . . . . . . (259) --
Other, net . . . . . . . . . . . . . . . (566) (366)
Other changes in assets and liabilities:
Interest, rents and other
receivables. . . . . . . . . . . . . . 3,487 1,313
Deferred expenses and other assets . . . (590) (96)
Accounts payable and other
liabilities. . . . . . . . . . . . . . 1,713 1,962
----------- -----------
Net cash provided by
operating activities . . . . . . 25,383 20,530
----------- -----------
Cash flows from investing activities:
Additions to investment properties,
net of change in related payables. . . . (41,249) (22,894)
Proceeds from the sale of development
parcels, net of selling costs. . . . . . 258 --
Cash contributions to unconsolidated
partnerships and the Management
Company. . . . . . . . . . . . . . . . . (840) (5,176)
Cash distributions from uncon-
solidated partnerships . . . . . . . . . 6,895 5,617
Advances from an unconsolidated entity . . 5,400 --
Other, net . . . . . . . . . . . . . . . . -- 190
---------- ----------
Net cash used in
investing activities . . . . . . (29,536) (22,263)
---------- ----------
<PAGE>
URBAN SHOPPING CENTERS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
2000 1999
----------- -----------
Cash flows from financing activities:
Proceeds from issuance of debt,
net of issuance costs. . . . . . . . . . 108,850 101,853
Proceeds from issuance of Common
Stock under option plan and
incentive unit plan. . . . . . . . . . . 3,393 2,730
Repayment of debt. . . . . . . . . . . . . (87,421) (83,836)
Cash distributions to common
unitholders. . . . . . . . . . . . . . . (5,334) (5,006)
Cash distributions to preferred
unitholders. . . . . . . . . . . . . . . (3,411) (490)
Dividends paid . . . . . . . . . . . . . . (12,879) (11,712)
Other, net . . . . . . . . . . . . . . . . (4) (39)
---------- ----------
Net cash provided by
financing activities . . . . . . 3,194 3,500
---------- ----------
Net increase (decrease) in cash
and cash equivalents . . . . . . . . . . . (959) 1,767
Cash and cash equivalents at
beginning of period. . . . . . . . . . . . 4,110 294
----------- -----------
Cash and cash equivalents at
end of period. . . . . . . . . . . . . . . $ 3,151 $ 2,061
=========== ===========
Supplemental disclosure of cash flow
information:
Cash paid for mortgage and
other interest, net of amounts
capitalized. . . . . . . . . . . . . . . $ 17,528 $ 10,931
=========== ===========
See accompanying notes to consolidated financial statements.
<PAGE>
URBAN SHOPPING CENTERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2000 AND 1999
(UNAUDITED)
($000's omitted, except share amounts)
Readers of this quarterly report should refer to the Company's audited
financial statements for the year ended December 31, 1999, which are
incorporated by reference in the Company's 1999 annual report on Form 10-K,
as certain disclosures which would substantially duplicate those contained
in such audited financial statements have been omitted from this report.
(1) BASIS OF PRESENTATION
In the opinion of management, all adjustments (consisting solely of
normal recurring adjustments) necessary for a fair presentation of the
consolidated financial statements have been included. The results for the
interim periods ended March 31, 2000 and 1999 are not necessarily
indicative of the results to be obtained for the full fiscal year.
The accompanying consolidated financial statements include the
accounts of the Company, the Operating Partnership and all controlled
affiliates. The effect of all significant intercompany balances and
transactions have been eliminated in the consolidated presentation.
The equity method of accounting has been applied in the accompanying
consolidated financial statements with respect to the Company's interest in
Copley Place Associates, LLC ("Copley Place"), Coral-CS/LTD Associates
("Coral Square Mall"), S. F. Shopping Centre Associates, L.P. ("San
Francisco Shopping Centre"), South Alabama Development, L.P. ("Houston
Galleria Development Land"), Urban Retail Properties Co. (the "Management
Company"), U.W. Galleria L.P. ("Houston Galleria"), Valencia Town Center
Associates, L.P. ("Valencia Town Center"), Water Tower Joint Venture
("Water Tower Place"), West Dade County Associates ("Miami International
Mall"), Woodland Hills Mall, LLC ("Woodland Hills Mall"), and WT Partners,
L.P. ("Westheimer Triangle").
For the three months ended March 31, 2000 and 1999, the common units,
convertible preferred units, convertible preferred stock, stock options and
incentive units are either antidilutive or do not have a significant effect
on the computation of earnings per share.
Development costs, including interest and real estate taxes incurred
in connection with construction or expansion of certain investment
properties, are capitalized as a cost of the investment property and
depreciated over the estimated useful life of the related asset. During
the three months ended March 31, 2000 and 1999, the Company incurred
interest of $19,496 and $13,559, respectively, and capitalized interest of
$2,392 and $1,583, respectively.
<PAGE>
URBAN SHOPPING CENTERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - Continued
(UNAUDITED)
($000's omitted, except share amounts)
(1) BASIS OF PRESENTATION (Continued)
Cash and cash equivalents (which aggregated $3,151 and $4,110 at
March 31, 2000 and December 31, 1999, respectively) include a treasury
money market fund which invests principally in U.S. Treasury notes and
bills ($1,116 and none at March 31, 2000 and December 31, 1999,
respectively). Other short-term investments (generally with original
maturities of one year or less) are generally held to maturity and
aggregated $15 at March 31, 2000 and December 31, 1999. Cash equivalents
and other short-term investments are held at cost which approximates
market.
The Company uses interest rate swap agreements and treasury locks as
part of its interest rate risk management strategy. These off-balance
sheet derivatives are classified as synthetic alterations. The criteria
that must be satisfied by synthetic alteration accounting are as follows:
(i) the liability to be converted has exposure to interest rate risk and
(ii) the derivative is designated and effective as a synthetic alteration
of the liability.
Accrual accounting is applied for these derivatives treated as
synthetic alterations, and income and expense are recorded as adjustments
of interest expense. Fees, if any, related to these off-balance sheet
investment products are amortized on the interest method over the life of
the derivative. If the balance of the liability falls below that of the
derivative, the excess portion of the derivative is marked to market and
the resulting gain or loss included in income, as applicable. If a
derivative is terminated independent of the underlying debt, the gain or
loss is deferred and amortized over the remaining life of the derivative.
If a treasury lock is terminated, the gain or loss is deferred and
amortized over the life of the new debt.
Derivatives that do not satisfy the criteria above would be carried at
market value with changes in market value to be recognized as current
income or expense.
(2) INVESTMENT PROPERTIES
At March 31, 2000, the Company has classified Service Merchandise
Plaza as an investment property held for sale. Service Merchandise Plaza
in Columbus, Ohio, is an approximate 193,000 square foot community center
anchored by Circuit City and Office Depot. The Company is selling Service
Merchandise Plaza at this time because it is a non-core asset which is not
integral to the Company's strategy of owning and operating dominant high
quality regional malls and adjacent retail facilities. Revenues of $617
and $737, expenses of $273 and $403 and net income of $344 and $334, for
the three months ended March 31, 2000 and 1999, respectively, related to
Service Merchandise Plaza are included in the accompanying consolidated
statements of operations.
<PAGE>
URBAN SHOPPING CENTERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - Continued
(UNAUDITED)
($000's omitted, except share amounts)
(3) SALE OF INVESTMENT PROPERTY
On January 31, 2000, the Company completed the sale of an outparcel of
land at Wolfchase Galleria for total proceeds, net of selling expenses, of
approximately $259 and recognized a gain of $259 for financial reporting
purposes.
(4) INVESTMENTS IN UNCONSOLIDATED PARTNERSHIPS
Summarized financial information for the unconsolidated partnerships
is presented below:
March 31, December 31,
2000 1999
----------- -------------
Assets:
Investment properties, net . . . . . . $ 1,171,663 $ 1,228,885
Investment property held for sale
(1). . . . . . . . . . . . . . . . . 52,291 --
Other assets . . . . . . . . . . . . . 67,959 72,418
----------- -----------
1,291,913 1,301,303
Less liabilities:
Mortgage notes payable . . . . . . . . 878,470 867,523
Other liabilities. . . . . . . . . . . 48,918 50,597
----------- -----------
Total capital . . . . . . . . . . . 364,525 383,183
Less: Outside partners' capital. . . . . 180,331 195,890
----------- -----------
Total investments in
unconsolidated partnerships . . . $ 184,194 $ 187,293
=========== ===========
Total investments in unconsolidated
partnerships are presented in the
accompanying consolidated balance
sheets as follows:
Assets - Investments in
unconsolidated partnerships. . . . $ 228,853 $ 230,367
Liabilities - Investments in
unconsolidated partnerships. . . . 44,659 43,074
----------- -----------
$ 184,194 $ 187,293
=========== ===========
(1) At March 31, 2000, the Company's unconsolidated partnership and
the outside partner have classified Valencia Town Center as an investment
property held for sale. The decision to sell is controlled by and has been
made by the outside partner. The partner anticipates the sale of this
property to be completed in 2000.
<PAGE>
URBAN SHOPPING CENTERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - Continued
(UNAUDITED)
($000's omitted, except share amounts)
(4) INVESTMENTS IN UNCONSOLIDATED PARTNERSHIPS (Continued)
Three Months Ended
March 31,
---------------------------
2000 1999
----------- -----------
Revenues:
Shopping centers . . . . . . . . . . . $ 59,347 $ 44,493
Interest income. . . . . . . . . . . . 287 244
Expenses:
Shopping centers . . . . . . . . . . . 26,391 20,430
Mortgage and other interest and
ground rent. . . . . . . . . . . . . 16,883 11,538
Depreciation and amortization. . . . . 9,212 6,873
----------- ----------
Income before other gains. . . . . . 7,148 5,896
Other gains. . . . . . . . . . . . . . . 832 --
----------- ----------
Net income . . . . . . . . . . . $ 7,980 $ 5,896
=========== ==========
Company's share of:
Mortgage and other interest and
ground rent. . . . . . . . . . . . . $ 9,219 $ 5,430
Depreciation and amortization. . . . . 5,072 2,880
Other gains. . . . . . . . . . . . . . 416 --
Net income . . . . . . . . . . . . . . 3,002 2,501
=========== ==========
(5) INVESTMENT IN THE MANAGEMENT COMPANY
The Company's consolidated financial statements present its investment
in the Management Company under the equity method of accounting.
Summarized financial information for the Management Company is
presented below.
March 31, December 31,
2000 1999
----------- -------------
Assets:
Investments in land parcels. . . . . . $ 14,221 $ 14,221
Cash, cash equivalents and
short-term investments . . . . . . . 1,332 11,551
Receivables and deferred expenses. . . 25,763 16,140
----------- -----------
$ 41,316 $ 41,912
=========== ===========
Liabilities:
Notes payable. . . . . . . . . . . . . $ 20,000 $ 20,000
Accounts payable and
other liabilities. . . . . . . . . . 5,427 5,681
----------- -----------
25,427 25,681
Owners' equity . . . . . . . . . . . . . 15,889 16,231
----------- -----------
$ 41,316 $ 41,912
=========== ===========
<PAGE>
URBAN SHOPPING CENTERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - Continued
(UNAUDITED)
($000's omitted, except share amounts)
(5) INVESTMENT IN THE MANAGEMENT COMPANY (Continued)
Three Months Ended
March 31,
--------------------------
2000 1999
---------- -----------
Revenues . . . . . . . . . . . . . . . . $ 13,483 $ 10,775
---------- ----------
Expenses:
Management, leasing and
development services . . . . . . . . 10,796 9,978
Mortgage and other interest. . . . . . 434 378
Land parcels . . . . . . . . . . . . . (13) 40
Depreciation and amortization. . . . . 327 375
---------- ----------
11,544 10,771
---------- ----------
Operating income . . . . . . . . . 1,939 4
Income tax expense . . . . . . . . . . . (613) (8)
---------- ----------
Income (loss) before
extraordinary items. . . . . . . 1,326 (4)
Extraordinary items (net of taxes) . . . -- (1,788)
---------- ----------
Net income (loss). . . . . . . . . $ 1,326 $ (1,792)
========== ==========
(7) MORTGAGE NOTES PAYABLE
On March 15, 2000, the Company amended its existing secured revolving
line of credit, increasing the committed amount from $107,500 to $180,000.
The amended line bears interest at LIBOR + 1.05% (7.07% at March 31, 2000)
and matures on March 15, 2003; however, it may be extended for one
additional year.
(8) DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION
During 1998, the Company adopted SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information." The Company defines
each of its regional malls and community centers as an individual operating
segment and has determined that all of the regional malls and community
centers exhibit substantially identical economic characteristics and meet
the other criteria specified by SFAS No. 131 which permits the malls to be
aggregated into one reportable segment. The Management Company is viewed
by management as a separate segment and does not meet the quantitative
measures required for separate disclosure.
The Company separately assesses and measures the operating results of
its regional malls based on net operating income ("NOI"). NOI is
calculated as shopping center revenues less shopping center expenses
adjusted for straight-line rent and non-real estate depreciation. NOI for
the Company's unconsolidated partnerships is measured at the Company's
ownership share.
<PAGE>
URBAN SHOPPING CENTERS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - Concluded
(UNAUDITED)
($000's omitted, except share amounts)
(8) DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION
(Continued)
The following table summarizes the revenues, NOI and assets for the
Company's reportable segment.
Three Months Ended
March 31,
---------------------
2000 1999
-------- --------
REVENUES:
Shopping center revenues . . . . . . . . . . $ 93,510 $ 69,582
Company's share of unconsolidated
partnerships . . . . . . . . . . . . . . (29,623) (19,871)
Interest income. . . . . . . . . . . . . . 128 181
-------- --------
Consolidated revenue . . . . . . . . . . $ 64,015 $ 49,892
======== ========
NOI:
Shopping center NOI. . . . . . . . . . . . . $ 56,319 $ 41,646
Unconsolidated
shopping center NOI. . . . . . . . . . . (16,422) (10,744)
Interest income. . . . . . . . . . . . . . 128 181
Straight-line rent adjustments . . . . . . 566 366
Real estate depreciation and
amortization . . . . . . . . . . . . . . (13,402) (10,392)
Non-shopping center expenses . . . . . . . (20,279) (14,888)
Income from unconsolidated
partnerships and the Management
Company. . . . . . . . . . . . . . . . . 4,251 2,533
-------- --------
Consolidated income before
other gains, minority interest
and extraordinary items. . . . . . . . $ 11,161 $ 8,702
======== ========
March 31, December 31,
2000 1999
----------- -------------
ASSETS:
Total shopping center assets . . . . . . $1,818,846 $1,794,226
Investment in the Management
Company. . . . . . . . . . . . . . . 51,216 49,967
Cash, cash equivalents and
short-term investments . . . . . . . 3,166 4,125
---------- ----------
Consolidated assets. . . . . . . $1,873,228 $1,848,318
========== ==========
Information relative to the Company's expenditures for additions to
long-lived assets has been included in the investing activities reported in
the consolidated statements of cash flows.
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
FINANCIAL CONDITION. Net cash flows from operating activities
increased $4.9 million in the three months ended March 31, 2000 from the
three months ended March 31, 1999. This increase was primarily
attributable to an increase in rental operations discussed below.
Net cash flows used in investing activities increased $7.3 million in
the three months ended March 31, 2000 from the three months ended March 31,
1999. This increase was primarily attributable to the continuing
construction costs incurred at Galleria at Roseville; partially offset by
decreases in (i) additions to investment properties at Citrus Park Town
Center resulting from its completion and opening on March 3, 1999 and (ii)
contributions to the Management Company.
Net cash flows from financing activities decreased $0.3 million in the
three months ended March 31, 2000 from the three months ended March 31,
1999.
At March 31, 2000, the Company had cash, cash equivalents and short-
term investments of $3.2 million.
On March 7, 2000, the Company paid $12.9 million to common and
preferred shareholders as a dividend of $.59 per share representing its
fourth quarter 1999 dividend. On March 6, 2000, the Operating Partnership
paid $5.3 million to its limited partners as a distribution of $.59 per
unit representing its fourth quarter 1999 distribution. On March 15, 2000,
the Operating Partnership paid $2.9 million to its preferred unit holders.
CAPITALIZATION. At March 31, 2000, the Company's debt (including the
Company's share of debt of unconsolidated partnerships and the Management
Company) totaled $1,551.1 million of which $1,384.5 million is fixed rate
debt and $166.6 million is floating rate debt. On March 15, 2000, the
Company amended its existing secured revolving line of credit, increasing
the committed amount from $107.5 million to $180.0 million. The amended
line bears interest at LIBOR + 1.05% (7.07% at March 31, 2000) and matures
on March 15, 2003; however, it may be extended for one additional year. As
of March 31, 2000, $42.0 million was outstanding on this line of credit.
On December 21, 1999, the Company closed a $101.7 million construction loan
facility for Galleria at Roseville. This facility has a two-year term with
three one-year extension options. This loan bears interest on a floating
rate basis at LIBOR + 1.65% (7.65% at March 31, 2000). As of March 31,
2000, $33.1 million was outstanding on this loan. On June 29, 1999, the
Company secured a loan with a lender with a commitment of $30.0 million, to
be used for the construction of The Plaza at Citrus Park. As of March 31,
2000, $30.0 million was outstanding on the loan. The loan matures June 29,
2000; however, it may be extended for two six-month periods. This loan
bears interest on a floating rate basis at LIBOR + 1.40% (7.51% at March
31, 2000). On November 6, 1996, the Company entered into an agreement with
a lender for a one-year $5.0 million unsecured revolving line of credit,
which on January 30, 1998 was amended to increase the line to $7.5 million
and extend the maturity to January 29, 1999. On January 29, 1999, this
line was further amended to increase the line to $10.0 million, extend the
maturity to January 28, 2000 and change the interest rate to the Reference
Rate - 1.5625% (7.43% at March 31, 2000). On January 28, 2000, this line
was further amended to increase the line to $13.0 million and extend the
maturity to January 26, 2001. As of March 31, 2000, $9.0 million was
outstanding. On January 4, 2000, Water Tower Joint Venture extended the
maturity on its indebtedness to February 1, 2001. On January 4, 2000, S.F.
Shopping Centre Associates, L.P. increased its outstanding indebtedness to
$65.8 million and extended the maturity to July 1, 2004. It may be further
extended for one additional year.
<PAGE>
Although there can be no assurances, the Company believes that
operating cash flows will be sufficient to service all Company debt and
anticipates repayment or refinancing when such amounts are due in the
ordinary course of its business. At March 31, 2000, the Company's ratio of
Company debt to total market capitalization (which includes the market
value of issued and outstanding shares of capital stock of the Company and
of partnership interests in the Operating Partnership not held by the
Company, plus Company debt) was approximately 59%, as illustrated by the
table at the end of the liquidity and capital resources section. The debt
to total market capitalization ratio is based upon the market value of the
common stock and indebtedness of the Company and, accordingly, will
fluctuate with changes in the value of the common stock (and the issuance
of additional shares of common stock, or other forms of capital, if any,
and the amount of outstanding indebtedness).
The Company believes that its cash generated from property operations
will provide the necessary funds on a short-term and long-term basis for
its operating expenses, interest expenses on outstanding indebtedness and
recurring capital expenditures and all dividends to the shareholders
necessary to satisfy the REIT requirements. Sources of capital for future
acquisitions, development and non-recurring capital expenditures, such as
major building renovations and expansions, as well as for scheduled
principal payments, including balloon payments, on the outstanding
indebtedness are expected to be obtained from the following sources: (i)
excess funds available for distribution, (ii) working capital reserves,
(iii) additional Company or property financing, (iv) proceeds from the sale
of assets, including outparcels and (v) additional equity raised in the
public or private markets (including the issuance of additional common
stock, unit voting common stock, convertible preferred stock, convertible
preferred units, perpetual preferred units and/or common units).
Accordingly, the Company expects that it may incur additional indebtedness.
In light of current economic conditions, relative costs of debt and equity
capital, market values of properties, growth and acquisition opportunities
and other factors, the Company may consider a change in its ratio of
Company debt to total market capitalization accordingly.
CAPITAL INVESTMENTS. The Company's latest development project is the
1.1 million square foot Galleria at Roseville near Sacramento, California.
Galleria at Roseville has four committed anchor tenants with JCPenney,
Macy's, Nordstrom and Sears. Galleria at Roseville remains on schedule to
open on August 25, 2000.
The Company's next scheduled development project is The Streets at
Southpoint in Durham, North Carolina. The two-level 1.4 million square
foot regional mall will feature Belk, Hecht's, JCPenney, Nordstrom and
Sears as anchors along with an entertainment component featuring an IMAX
theater. The Streets at Southpoint is currently scheduled to open in March
2002.
The Company is continuing construction at The Plaza at Citrus Park, an
approximate 350,000 square foot community center opposite Citrus Park Town
Center. The first phase of the community center opened in fall 1999 and
the second phase of the center, which includes the majority of the
remaining space, is scheduled to open this fall.
The Company is also beginning an expansion project at Old Orchard
Center in Skokie, Illinois with plans for the addition of a six-screen,
state-of-the-art theater with stadium seating and two new restaurants. The
new theatre will increase the total number of screens at the center to
thirteen. In conjunction with the expansion, a new 400 car, one-level
parking deck will also be added. Work on the expansion began in February
2000 and is expected to be completed by April 2001.
<PAGE>
At March 31, 2000, amounts spent on construction in progress and land
for development related to the Company's three current projects (The Plaza
at Citrus Park, Galleria at Roseville and The Streets at Southpoint)
totaled $112.8 million.
At March 31, 2000, there are approximately twenty, two, four and
twenty-five acres of outparcel land, respectively, at Brandon TownCenter,
Citrus Park Town Center, Galleria at Roseville and Wolfchase Galleria
available for future sale or development.
<PAGE>
<TABLE>
<CAPTION>
100% Pro Rata
Balance of Share of
($000's omitted, Annual Mortgage Mortgage
except share and Maturity Interest Notes Ownership Notes
per share amounts) Date Rate Payable Interest Payable
- ----------------------- ---------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Consolidated Entities:
Operating Partnership (1) June 2000 (1) 7.51% (1) $ 30,000 100.0% $ 30,000
MainPlace Sept. 2000 (2) (2) 110,000 100.0% 110,000
Operating Partnership Jan. 2001 6.68% (3) 9,000 100.0% 9,000
Galleria at Roseville Dec. 2001 (4) (4) 33,112 100.0% 33,112
Operating Partnership Mar. 2003 (5) (5) 42,000 100.0% 42,000
Oakbrook Center Oct. 2004 6.14% 140,000 100.0% 140,000
Fox Valley Center Nov. 2006 6.75% 85,528 100.0% 85,528
Wolfchase Galleria June 2007 7.80% 78,019 100.0% 78,019
Century City Shopping Center June 2008 7.58% 160,000 100.0% 160,000
Hawthorn Center Nov. 2008 6.75% 77,864 100.0% 77,864
Penn Square Mall Mar. 2009 7.03% 74,333 100.0% 74,333
Citrus Park Town Center June 2009 6.89% 99,316 100.0% 99,316
Old Orchard Center Dec. 2009 6.98% 163,971 100.0% 163,971
- -------------------------------------------------------------------------------------------------------------
1,103,143 1,103,143
Unconsolidated Entities: (6)
Coral Square Mall Dec. 2000 7.40% 53,300 50.0% 26,650
Water Tower Place Feb. 2001 (7) (7) 170,000 55.0% 93,500
Miami International Mall Dec. 2003 6.91% 45,773 40.0% 18,309
Management Company Feb. 2004 7.20% (8) 20,000 95.0% 19,000
San Francisco Shopping Centre July 2004 (9) 6.90% 65,781 50.0% 32,891
Houston Galleria Dec. 2005 7.93% 224,588 66.7% 149,733
Copley Place Aug. 2007 7.44% 190,011 33.3% 63,337
Woodland Hills Mall Jan. 2009 7.00% 89,018 50.0% 44,509
- -------------------------------------------------------------------------------------------------------------
858,471 447,929
- -------------------------------------------------------------------------------------------------------------
Company debt $1,551,072
- -------------------------------------------------------------------------------------------------------------
Convertible preferred units
(convertible into 1,018,182
common units) $ 28,000
Convertible preferred stock
(convertible into 3,772,915
shares of common stock) $ 125,000
Perpetual preferred units $ 125,000
- -------------------------------------------------------------------------------------------------------------
<PAGE>
100% Pro Rata
Balance of Share of
($000's omitted, Annual Mortgage Mortgage
except share and Maturity Interest Notes Ownership Notes
per share amounts) Date Rate Payable Interest Payable
- ----------------------- ---------- ---------- ---------- ---------- -----------
Market value of equity interests
as of March 31, 2000, based upon
27,100,622 common shares, unit
voting common shares and common
units at $29.0625 per share/unit $ 787,612
- -------------------------------------------------------------------------------------------------------------
Total market capitalization $2,616,684
- -------------------------------------------------------------------------------------------------------------
Company debt to total market
capitalization 59%
- -------------------------------------------------------------------------------------------------------------
<FN>
(1) This indebtedness represents outstanding borrowings under a loan, which have been used to fund the
construction of The Plaza at Citrus Park. This loan may be extended for two six-month periods and currently bears
interest at LIBOR + 1.40% (7.51% at March 31, 2000).
(2) This loan matures on September 29, 2000; however, it may be further extended for two one-year periods.
Of the $110,000, $80,000 bears interest at a fixed rate of 7.00% through an interest rate swap agreement and
$30,000 bears interest at LIBOR + 1.30% (7.58% at March 31, 2000).
(3) This line of credit bears interest at the Reference Rate - 1.5625% (7.43% at March 31, 2000).
(4) This construction loan matures on December 21, 2001; however, it may be extended for three one-year
periods. This loan currently bears interest on a floating rate basis at LIBOR + 1.65% (7.65% at March 31, 2000).
(5) On March 15, 2000, this line of credit was amended to increase the committed amount to $180,000 and
extend the maturity to March 15, 2003. It may be extended one additional year. This line currently bears
interest on a floating rate basis at LIBOR + 1.05% (7.07% at March 31, 2000).
(6) Excludes Valencia Town Center as the Company is a limited partner and is currently not entitled to any
cash distributions until the outside partner has received a return on and of its contributions to the partnership.
(7) On January 4, 2000, the Company extended this loan maturity to February 1, 2001. Of the total $170,000,
$160,000 bears interest at LIBOR + 1.00% (reduced from LIBOR + 1.125% on March 30, 2000) and $10,000 bears
interest at LIBOR + 1.375% (reduced from LIBOR + 1.500% on March 30, 2000) (6.91% and 7.29%, respectively, at
March 31, 2000).
(8) This loan bears interest on a floating rate basis at LIBOR + 1.20% (7.20% at March 31, 2000).
(9) On January 4, 2000, this indebtedness was increased to $65,781 and the maturity was extended to July 1,
2004. It may be further extended for one additional year.
</TABLE>
<PAGE>
REVIEW OF OPERATIONS
FUNDS FROM OPERATIONS. Funds from operations should not be considered
as an alternative to net income or any other GAAP measurement of
performance, as an indicator of operating performance or as an alternative
to cash flows from operating, investing or financing activities as a
measure of liquidity. The chart below shows the calculation of diluted
funds from operations:
Three Months Ended
March 31,
---------------------
($000's omitted) 2000 1999
-------- --------
Income before extraordinary items
and minority interest. . . . . . . . . . . $ 11,420 $ 8,702
Plus real estate depreciation and
amortization . . . . . . . . . . . . . . . 13,402 10,392
Plus Company's share of real estate
depreciation and amortization
from unconsolidated partnerships
and the Management Company . . . . . . . . 4,895 2,891
Plus incentive unit dividends. . . . . . . . 145 139
Less perpetual preferred unit
distributions. . . . . . . . . . . . . . . (2,921) --
-------- --------
Diluted funds from operations. . . . . . . . $ 26,941 $ 22,124
======== ========
FUNDS AVAILABLE FOR DISTRIBUTION. The chart below shows the
calculation of diluted funds available for distribution:
Three Months Ended
March 31,
---------------------
($000's omitted) 2000 1999
-------- --------
Diluted funds from operations. . . . . . . . $ 26,941 $ 22,124
Plus non-cash effect of Oakbrook Center
straight-lined ground rent and
related interest . . . . . . . . . . . . . 847 854
Less adjustment to reflect actual
cash received from the Management
Company. . . . . . . . . . . . . . . . . . (1,049) (43)
Less straight-line rent adjustments (a). . . (996) (572)
Less other gains (a) . . . . . . . . . . . . (675) --
-------- --------
Diluted funds available for
distribution . . . . . . . . . . . . . . . $ 25,068 $ 22,363
======== ========
(a) Includes the Company's share of unconsolidated partnerships.
Weighted-average diluted shares and units outstanding, including the
dilutive effect of preferred units, preferred stock and outstanding stock
options and incentive units, were 32,169,601 and 31,980,768 for the three
months ended March 31, 2000 and 1999, respectively.
<PAGE>
SALES. Aggregate sales volume at all the Company's regional malls for
those mall shops and anchors that report sales increased 6.9% to $782.3
million in the three months ended March 31, 2000 from $731.8 million in the
three months ended March 31, 1999. Mall tenant sales (excluding anchors
and movie theaters) increased 8.4% to $583.1 million in the three months
ended March 31, 2000 from $538.0 million in the same period for 1999.
Comparable reported mall tenant sales increased 4.1% in the three months
ended March 31, 2000 compared to the same period for 1999. Sales per
square foot for the rolling twelve months ended March 31, 2000 were $423
compared to $418 for the twelve months ended December 31, 1999 and $401 for
the rolling twelve months ended March 31, 1999. All sales per square foot
figures exclude Citrus Park Town Center.
OCCUPANCY. The mall GLA was 90.9% occupied at March 31, 2000 as
compared to 91.7% at December 31, 1999 and 91.6% at March 31, 1999. The
mall GLA was 93.1% leased at March 31, 2000 compared to 93.4% at
December 31, 1999 and 93.7% at March 31, 1999.
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 2000 COMPARED TO THE THREE MONTHS ENDED
MARCH 31, 1999
Shopping center revenues increased $14.2 million to $63.9 million in
the three months ended March 31, 2000 from $49.7 million in the three
months ended March 31, 1999. This increase was primarily a result of the
Company's acquisition of Century City Shopping Center on June 10, 1999 and
due to Citrus Park Town Center having been open for three months in 2000 as
compared to one month in 1999.
Shopping center expenses, including depreciation and amortization,
increased $8.3 million to $37.4 million in the three months ended March 31,
2000 from $29.1 million in the same period for 1999. This increase was
primarily a result of the Company's acquisition of Century City Shopping
Center on June 10, 1999 and due to Citrus Park Town Center having been open
for three months in 2000 as compared to one month in 1999.
Mortgage and other interest increased $5.3 million to $17.1 million in
the three months ended March 31, 2000 from $11.9 million in the same period
for 1999. This increase was primarily the result of (i) funding on the
permanent mortgage at Citrus Park Town Center, (ii) debt incurred in
connection with the acquisition of Century City Shopping Center on June 10,
1999, and (iii) the new mortgage obtained by the Company at Penn Square
Mall in February 1999.
Income from unconsolidated partnerships increased $.5 million to $3.0
million in the three months ended March 31, 2000 from $2.5 million in the
same period for 1999. This increase was primarily attributable to the gain
on sale of land at Coral Square Mall.
Income from the Management Company increased $1.2 million in the three
months ended March 31, 2000 as compared to the same period in 1999. This
increase was primarily due to an increase in management fees and lease
commissions as a result of new management contracts; partially offset by an
increase in salaries and related benefits.
Other gains of $.3 million for the three months ended March 31, 2000
represents the gain on sale of land at Wolfchase Galleria.
The extraordinary items (net of taxes and minority interest) of $1.1
million in 1999 resulted from the prepayment penalty and the write-off of
unamortized upfront expenses related to the repayment of indebtedness at
the Management Company.
<PAGE>
ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES
Statement of Financial Accounting Standards No. 133, "Accounting for
Derivative Instruments and Hedging Activities" ("Statement 133"), was
issued by the FASB in June 1998. Statement of Financial Accounting
Standards No. 137, "Accounting for Derivative Instruments and Hedging
Activities - Deferral of the Effective Date of FASB Statement No. 133, an
Amendment of FASB Statement No. 133" ("Statement 137"), was issued in June
1999. Statement 137 defers the effective date of Statement 133 for one
year. Statement 133, as amended, is now effective for all fiscal quarters
of all fiscal years beginning after June 15, 2000. The effective date of
this statement for the Company is January 1, 2001. Statement 133
standardizes the accounting for derivative instruments, including certain
derivative instruments embedded in other contracts. Under the standard,
entities will be required to carry all derivative instruments in the
balance sheet at fair value. The accounting for changes in the fair value
(i.e., gains or losses) of a derivative instrument depends on whether it
has been designated and qualifies as part of a hedging relationship and, if
so, on the reason for holding it. The Company uses interest rate swap
agreements and treasury locks as part of its interest rate risk management
strategy. These derivatives are used to hedge cash flow exposure and under
Statement 133 the effective portion of the gain or loss on the derivative
instrument will be reported initially as a component of other comprehensive
income (outside earnings) and subsequently reclassified into earnings when
the hedged transaction affects earnings. Any amounts excluded from the
assessment of hedge effectiveness as well as the ineffective portion of the
gain or loss will be reported in earnings immediately.
The Company does not anticipate early adoption of Statement 133, as
amended; however, it is estimated that adoption of Statement 133, as
amended, will result in the Company recording a derivative instrument asset
of $10.9 million and transition adjustment income of $10.9 million in other
comprehensive income at January 1, 2001.
The Company expects that the adoption of Statement 133 will increase
the volatility of reported earnings and other comprehensive income. In
general, the amount of volatility will vary with the level of derivative
activities during any period.
FORWARD LOOKING STATEMENTS
Certain statements set forth herein contain forward-looking
statements, including, without limitation, statements relating to the
timing and anticipated capital expenditures of the Company's development
programs and acquisitions. Although the Company believes that the
expectations reflected in such forward-looking statements are based on
reasonable assumptions, the actual results may differ materially from that
set forth in the forward-looking statements. Certain factors that might
cause such differences include general economic conditions, local real
estate conditions, construction delays due to the unavailability of
construction materials, weather conditions or other delays beyond the
control of the Company. Consequently, such forward-looking statements
should be regarded solely as reflections of the Company's current operating
and development and acquisition plans and estimates. These plans and
estimates are subject to revision from time to time as additional
information becomes available, and actual results may differ from those
indicated in the referenced statements.
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
4.1 Stock Certificate is hereby incorporated by reference to
Exhibit 4.1 to the Registrant's Form 10-Q (File No. 1-12278) filed on
November 19, 1993
4.2 Mortgage, Security Agreement, Assignment of Leases and Rents
and Fixture Filing dated as of February 10, 1997 made by LaSalle National
Trust, N.A. and Water Tower Joint Venture to and with Lehman Brothers
Holdings Inc. is hereby incorporated by reference to Exhibit 4.8 to the
Registrant's Form 10-Q (File No. 1-12278) filed on May 13, 1997
4.3 Promissory Note A dated as of February 10, 1997 by and
between Water Tower Joint Venture and Lehman Brothers Holdings Inc. is
hereby incorporated by reference to Exhibit 4.9 to the Registrant's Form
10-Q (File No. 1-12278) filed on May 13, 1997
4.4 Promissory Note B dated as of February 10, 1997 by and
between Water Tower Joint Venture and Lehman Brothers Holdings Inc. is
hereby incorporated by reference to Exhibit 4.10 to the Registrant's Form
10-Q (File No. 1-12278) filed on May 13, 1997
4.5 Mortgage, Security Agreement and Assignment of Rents dated as
of November 3, 1997 made by LaSalle National Bank and Oak Brook Urban
Venture, L.P. to and with USC Oakbrook, Inc., Goldman Sachs Mitsui Marine
Derivative Products, L.P. and Teachers' Retirement System of the State of
Illinois is hereby incorporated by reference to Exhibit 4.6 to the
Registrant's Form 10-K (File no. 1-12278) filed on March 31, 1998
4.6 Fifth Amendment to Loan Agreement dated December 11, 1997 by
and among The Prudential Insurance Company of America, Old Orchard Urban
Limited Partnership and American National Bank and Trust Company of Chicago
is hereby incorporated by reference to Exhibit 4.7 to the Registrant's Form
10-K (File No. 1-12278) filed on March 31, 1998
4.7 Credit Agreement among Urban Shopping Centers, L.P., Banc One
Capital Markets, Inc., Dresdner Bank AG (New York and Grand Cayman
Branches) and the several Lenders is hereby filed herewith
10.1 Second Amended and Restated Agreement of Limited Partnership
of Urban Shopping Centers, L.P. is hereby incorporated by reference to
Exhibit 10.1 to the Registrant's Form 10-Q (File No. 1-12278) filed on
November 19, 1993
10.2 Corporate Services Agreement among the Registrant, Urban
Shopping Centers, L.P. and JMB Retail Properties Co. (now Urban Retail
Properties Co.) is hereby incorporated by reference to Exhibit 10.3 to the
Registrant's Form 10-Q (File No. 1-12278) filed on November 19, 1993
10.3 JMB Realty Corporation Employee Savings Plan is hereby
incorporated by reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-11 (No. 33-64488)
<PAGE>
10.4 Retirement Plan for Employees of Amfac, Inc. and Subsidiaries
is hereby incorporated by reference to Exhibit 10.5 to the Registrant's
Registration Statement on Form S-11 (No. 33-64488)
10.5 Urban Shopping Centers 1993 Option Plan is hereby
incorporated by reference to Exhibit 10.6 to the Registrant's Form 10-Q
(File No. 1-12278) filed on November 19, 1993
10.6 Non-Competition Agreement between JMB Realty Corporation and
the Registrant is hereby incorporated by reference to Exhibit 10.7 to the
Registrant's Form 10-Q (File No. 1-12278) filed on November 19, 1993
10.7 Non-Competition Agreement between JMB Institutional Realty
Corporation and the Registrant is hereby incorporated by reference to
Exhibit 10.8 to the Registrant's Form 10-Q (File No. 1-12278) filed on
November 19, 1993
10.8 Non-Competition Agreement between Neil G. Bluhm and the
Registrant is hereby incorporated by reference to Exhibit 10.9 to the
Registrant's Form 10-Q (File No. 1-12278) filed on November 19, 1993
10.9 Non-Competition Agreement between Judd D. Malkin and the
Registrant is hereby incorporated by reference to Exhibit 10.10 to the
Registrant's Form 10-Q (File No. 1-12278) filed on November 19, 1993
10.10 Omnibus Agreement among Urban Shopping Centers, L.P., JMB
Properties Company, JMB Retail Properties Co. (now Urban Retail Properties
Co.) and the Registrant is hereby incorporated by reference to Exhibit
10.12 to the Registrant's Form 10-Q (File No. 1-12278) filed on
November 19, 1993
10.11 Indemnification Agreement between the Registrant and its
Directors and Officers is hereby incorporated by reference to Exhibit 10.13
to the Registrant's Form 10-Q (File No. 1-12278) filed on November 19, 1993
10.12 Registration Rights and Lock-Up Agreement between the
Registrant and certain Investors is hereby incorporated by reference to
Exhibit 10.14 to the Registrant's Form 10-Q (File No. 1-12278) filed on
November 19, 1993
10.13 Stockholders Agreement between Center Partners, Ltd., Urban
Investment & Development Co., Urban-Water Tower Associates, JMB/Miami
Investors, L.P., Island Holidays, Ltd., Celtic Funding Corporation and the
Registrant is hereby incorporated by reference to Exhibit 10.15 to the
Registrant's Form 10-Q (File No. 1-12278) filed on November 19, 1993
10.14 Lease Agreement, dated December 31, 1990, by and between
Teachers' Retirement System of the State of Illinois and LaSalle National
Trust, N.A., as Trustee for Oakbrook Urban Venture, as amended by the First
Amendment to Lease Agreement and to Restated and Amended Memorandum of
Lease is hereby incorporated by reference to Exhibit 10.16 to the
Registrant's Registration Statement on Form S-11 (No. 33-64488)
10.15 Second Amendment to Lease Agreement by and between Teachers'
Retirement System of the State of Illinois and LaSalle National Trust,
N.A., as Trustee for Oakbrook Urban Venture, L.P. is hereby incorporated by
reference to Exhibit 10.17 to the Registrant's Form 10-Q (File No. 1-12278)
filed on November 19, 1993
<PAGE>
10.16 Net Ground Rental Lease Agreement with respect to Penn Square
Mall, as amended by Amendment of Net Ground Rental Lease and as further
amended by Second Amendment of Net Ground Rental Lease is hereby
incorporated by reference to Exhibit 10.18 to the Registrant's Registration
Statement on Form S-11 (No. 33-64488)
10.17 Ground Lease by and between The Newhall Land and Farming
Company and Valencia Town Center Associates is hereby incorporated by
reference to Exhibit 10.19 to the Registrant's Registration Statement on
Form S-11 (No. 33-64488)
10.18 Restated Employment Agreement between Matthew S. Dominski and
the Registrant is hereby incorporated by reference to Exhibit 10.19 to the
Registrant's Form 10-K (File No. 1-12278) filed on March 25, 1994
10.19 Third Amendment to Lease Agreement by and between Teachers'
Retirement System of the State of Illinois and LaSalle National Trust,
N.A., as Trustee for Oakbrook Urban Venture, L.P. is hereby incorporated by
reference to Exhibit 10.20 to the Registrant's Form 10-K (File No. 1-12278)
filed on March 25, 1994
10.20 First Amendment to Second Amended and Restated Agreement of
Limited Partnership of Urban Shopping Centers, L.P. is hereby incorporated
by reference to Exhibit 10.21 to the Registrant's Form 10-Q (File No. 1-
12278) filed on August 9, 1995
10.21 First and Second Amendments to Urban Shopping Centers 1993
Option Plan are hereby incorporated by reference to Exhibit 10.22 to the
Registrant's Form 10-Q (File No. 1-12278) filed on August 9, 1995
10.22 Urban Shopping Centers 1996 Incentive Unit Program is hereby
incorporated by reference to Exhibit 10.1 to the Registrant's Form 8-K
filed on November 25, 1996
10.23 Second Amendment to Second Amended and Restated Agreement of
Limited Partnership of Urban Shopping Centers, L.P. is hereby incorporated
by reference to Exhibit 10.23 to the Registrant's Form 10-K (File No. 1-
12278) filed on March 31, 1997
10.24 Agreement for Purchase and Sale of Partnership Interest by
and between ZML-00 Associates Limited Partnership, Urban Shopping Centers,
L.P., USC Old Orchard, Inc., and H. Rigel Barber, Gary A. Nickele and
Jeffery A. Gluskin, as owner trustees of the Old Orchard Trust, is hereby
incorporated by reference to Exhibit 10.24 to the Registrant's Form 10-K
(File No. 1-12278) filed on March 31, 1997
10.25 Amended and Restated Agreement of Limited Partnership of Old
Orchard Urban Limited Partnership by and between USC Old Orchard, Inc. and
Urban Shopping Centers, L.P. is hereby incorporated by reference to Exhibit
10.25 to the Registrant's Form 10-K (File No. 1-12278) filed on March 31,
1997
10.26 Third Amendment to Urban Shopping Centers 1993 Option Plan is
hereby incorporated by reference to Exhibit 10.26 to the Registrant's Form
10-Q (File No. 1-12278) filed on May 13, 1997
<PAGE>
10.27 Hawthorn, L.P. Agreement of Purchase and Sale of Partnership
Interest dated November 14, 1997 is hereby incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K/A filed on December 22, 1997
10.28 Fox Valley Mall LLC Agreement of Purchase and Sale of
Membership Interest dated November 14, 1997 is hereby incorporated by
reference to Exhibit 10.2 to the Registrant's Form 8-K/A filed on December
22, 1997
10.29 Third Amendment to Second Amended and Restated Agreement of
Limited Partnership of Urban Shopping Centers, L.P. is hereby incorporated
by reference to Exhibit 10.7 to the Registrant's Form 8-K/A filed on
December 22, 1997
10.30 Urban Shopping Centers Deferred Cash Compensation Plan dated
August 1, 1998 is hereby incorporated by reference to Exhibit 10.30 to the
Registrant's Form 10-K (File No. 1-12278) filed on March 29, 1999
10.31 Fourth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Urban Shopping Centers, L.P. is hereby incorporated
by reference to Exhibit 10.31 to the Registrant's Form 10-K (File No. 1-
12278) filed on March 29, 1999
10.32 Contribution Agreement dated June 10, 1999 among KPLP,
Century City Mall, LLC, a Delaware limited liability company, Urban LP, and
Chicago Deferred Exchange Corporation is hereby incorporated by reference
to Exhibit 10.1 to the Registrant's Form 8-K filed on June 16, 1999
10.33 Agreement of Purchase and Sale dated June 10, 1999 between
RREEF and USC Century, Inc. is hereby incorporated by reference to Exhibit
10.2 to the Registrant's Form 8-K filed on June 16, 1999
10.34 Registration Rights Agreement dated June 10, 1999 among KPLP,
Urban and Urban LP is hereby incorporated by reference to Exhibit 10.3 to
the Registrant's Form 8-K filed on June 16, 1999
10.35 Fifth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Urban LP dated May 27, 1999 is hereby incorporated
by reference to Exhibit 10.4 to the Registrant's Form 8-K filed on June 16,
1999
10.36 Registration Rights Agreement dated May 27, 1999 between
Urban and the unit holder named therein is hereby incorporated by reference
to Exhibit 10.5 to the Registrant's Form 8-K filed on June 16, 1999
10.37 Sixth Amendment to Second Amended and Restated Agreement of
Limited Partnership of Urban LP dated October 1, 1999 is incorporated by
reference to Exhibit 10.37 to the Registrant's Form 10-Q (File No. 1-12278)
filed on November 12, 1999
10.38 Houston Galleria Amended and Restated Purchase and Sale
Agreement dated September 17, 1999 is hereby incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K (File No. 1-12278) filed on
November 30, 1999
27.1 Financial Data Schedule
<PAGE>
--------------------
Although certain additional long-term debt instruments of the
Registrant have been excluded from Exhibit 4 above, pursuant to Rule
601(b)(4)(iii), the Registrant commits to provide copies of such agreements
to the Securities and Exchange Commission upon request.
(b) Form 8-K/A dated November 15, 1999 was filed during the first
quarter 2000.
<PAGE>
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to interest rate changes primarily as a result
of its indebtedness. The Company's interest rate risk management objective
is to limit the impact of interest rate changes on earnings and cash flows
and to lower its overall borrowing costs. To achieve its objective, the
Company may enter into derivative financial instruments such as interest
rate swaps, caps and treasury locks in order to mitigate its interest rate
risk on a related financial instrument. Because of the Company's
objectives discussed above, the Company limits its exposure to increases in
interest rates; however, the Company also does not benefit fully from
decreases in interest rates. Furthermore, as interest rates increase and
decrease, the implicit value of the derivative instrument rises and falls,
respectively. This rise and fall in the implicit value of an interest rate
swap agreement does not impact the fixed payment agreed to under the swap
agreement. The Company does not enter into derivative or interest rate
transactions for speculative purposes.
The Company manages its exposure to changes in floating interest rates
by limiting exposure to floating rate changes in any one year. The Company
manages liquidity risk by staggering the maturities of its indebtedness.
The Company increases its financial flexibility through the use of variable
rate debt and derivatives versus fixed rate debt. The Company manages its
exposure to counterparties by diversifying its exposure to counterparties
and entering into swap agreements and treasury locks only with certain
parties which have a specified credit rating.
The Company's interest rate risk is monitored using a variety of
techniques. Fixed rate debt matures and bears average interest rates as
follows: 2000 - $26.7 million at 7.40%; 2003 - $18.3 million at 6.91%; and
thereafter - $996.6 million at 7.24%. Variable rate debt matures and bears
average interest rates (based on the March 31, 2000 LIBOR rate) as follows:
2000 - $140.0 million at 7.39%; 2001 - $135.6 million at 7.27%; 2003 -
$74.9 million at 6.93%; and thereafter - $159.0 million at 6.41%.
The Company utilizes principally variable-to-fixed interest rate swaps
to mitigate its interest rate risk on the above variable rate debt.
Notional amounts of outstanding interest rate swaps have the following
maturities and provide for the following average fixed payment rates to
hedge the indicated underlying variable rates: 2000 - $20.0 million at
6.69% and 7.07%; 2002 - $50.0 million at 7.22% and 7.07%; 2003 - $10.0
million at 7.28% and 7.07%; and thereafter - $262.9 million at 6.52% and
6.70%.
The above average balances include the Company's share of
unconsolidated partnership's debt and swaps. The fair value of fixed and
variable rate debt at March 31, 2000 is estimated at $1.48 billion. The
fair value of interest rate swap agreements was $13.2 million at March 31,
2000.
As the above information incorporates only those exposures that exist
as of March 31, 2000, it does not consider those exposure or positions,
which could arise after that date. Moreover, because firm commitments are
not presented, the information represented therein has limited predictive
value. As a result, the Company's ultimate realized gain or loss with
respect to interest rate fluctuations will depend on the exposures that
arise during the period, the Company's hedging strategies at the time and
interest rates.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
URBAN SHOPPING CENTERS, INC.
By: JAMES H. LYMAN
Executive Vice President, Chief
Financial Officer,
Director of Acquisitions and Chief
Accounting Officer
Date: May 12, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following person in the capacity
and on the date indicated.
JAMES H. LYMAN
Executive Vice President, Chief
Financial Officer,
Director of Acquisitions and Chief
Accounting Officer
Date: May 12, 2000
EXHIBIT 4.7
- -----------
============================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
among
URBAN SHOPPING CENTERS, L.P., as Borrower,
BANC ONE CAPITAL MARKETS, INC.
and
DRESDNER BANK AG, New York and Grand Cayman Branches,
as Co-Lead Arrangers,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
and
BANK ONE, NA
as Administrative Agent
DRESDNER BANK AG, New York and Grand Cayman Branches,
as Syndication Agent
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent
Dated as of March 15, 2000
============================================================
<PAGE>
TABLE OF CONTENTS
SECTION 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions.. . . . . . . . . . . . . . . . .23
SECTION 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
2.1 Commitments.. . . . . . . . . . . . . . . . . . . . . . . . . .24
2.2 Procedure for Borrowing.. . . . . . . . . . . . . . . . . . . .24
2.3 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
2.4 Termination or Reduction of Commitments.. . . . . . . . . . . .25
2.5 New Lenders.. . . . . . . . . . . . . . . . . . . . . . . . . .26
2.6 Late Payment Premium. . . . . . . . . . . . . . . . . . . . . .26
2.7 Repayment of Loans; Evidence of Debt. . . . . . . . . . . . . .26
2.8 Optional Prepayments; Mandatory Prepayments.. . . . . . . . . .28
2.9 Conversion and Continuation Options.. . . . . . . . . . . . . .29
2.10 Minimum Amounts and Maximum Number of Tranches. . . . . . . . .29
2.11 Interest Rates and Payment Dates. . . . . . . . . . . . . . . .29
2.12 Computation of Interest and Fees. . . . . . . . . . . . . . . .30
2.13 Inability to Determine Interest Rate. . . . . . . . . . . . . .30
2.14 Pro Rata Treatment and Payments.. . . . . . . . . . . . . . . .30
2.15 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . .31
2.16 Requirements of Law.. . . . . . . . . . . . . . . . . . . . . .31
2.17 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
2.18 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . .34
2.19 Replacement of Lender.. . . . . . . . . . . . . . . . . . . . .34
2.20 Procedures for Addition of Collateral Properties. . . . . . . .35
2.21 Termination Date. . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
3.1 Financial Condition.. . . . . . . . . . . . . . . . . . . . . .40
3.2 No Change.. . . . . . . . . . . . . . . . . . . . . . . . . . .40
3.3 Corporate Existence; Compliance with Law. . . . . . . . . . . .40
3.4 Power; Authorization; Enforceable Obligations.. . . . . . . . .41
3.5 No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . .41
3.6 No Material Litigation. . . . . . . . . . . . . . . . . . . . .41
3.7 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . .41
3.8 Ownership of Property; Liens. . . . . . . . . . . . . . . . . .41
3.9 No Default on Outstanding Judgments or Orders.. . . . . . . . .42
3.10 No Burdensome Restrictions. . . . . . . . . . . . . . . . . . .42
3.11 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
3.12 Federal Regulations.. . . . . . . . . . . . . . . . . . . . . .42
3.13 ERISA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
3.14 Investment Company Act; Other Regulations.. . . . . . . . . . .43
3.15 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . .43
3.16 Purpose of Loans. . . . . . . . . . . . . . . . . . . . . . . .43
3.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . .43
3.18 Regulation H. . . . . . . . . . . . . . . . . . . . . . . . . .44
3.19 Valid Existence of Affiliates.. . . . . . . . . . . . . . . . .44
3.20 Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . .44
3.21 Accuracy of Information; Full Disclosure. . . . . . . . . . . .44
3.22 Security Interests. . . . . . . . . . . . . . . . . . . . . . .45
3.23 Third Party Representations.. . . . . . . . . . . . . . . . . .45
SECTION 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
4.1 Conditions to Initial Loans.. . . . . . . . . . . . . . . . . .45
4.2 Conditions to Each Loan.. . . . . . . . . . . . . . . . . . . .51
4.3 Deemed Representations. . . . . . . . . . . . . . . . . . . . .51
<PAGE>
SECTION 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
5.1 Reporting and Miscellaneous Document Requirements . . . . . . .52
5.2 Payment of Costs. . . . . . . . . . . . . . . . . . . . . . . .53
5.3 Payment of Obligations. . . . . . . . . . . . . . . . . . . . .54
5.4 Conduct of Business; Maintenance Of Existence,
Compliance with Requirements of
Law; Payment of Taxes . . . . . . . . . . . . . . . . . . . . .54
5.5 Maintenance of Property; Insurance. . . . . . . . . . . . . . .54
5.6 Inspection of Property; Books and Records; Discussions. . . . .54
5.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
5.8 Environmental Laws. . . . . . . . . . . . . . . . . . . . . . .55
5.9 Year 2000 Problem.. . . . . . . . . . . . . . . . . . . . . . .56
SECTION 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
6.1 Limitation on Fundamental Changes.. . . . . . . . . . . . . . .56
6.2 Limitation on Sale of Assets. . . . . . . . . . . . . . . . . .56
6.3 Limitation on Investments, Loans and Advances.. . . . . . . . .56
6.4 Interest Rate Hedging . . . . . . . . . . . . . . . . . . . . .57
6.5 Partnership Documents.. . . . . . . . . . . . . . . . . . . . .57
6.6 Limitation on Transactions with Consolidated Businesses.. . . .57
6.7 Limitation on Changes in Fiscal Year. . . . . . . . . . . . . .57
SECTION 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
7.1 Net Worth.. . . . . . . . . . . . . . . . . . . . . . . . . . .57
7.2 Ratio of Total Outstanding Indebtedness to
Gross Asset Value.. . . . . . . . . . . . . . . . . . . . . . .57
7.3 Ratio of Collateral Properties EBITDA to Interest
on the Loans. . . . . . . . . . . . . . . . . . . . . . . . . .57
7.4 Ratio of Combined EBITDA to Interest Expense. . . . . . . . . .57
7.5 Dividend Payout to Diluted Funds Available for
Distribution. . . . . . . . . . . . . . . . . . . . . . . . . .57
7.6 Collateral Properties Debt Yield. . . . . . . . . . . . . . . .58
SECTION 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . .58
8.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
9.1 Appointment.. . . . . . . . . . . . . . . . . . . . . . . . . .62
9.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . .62
9.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . .62
9.4 Reliance by Administrative Agent. . . . . . . . . . . . . . . .62
9.5 Notice of Default.. . . . . . . . . . . . . . . . . . . . . . .63
9.6 Non-Reliance on Administrative Agent and other Lenders. . . . .63
9.7 Indemnification.. . . . . . . . . . . . . . . . . . . . . . . .64
9.8 Administrative Agent in Its Individual Capacity.. . . . . . . .64
9.9 Successor Administrative Agent. . . . . . . . . . . . . . . . .64
9.10 Transfer of Agency Function.. . . . . . . . . . . . . . . . . .64
9.11 Authority of Administrative Agent.. . . . . . . . . . . . . . .64
9.12 Other Agents. . . . . . . . . . . . . . . . . . . . . . . . . .65
9.13 Enforcement Procedures. . . . . . . . . . . . . . . . . . . . .65
SECTION 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
10.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . .67
10.2 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . .67
10.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . .68
10.4 Survival of Representations and Warranties. . . . . . . . . . .68
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . .68
10.6 Successors and Assigns; Participations
and Assignments.. . . . . . . . . . . . . . . . . . . . . . . .69
<PAGE>
10.7 Waiver of Set-Off.. . . . . . . . . . . . . . . . . . . . . . .71
10.8 Adjustments.. . . . . . . . . . . . . . . . . . . . . . . . . .71
10.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . .71
10.10 Severability. . . . . . . . . . . . . . . . . . . . . . . . . .72
10.11 Integration.. . . . . . . . . . . . . . . . . . . . . . . . . .72
10.12 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . .72
10.13 Submission To Jurisdiction; Waivers.. . . . . . . . . . . . . .72
10.14 Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . .72
10.15 Waivers of Jury Trial . . . . . . . . . . . . . . . . . . . . .73
10.16 Documentation Satisfactory. . . . . . . . . . . . . . . . . . .73
10.17 Possession of Documents.. . . . . . . . . . . . . . . . . . . .73
10.18 Usury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
10.19 Table of Contents; Headings.. . . . . . . . . . . . . . . . . .73
10.20 Confidentiality.. . . . . . . . . . . . . . . . . . . . . . . .73
10.21 Absolute and Unconditional Obligations. . . . . . . . . . . . .74
10.22 Non-Recourse to Urban Limited Partners. . . . . . . . . . . . .74
10.23 Resignation of UBS. . . . . . . . . . . . . . . . . . . . . . .76
10.24 Binding Effect of Request for Advance.. . . . . . . . . . . . .76
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 15, 2000,
among (i) URBAN SHOPPING CENTERS, L.P., an Illinois limited partnership
(the "Borrower"), (ii) BANC ONE, CAPITAL MARKETS, INC., a national banking
association and DRESDNER BANK AG, NEW YORK and GRAND CAYMAN BRANCHES, as
co-lead arrangers (in such capacity, the "Co-Lead Arrangers"), (iii) the
other banks and financial institutions from time to time parties to this
Agreement (such other banks and financial institutions together with Bank
One and Dresdner, the "Lenders"), (iv) BANK ONE, NA, together with its
affiliates as the administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent"), (v) DRESDNER BANK AG, NEW YORK and
GRAND CAYMAN BRANCHES, as Syndication Agent, and (vi) PNC BANK, NATIONAL
ASSOCIATION, as Documentation Agent.
The Borrower has previously entered into a Credit Agreement dated as
of April 30, 1997, as amended from time to time, with certain of the
Lenders, certain other lenders and UBS, AG Stamford Branch ("UBS"), as
administrative agent, for the provision of a secured revolving credit
facility to the Borrower.
The Borrower wishes to extend the term of such facility, increase the
maximum amount thereof and make certain other modifications thereto.
The parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
-----------
1.1 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"Acceptance Letter": as defined in Section 2.5(a).
"Accountants": KPMG Peat Marwick, or such other accounting firm(s)
selected by the Borrower and reasonably acceptable to the Required Lenders.
"Acquisition": a purchase (whether by assignment, transfer or
Financing Lease) of an asset.
"Administrative Agent": as defined in the preamble to this
Agreement.
"Affiliate": means, with respect to any Person (the "first Person"),
any other Person (i) which directly or indirectly controls, is controlled
by or in under common control with the first Person or (ii) 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. Notwith-
standing anything to the contrary contained herein, for purposes of this
definition and this Agreement, JMB Partners shall not be considered an
Affiliate of the Borrower or URB.
"Agent Approval Property": a Property proposed by the Borrower for
inclusion as a Collateral Property which is an Eligible Property and which
meets the following criteria:
(i) the Net Operating Income of such Property shall
constitute less than 5% of the then-current Collateral Properties NOI after
giving effect to the addition of such Property,
<PAGE>
(ii) the aggregate of such Property's Net Operating Income,
together with the Net Operating Income of all other Collateral Properties
previously added as Agent Approval Properties shall constitute less than
25% of the then-current Collateral Properties NOI after giving effect to
the addition of such Property, and
(iii) at least 70% of the gross leasable area of such Property
is occupied by tenants not affiliated with the Borrower which are then
paying rent under their leases.
and so qualifies for admission as a Collateral Property with the approval
of the Administrative Agent alone. The Citrus Park Plaza Property shall
not be deemed to be an Agent Approval Property.
"Aggregate Outstanding Extensions of Credit": as to any Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount
of all Loans made by such Lender then outstanding and (b) such Lender's
Commitment Percentage of the L/C Obligations then outstanding.
"Agreement": this Amended and Restated Credit Agreement, as the same
may be further amended, supplemented or otherwise modified from time to
time.
"Applicable Commitment Fee Rate": the rate per annum determined, at
any time, of (x) 0.25% if Utilization is less than 33.3% or (y) 0.20% if
Utilization is equal to or greater than 33.3% but less than 66.7% or
(z) 0.15% if Utilization is equal to or greater than 66.7%. Any change in
Utilization from one such category to another shall effect an immediate
change in the Applicable Commitment Fee Rate.
"Applicable Lending Office": for each Lender and for its Eurodollar
Loan or Base Rate Loan, as applicable, the lending office of such Lender
(or of an Affiliate of such Lender) designated as such on Schedule 10
hereto or in the applicable Acceptance Letter or Assignment and Acceptance,
or such other office of such Lender (or of an Affiliate of such Lender) as
such Lender may from time to time specify to the Administrative Agent and
the Borrower as the office by which its Eurodollar Loan or Base Rate Loan,
as applicable, is to be made and maintained.
"Applicable Margin": for each Type of Loan, if the Collateral
Properties Debt Yield at any time of determination:
(i) is greater than 15%, the rate per annum set forth under
the relevant column heading below:
BASE RATE LOANS EURODOLLAR LOANS
--------------- ----------------
0.00% per annum 1.05% per annum
(ii) is equal to or less than 15% but greater than or equal to
13.5%, the rate per annum set forth under the relevant column heading
below:
BASE RATE LOANS EURODOLLAR LOANS
--------------- ----------------
0.00% per annum 1.20% per annum
(iii) is less than 13.5%, the rate per annum set forth under
the relevant column heading below:
BASE RATE LOANS EURODOLLAR LOANS
--------------- ----------------
0.00% per annum 1.30% per annum
<PAGE>
Any change in the Applicable Margin required hereunder shall be deemed to
occur (a) on the date which is three (3) Banking Days after each date the
Borrower delivers the Compliance Certificate required by Section 5.1(d)
substantially in the form of Exhibit B-1; provided that if the Borrower
fails to deliver such Certificate on or before the date such Certificate is
required to be delivered pursuant to Section 5.1(d), the Collateral
Properties Debt Yield, until the date which is three (3) Banking Days after
such Certificate is so delivered, shall, for purposes of determining the
Applicable Margin, be deemed to be less than 13.5% and, thereafter, shall
be the Collateral Properties Debt Yield actually set forth on such
Certificate or (b) on any Borrowing Date on which the Lenders make Loans to
the Borrower hereunder or any date on which any Letter of Credit is issued
hereunder at which time the Collateral Properties Debt Yield shall be
recalculated using Collateral Properties NOI as set forth in the most
recent Certificate delivered pursuant to Section 5.1(d) and the aggregate
principal amount of the Loans plus the L/C Obligations after giving effect
to the principal amount of the Loans made on such Borrowing Date or the
face amount of Letters of Credit issued on such date or (c) on any date on
which the Lenders receive a prepayment of the Loans hereunder or the return
or expiration of any Letter of Credit, undrawn or cancelled, at which time
the Collateral Properties Debt Yield shall be recalculated using Collateral
Properties NOI as set forth in the most recent Certificate delivered
pursuant to Section 5.1(d) and the aggregate principal amount of the Loans
plus the L/C Obligations after giving effect to the principal amount of the
Loans prepaid on such prepayment date or the face amount of Letters of
Credit so returned or expired. The Borrower shall set forth the
recalculation of Collateral Properties Debt Yield in its notice of
borrowing, notice of prepayment or request for issuance of a Letter of
Credit, as applicable.
"Application": an application in such form as the Issuing Bank may
specify from time to time, requesting the Issuing Bank to issue a Letter of
Credit.
"Appraisal": shall mean an appraisal commissioned by the
Administrative Agent, and acceptable to the Administrative Agent, in
compliance with the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended and the regulations promulgated thereunder and with
the Uniform Standards of Professional Appraisal Practice.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6.
"Assignment of Leases": the collective reference to the existing
assignments of leases described on Schedule 7, as each is being amended by
the applicable Mortgage and Assignment Amendments, together with any
assignments of leases on properties added to Collateral hereafter pursuant
to Section 2.20 hereof.
"Authorization Letter": a letter agreement executed by the Borrower
in the form of Exhibit A hereto.
"Available Commitment": as to any Lender at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment over (b) such
Lender's Aggregate Outstanding Extensions of Credit.
"Bank One": as defined in the preamble to this Agreement.
"Banking Day": (i) any day on which commercial banks are not
authorized or required to close in Chicago and (ii) whenever such day
relates to a Eurodollar Loan, an Interest Period with respect to any
Eurodollar Loan, or notice with respect to a Eurodollar Loan, a day on
which dealings in Dollar deposits are also carried out in the London
interbank market and the banks are open for business in London.
<PAGE>
"Base Rate": for any day, the higher of (i) the Federal Funds Rate
for such day plus one-half percent (.50%) or (ii) the Prime Rate for such
day.
"Base Rate Loan": Loans the rate of interest applicable to which is
based upon the Base Rate.
"BB&B": Bed Bath & Beyond Inc., a New York corporation.
"BB&B Lease": the Lease Agreement dated March 31, 1996 between
Wolfchase and BB&B, as the same may be amended, supplemented or otherwise
modified from time to time.
"BCCP": Brandon Convenience Center Partners, Ltd., a Florida limited
partnership.
"BCCP Guarantee": the amended and restated Limited Recourse
Guarantee of even date herewith executed and delivered by BCCP to the
Administrative Agent, as the same may be amended, supplemented, extended,
restated, replaced or otherwise modified from time to time.
"Benefitted Lender": as defined in Section 10.7.
"BLP": Brandon Land Partners, Ltd., a Florida limited partnership.
"BLP Guarantee": the amended and restated Limited Recourse Guarantee
of even date herewith executed and delivered by BLP to the Administrative
Agent, as the same may be amended, supplemented, extended, restated,
replaced or otherwise modified from time to time.
"Borrower": as defined in the preamble to this Agreement.
"Borrower Consolidated Financial Statements": the consolidated
balance sheet and related consolidated statement of operations and cash
flows, and footnotes thereto of URB, prepared in reasonable detail and in
accordance with GAAP. For purposes of calculating financial covenants
contained herein, such financial statements shall be adjusted to the extent
required to take into account the effect of the minority interests on the
financial information contained in such statements.
"Borrower's Share of UJV Combined Outstanding Indebtedness": the sum
of Indebtedness (other than Indebtedness or guarantees thereof described in
clauses (b), (g) and (I) of the definition of "Indebtedness") of each of
the UJVs contributing to UJV Combined Outstanding Indebtedness multiplied
by the Borrower's respective beneficial interests in each such UJV.
"Borrower's Share of Management Company Outstanding Indebtedness":
the Management Company Outstanding Indebtedness multiplied by the
Borrower's beneficial interest in the Management Company. As of the date
of this Agreement, the Borrower's beneficial interest in the Management
Company is 95%.
"Borrowing Base": on any date of determination, an amount equal to
Collateral Properties NOI on such date divided by .13.
"Borrowing Base Certificate": a certificate of the Borrower,
substantially in the form of Exhibit D, required to be delivered pursuant
to Section 5.1(1).
"Borrowing Date": any Banking Day specified in a notice pursuant to
Section 2.2 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
<PAGE>
"Brandon BB&B Mortgage": the Mortgage described on Schedule 7 by BLP
to the Prior Administrative Agent encumbering the Brandon BB&B Outparcel,
as the same may be amended, supplemented, extended, restated, replaced or
otherwise modified from time to time.
"Brandon BB&B Outparcel": those certain premises located in
Hillsborough County, Florida, more particularly described on Schedule 1
hereto and all buildings, fixtures and other improvements from time to time
located thereon or affixed thereto.
"Brandon Collateral Properties": the collective reference to the
Brandon BB&B Outparcel, the Brandon Town Center Property, the Brandon Plaza
Property and the Brandon Thomasville Property.
"Brandon Guarantees": the collective reference to the BCCP
Guarantee, the BLP Guarantee and the BSCP Guarantee.
"Brandon Mortgages": the collective reference to the Brandon BB&B
Mortgage, the Brandon Town Center Mortgage and the Brandon Plaza Mortgage,
as amended by the applicable Mortgage and Assignment Amendments.
"Brandon Plaza Mortgage": the Mortgage described on Schedule 7
executed and delivered by BCCP to the Prior Administrative Agent
encumbering the Brandon Plaza Property, as the same may be amended,
supplemented, extended, restated, replaced or otherwise modified from time
to time.
"Brandon Plaza Property": those certain premises located in
Hillsborough County, Florida, more particularly described on Schedule 1
hereto and all buildings, fixtures and other improvements from time to time
located thereon or affixed thereto.
"Brandon Thomasville Property": those certain premises located in
Hillsborough County, Florida more particularly described on Schedule 1
hereto and all buildings, fixtures and other improvements from time to time
located thereon or affixed thereto, which is owned by BLP and is to be
encumbered by the Brandon BB&B Mortgage through the applicable Mortgage and
Assignment Amendment.
"Brandon Town Center Anchors": Dillard's, Burdines, JC Penney and
Sears.
"Brandon Town Center Mortgage": the Mortgage described on Schedule 7
executed and delivered by BSCP to the Prior Administrative Agent
encumbering the Brandon Town Center Property, as the same may be amended,
supplemented, extended, restated, replaced or otherwise modified from time
to time.
"Brandon Town Center Property": those certain premises located in
Hillsborough County, Florida, more particularly described on Schedule 1
hereto and all buildings, fixtures and other improvements from time to time
located thereon or affixed thereto.
"BSCP": Brandon Shopping Center Partners, Ltd., a Florida limited
partnership.
"BSCP Guarantee": the amended and restated Limited Recourse
Guarantee of even date herewith executed and delivered by BSCP to the
Administrative Agent, as the same may be amended, supplemented, extended,
restated, replaced or otherwise modified from time to time.
"Burdines": Burdines, Inc.
<PAGE>
"Capital Expenditures": means, for any period, the aggregate of all
expenditures (whether payable in cash or other property or accrued as a
liability (but without duplication)) during such period that, in conformity
with GAAP, are required to be included in or reflected by the Borrower's or
any of the Consolidated Businesses' fixed asset accounts as reflects in any
of their respective balance sheets; provided, however, (i) Capital
Expenditures shall include, whether or not such a designation would be in
conformity with GAAP, (a) that portion of Financing Leases which is
capitalized on the Borrower Consolidated Financial Statements and
(b) expenditures for Equipment which is purchased simultaneously with the
trade-in of existing Equipment owned by the Borrower or any of the
Consolidated Businesses, to the extent the gross purchase price of the
purchased Equipment exceeds the book value of the Equipment being traded in
at such time; and (ii) Capital Expenditures shall exclude, whether or not
such a designation would be in conformity with GAAP, expenditures made in
connection with the restoration of property, to the extent reimbursed or
financed from insurance or condemnation proceeds.
"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year from
the date of acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than one year from the date of acquisition of
any Lender or of any domestic commercial bank the senior long-term
unsecured debt of which is rated at least A or the equivalent thereof by
S&P or A2 or the equivalent thereof by Moody's and having capital and
surplus in excess of $500,000,000, (iii) repurchase obligations with a term
of not more than seven days for underlying securities of the types
described in clauses (i) and (ii) entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper rated
at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent
thereof by Moody's and in either case maturing within 90 days after the
date of acquisition and (v) investments in money market funds that have
assets in excess of $2,000,000,000, are managed by recognized and
responsible institutions and invest all of their assets in (x) obligations
of the types referred to in clauses (i), (ii), (iii) and (iv) above and
(y) commercial paper having at least the rating described in clause (iv)
above and maturing within 270 days after the date of acquisition.
"Citrus Park Plaza Property": those certain premises located in
Hillsborough County, Florida, more particularly described on Schedule 1
hereto and all buildings, fixtures and other improvements from time to time
located thereon or affixed thereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document including, without limitation, the Collateral Properties.
"Collateral Properties": the collective reference to the Initial
Collateral Properties and any other Properties added as "Collateral
Properties" from time to time under Section 2.20 hereof, provided that the
term "Collateral Properties" as of any date shall not include any
Collateral Property which has been previously released from the applicable
Mortgage and Assignment of Leases under the procedure set forth in
Section 2.8 hereof.
"Collateral Properties Debt Yield": on any date of determination,
the ratio, expressed as a percentage, of (i) Collateral Properties NOI on
such date to (ii) the sum of (A) the aggregate principal amount of the
Loans outstanding on such date and (B) the L/C Obligations outstanding on
such date (after giving effect to the principal amount of any Loans being
made by the Lenders to the Borrower or prepaid by the Borrower to the
Lenders and/or the face amount of any Letter of Credit being issued for the
account of the Borrower or returned or expired undrawn on such date).
<PAGE>
"Collateral Properties EBITDA": for any period of time, (i) earnings
before interest, income taxes, depreciation and amortization and unusual
items, in respect of the Collateral Properties, as reflected in the
financial statements for the relevant Collateral Property prepared in a
manner consistent with the preparation of the Borrower Consolidated
Financial Statements, less (ii) in the event no management fee is charged
to any Collateral Property, a management fee expense allowance in the
amount of two percent (2%) of the aggregate rents (minimum and percentage)
derived from all space and ground tenants in respect of each such
Collateral Property.
"Collateral Properties NOI": on any date, the aggregate Net
Operating Income for all then-current Collateral Properties for each of the
four consecutive calendar quarters for which such Net Operating Income has
been reported to the Administrative Agent immediately preceding the
calendar quarter in which such date occurs, provided that the Net Operating
Income for such four calendar quarter period on account of any Collateral
Property which was completed and first placed in service during such period
shall be deemed to be the actual Net Operating Income of such Collateral
Property from the date it was first placed in service through the end of
such four calendar quarter period annualized to approximate the amount of
Net Operating Income that would have been generated if such Collateral
Property had been completed and placed in service for the full four
calendar quarter period.
"Combined EBITDA": for any period of time, (i) revenues less
operating costs before interest, income taxes, depreciation and
amortization and unusual items for the Borrower and its Consolidated
Businesses other than the UJVs and the Management Company (based on the
accounting principles reflected in the Borrower Consolidated Financial
Statements as of and for the year ended December 31, 1998 contained in the
Form 10-K for such period of URB, 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 (ii) the Borrower's beneficial interest in
revenues less operating costs before interest, income taxes, depreciation
and amortization and unusual items (after eliminating appropriate
intercompany amounts) applicable to each of the UJVs (other than the UJV
which owns the Valencia Property) plus (iii) the Borrower's beneficial
interest in the Management Company EBITDA plus (iv) Interest Income;
provided that there shall be excluded (a) in the event no management fee is
charged with respect to any Properties contributing to the revenues
described in clause (i) above, a management fee expense allowance in the
amount of two percent (2%) of the aggregate rents (minimum and percentage)
derived from all space and ground tenants in respect of such Properties,
(b) the revenues of any other Person accrued prior to the date it becomes
an Affiliate of the Borrower or a UJV or is merged into or consolidated
with the Borrower or any of its Consolidated Businesses and (c) the
undistributed earnings of any Consolidated Business or UJV to the extent
that the declaration or payment of dividends or similar distributions by
such Consolidated Business or UJV, as the case may be, is at the time
prohibited by the terms of any Contractual Obligation or Requirement or Law
applicable to such Consolidated Business or UJV, as the case may be.
"Commitment": as to any Lender, the obligation of such Lender to
make Loans to and/or issue or participate in Letters of Credit issued on
behalf of the Borrower hereunder in an aggregate principal and/or face
amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 2, as such amount may be reduced
from time to time in accordance with the provisions of this Agreement,
provided that no Lender other than an Issuing Bank shall have any
obligation to issue Letters of Credit.
<PAGE>
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the aggregate
Commitments or, at any time after the Commitments shall have expired or
terminated, that percentage obtained by dividing (A) the sum of (i) the
aggregate principal amount of such Lender's Loans then outstanding and
(ii) such Lender's Commitment Percentage (immediately prior to such
expiration or termination of the Commitments) of the L/C Obligations then
outstanding by (B) the sum of (x) the aggregate principal amount of all
Loans then outstanding and (y) the aggregate amount of all L/C Obligations
then outstanding.
"Commitment Period": the period from and including the date hereof
to but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Consolidated Businesses": collectively (i) each Affiliate of the
Borrower, all of the equity interests of which are, or, under GAAP, are
deemed to be, owned by the Borrower, (ii) the Management Company (although
not consolidated for accounting purposes) and its Affiliates and (iii) URB
and its Affiliates.
"Consolidated Outstanding Indebtedness": as of any time,
Indebtedness (other than Indebtedness or guarantees thereof described in
clauses (b), (g) and (i) of the definition of "Indebtedness") of the
Borrower and its Consolidated Businesses other than the UJVs and the
Management Company, as reflected in the Borrower Consolidated Financial
Statements.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Default Rate": a rate per annum equal to: (i) in the case of
overdue principal (a) 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 (b) with respect to Eurodollar Loans,
a fixed rate three percent (3%) above the rate(s) of interest in effect
thereon (including the Applicable Margin) 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) or (ii) in the case of overdue
interest, fees or other amounts, a variable rate three percent (3%) above
the rate of interest for a Base Rate Loan (including the Applicable
Margin).
"Derived Ground Lease Debt": an amount equal to (x) Total Ground
Lease Liabilities divided by (y) .10.
"Dillard's": Dillard's Department Stores, Inc.
"Disposition": a conveyance or sale (whether by assignment, transfer
or Financing Lease or otherwise) of an asset.
<PAGE>
"Dividend Payout": as to any fiscal quarter, the aggregate amount of
(i) dividends paid by URB to its shareholders plus (ii) distributions paid
by the Borrower to its partners (other than URB) on account of such
quarter, whether paid in cash or in kind, excluding distributions paid in
accordance with the requirements of the Borrower's existing or future
"perpetual preferred" classes of limited partnership units.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Effective Date": the date on which the conditions precedent set
forth in Section 4.1 shall be satisfied.
"Eligible Property": shall mean any Property for which each of the
following requirements listed in clauses (i) through (iv) below is met with
respect to such Property. The Borrower shall establish that each of these
requirements has been met when the Borrower seeks to have such Property
included as a Collateral Property pursuant to Section 2.20.
(i) a certificate of occupancy or similar evidence of
governmental approval, if available, has been issued with respect to all
occupied portions of such Property,
(ii) there exist no material title flaws affecting the
marketability of the Property and no material structural flaws with respect
to such Property as determined by a structural inspection by an architect
or engineer engaged by (or acceptable to) the Administrative Agent on
behalf of the Lenders, provided that any such inspection shall either be
addressed to and for the benefit of the Administrative Agent and the
Lenders or provide that the Administrative Agent and the Lenders may rely
on such inspection,
(iii) such Property is free of any material Contamination or
other material violation of Environmental Laws as determined by a phase I
environmental report conforming to ASTM Practice E 1527-97 and acceptable
to the Administrative Agent, and
(iv) such Property is, or will upon becoming a Collateral
Property be, directly or indirectly, wholly owned and controlled by the
Borrower.
"Environmental Indemnity Agreement": the amended and restated
Indemnity Agreement of even date herewith executed and delivered by the
Borrower and URB to the Administrative Agent, as the same may be amended,
supplemented, extended, restated, replaced or otherwise modified from time
to time.
"Environmental Laws": any and all Federal, State, local or municipal
laws, rules, order, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment, human health
as it relates to environmental matters and/or Materials of Environmental
Concern, as now or may at any time hereafter be in effect.
"Environmental Notice": any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person
(i) affecting or relating to the compliance by the Borrower or any of the
Consolidated Businesses with any Environmental Law in connection with any
activity or operations at any time conducted by the Borrower or such
Consolidated Business, as the case may be, (ii) relating to the occurrence
or presence of or exposure to or possible or threatened or alleged
occurrence or presence of or exposure to Materials of Environmental Concern
at any of the locations or facilities of the Borrower or any of the
Consolidated Businesses, 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 Materials of Environmental
<PAGE>
Concern at any such location or facility or any part hereof; and
(iii) relating to any violation or alleged violation of any relevant
Environmental Law.
"Environmental Reports": the collective reference to the
environmental reports listed on Schedule 3 attached hereto.
"Equipment": equipment used in connection with the maintenance of
any property owned or leased, directly or indirectly, by the Borrower or
any of its Consolidated Businesses.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": means, with respect to a Eurodollar Advance:
(a) for any one, two, three or six month Interest Period, the applicable
offered rate for deposits in U.S. dollars appearing on Telerate Page 3750
as of 11:00 a.m. (London time) two Banking Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period,
provided that, (i) if Telerate Page 3750 is not available to the
Administrative Agent for any reason, the applicable Eurodollar Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as
reported by any other generally recognized financial information service as
of 11:00 a.m. (London time) two Banking Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, and
(ii) if no such British Bankers' Association Interest Settlement Rate is
available to the Administrative Agent, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the rate determined by
the Administrative Agent to be the rate at which Bank One or one of its
Affiliate banks offers to place deposits in U.S. dollars with first-class
banks in the London interbank market at approximately 11:00 a.m. (London
time) two Banking Days prior to the first day of such Interest Period, in
the approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity equal to such Interest Period or (b) for any Interest Period which
is less than one month, the greater of (i) the rate for one month Interest
Period determined under clause (a) of this definition or (ii) the rate
determined by the Administrative Agent to be the rate at which Bank One or
one of its Affiliate banks offers to place deposits in U.S. dollars with
first-class banks in the London interbank market two Banking Days prior to
the first day of such Interest Period, for delivery on the first day of
such Interest Period in the approximate amount of Bank One's relevant
Eurodollar Loan and having a maturity of seven (7) days.
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Existing Lenders": as defined in Section 2.5(a).
"Extended Termination Date": March 14, 2004, if so elected by the
Borrower in accordance with the provisions of Section 2.21.
"Extension Fee": the fee to be paid by the Borrower to the
Administrative Agent for the account of each Lender upon the extension of
the termination of the Commitment Period pursuant to Section 2.21 in an
amount equal to the product of (x) the aggregate of the Lenders'
Commitments multiplied by (y) 0.15%.
<PAGE>
"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 (i) 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 (ii) if no such rate is
so published on the next succeeding Banking Day, the Federal Funds Rate for
such day shall be the average of the rates quoted by three Federal Funds
broker to the Administrative Agent on such day on such transactions.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fiscal Year": each period from January 1 to December 31.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": 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 applicable time, the sum of:
(i) the amount, determined annually as of January 1st of each
year and effective for the twelve (12) month period beginning on such date
(such amount as of January 1, 1999 being $2,374,247,048), equal to the
aggregate of the then-current values, on a free and clear basis, of those
operating assets (excluding the Valencia Property) which are owned or
leased, directly or indirectly, in whole or in part, by the Borrower and
which assets are included in the then-current Borrower Consolidated
Financial Statements (without regard to the book value of such assets),
multiplied by the Borrower's respective beneficial interests in such
assets; as adjusted (a) for any Dispositions subsequent to the most recent
annual determination of Gross Asset Value by deducting the value attributed
by the Lenders' Valuation Consultant to the asset disposed of in such
annual determination multiplied by the Borrower's respective beneficial
interest in such asset and (b) in the case of Acquisitions subsequent to
the most recent annual determination of Gross Asset Value by adding the
Purchase Price for the acquired asset; provided, however, in the case of
any operating assets which are to be included in the calculation of Gross
Asset Value pursuant to this definition but which have not been completed
and are still in the construction and development stages, the amount to be
included in calculation of Gross Asset Value with reference to such asset
shall be equal to the sum of all costs associated with the development of
such asset as set forth on the budget for such development, to the extent
such costs have been incurred and paid, multiplied by the Borrower's
respective beneficial interest in such asset;
(ii) Unrestricted Cash and Cash Equivalents at such time;
(iii) the Borrower's beneficial interest in the Management
Company multiplied by the product of (x) five (5) times (y) the Management
Company EBITDA for the twelve (12) month period preceding such date.
<PAGE>
The component of Gross Asset Value described in clause (i) of this
definition for any year shall equal the value established by the Borrower
in its statement delivered pursuant to Section 5.1(c) unless the statement
for such year prepared by Lenders' Valuation Consultant pursuant to
Section 5.1(c) establishes a Gross Asset Value less than 90% of the value
established by the Borrower, in which event Gross Asset Value for such year
shall be conclusively deemed to be equal to the value established by the
Lenders' Valuation Consultant. A preliminary version of such statement
prepared by Lenders' Valuation Consultant shall be issued to the Borrower
and the Administrative Agent for their review and they shall be permitted
to comment thereon during a period of fifteen (15) Banking Days after
receipt thereof. The Lenders' Valuation Consultant shall consider any such
comments (but shall not be obligated to make any changes in response
thereto) and shall issue its final statement promptly after the end of such
comment period.
"Ground Lease Liabilities": with reference to any Person, the sum of
all annual rental payment obligations of such Person under leases pursuant
to which such Person holds a leasehold interest in real property.
"Group Approval Property": a Property proposed by the Borrower for
inclusion as a Collateral Property in the Borrowing Base which is an
Eligible Property and requires the approval of the Required Lenders under
Section 2.20(c) for admission as a Collateral Property.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of credit)
to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business or any obligations which represent the "Other
Party's Share" of "Duplicated Obligations" (as such quoted terms are
hereinafter defined). "Duplicated Obligations" means, collectively, all
those payment guarantees in respect of Indebtedness of UJVs for which the
Borrower and another party are jointly and severally liable, where the
other party is, in the reasonable judgment of the Administrative Agent,
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. The amount of any Guarantee obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
<PAGE>
"Guarantees": the collective reference to URB Guarantee and the
Limited Recourse Guarantees.
"Guarantors": the collective reference to URB and the Limited
Recourse Guarantors.
"Indebtedness": of any Person at any date, means, without
duplication (a) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (including trade
obligations), (b) all obligations of such Person as the lessee under
Financing Leases, (c) current liabilities in respect of unfunded vested
benefits under any Plan, (d) obligations under letters of credit issued for
the account of such Person, (e) obligations under bankers' or trade
acceptance facilities, (f) all guarantees of such Person of any
Indebtedness or other obligation of any other Person, (g) all 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, (h) all
obligations secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the
payment thereof, (i) all obligations under any agreement providing for
contingent participation or other hedging mechanisms with respect to
interest on any other indebtedness of such Person payable on any of the
items described above in this definition and (j) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument.
"Initial Collateral Properties": the collective reference to the
Brandon Collateral Properties, the New York Square Property, the Service
Merchandise Plaza Property and the Wolfchase BB&B Property, all of which
shall be included as Collateral Properties on the Effective Date.
"Initial Loans": the Loans made on the Effective Date.
"Initial Termination Date": March 14, 2003.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Expense": for any period of time, the consolidated
interest expense (without deduction of consolidated interest income) of the
Borrower and its Consolidated Businesses (based on the accounting
principles reflected in the Borrower Consolidated Financial Statements as
of and for the year ended December 31, 1998 contained in the Form 10-K for
such period of URB), including, without limitation or duplication (or, to
the extent not so included, with the addition of), (i) any dividends
attributable to any equity security which may be converted into a debt
security of the Borrower or any of its Consolidated Businesses at any time
or is mandatorily redeemable for cash within twenty (20) years from its
initial issuance; (ii) interest expense for such period on Borrower's Share
of Management Company Outstanding Indebtedness during such period, and
(iii) the interest expense and items listed in clause (i) above applicable
to each of the UJVs multiplied by the Borrower's respective beneficial
interests in the UJVs and excluding all interest accruing on deferred
payments under any Financing Lease including, without limitation, the lease
with reference to the Oakbrook Property.
"Interest Income": for any period of time, the amount of "Interest
Income" as set forth on the Statement of Operations contained in the
Borrower Consolidated Financial Statements with reference to such period.
<PAGE>
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
of each calendar month in which such Loan is outstanding, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last
day of such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three months or
a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan
and ending one to thirty days, or one, two, three or six months thereafter,
as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one to thirty days, or one, two , three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent
not less than three Banking Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Banking Day, such Interest
Period shall be extended to the next succeeding Banking Day unless the
result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Banking Day;
(2) any Interest Period that would otherwise extend beyond
the Termination Date shall end on the Termination Date;
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Banking Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Banking Day of a calendar
month; and
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
"Investment": as defined in Section 6.3.
"Issuing Bank": Bank One, NA, in its capacity as issuer of any
Letter of Credit hereunder, provided that the term "Issuing Bank" shall
also refer to any other Lender which agrees to issue a Letter of Credit
hereunder at the request of the Borrower, in such Lender's capacity as
issuer of such Letter of Credit.
"IVI": Inspection and Valuation International or such other
architectural or engineering consultant selected by the Administrative
Agent.
"JC Penney": J.C. Penney Company, Inc.
"JMB Partners": the collective reference to JMB Realty Corporation,
JMB Properties Co., Center Partners, Ltd., Urban Investment & Development
Co., Urban-Water Tower Associates and JMB/Miami Investors, L.P.
<PAGE>
"L/C Commitment": $50,000,000.
"L/C Fee Payment Date": the tenth (10th) day of each March, June,
September and December.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit which have not then been reimbursed pursuant to Section 2A.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Lenders other than the Issuing Bank.
"Lenders": as defined in the preamble to this Agreement.
"Lenders' Valuation Consultant": Cushman & Wakefield, Inc. or such
other appraisal firm(s) selected by the Administrative Agent and reasonably
satisfactory to the Borrower.
"Letters of Credit": as defined in Section 2A.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Limited Recourse Guarantees": the collective reference to the
Service Merchandise Plaza Guarantee, the BCCP Guarantee, the BLP Guarantee,
the BSCP Guarantee and the Wolfchase BB&B Guarantee, together with any
similar guaranties given by any Owners of additional Collateral Properties
added pursuant to Section 2.20 hereof which are not the Borrower.
"Limited Recourse Guarantors": the collective reference to the
guarantors under the Limited Recourse Guarantees.
"Loan" and "Loans": as defined in Section 2.1(a).
"Loan Documents": this Agreement, the Notes, the Applications,
Guarantees, the Environmental Indemnity Agreement and the Security
Documents.
"Loan Parties": the Borrower, URB, the Limited Recourse Guarantors
and each other Affiliate of the Borrower which is a party to a Loan
Document.
"Major Leases": any leases, subleases or other occupancy agreements
in respect of any of the Collateral Properties in excess of 7,500 square
feet of gross leasable area.
"Majority Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 50%.
"Management Company": Urban Retail Properties Co.
"Management Company EBITDA": for any period of time, revenues less
operating costs before interest, income taxes, depreciation and
amortization and unusual items for the Management Company (based on the
accounting principles reflected in the most recent consolidated financial
statements of the Management Company delivered to the Lenders, and assuming
that any dividends paid on any equity security shall not be deducted in
calculating the Management Company EBITDA unless such equity security may
be converted into a debt security at any time or its mandatorily redeemable
for cash within twenty (20) years from its initial issuance).
<PAGE>
"Management Company Outstanding Indebtedness": as of any time,
Indebtedness (other than Indebtedness or guarantees thereof described in
clauses (b), (g) and (i) of the definition of "Indebtedness") of the
Management Company, as reflected in the balance sheets of the Management
Company, prepared in accordance with GAAP; provided, however, that
Management Company Outstanding Indebtedness shall not include any
Indebtedness owed by the Management Company to the Borrower but shall
include any Indebtedness (other than Indebtedness or guarantees thereof
described in clauses (b), (g) and (i) of the definition of "Indebtedness")
owed by the Management Company to any limited partners in the Borrower.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of URB, the Borrower and its Consolidated Businesses taken as a
whole which would materially impair URB's or the Borrower's ability to
repay the Loans or otherwise to perform their respective obligations under
this Agreement or any of the other Loan Documents or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Available Commitment": on any date, the lesser of
(i) the aggregate of each Lender's Available Commitment on such date and
(ii) the amount, if any, by which the Borrowing Base on such date exceeds
the sum of (a) the aggregate principal amount of all Loans then outstanding
and (b) the L/C Obligations then outstanding.
"Minority Interest": as defined in Section 6.3.
"Mortgage and Assignment Amendment": an amendment of even date
herewith in recordable form amending each existing Mortgage and Assignment
of Leases (i) to reflect the amendment and restatement of the Prior
Agreement and the substitution of the Administrative Agent for the Prior
Administrative Agent, (ii) in the case of the Service Merchandise Plaza
Mortgage and Assignment of Leases, to add the Office Depot Property at the
Service Merchandise Plaza Property to the premises encumbered by such
Mortgage and Assignment of Leases and (iii) in the case of the Brandon BB&B
Mortgage to add the Brandon/Thomasville Property to the premises encumbered
by such Mortgage, in each case executed by the Owner, the Administrative
Agent and the Prior Administrative Agent.
"Mortgages": the collective reference to the existing mortgages
described on Schedule 7, all as amended by the applicable Mortgage and
Assignment Amendments, together with any mortgages on properties added to
Collateral hereafter pursuant to Section 2.20 hereof.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Operating Income": with respect to any Collateral Property for
a particular period, an amount equal to the Operating Revenues minus the
Operating Expenses, in each case with respect to such Collateral Property
for such period.
"Net Worth": at any date of determination, the excess of Gross Asset
Value then in effect over Total Outstanding Indebtedness at such date.
<PAGE>
"New Lender": as defined in Section 2.5(a).
"New York Square Assignment of Leases": the Assignment of Leases and
Rents described on Schedule 7 executed and delivered by the New York Square
Trustee to the Prior Administrative Agent, as the same may be amended,
supplemented, extended, restated, replaced or otherwise modified from time
to time.
"New York Square Beneficial Interest Assignment": the amended and
restated Collateral Assignment of Beneficial Interest of even date herewith
executed and delivered by the Borrower to the Administrative Agent, as the
same may be amended, supplemented, extended, restated, replaced or
otherwise modified from time to time.
"New York Square Mortgage": the Mortgage described on Schedule 7
executed and delivered by the New York Square Trustee to the Prior
Administrative Agent encumbering the New York Square Property, as the same
may be amended, supplemented, extended, restated, replaced or otherwise
modified from time to time.
"New York Square Property": those certain premises located in DuPage
County, Illinois, more particularly described on Schedule 1 hereto and all
buildings, fixtures and other improvements from time to time located
thereon or affixed thereto.
"New York Square Trustee": LaSalle Bank National Association,
Successor Trustee to LaSalle National Bank, under Trust Agreement dated
November 12, 1984, known as Trust No. 109108.
"Non-Excluded Taxes": as defined in Section 2.17(a).
"Notes": as defined in Section 2.7(e) and as same may be amended,
supplemented or otherwise modified from time to time.
"Oakbrook Property": that certain property located in Oak Brook,
Illinois commonly known as Oakbrook Center and all buildings, fixtures and
other improvements from time to time located thereon or affixed thereto.
"Obligations": each and every obligation, covenant and agreement of
the 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 the Borrower to the Administrative Agent and
any Lender 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 indirectly, 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 extinguishes
and later increased, created or incurred, and including all indebtedness of
the Borrower, under any instrument now or hereafter evidencing or securing
any of the foregoing.
"Obligor": as defined in Section 8.1(f).
"Office Depot Property": those certain premises located in Franklin
County, Ohio, more particularly described in Schedule 1 hereto and all
buildings, fixtures and other improvements from time to time located
thereon or affixed thereto, which is owned by SPPA and is to be encumbered
by the Service Merchandise Mortgage through the applicable Mortgage and
Assignment Amendment.
<PAGE>
"Operating Expenses": with reference to a specific Collateral
Property, all expenses incurred or which would have been incurred had such
Collateral Property been operated and managed in a first class manner
consistent with the operation and management of other retail properties of
comparable size and tenant mix in the same geographical area, determined on
the basis of GAAP, including but not limited to any and all of the
following (but without duplication of any item, including without
limitation, any amounts described in clauses (A), (B), (C) or (I) below
which are included in clause (K) below): (A) real estate taxes; (B) special
assessments or similar charges; (C) personal property taxes; (D) sales
taxes; (E) costs of utilities; (F) maintenance and repair costs of a
non-capital nature; (G) operating and management expenses and fees
(provided that, if no management fee is charged with respect to such
Collateral Property, a management fee expense allowance shall be charged in
the amount of two percent (2%) of the aggregate rents (minimum and
percentage) derived from all space and ground tenants in respect of such
Collateral Property); (H) wages and salaries of employees engaged in the
operation and management of such Collateral Property including employers'
social security taxes and other taxes, insurance benefits and the like,
levied on or with respect to such wages or salaries; (I) premiums payable
for insurance carried on or with respect to such Collateral Property;
(J) accounting and audit fees and costs, attorneys' fees, and other
administrative and general expenses and disbursements, in each case
reasonably incurred by the Owner of such Collateral property in connection
with the operation and management of such Collateral Property; (K) any
Operating Revenues which are deposited in an escrow account (as defined in
the relevant Mortgage) for the payment of Impositions (as defined in the
relevant Mortgage) or insurance premiums in accordance with the provisions
of the relevant Mortgage; and (L) any reasonable portion of Operating
Revenues which is deposited in a reserve account for future maintenance and
repair costs of such Collateral Property. Notwithstanding anything
included within the above definition of "Operating Expenses", the following
shall be excluded from Operating Expenses: (i) foreign, federal, state and
local income taxes, franchise taxes or other taxes based on income;
(ii) depreciation, amortization and any other non-cash deduction for income
tax purposes; (iii) payments made in respect of principal or interest on or
charges related to the Loan; (iv) any expenses paid out of any escrow
account or any other reserve account as to which the deposit into such
account has already been included within Operating Expenses; and (v) any
expenditures made for capital improvements.
"Operating Revenues": with reference to a specific Collateral
Property, the rents, income, receipts, revenues, payments, premiums,
issues, profits and security or other deposits actually received by the
Owner of such Collateral Property with respect to such Collateral Property,
including, but not limited to (a) minimum basic rents, additional rents
(including, without limitation, any payments made by a tenant with respect
to the reimbursement of real estate taxes) and percentage rents,
(b) parking and other common area maintenance, (c) liquidated damages
following default, (d) proceeds of any insurance policy insuring against
loss of rents, (e) any award or payment such Owner may be entitled to claim
or receive in any bankruptcy, insolvency, reorganization or similar
proceedings, (f) all payments by the lessee under any lease in lieu of
rental payments or upon (i) exercise of any right of the lessee under the
lease (including, without limitation, any right to terminate such lease) or
(ii) waiver by the lessor under the lease of performance of any covenant or
obligation of the lessee under such lease or (iii) granting any consent or
approval (including, without limitation, any consent to an assignment or
subletting) and (g) any proceeds of all of the foregoing. Notwithstanding
anything included with the above definition of "Operating Revenues", there
shall be excluded from Operating Revenues: (i) any security or other
deposits of tenants unless and until they are actually applied to rental
owed and (ii) the proceeds of any financing with respect to all or any part
of such Collateral Property. Any rents or other amounts which are received
by such Owner in a period other than the period when such rents or other
amounts were due and payable shall be included in Operating Revenues for
the period when the same were due and payable.
<PAGE>
"Outstanding Percentage": as defined in Section 2.5(b).
"Owner": the collective reference to SPPA, BLP, BCCP, BSCP,
Wolfchase, the Borrower, the New York Square Trustee and any other owner of
a Collateral Property added pursuant to Section 2.20 hereof.
"Participants": as defined in Section 10.6(b).
"Partner": any general partner in the Borrower, directly or
indirectly, other than a shareholder or a limited partner unless the same
otherwise holds a general partnership interest; as of the date of this
Agreement, the sole Partner is URB.
"Partnership Agreement": the Second Amended and Restated Agreement
of Limited Partnership of Urban Shopping Centers, L.P. dated October 14,
1993, as amended through the Effective Date.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity or whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate": the rate of interest from time to time announced by
the Administrative Agent at its Principal office as its prime commercial
lending rate.
"Principal Office": the principal office of the Administrative Agent
in the United States of America, presently located at 1 Bank One Plaza,
Chicago, Illinois 60670.
"Prior Administrative Agent": UBS, AG New York Branch, in its
capacity as administrative agent under the Prior Agreement.
"Prior Agreement": that Credit Agreement, among the Borrower,
certain lenders and the Prior Administrative Agent dated as of July 26,
1995 as amended by that certain First Amendment to Credit Agreement dated
as of April 30, 1997, that certain Second Amendment dated as of June 13,
1997, that certain Third Amendment dated as of August 28, 1997, that
certain Fourth Amendment dated as of January 15, 1998, that certain Fifth
Amendment dated as of November 25, 1998 and that certain Sixth Amendment
dated as of January 25, 2000.
"Property": a parcel of land located in the continental United
States which is improved with a retail store or stores.
"Purchase Price": with respect to an Acquisition, the total
consideration paid, including in the amount of such consideration (without
duplication) (i) any Indebtedness 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 Indebtedness to which such property is
subject, including, in the case of an Acquisition of any Person, any
Indebtedness of such Person, regardless of whether such Indebtedness is
secured or unsecured, or recourse or non-recourse to such Person and
(ii) the fair market value of any other non-cash consideration.
"Register": as defined in Section 10.6(d).
<PAGE>
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the applicable Issuing Bank pursuant to Section 2A.5(a) for
amounts drawn under a Letter of Credit.
"Relevant Documents": as defined in Section 10.20.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period
is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC
Reg. Section 2615.
"Required Lenders": at any time, Lenders the Commitment Percentages
of which aggregate at least 66-2/3%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": Adam S. Metz, James H. Lyman, or such other
authorized signatory of the Borrower as shall be named by a Responsible
Officer by notice to Administrative Agent.
"Sears": Sears, Roebuck and Co.
"Security Documents": the collective reference to the Mortgages, the
Assignments of Leases, the Mortgage and Assignment Amendments, the
Guarantees and all other security documents hereafter delivered to the
Administrative gent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Borrower hereunder and under
any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities.
"Service Merchandise Assignment of Leases": the Assignment of Leases
and Rents described on Schedule 7 executed and delivered by SPPA to the
Prior Administrative Agent, as the same may be amended, supplemented,
extended, restated, replaced or otherwise modified from time to time.
"Service Merchandise Guarantee": the amended and restated Limited
Recourse Guarantee executed and delivered by SPPA to the Administrative
Agent, as the same may be amended, supplemented, extended, restated,
replaced or otherwise modified from time to time.
"Service Merchandise Mortgage": the Mortgage described on Schedule 7
executed and delivered by SPPA to the Prior Administrative Agent
encumbering portions of the Service Merchandise Property, as the same may
be amended, supplemented, extended, restated, replaced or otherwise
modified from time to time.
"Service Merchandise Property": those certain premises located in
Franklin County, Ohio, more particularly described in Schedule 1 hereto and
all buildings, fixtures and other improvements from time to time located
thereon or affixed thereto, which now includes the "Circuit City Property"
(as defined under the Prior Agreement) and the Office Depot Property.
<PAGE>
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvency Certificate": a certificate in substantially the form of
Exhibit E hereto, to be delivered by the Borrower pursuant to the terms of
this Agreement.
"Solvent": when used with respect to any Person, means that each of
the following are true with respect thereto: (i) 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, Guarantee
Obligations) of such Person; (ii) 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; (iii) 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; (iv) 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 (v) such Person has sufficient
resources, provided that such resources are prudently utilized, to satisfy
all of such Person's obligations.
"SPPA": Sawmill Place Plaza Associates, an Ohio general partnership.
"Termination Date": the Initial Termination Date, subject to
extension to the Extended Termination Date in accordance with the
provisions of Section 2.21.
"Total Ground Lease Liabilities": the sum of (i) the Ground Lease
Liabilities of the Borrower and its Consolidated Businesses and (ii) the
sum of the Ground Lease Liabilities of each of the UJVs contributing to UJV
Combined Outstanding Indebtedness multiplied by the Borrower's respective
beneficial interests in such UJV.
"Total Outstanding Indebtedness": the sum, without duplication, of
(i) Consolidated Outstanding Indebtedness, (ii) the Borrower's Share of UJV
Combined Outstanding Indebtedness, (iii) the Borrower's Share of Management
Company Outstanding Indebtedness and (iv) the Derived Ground Lease Debt.
"Tranche": the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day). Tranches may be identified as
"Eurodollar Tranches".
"Transferee": as defined in Section 10.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UJV Combined Outstanding Indebtedness": as of any time,
Indebtedness (other than Indebtedness or guarantees thereof described in
clauses (b), (g) and (i) of the definition of "Indebtedness"), of the UJVs,
on a combined basis, as reflected in the balance sheets of each of the
UJVs, prepared in accordance with GAAP; provided, however that UJV Combined
Outstanding Indebtedness shall not include any Indebtedness in respect of
the Valencia Property.
"UJVs": the unconsolidated joint ventures in which the Borrowers
owns a beneficial interest and which are accounted for under the equity
method in the Borrower Consolidated Financial Statements.
<PAGE>
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1983 Revision), International Chamber of Commerce Publication
No. 400, as the same may be amended from time to time.
"Unrestricted Cash and Cash Equivalents": at any date of
determination, the sum, without duplication, of (i) (a) the aggregate
amount of Unrestricted cash then held by the Borrower or any of its
Consolidated Businesses and (b) the aggregate amount of Unrestricted Cash
Equivalents (valued at the lower of cost and fair market value) then held
by the Borrower or any of its Consolidated Businesses and (ii) (a) the
Borrower's respective beneficial interest in each UJV multiplied by (b) the
sum of (1) the aggregate amount of Unrestricted cash then held by such UJV
and (2) the amount of Unrestricted Cash Equivalents (valued at the lower of
cost and fair market value) then held by such UJV. As used in this
definition, "Unrestricted" means, with respect to any asset, the
circumstance that such asset is not subject to any Liens or claims of any
kind in favor of any Person. It is understood that, for the purposes of
this definition, any asset held by the Borrower or any of its Consolidated
Businesses as security for any obligations owing to the Borrower or any of
its Consolidated Businesses by any other Person shall not be deemed to be
Unrestricted.
"Urban Limited Partners": as defined in Section 10.22.
"URB": Urban Shopping Centers, Inc., a Maryland corporation.
"URB Guarantee": the amended and restated Guarantee of even date
herewith executed and delivered by URB to the Administrative Agent, as the
same may be amended, supplemented, extended, restated, replaced or
otherwise modified from time to time.
"Utilization": for any day, the ratio, expressed as a percentage, of
(x) the sum of (i) the aggregate principal amount of the Loans outstanding
on such day and (ii) the L/C Obligations outstanding on such day to (y) the
aggregate Commitments on such day.
"Valencia Property": that certain property located in Valencia,
California commonly known as Valencia Town Center and all buildings,
fixtures and other improvements from time to time located thereon or
affixed thereto.
"Wolfchase": Wolfchase Galleria Limited Partnership, a Delaware
limited partnership.
"Wolfchase BB&B Assignment of Leases": the Assignment of Leases and
Rents described on Schedule 7 executed and delivered by Wolfchase to the
Prior Administrative Agent, as the same may be amended, supplemented,
extended, restated, replaced or otherwise modified from time to time.
"Wolfchase BB&B Deed of Trust": the Deed of Trust described on
Schedule 7 executed and delivered by Wolfchase, as grantor, to Mary Aranov,
as trustee, for the benefit of the Prior Administrative Agent, as
beneficiary, encumbering the Wolfchase BB&B Property, as the same may be
amended, supplemented, extended, restated, replaced or otherwise modified
from time to time.
"Wolfchase BB&B Guarantee": the amended and restated Limited
Recourse Guarantee described on Schedule 7 executed and delivered by
Wolfchase to the Prior Administrative Agent, as the same may be amended,
supplemented, extended, restated, replaced or otherwise modified from time
to time.
<PAGE>
"Wolfchase BB&B Property": those certain premises located in Shelby
County, Tennessee, more particularly described in Schedule 1 hereto and all
buildings, fixtures and other improvements from time to time located
thereon or affixed thereto.
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Consolidated Businesses not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
<PAGE>
SECTION 2
AMOUNT AND TERMS OF COMMITMENTS
-------------------------------
2.1 COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (collectively, the "Loans"
and individually, a "Loan") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender's Commitment Percentage of the
then outstanding L/C Obligations, does not exceed the lesser of (i) the
amount of such Lender's Commitment and (ii) such Lender's Commitment
Percentage multiplied by the Borrowing Base in effect at such time. No
Lender shall have any obligation for any other Lender's failure or refusal
to fund its Loans hereunder. During the Commitment Period the Borrower may
use the Commitments by borrowing, prepaying the Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(b)The Loans may from time to time be (i) Eurodollar Loans or (ii) Base
Rate Loans or (iii) a combination thereof, as determined by the Borrower
and notified to the Administrative Agent in accordance with Section 2.2 and
Section 2.9, provided that no Loan shall be made as a Eurodollar Loan after
the day that is one month prior to the Termination Date.
2.2 PROCEDURE FOR BORROWING.
(a) The Borrower may borrow under the Commitments during the
Commitment Period on any Banking Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 11:00 a.m., Chicago time, three
Banking Days prior to the requested Borrowing Date), specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, Base Rate Loans or a combination
thereof, (iv) if the borrowing is to be entirely or partly of Eurodollar
Loans, the amounts of each such Type of Loan and the lengths of the initial
interest Periods therefor and (v) for what purpose the proceeds of the
borrowing will be used. Each borrowing under the Commitments shall be in
an amount, in the case of both Eurodollar Loans and Base Rate Loans, not
less than the lesser of (x) $1,000,000 or a whole multiple of $100,000 in
excess thereof and (y) the Maximum Available Commitment on the date of such
borrowing. Upon receipt of any such notice from the Borrower at or prior
to 11:00 a.m., Chicago time, the Administrative Agent shall promptly notify
each Lender thereof no later than 2:00 p.m. on that day. Upon receipt of
any such notice from the Borrower after 11:00 a.m. Chicago time, the
Administrative Agent shall promptly notify each Lender thereof no later
than noon, Chicago time, on the immediately following Banking Day. Each
Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the Borrower at
the office of the Administrative Agent specified in Section 10.2 prior to
10:00 a.m., Chicago time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
<PAGE>
(b) Prior to giving a notice of borrowing pursuant to clause (a) of
this Section, the Borrower may contact the Administrative Agent in order to
obtain indicative quotes of applicable Eurodollar Rates. During normal
business hours on Banking Days, the Administrative Agent shall make a
designated officer available by telephone to quote such Eurodollar Rates to
the Borrower.
2.3 FEES.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee for the period from and including
the first day of the Commitment Period to the Termination Date, computed at
the Applicable Commitment Fee Rate on the average daily amount of the
Available Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on the tenth (10th) day of each March,
June, September and December and on the Termination Date or such earlier
date as the Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to each Lender on the Effective
Date, for the account of such Lender, a closing fee in an amount equal to
0.5% of such Lender's Commitment.
(c) The Borrower shall pay to the Co-Lead Arrangers and the
Administrative Agent for their own respective accounts, certain fees as
described in separate letter agreements among the Borrower, the Co-Lead
Arrangers and the Administrative Agent.
2.4 TERMINATION OR REDUCTION OF COMMITMENTS. The Borrower shall
have the right, upon not less than fifteen Banking Days, notice to the
Administrative Agent, to terminate the Commitments or, from time to time,
to reduce the amount of the Commitments; provided that no such termination
or reduction shall be permitted if, after giving effect thereto and to any
<PAGE>
prepayments of the Loans made on the effective date thereof, the aggregate
principal amount of the Loans then outstanding, when added to the then
outstanding L/C Obligations, would exceed the Commitments then in effect.
Any such reduction shall be in an amount equal to $1,000,000 or a whole
multiple thereof and shall reduce permanently the Commitments then in
effect. Any reduction of the Commitments pursuant to this Section shall
reduce the Commitment of each of the Lenders on a pro rata basis. The
Commitments, to the extent terminated or reduced may not be reinstated.
2.5 NEW LENDERS.
(a) In addition to the initial Lenders, other lenders approved by
the Borrower and the Administrative Agent may from time to time become
Lenders under this Agreement (each such lender becoming a Lender, a "New
Lender"). The Commitment of each New Lender shall be in an amount approved
by the Borrower and the Administrative Agent. The New Lender for all
purposes under this Agreement shall become, and have all the rights and
obligations of, a Lender hereunder, with a Commitment in the amount set
forth in its Acceptance Letter (as hereinafter defined), upon (i) the due
execution by the New Lender, the Borrower and the Administrative Agent of a
letter in the form of Exhibit F hereto (each such letter, an "Acceptance
Letter") and (ii) the making by the Borrower, and the acceptance by the New
Lender, of a Note in the amount of the New Lender's Commitment. Following
execution by all such parties of such Acceptance Letter, the Administrative
Agent shall send a copy thereof to each Lender. The Lenders other than the
Administrative Agent shall have no right of approval with respect to a New
Lender's becoming a Lender or the amount of its Commitment. Notwithstanding
the foregoing, in no event shall any prospective Lender become a Lender if
the Commitment of such New Lender, when added to the aggregate of the
Commitments of the previously admitted Lenders (the "Existing Lenders"),
would cause the aggregate Commitment to exceed $200,000,000.
(b) If at the time a New Lender becomes a Lender pursuant to this
Section there is any principal outstanding under the Notes of the Existing
Lenders, such New Lender shall remit to the Administrative Agent an amount
equal to the Outstanding Percentage (as defined below) multiplied by its
commitment, which amount shall be deemed advanced under the New Lender's
Loan. The Administrative Agent shall pay such amount to the Existing
Lenders in accordance with the Existing Lenders' respective pro rata shares
of the aggregate outstanding principal amount under the Notes of the
Existing Lenders (as calculated immediately prior to the admission of the
New Lender), and such payment shall effect an automatic reduction of
outstanding principal balance under their respective Notes. For purposes
of this Section, the term "Outstanding Percentage" means the ratio of
(i) the aggregate outstanding principal amount under the Notes of the
Existing Lenders, immediately prior to the admission of the New Lender, to
(ii) the aggregate of the Commitments of the Existing Lenders and the New
Lender.
2.6 LATE PAYMENT PREMIUM. The Borrower shall, at the Administra-
tive Agent's option, pay to the Administrative Agent for the account of the
Lenders a late payment premium in the amount of 2% 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 later payment.
2.7 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan of such Lender on the Termination Date (or
such earlier date on which the Loans become due and payable pursuant to
Section 8). The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Loans from time to time outstanding from the
date of advance until payment in full thereof at the rates per annum, and
on the dates, set forth in Section 2.11.
<PAGE>
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to Section 10.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.7(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided that the failure
of any Lender or the Administrative Agent to maintain the Register or any
such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans
made to the Borrower by such Lender in accordance with the terms of this
Agreement.
(e) (i) The Loans made by each Lender under this Agreement shall be
evidenced by, and repaid with interest in accordance with, a promissory
note of the Borrower in the form of Exhibit G hereto duly completed and
executed by the Borrower, in a principal amount equal to such Lender's
Commitment, payable to such Lender for the account of its Applicable
Lending Office (each, a "Note", and collectively, the "Notes"). Each Note
shall mature, and all outstanding principal and other sums thereunder shall
be paid in full, on the Termination Date.
(ii) Each Lender is hereby authorized by the Borrower to
endorse on the schedule-attached to the Note held by it, the date, Type and
amount of each Loan made by such Lender, each continuation thereof, each
conversion of all or a portion thereof to another Type and the date and
amount of each payment of principal received by such Lender for the account
of its Applicable Lending Office(s) on account of its Loan, which
endorsement shall, in the absence of manifest error, be conclusive as to
the outstanding balance of the Loan made by such Lender; provided, however,
<PAGE>
that the failure to make such notation with respect to the Loan or each
advance or payment shall not limit or otherwise affect the obligations of
the Borrower under this Agreement or the Note held by such Lender. Each
Lender agrees that prior to any assignment of the Note it will endorse the
schedule attached to its Note.
2.8 OPTIONAL PREPAYMENTS; MANDATORY PREPAYMENTS.
(a) The Borrower may, upon at least one (1) Banking Days notice to
the Administrative Agent, prepay the Loans, which notice shall specify the
date and amount of prepayment and whether the prepayment is of Eurodollar
Loans, Base Rate Loans or a combination thereof, and if a combination
thereof, the amount allocable to each; provided, however, that (i) any
partial prepayment under this Section shall be in an amount not less than
$1,000,000 or a whole multiple of $100,000 in excess thereof; (ii) any
Eurodollar Loan prepaid on any day other than the last day of the
applicable Interest Period for such Eurodollar Loan must be accompanied by
any amounts payable pursuant to Section 2.18; and (iii) each prepayment
under this Section shall include all interest accrued on the amount of
principal prepaid through the date of prepayment. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein, together with any amounts
payable pursuant to Section 2.18.
(b) In the event that any Borrowing Base Certificate delivered
pursuant to Section 5.1(1) shall indicate that, as of the last day of the
fiscal quarter to which such Borrowing Certificate relates, the aggregate
principal amount of all Loans and L/C Obligations then outstanding exceeds
the amount of the Borrowing Base, then, without notice or demand, the
Borrower shall, within five (5) Banking Days after the date such Borrowing
Certificate is delivered to the Administrative Agent, make a mandatory
prepayment of the Loans in an amount equal to such excess. The failure of
the Borrower to deliver the Borrowing Base Certificate within five (5) days
after such Borrowing Base Certificate is due under Section 5.1(l) or to
make any prepayment as required under this Section shall constitute an
Event of Default under this Agreement. Each prepayment required to be made
under this Section shall include all interest accrued on the amount of
principal prepaid through the date of prepayment and any amounts payable
pursuant to Section 2.18. Provided no Default or Event Of Default has
occurred and is continuing on the date that the Borrower shall make a
mandatory prepayment pursuant to this Section, the Borrower shall have the
right to direct whether such prepayment shall be of Eurodollar Loans, Base
Rate Loans or a combination thereof, and if a combination thereof, the
amount allocable to each.
(c) Provided no Default or Event of Default has occurred and is
continuing, and subject to making the payment described in the following
sentence, if applicable, the Borrower shall have the right at any time and
from time to time to obtain a release of any Collateral Property (other
than Brandon Town Center Property) from the applicable Mortgage and
Assignment of Leases. If the elimination of such a Collateral Property
would reduce the Borrowing Base below the sum of (i) the then-current
aggregate outstanding principal amount of the Loans and (ii) the then
outstanding L/C Obligations, the Borrower shall make a principal payment on
the Loans, and/or make a deposit into the cash collateral account described
in Section 8.2 on account of the L/C Obligations, in an aggregate amount
necessary to cause the aggregate principal amount outstanding under the
Loans and the then outstanding L/C Obligations to be equal to or less than
<PAGE>
the Borrowing Base calculated based on the Collateral Properties NOI for
the Collateral Properties that will remain after giving effect to such
release. Each payment on the Loans to be made under this Section shall
include all interest accrued on the amount of principal repaid through the
date of repayment and any amounts payable pursuant to Section 2.18.
2.9 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to Base Rate Loans by giving the Administrative Agent, by no later
than 11:00 a.m. (Chicago time) at least two Banking Days prior thereto,
irrevocable notice of such election, provided, that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert
Base Rate Loans to Eurodollar Loans by giving the Administrative Agent
irrevocable notice of such election by no later than 11:00 a.m. (Chicago
time) at least three Banking Days prior to the date of conversion. Any
such notice of conversion to Eurodollar Loans shall specify the length of
the initial Interest Period or Interest Periods therefor. Upon receipt of
any such notice the Administrative Agent shall promptly notify each Lender
thereof. All or any part of outstanding Eurodollar Loans or Base Rate
Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined that such a conversion is not appropriate and
(ii) no Loan may be converted into a Eurodollar Loan if the applicable
Interest Period would extend beyond the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan may be continued as such
(i) when any Default or Event of Default has occurred and is continuing and
the Administrative Agent has or the Required Lenders have determined that
such a continuation is not appropriate or (ii) if the applicable Interest
Period would extend beyond the Termination Date and provided, further, that
if the Borrower shall fail to give such notice or if such continuation is
not permitted such Eurodollar Loans shall be automatically converted to
Base Rate Loans on the last day of such then expiring Interest Period.
2.10 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF TRANCHES. All
borrowings, conversions and continuations of Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Loans comprising each Eurodollar Tranche
shall be equal to $1,000,000 or a whole multiple of $100,000 in excess
thereof. In no event shall there be more than seven (7) Eurodollar
Tranches outstanding at any time.
2.11 INTEREST RATES AND PAYMENT DATES.
(a) Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at the
Default Rate, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment), provided that
the provisions of this clause (c) shall not apply if such amount shall be
paid on or prior to the expiration of any grace or cure period applicable
to such amount.
<PAGE>
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to clause (c) of this
Section shall be payable from time to time on demand.
2.12 COMPUTATION OF INTEREST AND FEES.
(a) The interest rate on Base Rate Loans shall change when the Base
Rate changes. Interest on Base Rate Loans and Eurodollar Loans shall not
exceed the maximum amount permitted under applicable law. Interest and the
Commitment Fee shall be calculated for the actual number of days elapsed on
the basis of 360 days. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and
the amount of each such change in interest rate and of each determination
of a Eurodollar Rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
2.13 INABILITY TO DETERMINE INTEREST RATE. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from
(i) any Lender, with respect to Interest Periods shorter than one month or
(ii) the Majority Lenders, with respect to Interest Periods of one month or
longer, that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as Base Rate Loans, (y) any Loans
that were to have been converted on the first day of such Interest Period
to Eurodollar Loans shall be converted to or continued as Base Rate Loans
and (z) in the case of notice from the Majority Lenders under clause (ii)
of the preceding sentence, any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans.
Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Base Rate Loans to Eurodollar Loans.
2.14 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder, each
payment by the Borrower on account of any commitment fee hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata
according to the respective Commitment Percentages of the Lenders. Each
payment (including each prepayment) by the Borrower on account of principal
of and interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held by the
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without set off or counterclaim and shall be made not later
than noon, Chicago time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in Section 10.2, in Dollars and in immediately available funds.
The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received and no later than 3:00 p.m.
on such day (or not later than noon of the immediately following Banking
<PAGE>
Day for any payments received after noon on any day). If any payment
hereunder becomes due and payable on a day other than a Banking Day, such
payment shall be extended to the next succeeding Banking Day, and, with
respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent
may assume that such Lender is making such amount available to the
Administrative Agent, and, upon notice to, and approval of, the Borrower,
the Administrative Agent in its sole discretion may, but shall not be
obligated to, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon for the period until such Lender makes
such amount immediately available to the Administrative Agent at the
Federal Funds Rate for the first three Banking Days after demand and at the
Base Rate thereafter, together with reasonable administrative charges
assessed by the Administrative Agent as a result of such Lender's failure.
A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. If such Lender's Commitment Percentage of such
borrowing is not made available to the Administrative Agent by such Lender
within three Banking Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrower. If the Administrative Agent shall fail to distribute the payment
under Section 2.14(a) due to any Lender within the time period stated
therein, the Administrative Agent shall pay to such Lender, on demand, such
amount with interest thereon for the period until the Administrative Agent
makes such payment at the Federal Funds Rate for the first three Banking
Days after demand and at the Base Rate thereafter.
2.15 ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Agreement,
then such Lender shall promptly notify the Administrative Agent and the
Borrower thereof and (a) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate
Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of
the then current Interest Periods with respect to such Loans or within such
earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 2.18.
2.16 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof or compliance by any Lender
with any request or directive (whether or not having the force of law) from
any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of Credit,
any Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereto (except for
Non-Excluded Taxes covered by Section 2.17 and changes in the rate of tax
on the overall net income of such Lender);
<PAGE>
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender in good faith deems to be
material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit or to reduce any
amount receivable hereunder in respect thereof then, in any such case, the
Borrower shall promptly pay such Lender such additional amount or amounts
as will compensate such Lender for such increased cost or reduced amount
receivable.
(b) if any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a
level below that which such Lender or such corporation could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time,
the Borrower shall promptly pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrower (with a
copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable
pursuant to this Section submitted by such Lender to the Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of
manifest error. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
<PAGE>
(d) Notwithstanding anything to the contrary contained in this
Section, the Borrower shall not be required to pay any additional amounts
to any Lender pursuant to this Section to the extent such additional
amounts result from such Lender's negligence.
2.17 TAXES.
(a) All payments made by the Borrower under this Agreement and any
Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable
to the Administrative Agent or any Lender hereunder or under any Note, the
amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof if such Lender
fails to comply with the requirements of clause (b) of this Section.
Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder. Notwithstanding anything to the contrary contained in this
Section, the Borrower shall not be required to pay any additional amounts
to any Lender pursuant to this Section to the extent such additional
amounts result from such Lender's negligence.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent
(A) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be, and
(B) an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Borrower
or the Administrative Agent;
<PAGE>
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises
the Borrower and the Administrative Agent. Such Lender shall certify
(A) in the case of a Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes and (B) in the case of a Form W-8 or
W-9, that it is entitled to an exemption from United States backup
withholding tax Each Person that shall become a Lender or a Participant
pursuant to Section 10.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this Section, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
2.18 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making
a borrowing of, conversion into or continuation of Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period
with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued
on the amount so prepaid, or not so borrowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that
would have -commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank
eurodollar market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder. Amounts payable pursuant to this Section shall be paid to the
Administrative Agent for the account of the applicable Lender, upon the
request of such Lender through the Administrative Agent and a determination
of any Lender as to the amounts payable pursuant to this Section shall be
conclusive absent manifest error.
2.19 REPLACEMENT OF LENDER. If the Borrower is required pursuant to
Section 2.16 or 2.17 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 2.13 (any
Lender so affected an "Affected Lender"), the Borrower may elect, if such
amounts continue to be charged or such suspension is still effective
fifteen (15) days after such event first occurs, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default or
Event of Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement,
(i) another bank or other entity which is reasonably satisfactory to the
Borrower and the Administrative Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the Affected
Lender pursuant to an assignment substantially in the form of Exhibit H and
to become a Lender for all purposes under this Agreement and to assume all
obligations of the Affected Lender to be terminated as of such date and to
comply with the requirements of Section 10.6 applicable to assignments, and
(ii) the Borrower shall pay to such Affected Lender in same day funds on
the day of such replacement (A) all interest, fees and other amounts then
accrued but unpaid to such Affected Lender by the Borrower hereunder to and
<PAGE>
including the date of termination, including without limitation payments
due to such Affected Lender under Sections 2.16 or 2.17, and (B) an amount,
if any, equal to the payment which would have been due to such Lender on
the day of such replacement under Section 2.18 had the Loans of such
Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
2.20 PROCEDURES FOR ADDITION OF COLLATERAL PROPERTIES.
(a) The Borrower may propose to include additional Eligible
Properties as Collateral Properties by sending written proposals for
inclusion to the Administrative Agent along with (i) the items listed on
Schedule 8, (ii) a request for Administrative Agent to order an Appraisal
and the other items, such as additional Loan Documents, needed to finalize
the addition of such Property to the Collateral Properties as shown on
Schedule 9, and (iii) either evidence that the qualifications required
under the definition of "Agent Approval Property" are met (except that the
Citrus Park Plaza Property, when proposed for inclusion, shall not be
subject to, and shall not be counted against, such qualifications) or a
request that such Property be evaluated and approved by the Required
Lenders under Section 2.20(c). Administrative Agent shall endeavor to
utilize all of the due diligence reports obtained by Borrower from
third-party providers and certified to the Lenders by the third-party
providers (except the Appraisals) and not require new reports, but reserves
the right to require independent reports if the Borrower's report was
prepared by a third party provider not reasonably acceptable to the
Administrative Agent or if the Administrative Agent in good faith believes
the report furnished contains an inaccuracy or is not current or is
incomplete in any material respect. If all items required by Schedule 8
and the preceding sentence accompany or precede the written proposal, the
written proposal shall so indicate and state that the relevant time periods
under Section 2.20 for the Administrative Agent's (or the Required
Lenders', as the case may be) acceptance or rejection shall commence upon
receipt thereof by the Administrative Agent. If all items required by
Schedule 8 do not accompany or precede the written proposal, the Borrower
shall accompany the last item required by Schedule 8 with a letter
notifying the Administrative Agent that it has completed delivery of all
items required by Schedule 8 and that the relevant time periods for
acceptance or rejection by the Administrative Agent (or by the Required
Lenders under Section 2.20(c)) shall commence upon receipt thereof by the
Administrative Agent. For purposes of this Section 2.20, Borrower may
begin the process to include an additional Collateral Property if Borrower
has a binding contract to purchase such Property provided that Borrower
shall have consummated the purchase of such Property on or before the date
such Property is included in the Collateral.
(b) The Administrative Agent shall have ten (10) Banking Days after
the Administrative Agent has actually received the proposal and all items
set forth in Schedule 8 with respect to a proposed Collateral Property
pursuant to Section 2.20 to notify the Borrower in writing as to whether
the proposed Collateral Property is an Agent Approval Property that is
satisfactory to the Administrative Agent. The failure of the
Administrative Agent to respond to the Borrower's request within such ten
Banking Day period shall be deemed to be a denial that such proposed
Collateral Property qualifies as an Agent Approval Property that is
satisfactory to the Administrative Agent. If an Agent Approval Property is
approved by the Administrative Agent, that Property shall be automatically
approved for inclusion as a Collateral Property without the need for any
approval by the other Lenders. If the proposed Collateral Property was
proposed as an Agent Approval Property but does not qualify as such,
Borrower may by written notice to the Administrative Agent request that it
nevertheless be included as a Collateral Property pursuant to the procedure
set forth in Section 2.20(c). Upon the approval by the Administrative
Agent (or by the Required Lenders under Section 2.20(c)) of an Eligible
Property for inclusion as a Collateral Property and satisfaction of all of
the requirements of Schedule 9 with respect thereto, such Eligible Property
<PAGE>
shall be added to the Collateral as a Collateral Property. The
Administrative Agent shall supply, at the written request of any Lender,
copies of any of the documents described on Schedule 8 and 9 to such
Lender, but approval from the Lenders of such documents shall not be
required. Notwithstanding the foregoing, addition of the Citrus Park Plaza
Property shall be based solely on its qualification as an Eligible Property
and its satisfaction of the requirements of Schedules 8 and 9 and does not
need any other approval from the Administrative Agent or the other Lenders.
(c)With respect to any Property requested to be included as a Collateral
Property which does not qualify under Section 2.20(b), whether due to the
Administrative Agent's failure to approve such Property or such Property's
failure to qualify as an Agent Approval Property, the Borrower may request
by written notice to the Administrative Agent for forwarding to the Lenders
that such Property be included as a Collateral Property notwithstanding
such failure. Such proposed Collateral Property shall be included if and
only if (i) such Property qualifies in all respects as an Eligible
Property, as determined by the Administrative Agent, and (ii) the Required
Lenders in their sole discretion approve the Borrower's request for such
proposed Collateral Property to be included. The failure of any Lender to
respond in writing to the Borrower's request within ten (10) Banking Days
of receipt of the Borrower's request for such Property being included in
the Collateral, together with delivery of such of the items set forth in
Schedule 8 as a Lender may request, shall be deemed to be approval by such
Lender of the Borrower's request to include such Property in the
Collateral. A Lender may approve or disapprove in its sole discretion the
Borrower's request under this Section 2.20(c) to include such a proposed
Collateral Property but shall endeavor to specify its reasons for
disapproval. The Administrative Agent shall promptly notify the Borrower
in writing if the Required Lenders approve the Borrower's request for such
Eligible Property to be included.
2.21 TERMINATION DATE. The Borrower may, by notice (the "Extension
Request") to the Administrative Agent not later than sixty (60) days prior
to the Initial Termination Date, elect that the termination date of the
Commitment Period be extended for an additional one (1) year period beyond
the Initial Termination Date. The Administrative Agent shall promptly
notify the Lenders of receipt of the Extension Request from the Borrower.
Upon receipt by the Administrative Agent of the Extension Request,
accompanied by the Extension Fee, and provided no Default or Event of
Default has occurred and is continuing either on the date of receipt of the
Extension Request or on the Initial Termination Date, the Termination Date
shall be automatically extended from the Initial Termination Date to the
Extended Termination Date without any need for consent or approval of the
Lenders. If the Borrower fails to make a timely Extension Request or to
remit the Extension Fee or if a Default or Event of Default then has
occurred and is then continuing, the Commitments will terminate on the
Initial Termination Date and on such date the Borrower will make the
payments required under Section 2.7(a).
SECTION 2A
LETTERS OF CREDIT
-----------------
2A.1 L/C COMMITMENT.
(a) Subject to the terms and conditions hereof, the Issuing Bank,
in reliance on the agreements of the other Lenders set forth in
Section 2A.4(a), agrees to issue unconditional, irrevocable standby letters
of credit ("Letters of Credit") for the account of the Borrower on any
Banking Day during the Commitment Period in such form as may be approved
from time to time by the Issuing Bank; provided that the Issuing Bank shall
have no obligation to issue any Letter of Credit if, after giving effect to
such issuance, (1) the L/C Obligations would exceed the L/C Commitment or
(2) the Available Commitment would be less than zero. Each Letter of
Credit shall be denominated in Dollars and shall expire no later than the
Termination Date.
<PAGE>
Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of Illinois.
2A.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower may
from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Bank,
and such other certificates, documents and other papers and information as
the Issuing Bank may reasonably request. Upon receipt of any Application,
the Issuing Bank will process such Application and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly
issue the Letter of Credit requested thereby (but in no event shall the
Issuing Bank be required to issue any Letter of Credit earlier than three
Banking Days after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing Bank and
the Borrower. The Issuing Bank shall furnish a copy of such Letter of
Credit to the Borrower and the Administrative Agent promptly following the
issuance thereof.
2A.3 FEES, COMMISSIONS AND OTHER CHARGES.
(a) In connection with each Letter of Credit, the Borrower hereby
covenants to pay to the Administrative Agent the following fees, each
payable quarterly in arrears on each L/C Fee Payment Date following the
issuance of any Letter of Credit: (i) a fee, payable to the Administrative
Agent for the account of the L/C Participants and the Issuing Bank,
computed daily on the amount of the Letter of Credit issued and outstanding
at a rate per annum equal to the Applicable Margin for Eurodollar Loans in
effect from time to time and (ii) a fee, payable to the Issuing Bank for
its own account, computed daily on the amount of the Letter of Credit
issued and outstanding at a rate per annum of 0.08%. It is understood and
agreed that the last installment of the fees provided for in this
clause (a) with respect to any particular Letter of Credit shall be due and
payable on the tenth day of the calendar quarter following the return or
expiration, undrawn, or cancellation of such Letter of Credit, but in no
event later than the Termination Date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Bank for such normal and customary costs and expenses
as are incurred or charged by the Issuing Bank in effecting payment under,
amending or otherwise administering any Letter of Credit.
<PAGE>
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Bank and the L/C Participants all fees
received by the Administrative Agent for their respective accounts pursuant
to this Section.
2A.4 L/C PARTICIPATIONS.
(a) The Issuing Bank irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Bank to issue Letters
of Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Bank, on the
terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's
Commitment Percentage in the Issuing Bank's obligations and rights under
each Letter of Credit issued hereunder and the amount of each draft paid by
the Issuing Bank thereunder. The Issuing Bank agrees to notify each L/C
Participant promptly after any Letter of Credit is issued hereunder. Each
L/C Participant unconditionally and irrevocably agrees with the Issuing
Bank that, if a draft is paid under any Letter of Credit for which the
Issuing Bank is not reimbursed in full by the Borrower in accordance with
the terms of this Agreement, such L/C Participant shall, notwithstanding
the existence of a Default or Event of Default or of the non-satisfaction
of any conditions precedent set forth in Section 4 hereof, pay to the
Issuing Bank upon demand at the Administrative Agent's address for notices
specified herein an amount equal to such L/C Participant's Commitment
Percentage of the amount of such draft, or any part thereof, which is not
so reimbursed. The Issuing Bank agrees to notify the Administrative Agent
promptly of the date and amount of any draft presented under any Letter of
Credit and paid by the Issuing Bank
(b) If any amount required to be paid by any L/C Participant to the
Issuing Bank pursuant to Section 2A.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit
is paid to the Issuing Bank within three Banking Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Bank on
demand on amount equal to the product of (1) such amount, times (2) the
daily average Federal Funds Rate, as quoted by the Issuing Bank, during the
period from and including the date such payment is required to the date on
which such payment is immediately available to the Issuing Bank, times
(3) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any such amount
required to be paid by the L/C Participant pursuant to Section 2A.4(a) is
not in fact made available to the Issuing Bank by such L/C Participant
within three Banking Days after the date such payment is due, the Issuing
Bank shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the
Federal Funds Rate for the first three Banking Days after demand and at the
Base Rate thereafter. A certificate of the Issuing Bank submitted to any
L/C Participant with respect to any amounts owing under this Section shall
be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payable
under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 2A.4(a), the
Issuing Bank receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Bank), or any payment of interest on account
thereof, the Issuing Bank will promptly distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any
such payment received by the Issuing Bank shall be required to be returned
by the Issuing Bank, such L/C Participant shall return to the Issuing Bank
the portion thereof previously distributed by the Issuing Bank to it. If
the Issuing Bank shall fail to make any distribution to an L/C Participant
<PAGE>
when required under the preceding sentence, the Issuing Bank shall pay to
such L/C Participant, on demand, such amount with interest thereon for the
period until the Issuing Bank makes such payment at the Federal Funds Rate
for the first three Banking Days after demand and at the Base Rate
thereafter.
2A.5 REIMBURSEMENT OBLIGATION OF THE BORROWER.
(a) The Borrower agrees to reimburse the Issuing Bank on each date
on which the Issuing Bank notifies the Borrower of the date and amount of a
draft presented under any Letter of Credit and paid by the Issuing Bank for
the amount of (1) such draft so paid and (2) any taxes, fees, charges or
other costs or expenses incurred by the Issuing Bank in connection with
such payment. Each such payment shall be made to the Issuing Bank at its
address for notices specified herein in lawful money of the United States
of America and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this Section from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate which would be payable on any outstanding Base
Rate Loans which were then overdue.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing
pursuant to Section 2.2 of Base Rate Loans in the amount of such drawing.
The Borrowing Date with respect to such borrowing shall be the date of such
drawing, and the requirement set forth in Section 2.2(a) that borrowings be
in an amount not less than $1,000,000 or a whole multiple of $100,000 in
excess thereof shall not apply to such borrowing.
2A.6 OBLIGATIONS ABSOLUTE.
(a) The Borrower's obligations under this Section 2A shall be
absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which the Borrower may
have or have had against the Issuing Bank or any beneficiary of a Letter of
Credit.
(b) The Borrower also agrees with the Issuing Bank that the Issuing
Bank shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 2A.5(a) shall not be affected by, among other
things, (1) subject to Section 2A.7, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall
in fact provide to be invalid, fraudulent or forged, or (2) any dispute
between or among the Borrower and any beneficiary of any Letter of Credit
or any other party to which such Letter of Credit may be transferred, or
(3) any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by the Issuing Bank's gross
negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified
in the Uniform Commercial Code of the State of Illinois, shall be binding
on the Borrower and shall not result in any liability of the Issuing Bank
to the Borrower.
<PAGE>
2A.7 LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Bank shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the
Issuing Bank to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
2A.8 APPLICATION. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 2A, the provisions of this Section 2A shall
apply.
SECTION 3
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender that:
3.1 FINANCIAL CONDITION. The Borrower Consolidated Financial
Statements as of December 31, 1998 reported on by the Accountants, copies
of which have heretofore been furnished to each Lender, are complete and
correct and present fairly the Consolidated financial condition of the
Borrower and its Consolidated Businesses as of such date, and the
consolidated results of their operations and their consolidated cash flows
for the Fiscal Year then ended. The Borrower Consolidated Financial
Statements as of September 30, 1999 certified by a Responsible Officer,
copies of which have heretofore been furnished to each Lender, are complete
and correct and present fairly the consolidated financial condition of the
Borrower and its Consolidated Businesses as of such date, and the
consolidated results of their operations for the three-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such Accountants or Responsible
Officer, as the case may be, and as disclosed therein). Neither the
Borrower nor any of its Consolidated Businesses had, at the date of the
most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the
notes thereto. Except as previously disclosed to the Administrative Agent
in writing, during the period from December 31, 1998 and including the date
hereof there has been no sale, transfer or other disposition by the
Borrower or any of its Consolidated Businesses of any material part of its
business or property and no purchase or other acquisition of any business
or property (including any capital stock of any other Person) material in
relation to the consolidated financial condition of the Borrower and its
Consolidated Businesses as of December 31, 1998.
3.2 NO CHANGE. Since September 30, 1999 there has been no
development or event which has had or could have a Material Adverse Effect.
3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Borrower (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the partnership power and
authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign partnership and in
<PAGE>
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law except
to the extent that the failure to comply therewith could not, in the
aggregate, have a Material Adverse Effect.
3.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower
has the power and authority, and the legal right, to make, deliver and
perform this Agreement, the Notes and each other Loan Document to which it
is a party and to borrow hereunder and has taken all necessary partnership
action to authorize the borrowings on the terms and conditions of this
Agreement and the Notes and to authorize the execution, delivery and
performance of this Agreement, the Notes and each other Loan Document to
which it is a party. None of the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party nor the borrowings under this Agreement (a) require the consent or
approval of its partners or such consent or approval has been obtained,
(b) contravene its Partnership Agreement, or (c) require any consent or
authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person. This Agreement has been,
and each other Loan Document to which it is a party will be, duly executed
and delivered on behalf of the Borrower. This Agreement constitutes, and
each other Loan Document to which it is a party when executed and delivered
will constitute, a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 NO LEGAL BAR. The execution, delivery and performance of the
Loan Documents to which the Borrower is a party, the borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of Law
or Contractual Obligation of the Borrower or of any of its Affiliates and
will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation other than any Liens created
in favor of the Administrative Agent or the Lenders pursuant to the Loan
Documents.
3.6 NO MATERIAL LITIGATION. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Borrower, threatened by or against the Borrower
or any of its Affiliates or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or any
of the transactions contemplated hereby or thereby, or (b) which could have
a Material Adverse Effect.
3.7 NO DEFAULT. Neither the Borrower nor any of its Affiliates is
in default under or with respect to any of its Contractual Obligations in
any respect which could have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
3.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower, the
Consolidated Businesses and the UJVs (other than the UJV which owns the
Valencia Property) have good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to,
or a valid leasehold interest in, all its other property, and, except as
disclosed in the Borrower Consolidated Financial Statements, none of such
property is subject to any Lien voluntarily placed thereon or consented
thereto by the Borrower. The Borrower, the Consolidated Business and the
UJVs (other than the UJV which owns the Valencia Property) 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.
<PAGE>
3.9 NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS. The Borrower
has satisfied all judgments which could have a Material Adverse Effect and
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,
in each case, which could have a Material Adverse Effect.
3.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Affiliates has a
Material Adverse Effect.
3.11 TAXES. Each of the Borrower, the Consolidated Businesses and
the UJVs (other than the UJV which owns the Valencia Property) have filed
or caused to be filed all material tax returns which, to the knowledge of
the Borrower, are required to be filed and has paid all taxes shown to be
due and payable on said returns or on any assessments made against it or
any of its property and all other material taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other
than any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower, its
Consolidated Businesses or the UJVs (other than the UJV which owns the
Valencia Property), as the case may be); no tax Lien has been filed, and,
to the knowledge of the Borrower, no claim is being asserted, with respect
to any such tax, fee or other charge.
3.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation G or
Regulation U of the Board of Governors of the Federal Reserve System as now
and from time to time hereafter in effect. If requested by any Lender or
the Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form G-1 or FR Form U-1 referred to in said
Regulation G or Regulation U, as the case may be.
3.13 ERISA.
(a) (i)No "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan;
(ii) No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC has arisen, during such five-year period;
(iii) Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become
subject to any liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans
as of the valuation date most closely preceding the date on which this
representation is made or deemed made;
(iv) To the best of the Borrower's knowledge, no such
multiemployer Plan is in Reorganization or Insolvent;
and any such event or condition described in clause (i), (ii), (iii)
or (iv) is reasonably likely to give rise to material liability to the
Borrower.
(b) No Reportable Event which is reasonably likely to give rise to
a Material Adverse Effect has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect
to any Single Employer Plan.
<PAGE>
(c) Each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, except as would not reasonably
be likely to give rise to a Material Adverse Effect.
3.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not
an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. The Borrower is not subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board of
Governors of the Federal Reserve System) which limits its ability to incur
Indebtedness.
3.15 SOLVENCY. The 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.
3.16 PURPOSE OF LOANS. The proceeds of the Loans will be used by
the Borrower for working capital and general corporate and partnership
purposes in the ordinary course of business including without limitation
for acquisition and development of properties and for distributions
purposes.
3.17 ENVIRONMENTAL MATTERS. Except as set forth in any
Environmental Report:
(a) to the best knowledge of the Borrower (after diligent inquiry),
the Collateral Properties do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or
(ii) could reasonably be expected to give rise to liability under, any
Environmental Law.
(b) to the best knowledge of the Borrower (after diligent inquiry),
the Collateral Properties and all operations at the Collateral Properties
are in compliance, and have in the last five (5) years been in compliance,
with all applicable Environmental Laws, and there is no contamination at,
under, upon or over the Collateral Properties or violation of any
Environmental Law with respect to the Collateral Properties.
(c) neither the Borrower nor any of its Affiliates has received any
written notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Collateral Properties, nor
does the Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened.
(d) to the best knowledge of the Borrower (after diligent inquiry),
Materials of Environmental Concern have not been transported or disposed of
from the collateral Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability
under, any Environmental Law, nor have any materials of Environmental
Concern been generated, treated, stored or disposed of at, on or under any
of the Collateral Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law.
(e) no judicial proceeding or governmental or administrative action
is pending or, to the best knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Affiliate is or will be
named as a party with respect to the Collateral Properties, nor are there
any consent decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Collateral
Properties.
<PAGE>
(f) to the best knowledge of the Borrower (after diligent inquiry),
there has been no release or threat of release of materials of
Environmental Concern at or from the Collateral Properties, or arising from
or related to the operations of the Borrower or any of its Consolidated
Businesses in connection with the Collateral Properties, in violation of or
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
(g) to the best knowledge of the Borrower (after diligent inquiry)
and except as previously disclosed to the Administrative Agent in writing,
each of the representations and warranties set forth in clauses (a) through
(f) of this Section is true and correct with respect to each parcel of real
property owned or operated by the Borrower, the Consolidated Businesses and
the UJVs (other than the Collateral Properties and the Valencia Property),
except to .the extent that the facts and circumstances giving rise to any
such failure to be so true and correct would not have any reasonable
likelihood of having a Material Adverse Effect.
For purposes of this Section, a matter shall be deemed to be within
"the best knowledge of the Borrower" only if such matter is known by any of
(i) the on-site property manager of the property or Collateral Property, as
the case may be, to which such matter relates, (ii) Adam S. Metz or his
successor as Executive vice President and Chief Financial officer of URB,
(iii) Michael Hilborn or his successor as general counsel of URB or
(iv) Matthew S. Dominski or his successor as President and Chief Executive
Officer of URB.
3.18 REGULATION H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and
in which flood insurance has been made available under the National Flood
Insurance Act of 1968.
3.19 VALID EXISTENCE OF AFFILIATES. As of the Closing Date, the
only material Affiliates of the Borrower (other than URB, the Management
Company and the Owners) are listed on Schedule 4 hereto. Each such
Affiliate is a partnership or limited liability company 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 the Borrower's percentage of beneficial interest
therein are set forth on said Schedule. The Borrower and each of its
material Affiliates have the power to own their respective properties and
to carry on their respective businesses now being conducted. Each of the
Borrower and its material Affiliates is duly qualified as a foreign
partnership or limited liability company 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.
3.20 INSURANCE. The Borrower and each of the Consolidated
Businesses and the UJVs (other than the UJV which owns the Valencia
Property) 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.
3.21 ACCURACY OF INFORMATION; FULL DISCLOSURE. All information,
reports and other papers and data with respect to the Borrower, the
Collateral Properties and its Consolidated Businesses (other than
projections) furnished to the Lenders by the Borrower were, at the time the
same were so furnished or as of the date of such report or information,
complete and correct in all material respects, or have been subsequently
supplemented by other information, reports or other papers or data, to the
<PAGE>
extent necessary to give the Lenders a true and accurate knowledge of the
subject matter of such information, reports, or other papers and data in
all material respects. All projections with respect to the Borrower, the
Collateral Properties and its Consolidated Businesses, furnished to the
Lenders by or on behalf of the Borrower, as supplemented, were prepared and
presented in good faith by the Borrower, it being recognized by the Lenders
that such projections as to future events are not to be viewed as facts and
that actual results during the period or periods covered by any such
projections may differ from the projected results. No fact is known to the
Borrower which has or is reasonably likely to have a Material Adverse
Effect, which has not been set forth in the financial statements referred
to in Section 3.1 or in such information, reports, papers and data or
otherwise disclosed in writing to the Lenders prior to the Effective Date.
Neither this Agreement nor any documents, financial statements, reports,
notices, schedules, certificates, statements or other writings furnished by
or on behalf of the Borrower to the Administrative Agent or any Lender 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 the 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 known to the
Borrower which the Borrower has not disclosed to the Administrative Agent
and the Lenders in writing which materially affects adversely nor, so far
as the Borrower can now foresee, will materially affect adversely the
business, prospects, profits or financial condition of the Borrower or the
ability of the Borrower to perform this Agreement and the other Loan
Documents.
3.22 SECURITY INTERESTS. At all times after execution and delivery
of the Security Documents by the Loan Parties thereto and completion of the
filings and recordings listed on Schedule 9, the security interests created
for the benefit of the Administrative Agent and the Lenders pursuant to the
Security Documents will constitute valid, perfected security interests in
the collateral subject thereto, subject to no other Liens whatsoever.
3.23 THIRD PARTY REPRESENTATIONS. Each of the representations and
warranties made by each Guarantor in its Guarantee and by each Loan Party
in its Security Documents is true and correct in all material respects.
SECTION 4
CONDITIONS PRECEDENT
--------------------
4.1 CONDITIONS TO INITIAL LOANS. The agreement of each Lender to
make the initial Loan requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the making of such
Loan on the Effective Date, of the following conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly
authorized signatory of the Borrower, with a counterpart for each Lender,
(ii) each of the Guarantees, each executed and delivered by a duly
authorized officer or signatory, as the case may be, of the party thereto,
with a counterpart or a conformed copy for each Lender, (iii) each of the
Mortgage and Assignment Amendments, each executed and delivered by a duly
authorized officer or signatory, as the case may be, of the party thereto,
with a counterpart or a conformed copy for each Lender, (iv) the Notes,
each executed and delivered by a duly authorized signatory of the Borrower
(and each such Note shall have been delivered to the applicable Lender),
(v) the New York Square Beneficial Interest Assignment, executed and
delivered by a duly authorized officer or signatory, as the case may be, of
each party thereto, with a counterpart or a conformed copy for each Lender
and (vi) the Environmental Indemnity Agreement, executed and delivered by a
duly authorized officer or signatory, as the case may be, of each of the
Borrower and URB, with a counterpart or a conformed copy for each Lender.
<PAGE>
(b) BORROWING CERTIFICATE. The following statements shall be true
and the Administrative Agent shall have received a certificate dated the
Effective Date signed by a duly authorized signatory of the Borrower
stating, to the best of the certifying party's knowledge, the following:
(i)All representations and warranties contained in this Agreement and in
each of the other Loan Documents are true and correct in all material
respects on and as of the Effective Date as though made on and as of such
date,
(ii) No Default or Event of Default has occurred and is
continuing, or could result from the transactions contemplated by this
Agreement and the other Loan Documents, and
(iii) No event has occurred which has had a Material Adverse
Effect.
(c) ORGANIZATIONAL DOCUMENTS OF THE BORROWER. The Administrative
Agent shall have received, with a counterpart for each Lender, copies of
all documents, in form and substance satisfactory to the Administrative
Agent, evidencing partnership action taken by the Borrower authorizing
(i) the execution, delivery and performance of this Agreement and the other
Loan Documents to which it is a party and (ii) the borrowings contemplated
hereunder, all of which documents shall be certified as of the Effective
Date, which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the documents thereby certified
have not been amended, modified, revoked or rescinded.
(d) BORROWER INCUMBENCY CERTIFICATE. The Administrative Agent
shall have received a certificate of the Borrower, dated the Effective
Date, as to the incumbency and signature of the signatories of the Borrower
executing any Loan Documents satisfactory in form and substance to the
Administrative Agent, executed by the Secretary or Assistant Secretary of
the Partner.
(e) EVIDENCE OF FORMATION OF THE BORROWER. The Administrative
Agent shall have received certified (as of the Effective Date) copies of
the following documents with reference to the Borrower:
(i) the Partnership Agreement including all amendments and
attachments, certified by the Partner;
(ii) the partnership certificate including all amendments,
certified by an official in whose office it is filed or recorded;
(iii) any certificates filed or recorded or required to be
filed or recorded by such partnership in the state of its formation and the
states where the Collateral Properties are located in order for it to do
business in those states, to the extent so required; and
(iv) any consents by other partners required for the borrowing
contemplated by this Agreement and the execution, delivery and performance
of the Loan Documents to which the Borrower is a party.
(f) OTHER ORGANIZATIONAL DOCUMENTS. For each Partner and Loan
Party that is a corporation, the Administrative Agent shall have received
copies of the following documents:
(i) the certificate of incorporation including all
amendments, certified by the Secretary of State of the state of its
incorporation, together with a certificate of such Secretary of State to
the effect that such corporation is in good standing;
(ii) by-laws certified by the secretary of such corporation;
<PAGE>
(iii) certified resolutions by the shareholders or directors of
such corporation authorizing the consummation of the transactions
contemplated by this Agreement and the Loan Documents to which such Loan
Party or Partner, as the case may be, is a party; and
(iv) a certificate as to the incumbency and genuineness of the
signature of each officer executing each Loan Document executed by such
corporation;
for any Partner or Loan Party that is a partnership, with respect to
each such entity the Administrative Agent shall have received:
(i) the partnership agreement including all amendments and
attachments, certified by a general partner;
(ii) the partnership certificate including all amendments,
certified by an official in whose office it is filed or recorded;
(iii) any certificates filed or recorded or required to be
filed or recorded by such partnership in the state of its formation and, in
the case of the Limited Recourse Guarantors, the state where any Collateral
Property with reference to which such Limited Recourse Guarantor is an
owner is located in order for it to do business in those states;
(iv) any consents by other partners required for the borrowing
contemplated by this Agreement and the execution, delivery and performance
of the Loan Documents to which such Loan Party or Partner, as the case may
be, is a party; and
(v) if requested by the Administrative Agent, an
acknowledgement by each of the Partners of his or its continued membership
in the Borrower;
for any Partner or Loan Party that is a limited liability company,
with respect to each such entity the Administrative Agent shall have
received:
(i) the operating agreement including all amendments and
attachments, certified by the manager or managing member;
(ii) any certificate of formation issued to limited liability
companies by the state of organization of such entity, together with a
certificate of good standing, if available, from the relevant Secretary of
State; and
(iii) any consents by any other members required for the
borrowing contemplated by this Agreement and the execution, delivery and
performance of the Loan Documents to which such Loan Party or Partner, as
the case may be, is a party.
and, for any Partner or Loan Party that is a trust, with respect to
each such entity the Administrative Agent shall have received:
(i) a certified copy of the trust agreement establishing such
trust; and
(ii) a letter of direction from the owner of the beneficial
interests in such trust to the trustee, directing the trustee to execute
the Loan Documents to which such trust is a party.
(g) FEES AND EXPENSES. The Administrative Agent shall have
received the fees to be received on the Effective Date referred to in
Section 2.3 and all fees and expenses incurred by the Administrative Agent
(including without limitation, the fees and expenses of legal counsel).
<PAGE>
(h) LEGAL OPINIONS. The Administrative Agent shall have received
the following executed legal opinions:
(i) the executed legal opinion of Michael Hilborn, in form
and substance satisfactory to the Administrative Agent;
(ii) the executed legal opinion of Katten Muchin & Zavis, in
form and substance satisfactory to the Administrative Agent;
(iii) the executed legal opinion of White & Case, as local
Florida counsel in form and substance satisfactory to the Administrative
Agent;
(iv) the executed legal opinion of Taft, Stetteinius &
Hollister, LLP, as local Ohio counsel, in form and substance satisfactory
to the Administrative Agent; and
(v) the executed legal opinion of Armstrong Allen Prewitt
Gentry Johnston & Holmes, as local Tennessee counsel, in form and substance
satisfactory to the Administrative Agent.
Each such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(i) ACTIONS TO PERFECT LIENS. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation the filing of UCC-3 assignments duly executed by the Prior
Administrative Agent of all UCC-1 financing statements delivered pursuant
to the Prior Agreement, necessary or, in the opinion of the Administrative
Agent, desirable to perfect the Liens created by the Security Documents
shall have been completed.
(j) SURVEYS. The Administrative Agent shall have received a copy
of each survey delivered under the Prior Agreement recertified to the
Administrative Agent, together with a certificate of the Borrower that no
material changes in the location or configuration of the improvements on
the properties subject to the Mortgages have occurred since the date of the
prior survey. The Administrative Agent shall have also received an updated
Survey for the Service Merchandise Plaza Property including the Office
Depot parcel and a new survey for the Brandon Thomasville Property each to
be satisfactory to, and certified to, the Administrative Agent.
(k) TITLE INSURANCE POLICY. The Administrative Agent shall have
received in respect of each of the Initial Collateral Properties an
endorsement to the existing mortgagee's title policy (or policies)
reflecting the recording of the applicable Mortgage and Assignment
Amendments, adding the Office Depot Property and the Brandon Thomasville
Property as insured parcels to the applicable policies, increasing the
amount of insurance thereunder to an aggregate amount not less than
$25,000,000 for the Initial Collateral Properties outside Florida and for
the Initial Collateral Properties in Florida, an aggregate amount of
$125,000,000, showing no exceptions to title other than those permitted
under the Mortgages, except such as may be approved by the Administrative
Agent, naming the Administrative Agent for the benefit of the Lenders as
the insured under such policy and reflecting any parcels added thereto.
The Administrative Agent shall have received evidence satisfactory to it
that all premiums in respect of each such endorsements, and all charges for
mortgage recording tax, if any, have been paid.
<PAGE>
(l) FLOOD INSURANCE. If any portion of any of the Initial
Collateral Properties is located in an area identified as a special flood
hazard area by the Federal Emergency Management Agency or other applicable
agency, the Administrative Agent shall have received (i) a policy of flood
insurance which (A) covers any parcel of improved real property which is
encumbered by any Mortgage (B) is written in an amount not less than the
outstanding principal amount of the indebtedness secured by such Mortgage
which is reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of property
under the Act, whichever is less, and (C) has a term ending not later than
the maturity of the indebtedness secured by such Mortgage and
(ii) confirmation that the Borrower has received the notice required
pursuant to Section 208(e)(3) of Regulation H of the Board of Governors of
the Federal Reserve System. To the extent any Initial Collateral Property
is not located in an area identified as a special flood hazard area by the
Federal Emergency Management Agency or other agency, the certification of
the survey of such Collateral Property to be delivered pursuant to
clause (j) above shall include confirmation of such fact.
(m) COPIES OF DOCUMENTS. The Administrative Agent shall have
received a copy of all recorded documents with respect to the Initial
Collateral Properties since the documents referred to, or listed as
exceptions to title in, the title policy or policies referred to in
Section 4.1(k) and a copy, certified by such parties as the Administrative
Agent may deem appropriate, of all other documents affecting the property
covered by each Mortgage.
(n) LIEN SEARCHES. The Administrative Agent shall have received
the results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgement and tax
lien filings which may have been filed with respect to personal property of
the Borrower, any other Loan Party or any Partner and the results of such
search shall be satisfactory to the Administrative Agent.
(o) INSURANCE. The Administrative Agent shall have received
evidence in form and substance satisfactory to it that all of the
requirements of Section 5 of each of the Mortgages shall have been
satisfied.
(p) AUTHORIZATION LETTER. The Administrative Agent shall have
received the Authorization Letter, duly executed by the Borrower.
(q) REQUEST FOR ADVANCE. The Administrative Agent shall have
received a request for an advance in accordance with Section 2.2.
(r) SOLVENCY CERTIFICATE. A Solvency Certificate, duly executed,
from the Borrower.
(s) ADDITIONAL DOCUMENTATION. The Administrative Agent shall have
received such other approvals, opinions or documents as the Administrative
Agent or any Lender may reasonably request.
(t) APPRAISALS. The Administrative Agent shall have received
current Appraisals which shall indicate a value for each of the Initial
Collateral Properties acceptable to the Lenders and shall comply in all
respects with the standards for real estate appraisals established pursuant
to the Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
<PAGE>
(u) ENVIRONMENTAL REPORT/CERTIFICATION. The Administrative Agent
shall have received, at the Borrower's expense (i) an updated detailed
report and certification prepared by IVI and satisfactory to the Lenders by
IVI with regard to Materials of Environmental Concern affecting the Brandon
Collateral Properties and the Service Merchandise Plaza Property, which
shall include, inter alia, a certification that IVI has obtained and
examined the list of prior owners and tenants, and has made an on-site
physical examination of the relevant Collateral Property and improvements
thereon, and a visual observation of the surrounding areas, and disclosing
the extent of past or present Materials of Environmental Concern activities
or the presence of Materials of Environmental Concern and (ii) for all
other Initial Collateral Properties letters from the environmental
consultants preparing the existing reports delivered under the Prior
Agreement addressed to the Administrative Agent and authorizing the
Administrative Agent to rely on such reports. The Lenders acknowledge that
Service Merchandise Plaza may require additional environmental assessment
and testing which will not be completed until after the Effective Date and
agree that such Property may continue to be included in Collateral
Properties pending completion of such additional assessment and testing.
Preliminary results of such additional testing indicate that remediation
should not be necessary. However, if the final results thereof indicate
that remediation is necessary, and the terms of the Borrower's proposed
remediation are not satisfactory to the Administrative Agent, the Required
Lenders may elect on 60 days prior notice to the Borrower to remove and
release such Property from the Collateral Properties and upon such removal
and release the Borrower shall make the same payment as would be required
under Section 2.8(c) on the voluntary release of such Property.
(v) LEASES AND REAs. The Administrative Agent shall have received
(i) the current standard lease form used in respect of each of the Initial
Collateral Properties; (ii) copies of all Major Leases and operating
agreements in respect of each of the Initial Collateral Properties and
(iii) in the case of all Major Leases and tenants thereunder, (A) tenant
estoppel certificates in form and substance acceptable to the
Administrative Agent, provided that tenant estoppel certificates for those
Initial Collateral Properties other than the Brandon Collateral Properties
shall not be required for the initial Loans, but shall be delivered no
later than April 28, 2000, and that lease and REA estoppels from Service
Merchandise at the Service Merchandise Plaza Property will not be required
so long as the Borrower uses all reasonable efforts to obtain an estoppel
letter from any assignee under the Service Merchandise lease or any
successor owner, and (B) upon request of the Administrative Agent and to
the extent in the possession of the Borrower, URB, the Management Company
or the Owner of the relevant Collateral Property, current, certified
financial statements of the tenant and of any guarantor of its obligations.
The Administrative Agent shall have received (i) current estoppel letters
with respect to those leases and/or operating agreements between BSCP and
Sears and (ii) current estoppel letters with respect to reciprocal easement
agreements at Brandon Town Center and Brandon Plaza Property, in each case,
satisfactory in form and substance to the Administrative Agent.
(w) RENT ROLL. The Administrative Agent shall have received a
current, certified rent roll for each of the Initial Collateral Properties
indicating, among other things, the tenant, status, date, term, square
footage, options, rental and other material economic terms of all leases.
(x) PRIOR AGREEMENT. The Administrative Agent shall have received
a written acknowledgement from each lender under the Prior Agreement that
is not a Lender hereunder that such lender is not continuing as a party
hereto and satisfactory evidence that all amounts due to such exiting
lenders under the Prior Agreement have been paid, or will be paid on the
Effective Date from the initial Loans hereunder.
<PAGE>
4.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to make
any extension of credit requested to be made by it on any date (including,
without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by the Borrower and each of the Loan Parties in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) ADVANCE REQUEST. The Administrative Agent shall have received
a request for an advance in accordance with Section 2.2.
(d) CONDITIONS TO INITIAL LOANS. All conditions of Section 4.1
shall have been and remain satisfied as of the date of the advance;
(e) TITLE INSURANCE; NOTICE OF FUTURE ADVANCE. If any such
extension of credit would cause the aggregate principal amount of all Loans
and all L/C Obligations then outstanding to exceed $125,000,000 (or such
greater amount on which Florida documentary tax has been paid) the
Administrative Agent shall have received evidence that (i) the aggregate
amount of title insurance on the Collateral Properties has been increased
to equal or exceed such greater outstanding amount and (ii) an appropriate
Notice of Future Advance has been recorded for each Collateral Property in
Florida reflecting such increase.
(f) ADDITIONAL MATTERS. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by and Letter of Credit issued on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section have been satisfied.
4.3 DEEMED REPRESENTATIONS. Each request by the Borrower for, and
acceptance by the Borrower of, an advance of proceeds of the Loans shall
constitute a representation and warranty by the Borrower that, as of both
the date of such request and the date of the advance (a) no Default or
Event of Default has occurred and is continuing, and (b) each of
representations and warranties contained in this Agreement or the other
Loan Documents is true and correct in all material respects.
SECTION 5
AFFIRMATIVE COVENANTS
---------------------
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note or any Letter of Credit remains outstanding, or any amount
is owing to any Lender or the Administrative Agent hereunder or under any
other Loan Document, the Borrower shall and shall cause each of its
Consolidated Businesses and, to the extent the Borrower may alone direct
such action, shall cause each of the UJVs to:
<PAGE>
5.1 REPORTING AND MISCELLANEOUS DOCUMENT REQUIREMENTS. Furnish
directly to each of the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, but in any
event not later than ninety (90) days after the end of each Fiscal Year, a
copy of the Borrower 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 the Accountants;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available, but in
any event not later than sixty (60) days after the end of each calendar
quarter (other than the last quarter of the Fiscal Year), the unaudited
Borrower 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 and certified by a Responsible Officer as being fairly stated
in all material respects;
(c) STATEMENT OF GROSS ASSET VALUE. As soon as available, but in any
event not later than May lst of each year, the Borrower shall deliver to
the Administrative Agent and to Lenders' Valuation Consultant the
Borrower's determination of Gross Asset Value as of January 1 of such year.
The Borrower shall simultaneously deliver to the Lenders' Valuation
Consultant all information and supporting documentation required by the
Lenders' Valuation Consultant in order to prepare within 45 days of receipt
of such information and in any event not later than June 1st of such year,
a statement by the Lenders' Valuation Consultant setting forth its
calculation of Gross Asset Value. The Borrower's information shall include
individual projections of at least ten (10) years for each property
contributing to Gross Asset Value (but only to the extent projections are
then available in the case of properties recently acquired) and a summary
of material assumptions, and a one (1) page summary of its analysis for
each of the individual assets contributing to Gross Asset Value;
(d) CERTIFICATE OF NO DEFAULT AND FINANCIAL COMPLIANCE. Within
sixty (60) 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 the Borrower's chief financial officer or Treasurer
substantially in the form of Exhibit B-1 hereto and otherwise acceptable to
the Administrative Agent (i) stating that, to the best of his or her actual
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; (ii) stating that the covenants contained in
Section 6 and in Section 7 have been complied with and, with reference to
covenants contained in Section 7, including computations in reasonable
detail demonstrating such compliance; and (iii) setting forth the details
of all items comprising Total Outstanding Indebtedness (including amount,
maturity, interest rate and amortization requirements), Derived Ground
Lease Debt, Combined EBITDA, Interest Expense, and, with reference to the
certificate to be delivered within ninety (90) days after the end of a
Fiscal Year, the taxable income of the Borrower and its Consolidated
Businesses for such Fiscal Year;
(e) CERTIFICATE OF ACCOUNTANTS. Simultaneously with the delivery
of the annual financial statements required by clause (a) of this Section,
a statement of the Accountants who audited such financial statements
comparing the computations set forth in the financial compliance
certificate required by clause (d) of this Section to the audited financial
statements required by clause (a) of this Section (where such information
appears in such financial statements);
<PAGE>
(f) PROJECTIONS. Not later than the date of delivery of the
financial statements for the preceding Fiscal Year, a copy of the
projections by the Borrower of the Collateral Properties NOI and the
Interest Expense for the current Fiscal Year; such projections to be
accompanied by a certificate of a Responsible Officer to the effect that
such projections have been prepared on the basis of sound financial
planning practice and that such Responsible Officer has no reason to
believe they are incorrect or misleading in any material respect;
(g) COPIES OF FILINGS. Within ten (10) days after the same are
filed, copies of all financial statements and reports which the Borrower or
URB may make to, or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority;
(h) ADDITIONAL FINANCIAL INFORMATION. Promptly, such additional
financial and other information as any Lender may from time to time
reasonably request;
(i) COLLATERAL PROPERTY INFORMATION. For each Collateral Property
(i) as soon as available, but in any event not later than sixty (60) days
after the end of each calendar quarter, the most recent (a) tenant sales
report summary and a certified rent roll substantially in the form of
Exhibit C and otherwise reasonably acceptable to the Administration Agent
indicating, among other things, the tenant, status, date, term, square
footage, options, rental and other material economic terms of all leases,
(b) unaudited financial statements or cash-basis operating statements and
(c) property leasing report and (ii) as soon as available, but in any event
not later than ninety (90) days after the end of each calendar year,
(a) annual audited financial statements and (b) an annual appraisal report,
if performed (in all cases above, except in the case of clause (ii)(a),
substantially in the form as previously provided to the Administrative
Agent and in the case of clauses (i)(b) and (ii)(a), to the extent
available, such financial statements shall be prepared in accordance with
GAAP); provided that in the case of clause (ii)(a), the Borrower may
deliver one audited financial statement covering all the Collateral
Properties so long as the relevant financial information contained in such
statement is set forth on a property-by-property basis in the notes to such
statement;
(j) CAPITAL EXPENDITURES. As soon as practicable, but in any event
not later than ninety (90) days after the end of each Fiscal Year (A) a
statement of Capital Expenditures of the Borrower for the Fiscal Year then
ended and (B) a budget of forecasted Capital Expenditures of the Borrower
for the immediately succeeding Fiscal Year;
(k) ADDITIONAL AUDITS. If the report of the Accountants delivered
in connection with the audit of the Borrower Consolidated Financial
Statements delivered under clause (a) of this Section is qualified, then
the Borrower shall deliver to the Lender, along with such Borrower
Consolidated Financial Statements, a statement of independent public
accountants (other than the Accountants) acceptable to the Administrative
Agent, as to the absence of any Defaults or Events of Default; and
(l) BORROWING BASE CERTIFICATE. As soon as practicable, but in any
event not later than thirty (30) days after the end of each calendar
quarter, a Borrowing Base Certificate, substantially in the form of
Exhibit D, as of the last day of such calendar quarter.
5.2 PAYMENT OF COSTS. Pay all costs and expenses required for the
satisfaction of the conditions of this Agreement.
<PAGE>
5.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be,
all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or its Consolidated Businesses,
as the case may be.
5.4 CONDUCT OF BUSINESS; MAINTENANCE OF EXISTENCE, COMPLIANCE WITH
REQUIREMENTS OF LAW; PAYMENT OF TAXES. Continue to engage in business of
the same general type as now conducted by it and preserve, renew and keep
in full force and effect its legal existence and take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business; comply with all Contractual Obligations
and Requirements of Law (such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or its property) except to the extent
that failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
5.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property useful
and necessary in its business in good working order and condition; maintain
and keep in force, and cause each of its Consolidated Businesses to
maintain and keep in force, with financially sound and reputable insurance
companies insurance on all its or their property, as the case may be, in at
least such amounts and against at least such risks (but including in any
event public liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a
similar business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
at any reasonable time, upon reasonable prior notice and as often as may
reasonably be desired and to discuss the business, operations, properties
and financial and other condition of the Borrower and its Consolidated
Businesses with officers and employees of the Borrower and its Consolidated
Businesses and with its independent certified public accountants.
5.7 NOTICES. Promptly give notice to the Administrative Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Consolidated Businesses or
(ii) litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Consolidated Businesses and any
Governmental Authority, which in either case, if not cured or if adversely
determined, as the case may be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of
its Consolidated Businesses in which the amount involved is $1,000,000 or
more and not covered by insurance or in which injunctive or similar relief
is sought or which could have a Material Adverse Effect;
<PAGE>
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Single Employer Plan, a failure to make any material
required contribution to a Single Employer Plan, the creation of any Lien
in favor of the PBGC with respect to a Single Employer Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan; or (ii) the institution of proceedings or the taking of
any other action by the PBGC or, in the case of a distress termination, the
Borrower or any Commonly Controlled Entity, to terminate any Single
Employer Plan, but only to the extent such occurrence, expected occurrence,
proceedings or other action, in each case, described in clause (i) or (ii),
together with all other such occurrences, expected occurrences, proceedings
or other actions, is reasonably likely to have a material Adverse Effect;
(e) any development or event which has had or could have a Material
Adverse Effect;
(f) 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 the 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, if requested by the Administrative Agent, copies of the
agreements governing the Acquisition and historical financial information
and the Borrower's projections with respect to the property acquired;
(g) promptly after becoming aware of the same, the bankruptcy,
insolvency or cessation of operations of any tenant in any property of the
Borrower or in which the Borrower has an interest to which five percent
(5%) or more of minimum rent payable to the Borrower directly or through
its Consolidated Businesses or any UJV is attributable;
(h) thirty (30) days, prior thereto, any change in the chief
executive office or principal place of business of the Borrower; and
(i)as soon as possible and in any event within five (5) days after receipt,
copies of all Environmental Notices received by the 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 Effect.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take
with respect thereto. The Administrative Agent shall promptly forward to
the Lenders a copy of each notice delivered to it pursuant to this Section.
5.8 ENVIRONMENTAL LAWS.
(a) Comply with, and use reasonable efforts to require compliance
by all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and use reasonable efforts to
require that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws.
<PAGE>
5.9 YEAR 2000 PROBLEM. The Borrower has reviewed the areas within
its business and operations which could be adversely affected by, and has
developed a program to address, the "Year 2000 Problem" (that is, the risk
that computer applications used by the Borrower may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior
to and any date after December 31, 1999), and has made related appropriate
inquiry of material suppliers and vendors. Based on such review and
program, the Borrower believes that the Year 2000 Problem will not have a
material adverse affect on the Borrower. From time to time so long as any
Lender is required by law or regulation to collect such information, at the
request of the Administrative Agent, the Borrower shall provide to the
Administrative Agent such updated information or documentation as is
reasonably requested regarding the status of its efforts to address the
Year 2000 Problem.
SECTION 6
NEGATIVE COVENANTS
------------------
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note or any Letter of Credit remains outstanding, or any amount
is owing to any Lender or the Administrative Agent hereunder or under any
other Loan Document, the Borrower shall not, and shall not permit any of
its Consolidated Businesses to, and, to the extent the Borrower may alone
prevent such action, shall not permit any of the UJVs to, directly or
indirectly:
6.1 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, except any Affiliate of the Borrower
may be merged or consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving entity) or with or into any
one or more wholly owned Affiliate of the Borrower (provided that the
wholly owned Affiliate or Affiliates shall be the continuing or surviving
entity).
6.2 LIMITATION ON SALE OF ASSETS. Effect a Disposition of any of
its now owned or hereafter acquired assets, including assets in which the
Borrower owns a beneficial interest through its ownership of interest in
joint ventures, if, after giving effect thereto, the aggregate of the
values used in calculating Gross Asset Value of all assets so disposed of
since the Effective Date would exceed twenty-five percent (25%) of Gross
Asset Value then in effect.
6.3 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. 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 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 Effective Date contributing
to Gross Asset Value, would exceed ten percent (10%) of Gross Asset Value
then in effect. 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.
<PAGE>
6.4 INTEREST RATE HEDGING. At any time, permit or suffer
indebtedness in an amount greater than fifteen percent (15%) of Gross Asset
Value then in effect to not 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.
6.5 PARTNERSHIP DOCUMENTS. Amend the Partnership Agreement in any
material respect.
6.6 LIMITATION ON TRANSACTIONS WITH CONSOLIDATED BUSINESSES. Enter
into any transaction, including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with any of
its Affiliates or any UJV unless such transaction is (a) otherwise
permitted under this Agreement or, (b) (i) in the ordinary course of the
business of the Borrower or such Affiliate or UJV, as the case may be, and
(ii) upon fair and reasonable terms no less favorable to the Borrower or
such Affiliate or UJV, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not one of its
Affiliates or a UJV, as the case may be.
6.7 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year
of the Borrower and URB to end on a day other than December 31.
SECTION 7
FINANCIAL COVENANTS
-------------------
So long as any of the Notes shall remain unpaid, or the Commitments
remain in effect, or any other amount is owing by the Borrower to the
Administrative Agent or any Lender under this Agreement or under any other
Loan Document, the Borrower shall not permit or suffer:
7.1 NET WORTH. As of the end of any calendar quarter, Net Worth to
be less than Seven Hundred Fifty Million Dollars ($750,000,000).
7.2 RATIO OF TOTAL OUTSTANDING INDEBTEDNESS TO GROSS ASSET VALUE.
As of the end of any calendar quarter, the ratio of Total Outstanding
Indebtedness at such time to Gross Asset Value then in effect to exceed .60
to 1.0.
7.3 RATIO OF COLLATERAL PROPERTIES EBITDA TO INTEREST ON THE LOANS.
As of the end of any calendar quarter, the ratio of (a) Collateral
Properties EBITDA for such calendar quarter to (b) interest accruing on the
Loans during such calendar quarter (taking into account any "swap", "cap",
"collar" or comparable interest rate protection contract, so long as the
Borrower's rights under the same have been collaterally assigned to the
Lenders) to be less than 1.4 to 1.0.
7.4 RATIO OF COMBINED EBITDA TO INTEREST EXPENSE. As of the end of
any calendar quarter, the ratio of (a) Combined EBITDA to (b) the sum of
(i) Total Ground Lease Liabilities and (ii) Interest Expense, each for the
calendar quarter then ended, to be less than 1.85 to 1.0; or
7.5 DIVIDEND PAYOUT TO DILUTED FUNDS AVAILABLE FOR DISTRIBUTION.
As of the last day of each of any two consecutive fiscal quarters, the
ratio of (i) Dividend Payout for the four fiscal quarters immediately
preceding such date to (ii) the "Diluted funds available for distribution
excluding other gains" for such four fiscal quarter period, as such amount
is set forth on the Borrower Consolidated Financial Statements for such
four quarters, to exceed 0.9 to 1.0; or
<PAGE>
7.6 COLLATERAL PROPERTIES DEBT YIELD. As of the end of any
calendar quarter during the indicated periods, Collateral Properties Debt
Yield to be less than thirteen percent (13%).
The Borrower and the Administrative Agent agree that the covenants
set forth in Section 7 shall be calculated substantially in the manner set
forth in the exemplary calculations of such covenants set forth in
Exhibit B-2 hereto. The Borrower agrees to give the Administrative Agent
prior written notice of any proposed change in the method of calculating
"Diluted funds available for distribution excluding other gains" from the
method used in the Borrower's current financial statements. The
Administrative Agent reserves the right to make such adjustments and
changes to such change in the method of calculation for purposes of
compliance with Section 7.5 as may be required by the Administrative Agent
to achieve consistent comparative results.
SECTION 8
EVENTS OF DEFAULT
-----------------
8.1 EVENTS OF DEFAULT. The following events shall constitute
Events of Default under this Agreement:
(a) The Borrower shall fail to pay any principal of any Note or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof (including, without limitation, any mandatory prepayments which may
be required under Section 2.8(b) or Section 2.8(c)); or the Borrower shall
fail to pay any interest on any Note or any fees payable pursuant to
Section 2.3 of this Agreement within five days after such amount is due; or
the Borrower shall fail to pay any other amount payable hereunder within
ten days after notice from the Administrative Agent that such other amount
is due; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed made,
provided however, that if such misrepresentation is unintentional and
susceptible to cure, the Borrower or such other Loan Party, as the case may
be, shall have 30 days after notice by the Administrative Agent to take
such action as may be necessary to make such representation and warranty
correct in all material respects; or
(c) There shall occur an Event of Default (as defined in the
Mortgages) under the Mortgages; or
(d) The Borrower or any Loan Party shall fail (i) to perform or
observe any term, covenant or agreement contained in Section 6 or Section 7
of this Agreement; provided that the failure of the Borrower to satisfy the
covenant set forth in any Section of Section 7 other than Section 7.1 at
the end of any calendar quarter shall not constitute an Event of Default
if, within five (5) Banking Days after the delivery to the Administrative
Agent of the certificate required under Section 5.1(d) the Borrower makes
an optional prepayment of the Loans in accordance with Section 2.8(a) of
this Agreement sufficient to cause the unsatisfied covenant or covenants,
as the case may be, to be satisfied as recalculated after giving effect to
such optional prepayment, including, without limitation, with respect to
covenants contained in Sections 7.3, 7.4, and 7.6, a recalculation of the
Interest Expense for such period; or (ii) to perform or observe any term,
covenant or agreement contained in Section 5 or otherwise contained in this
<PAGE>
Agreement (other than obligations specifically referred to elsewhere in
this Section) or any Loan Document, or any other document executed by the
Borrower or such Loan Party and delivered to the Administrative Agent
and/or the Lenders in connection with the transactions contemplated hereby
and such failure shall remain unremedied for thirty (30) consecutive
calendar days after notice from the Administrative Agent of the occurrence
thereof (or such shorter cure period, if any, as may be expressly
prescribed in the applicable Loan Document); provided that if any such
default under clause (ii) 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 the Borrower or such Loan Party, as the case may be, 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, the Borrower or such Loan Party, as the case may be,
shall have an additional period, not to exceed one hundred and twenty (120)
days, to cure such default; in no event, however, is the foregoing intended
to effect an extension of the Termination Date; or
(e) The Borrower or any Loan Party shall fail (i) to pay any
recourse Indebtedness (other than the payment obligations described in
clause (a) of this Section) or any Guarantee Obligation 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 (ii) to perform or observe any material term, covenant, or
condition under any agreement or instrument relating to any such
Indebtedness or Guarantee obligation, when required to be performed or
observed, if the effect of either 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, the maturity of such Indebtedness, or Guarantee
Obligation or any such Indebtedness or Guarantee Obligation 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
(f) (i) The Borrower, any Loan Party or any other Affiliate of the
Borrower to which other Affiliate One Hundred Twenty-Five Million Dollars
($125,000,000) or more of Gross Asset Value is attributable (the Borrower,
the Loan Parties and any such other Affiliate being collectively referred
to as the "Obligors"; each "Obligor"), shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any such Affiliate of the Borrower shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any such Affiliate of the Borrower any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Borrower or any such Affiliate of the Borrower any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower or any such
Affiliate of the Borrower shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any
such Affiliate of the Borrower shall generally not or shall admit in
writing its inability to, pay its debts as they become due; or
<PAGE>
(g) 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 entered against the Borrower or any Loan Party, 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
(h) At any time URB 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, the American Stock Exchange or NASDAQ; or
(i) At any time this Agreement will give rise to a non-exempt
prohibited transaction within the meaning of ERISA or the Code with respect
to the Lenders or the Administrative Agent as a result of the Borrower
being treated as a "plan asset" for ERISA purposes within the meaning of
C.F.R. Section 2510.3-101; or
(j) The Management Company, the Borrower or URB shall not be
providing property management and leasing services to the Brandon Town
Center Property and the Brandon Plaza Property without the prior written
consent of the Required Lenders; or
(k) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any, is
reasonably likely to have a Material Adverse Effect; or
(l) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect, or the Borrower or any other Loan Party
which is a party to any of the Security Documents shall so assert or
(ii) the Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(m) Any Guarantee shall cease, for any reason, to be in full force
and effect or any Guarantor shall so assert, or any Guarantor shall be in
default under any Guarantee beyond the giving of any notice if required and
the expiration of any grace period if applicable; or
(n) The Borrower shall fail to deliver to the Administrative Agent
within five (5) days after the same is due, either (i) a Borrowing Base
Certificate required under Section 5.1(1) or (ii) a Certificate required
under Section 5.1(d).
<PAGE>
8.2 REMEDIES. If an Event of Default shall occur, then, and in any
such event, (a) if such event is an Event of Default specified in
clause (i) or (ii) of clause (f) of Section 8.1 with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder)
and the other Loan Documents shall immediately become due and payable, and
(b) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder)
and the other Loan Documents to be due and payable forthwith, whereupon the
same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of
such Letters of Credit. The Borrower hereby grants to the Administrative
Agent, for the benefit of the Issuing Bank and the L/C Participants, a
security interest in such cash collateral to secure all obligations of the
Borrower under this Agreement and the other Loan Documents. Amounts held
in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the
unused portion thereof after all such Letters of Credit shall have expired
or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the Notes. After all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Bank and the L/C
Participants, such further documents and instruments as the Administrative
Agent may request to evidence the creation and perfection of the security
interest in such cash collateral account.
<PAGE>
SECTION 9
THE ADMINISTRATIVE AGENT
------------------------
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against the Administrative Agent.
9.2 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 EXCULPATORY PROVISIONS. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement or
any other Loan Document (except for its or such Person's own gross
negligence or willful misconduct), (b) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties
made by the Borrower or any officer thereof contained in this Agreement or
any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document
or for any failure of the Borrower to perform its obligations hereunder or
thereunder or for the perfection or priority of any Lien securing the
Obligations or (c) liable or responsible to the Borrower on account of the
failure of any Lender to perform its obligations hereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
9.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by
<PAGE>
it by reason of taking or continuing to take any such action. Except as
otherwise expressly provided hereunder, the Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of
the Required Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
9.5 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Borrower referring to this Agreement,
describing 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, the Administrative Agent shall give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders, subject to the requirements of Sections 8.2 and 9.13
hereof and provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not
be obligated to) 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 interests of the Lenders. In no event shall the Administrative
Agent be required to take any such action which it determines to be
contrary to law.
9.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender. Each Lender
represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent
hereunder or expressly requested by any Lender in writing, the
Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by the
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 the Borrower. 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.
<PAGE>
9.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower, if
any, to do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is sought (or,
if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of
the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the
payment of the Loans and all other amounts payable hereunder.
9.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from, and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder
and under the other Loan Documents. With respect to its Loans made or
renewed by it and any Note issued to it and with respect to any Letter of
Credit issued or participated in by it, the Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include
the Administrative Agent in its individual capacity.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower, whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under-this Agreement and the other Loan
Documents.
9.10 TRANSFER OF AGENCY FUNCTION. The Administrative Agent may at
any time or from time to time transfer its functions as the Administrative
Agent hereunder to any of its offices wherever located in the United
States, provided that the Administrative Agent shall promptly notify the
Borrower and the Lenders thereof.
9.11 AUTHORITY OF ADMINISTRATIVE AGENT. As between the
Administrative Agent and the Borrower, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and
valid authority so to act or refrain from acting, and the Borrower shall
not be under any obligation to make any inquiry respecting such authority.
<PAGE>
9.12 OTHER AGENTS. The Syndication Agent, the Documentation Agent
and the Co-Lead Arrangers, in such respective capacities, shall have no
duties or responsibilities, and shall incur no liability, under this
Agreement or the other Loan Documents.
9.13 ENFORCEMENT PROCEDURES.
(a) Promptly after the Administrative Agent acquires actual
knowledge that an Event of Default has occurred, the Administrative Agent
shall evaluate the circumstances of such Event of Default, its impact on
the Borrower and the courses of action available to the Lenders. Unless
expressly directed in writing to the contrary by the Required Lenders, the
Administrative Agent is expressly authorized to discuss such Event of
Default and possible resolutions with the Borrower and to refrain from
exercising any rights and remedies while conducting such evaluation,
provided that the Administrative Agent shall not enter into any written
forbearance agreement with the Borrower without the prior consent of the
Required Lenders.
(b) The Administrative Agent shall, upon completing such
evaluation, forward to each Lender a written proposal outlining the course
of action that the Administrative Agent is recommending. Each Lender shall
either approve or disapprove of the Administrative Agent's proposal by
written notice to the Administrative Agent as set forth in this Agreement.
The failure of any Lender to respond in writing to the Administrative
Agent's request within ten (10) Banking Days of receipt thereof shall be
deemed an approval by such lender of the Administrative Agent's request.
Any response from a Lender that contains any conditions or qualifications
to the Administrative Agent's proposal shall be deemed a direction by such
Lender to the Administrative Agent not to proceed with the Administrative
Agent's proposal unless and until the number of Lenders required hereunder
in light of the nature of such proposal have agreed upon such conditions or
qualifications.
(c) If the requisite number of Lenders so approve the
Administrative Agent's proposal, or are deemed to so approve the
Administrative Agent's proposal by failing to respond within such period,
the Administrative Agent shall seek to implement such proposal in due
course in the same manner the Administrative Agent generally implements
similar proposals for loans held for its own account. If either (i) the
Administrative Agent's proposal is not so approved and no alternative is
approved within a reasonable time thereafter or (ii) the proposal is
approved but the Administrative Agent is unable to accomplish the goals of
such proposal within any time period described therein (or if no such time
period is specified therein, within a period of time deemed reasonable by
the Administrative Agent), the Administrative Agent is authorized in each
such case, after so notifying the Lenders in writing, unless the Required
Lenders direct otherwise, to proceed to exercise the rights and remedies
granted to the Lenders by the Loan Documents or under law with respect to
acceleration of the Obligations, appointment of a receiver, foreclosure of
and realization on the Mortgages and the other Loan Documents and action on
the Limited Recourse Guarantees but Administrative Agent shall be obligated
to promptly commence such a procedure if so required in writing by the
Required Lenders. The Lenders acknowledge that the Administrative Agent's
right to take enforcement action shall not obligate the Administrative
Agent to commence immediately any specific enforcement procedure.
(d) Each Lender agrees that it shall subscribe to and accept its
Commitment Percentage of the ownership interests in any entity organized to
hold title to the Collateral Properties and each such Lender agrees that
the nature of such entity shall be determined by the Required Lenders,
subject to each Lender's right to hold its interests in such entity in, and
assign such interests to, any affiliate of such Lender or any other entity
required by laws or regulations governing such Lender. The Administrative
Agent is hereby authorized to act for and on behalf of the Lenders in all
day-to-day matters with respect to the exercise of rights described herein
such as the supervision of attorneys, accountants, appraisers or others
acting for the benefit of all of the Lenders in connection with litigation,
<PAGE>
foreclosure, realization of all or any security given as collateral for the
Obligations or other similar actions.
(e) If the Lenders acquire the Collateral Properties either by
foreclosure or deed in lieu of foreclosure, then the Lenders agree to
negotiate in good faith to reach agreement in writing relating the
ownership, operation, maintenance, marketing, and sale of such Collateral
Properties. The Lenders agree that such agreement shall be consistent with
the following:
(i) The Collateral Properties will not be held as a long term
investment but will be marketed in an attempt to sell the Collateral
Properties in a time period consistent with the regulations applicable to
national banks for owning real estate. Current appraisals of the
Collateral Properties shall be obtained by the Administrative Agent from
time to time during the ownership period at the Lenders' expense (without
diminishing or releasing any obligation of the Borrower to pay for such
costs) and an appraised value shall be established and updated from time to
time based on such appraisals.
(ii) Certain decision-making with respect to the day to day
operations of the Properties will be delegated to management and leasing
agents. All agreements with such management and leasing agents will be
subject to the approval of the Required Lenders. All material decisions
reserved to the owner in such agreements will also be subject to the
approval of the Required Lenders. The day to day supervision of such
agents shall be done by the Administrative Agent.
(iii) Except as provided in the following sentences, all
decisions as to whether to sell the Collateral Properties shall be subject
to the approval of all the Lenders. Notwithstanding the foregoing, the
Lenders agree that if the Administrative Agent receives a bona fide "all
cash" offer from an entity not affiliated with the Borrower or any Lender
for the purchase of any of the Collateral Properties and such offer equals
or exceeds ninety percent (90%) of the most recent appraised value of such
Collateral Property as established by an appraisal prepared in accordance
with the standards established in this Agreement that has been completed
within six months of such offer, then the Administrative Agent shall give
written notice of such offer to the Lenders and request their approval for
a sale at such price. If any Lender fails to respond in writing approving
or disapproving such request within ten (10) Banking Days of receipt of
such request shall be deemed to be an approval by such lender of a sale at
such price. If the Required Lenders approve of such a sale (or are deemed
to approve of such a dale) then the Administrative Agent, acting on behalf
of the Required Lenders, is irrevocably authorized to accept such offer on
behalf of all the Lenders.
(iv) All expenses incurred by the Administrative Agent and
Lenders in connection with the ownership, operation, maintenance, marketing
and sale of the Collateral Properties shall be allocated among the Lenders
pro rata in accordance with their respective Commitment Percentages.
(v) All expenditures and other actions taken with respect to
the Collateral Properties shall at all times be subject to the regulations
and requirements pertaining to national banks applicable thereto. Without
limiting the generality of the foregoing, all necessary approvals from
regulatory authorities in connection with any expenditure of funds by the
Lenders shall be a condition to such expenditure.
<PAGE>
SECTION 10
MISCELLANEOUS
-------------
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this Section. The
Required Lenders may, or, with the written consent of the Required Lenders,
the Administrative Agent may, from time to time, (a) enter into with the
Borrower written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights
of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any Default
or Event of Default and its consequences; provided that no such waiver and
no such amendment, supplement or modification shall (a) reduce the amount
or extend the scheduled date of maturity of any Loan or of any installment
thereof, or reduce the stated rate of any interest or fee payable hereunder
or extend the scheduled date of any payment thereof or increase the amount
or extend the expiration date of any Lender's Commitment, in each case
without the consent of each Lender affected thereby, or (b) amend, modify
or waive any provision of this Section, Section 8.2 or Section 9.13 or
reduce the percentage specified in the definition of Required Lenders or
Majority Lenders, or consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents or release any of the Collateral (other than in accordance
with Section 2.8(c) of this Agreement), in each case without the written
consent of all the Lenders, or (c) amend, modify or waive any provision of
Section 9 without the written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Administrative Agent and all future holders of
the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, and, unless
otherwise expressly provided herein, shall be deemed to have been duly
given or made (a) when delivered by hand, (b) in the case of overnight
courier service with guaranteed next Banking Day delivery, one day after
delivery to such overnight courier service, or (c) three (3) days after
being deposited in the mail, postage prepaid, addressed as follows in the
case of the Borrower and the Administrative Agent, and as set forth in
Schedule 10 in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower: Urban Shopping Centers, L.P.
900 North Michigan Avenue
Suite 1500
Chicago, Illinois 60611
Attention: Chief Financial Officer
with a copy to: Urban Shopping Centers, Inc.
900 North Michigan Avenue
Suite 1500
Chicago, Illinois 60611
Attention: General Counsel
and
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661
Attention: Ira J. Swidler, Esq.
The Adminis-
trative Agent: Bank One, NA
1 Bank One Plaza
Mail Suite IL-0315
Chicago, Illinois 60670
Attention: Lynn M. Braun
with a copy to: Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to Section 2.2, 2.4, 2.8, 2.9 or 2.14 shall
not be effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. Any advance of proceeds of the
Loans made without the fulfillment by the Borrower of all of the conditions
precedent thereto, whether or not known to the Administrative Agent and the
Lenders 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 to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents
and in any document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery of this
Agreement and the-making of the Loans hereunder.
10.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration
of the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and fees and disbursements in connection with the
preparation of appraisals, environmental reports and engineering reports
with reference to the Collateral Properties, (b) to pay or reimburse each
Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents,
including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each
Lender and of counsel to the Administrative Agent, (c) to pay, indemnify,
and hold each Lender and the Administrative Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect to,
<PAGE>
or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with
the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and
(d) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to (i) any
claims by brokers due to acts or omissions of the Borrower and (ii) the
execution, delivery, enforcement and performance of this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Consolidated Businesses or any
of the Collateral Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower
shall have no obligation hereunder to the Administrative Agent or any
Lender with respect to (i) costs related to the administration of the Loans
or (ii) indemnified liabilities arising from (a) the gross negligence or
willful misconduct of the Administrative Agent or any such Lender or
(b) legal proceedings commenced against the Administrative Agent or any
such Lender by any security holder or creditor thereof arising out of and
based upon rights afforded any such security holder or creditor solely in
its capacity as such. The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender
or any other interest of such Lender hereunder and under the other Loan
Documents, provided that no such participation shall be for less than
$5,000,000 or the remaining unparticipated portion of such Lender's Loans,
whichever is less. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all
purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The
Borrower also agrees that each Participant shall be entitled to the
benefits of Sections 2.16, 2.17, 2.18 with respect to its participation in
the Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that, in the case of Section 2.17, such Participant shall
have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount
pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
<PAGE>
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and
from time to time assign to any Lender or any affiliate thereof or, with
the consent of the Borrower (which shall not be unreasonably withheld) and
the Administrative Agent (which shall not be unreasonably withheld), to an
additional bank or financial institution (an "Assignee"), all or any part
of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit H (an "Assignment and Acceptance") executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Administrative Agent and
the Borrower) and delivered to the Administrative Agent for its acceptance
and recording in the Register. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to
such Assignment and Acceptance, (x) the Assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment as
set forth therein, and (y) the assigning Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such assigning Lender shall
cease to be a party hereto). A fee of $3,500 per assignment shall be paid
to the Administrative Agent by the assigning Lender. Notwithstanding any
provision of this paragraph and clause (e) of this Section, (i) the consent
of the Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at
any time when an Event of Default shall have occurred and be continuing,
(ii) the consent of the Administrative Agent shall not be required for any
assignment, and such assignment may be made by any Lender to any Person, if
an Event of Default shall have occurred and six months after notice of such
Event of Default shall have been given to the Borrower, such Event of
Default shall be continuing and (iii) no such assignment shall be for less
than $5,000,000 or such Lender's remaining Commitment whichever is less.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in
Section 10.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of
the Lenders and the commitment of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or
other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder not
evidenced by a Note shall be effective only upon appropriate entries with
respect thereto being made in the Register. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Administrative Agent and
the Borrower), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register
and give notice of such acceptance and recordation to the Lenders and the
Borrower. On or prior to such effective date, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent (in exchange
for the Note of the assigning Lender which shall be returned to the
Borrower) a new Note, as the case may be, to the order of such Assignee in
an amount equal to the commitment, assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender in an
<PAGE>
amount equal to the Commitment retained by it hereunder. Such new Notes
shall be dated the Closing Date and shall otherwise be in the form of the
Note replaced thereby.
(f) The Borrower authorizes each Lender to disclose in confidence
to any Participant or Assignee (each, a "Transferee") and any prospective
Transferee, any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which
has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of
Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of any
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
(h) 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 the Borrower and the Administrative Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 2.17.
10.7 WAIVER OF SET-OFF. Each Lender agrees that it shall waive and
forego its rights to set-off, appropriate and apply any and all deposits of
money or property or any other indebtedness at any time held or owing by
such lender to or for the credit or the account of the Borrower against and
on account of all outstanding Obligations and all Obligations which from
time to time may become due hereunder and all other obligations and
liabilities of the Borrower under this Agreement. Nothing herein shall
limit the rights of any Lender to so set-off, appropriate and apply such
deposits against obligations of the Borrower to such Lender which are not
part of the Obligations under this Agreement.
10.8 ADJUSTMENTS. If any Lender (a "Benefitted Lender") shall at
any time receive any payment of all or part of its Loans or the
Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily,
pursuant to events or proceedings of the nature referred to in
Section 8.1(f), or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans or the Reimbursement Obligations owing to it,
or interest thereon, such Benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans or the Reimbursement Obligations owing to it, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
10.9 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged
with the Borrower and the Administrative Agent.
<PAGE>
10.10 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10.11 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
10.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
10.13 SUBMISSION TO JURISDICTION; WAIVERS.
(a) The Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of Illinois, the courts of the United States of America for the
Northern District of Illinois, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 10.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
(b) To the extent that the Borrower, the Administrative Agent or
any Lender 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, the Borrower, the
Administrative Agent and each Lender hereby irrevocably waives such
immunity in respect of its obligations under this Agreement, the Notes and
any other Loan Document.
10.14 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
<PAGE>
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.16 DOCUMENTATION SATISFACTORY. All documentation required from or
to be submitted on behalf of the 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 Lenders. 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 Lenders.
10.17 POSSESSION OF DOCUMENTS. Each Lender 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 Lenders and
their representatives access at all reasonable times to inspect such Loan
Documents, related documents, records and accounts.
10.18 USURY. Anything herein to the contrary notwithstanding, the
obligations of the 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 Lender limiting rates of interest which may be charged or
collected by such Lender.
10.19 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.
10.20 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a
Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which such Lender is a
party, (vi) to such Lender's direct or indirect contractual counterparties
in swap agreements or to legal counsel, accountants and other professional
<PAGE>
advisors to such counterparties, (vii) when such information has become
public through no act or omission of the Lenders, and (viii) permitted by
Section 10.6(f), provided that each Lender so disclosing such confidential
information shall use all reasonable efforts to advise the recipients
thereof of their obligations to maintain the confidentiality thereof.
10.21 ABSOLUTE AND UNCONDITIONAL OBLIGATIONS.
(a) The 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: (i) any lack of validity or
enforceability of any of the obligations, any Loan Documents, or any
agreement or instrument relating thereto; (ii) 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; (iii) any
exchange or release of any collateral, or of any other Person from all or
any of the Obligations; or (iv) any other circumstances which might
otherwise constitute a defense available to, or a discharge of, the
Borrower or any other Person in respect of the obligations.
(b) The obligations and liabilities of the Borrower under this
Agreement and other Loan Documents shall not be conditioned or contingent
upon the pursuit by any Lender or any other Person at any time of any right
or remedy against the 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.
10.22 NON-RECOURSE TO URBAN LIMITED 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 matter whatsoever
shall be had against any of the constituent limited partners of the
Borrower and their successors or assigns (said constituent limited partners
of the Borrower and their successors or assigns for purposes of this
Section, hereinafter referred to, individually and collectively, as the
"Urban Limited Partners") and each Lender 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 Urban Limited Partners or out of any assets of the Urban Limited
Partners, provided, however, that nothing in this Section shall be deemed
to: (i) release the 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;
(ii) release any Urban Limited Partner from personal liability for its or
his own fraudulent actions or fraudulent omissions; (iii) 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 (iv) limit the right to the Administrative Agent
and/or the Lenders to proceed against or realize upon any collateral
hereafter given for the Loans or any and all of the assets of the Borrower
(notwithstanding the fact that the Urban Limited Partners have an ownership
interest in the Borrower and, thereby, an interest in the assets of the
Borrower) or to name the 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 the Borrower or any
collateral hereafter given for the Loans, any of the Urban Limited
Partners) as a party defendant in, and to enforce against any collateral
<PAGE>
hereafter given for the Loans and/or assets of the Borrower any judgment
obtained by the Administrative Agent and/or the Lenders 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 the Lenders' rights against any collateral
hereafter given for the Loans or the Borrower, but not otherwise) or shall
be enforced against the Urban Limited Partners, their successors and
assigns, or their assets. The Administrative Agent and the Lenders hereby
acknowledge that, for purposes of this Section, the assets of the Borrower
shall not include any capital account of any Urban Limited Partner in the
event such account has a negative balance.
[Remainder of page intentionally left blank]
<PAGE>
10.23 RESIGNATION OF UBS. Borrower and Lenders consent and agree to
the resignation of UBS as "Agent" and "Administrative Agent" under, and as
defined in, the Prior Agreement effective as of the date hereof, and
Lenders agree that the provisions of Section 10.7 of the Prior Agreement
shall not apply to the repayment by Borrower of all amounts due to UBS, and
to any other lender not continuing as a Lender hereunder, under the Prior
Agreement, together with any and all interest, fees and expenses due to
them thereunder. UBS and such other lenders shall be third party
beneficiaries of this Section 10.23.
10.24 BINDING EFFECT OF REQUEST FOR ADVANCE. The 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 the 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
URBAN SHOPPING CENTERS, L.P.
By: Urban Shopping Centers, Inc.,
its general partner
By:
------------------------------
Name: Michael Hilborn
------------------------------
Title: Senior Vice President
------------------------------
BANK ONE, NA, as Agent,
as Administrative Agent and as a Lender
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
DRESDNER BANK AG, New York and
Grand Cayman Branches, as Syndication
Agent and as a Lender
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
<PAGE>
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
BANK OF AMERICA NATIONAL ASSOCIATION
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
HYPOVEREINSBANK
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
BAYERISCHE LANDESBANK
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
U. S. BANK NATIONAL ASSOCIATION
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 2000 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
INCLUDED IN SUCH REPORT.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 3,166
<SECURITIES> 0
<RECEIVABLES> 17,844
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 21,010
<PP&E> 1,765,112
<DEPRECIATION> 220,890
<TOTAL-ASSETS> 1,873,228
<CURRENT-LIABILITIES> 76,366
<BONDS> 1,103,143
<COMMON> 177
0
38
<OTHER-SE> 308,160
<TOTAL-LIABILITY-AND-EQUITY> 1,873,228
<SALES> 63,887
<TOTAL-REVENUES> 64,015
<CGS> 0
<TOTAL-COSTS> 23,245
<OTHER-EXPENSES> 16,755
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 17,104
<INCOME-PRETAX> 3,773
<INCOME-TAX> 0
<INCOME-CONTINUING> 3,773
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,773
<EPS-BASIC> .21
<EPS-DILUTED> .21
</TABLE>
