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Exhibit 7
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$1,250,000,000
TENDER FACILITY CREDIT AGREEMENT
among
HEXALON REAL ESTATE, INC.,
HEAD ACQUISITION, L.L.C.,
RODAMCO USA, INC.,
DETROIT INVESTMENTS, INC.,
745 FIFTH, INC.,
REALCO FIFTH, INC.,
RNA COAST INVESTMENTS, INC.,
MOTOWN MALL LIMITED, INC.,
NOVI MALL ASSOCIATES,
HEAD ACQUISITION CORP.,
HEAD ACQUISITION L.P.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
Cooperatieze Centrale
Raiffeisen Boerenleenbank B.A.,
"Rabobank International", New York Branch,
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as Documentation Agent,
Bank of America, N.A.,
-------------------------------
as Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of November 2, 2000
CHASE SECURITIES, INC., as Lead Arranger and Book Manager
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Table of Contents
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Page
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Section 1. DEFINITIONS............................................................................................1
1.1 Defined Terms........................................................................................1
1.2 Other Definitional Provisions.......................................................................15
Section 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................16
2.1 Commitments.........................................................................................16
2.2 Procedure for Borrowing.............................................................................16
2.3 Repayment of Loans..................................................................................16
2.4 Optional Prepayments................................................................................16
2.5 Commitment Fees, etc................................................................................16
2.6 Conversion and Continuation Options.................................................................16
2.7 Limitations on Eurodollar Tranches..................................................................17
2.8 Interest Rates and Payment Dates....................................................................17
2.9 Computation of Interest and Fees....................................................................17
2.10 Inability to Determine Interest Rate...............................................................18
2.11 Pro Rata Treatment and Payments....................................................................18
2.12 Requirements of Law................................................................................19
2.13 Taxes..............................................................................................20
2.14 Indemnity..........................................................................................21
2.15 Change of Lending Office...........................................................................22
2.16 Replacement of Lenders.............................................................................22
Section 3. REPRESENTATIONS AND WARRANTIES........................................................................22
3.1 Financial Condition.................................................................................23
3.2 No Change...........................................................................................23
3.3 Existence; Compliance with Law......................................................................24
3.4 Power; Authorization; Enforceable Obligations.......................................................24
3.5 No Legal Bar........................................................................................24
3.6 Litigation..........................................................................................24
3.7 No Default..........................................................................................24
3.8 Ownership of Property; Liens........................................................................24
3.9 Intellectual Property...............................................................................25
3.10 Taxes..............................................................................................25
3.11 Federal Regulations................................................................................25
3.12 Labor Matters......................................................................................25
3.13 ERISA..............................................................................................25
3.14 Investment Company Act; Other Regulations..........................................................26
3.15 Subsidiaries.......................................................................................26
3.16 Use of Proceeds....................................................................................26
3.17 Environmental Matters..............................................................................26
3.18 Accuracy of Information, etc.......................................................................27
3.19 Security Documents.................................................................................27
3.20 Solvency...........................................................................................27
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3.21 Certain Documents..................................................................................27
3.22 REIT Status........................................................................................27
Section 4. CONDITIONS PRECEDENT..................................................................................28
4.1 Conditions to Initial Extension of Credit...........................................................28
4.2 Conditions to Each Extension of Credit..............................................................31
Section 5. AFFIRMATIVE COVENANTS.................................................................................31
5.1 Financial Statements................................................................................31
5.2 Certificates; Other Information.....................................................................32
5.3 Payment of Obligations..............................................................................32
5.4 Maintenance of Existence; Compliance................................................................33
5.5 Maintenance of Property; Insurance..................................................................33
5.6 Inspection of Property; Books and Records; Discussions..............................................33
5.7 Notices.............................................................................................33
5.8 Environmental Laws..................................................................................34
5.9 Additional Collateral, etc..........................................................................34
5.10 REIT Status........................................................................................35
Section 6. NEGATIVE COVENANTS....................................................................................35
6.1 Limitation on Indebtedness..........................................................................35
6.2 Liens...............................................................................................35
6.3 Fundamental Changes.................................................................................36
6.4 Disposition of Property.............................................................................36
6.5 Restricted Payments.................................................................................37
6.6 Investments.........................................................................................37
6.7 Optional Payments and Modifications of Certain Debt Instruments; Synthetic Purchase Agreements......38
6.8 Transactions with Affiliates........................................................................38
6.9 Sales and Leasebacks................................................................................38
6.10 Changes in Fiscal Periods..........................................................................38
6.11 Negative Pledge Clauses............................................................................38
6.12 Clauses Restricting Distributions..................................................................39
6.13 Lines of Business..................................................................................39
6.14 Amendments to Tender Documents and Merger Documents................................................39
Section 7. EVENTS OF DEFAULT.....................................................................................39
Section 8. THE AGENTS............................................................................................42
8.1 Appointment.........................................................................................42
8.2 Delegation of Duties................................................................................42
8.3 Exculpatory Provisions..............................................................................42
8.4 Reliance by Administrative Agent....................................................................43
8.5 Notice of Default...................................................................................43
8.6 Non-Reliance on Agents and Other Lenders............................................................43
8.7 Indemnification.....................................................................................44
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8.8 Agent in Its Individual Capacity....................................................................44
8.9 Successor Administrative Agent......................................................................44
8.10 Documentation Agent and Syndication Agent..........................................................44
Section 9. MISCELLANEOUS.........................................................................................44
9.1 Amendments and Waivers..............................................................................44
9.2 Notices.............................................................................................45
9.3 No Waiver; Cumulative Remedies......................................................................46
9.4 Survival of Representations and Warranties..........................................................47
9.5 Payment of Expenses and Taxes.......................................................................47
9.6 Successors and Assigns; Participations and Assignments..............................................48
9.7 Adjustments; Set-off................................................................................50
9.8 Counterparts........................................................................................50
9.9 Severability........................................................................................50
9.10 Integration........................................................................................50
9.11 GOVERNING LAW......................................................................................50
9.12 Submission To Jurisdiction; Waivers................................................................51
9.13 Acknowledgements...................................................................................51
9.14 Releases of Guarantees and Liens...................................................................51
9.15 Confidentiality....................................................................................52
9.16 WAIVERS OF JURY TRIAL..............................................................................52
9.17 Delivery of Addenda................................................................................52
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SCHEDULES:
1.1A Commitments
3.15 Subsidiaries
3.19 UCC Filing Jurisdictions
6.1 Existing Indebtedness
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Acceptance
E-1 Form of Legal Opinion of Arnall Golden & Gregory, LLP
E-2 Form of Legal Opinion of Winston & Strawn
F Form of Exemption Certificate
G Form of Addendum
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CREDIT AGREEMENT (this "AGREEMENT"), dated as of November 2, 2000, among
HEAD ACQUISITION, L.P., a Delaware limited partnership (the "BORROWER"), HEXALON
REAL ESTATE, INC., a Delaware REIT ("HEXALON"), HEAD ACQUISITION, L.L.C., a
Delaware limited liability company ("HEAD LLC"), RODAMCO USA, DETROIT
INVESTMENTS, 745 FIFTH, INC., REALCO FIFTH INC., RNA COAST INVESTMENTS, INC.,
MOTOWN MALL LIMITED, INC., each a Delaware corporation, NOVI MALL ASSOCIATES, a
Michigan co-partnership, HEAD ACQUISITION CORP., a Delaware corporation ("HEAD
ACQUISITION"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "LENDERS"), Cooperatieze
Centrale Raiffeisen Boerenleenbank B.A., "Rabobank International", New York
Branch, as documentation agent (in such capacity, the "DOCUMENTATION AGENT"),
Bank of America, N.A., as syndication agent (in such capacity, the "SYNDICATION
AGENT"), and THE CHASE MANHATTAN BANK, as administrative agent.
RECITALS:
WHEREAS, on October 2, 2000, the BORROWER made an offer (the "TENDER
OFFER") to purchase all outstanding shares of common stock (the "COMMON
SHARES"), preferred stock (the "PREFERRED SHARES") and unit voting stock (the
"UNIT VOTING SHARES" and, collectively with the Common Shares and the Preferred
Shares, the "SHARES"), par value $0.01 per share, of Urban Shopping Centers,
Inc., a Maryland REIT (the "TARGET") (other than those held by it and its
Affiliates) at a price of $48.00 per share pursuant to an Offer to Purchase,
dated October 2, 2000 (the "OFFER TO PURCHASE");
WHEREAS, pursuant to the Tender Offer, and subject to the terms and
conditions set forth in the Offer to Purchase, the Borrower has offered to
purchase all validly tendered Shares, subject to the condition that there be
tendered not less than a 66-2/3% of the Common Shares, determined on a fully
diluted basis, after giving effect to the exercise of any warrants, rights,
options or conversion privileges or similar rights and taking into account any
Shares held by the Hexalon Entities;
WHEREAS, the Offer to Purchase was made pursuant to the Agreement and Plan
of Merger, dated as of September 25, 2000, among Rodamco North America N.V., a
Dutch BI ("RNA"), Hexalon, Borrower, Head Acquisition, the Target and Urban
Shopping Centers, L.P., an Illinois limited partnership ("USC L.P.") (the
"MERGER AGREEMENT");
WHEREAS, the Merger Agreement requires that as soon as practicable
following the consummation of the Tender Offer, Borrower will effect one or more
mergers involving Borrower and the Target (the "MERGER"), with the Borrower as
the surviving corporation; and
WHEREAS, the proceeds of the loans made under this Agreement will be used
to finance the purchase of Shares tendered pursuant to the Tender Offer and to
refinance certain existing indebtedness of USC L.P., and for the other purposes
described herein, the Borrower has requested that the Lenders make the loans set
forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1%
and (c) the Federal Funds Effective Rate
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2
in effect on such day plus 1/2 of 1%. For purposes hereof: "PRIME RATE" shall
mean the rate of interest per annum publicly announced from time to time by The
Chase Manhattan Bank as its prime rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of interest
charged by The Chase Manhattan Bank in connection with extensions of credit to
debtors); "BASE CD RATE" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the CD Reserve Percentage and (b) the
CD Assessment Rate; and "THREE-MONTH SECONDARY CD RATE" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00 A.M.,
New York City time, on such day (or, if such day shall not be a Business Day, on
the next preceding Business Day) by The Chase Manhattan Bank from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it. Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR LOANS": Loans the rate of interest applicable to which is based upon
the ABR.
"ADDENDUM": an instrument, substantially in the form of Exhibit G, by which
a Lender becomes a party to this Agreement as of the Closing Date.
"ADMINISTRATIVE AGENT": The Chase Manhattan Bank, together with its
affiliates, as the arranger of the Commitments and as the administrative agent
for the Lenders under this Agreement and the other Loan Documents, together with
any of its successors.
"AFFILIATE": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"AGENTS": the collective reference to the Syndication Agent, the
Documentation Agent and the Administrative Agent.
"AGGREGATE EXPOSURE": with respect to any Lender at any time, an amount
equal to the sum of (a) the amount of such Lender's Commitments then in effect
and (b) thereafter, the aggregate unpaid principal amount of such Lender's
Loans.
"AGGREGATE EXPOSURE PERCENTAGE": with respect to any Lender at any time,
the ratio (expressed as a percentage) of such Lender's Aggregate Exposure at
such time to the Aggregate Exposure of all Lenders at such time.
"AGREEMENT": as defined in the preamble hereto.
"APPLICABLE MARGIN": for ABR Loans, 0.50% and for Eurodollar Loans, 1.75%.
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"ASSIGNEE": as defined in Section 9.6(c).
"ASSIGNMENT AND ACCEPTANCE": an Assignment and Acceptance, substantially in
the form of Exhibit D.
"ASSIGNOR": as defined in Section 9.6(c).
"BENEFITED LENDER": as defined in Section 9.7(a).
"BOARD": the Board of Governors of the Federal Reserve System of the United
States (or any successor).
"BORROWER": as defined in the preamble hereto.
"BORROWING DATE": any Business Day specified by the Borrower as a date on
which the Borrower requests the relevant Lenders to make Loans hereunder.
"BUSINESS": as defined in Section 3.17(b).
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close,
PROVIDED, that with respect to notices and determinations in connection with,
and payments of principal and interest on, Eurodollar Loans, such day is also a
day for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"CAPITAL LEASE": any lease of property (whether real, personal or mixed) by
a Person as lessee which, in conformity with GAAP, is accounted for as a capital
lease on the balance sheet of such Person.
"CAPITAL LEASE OBLIGATIONS": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as Capital
Leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing.
"CASH EQUIVALENTS": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by S&P or P-1 by Moody's, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more
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4
than 30 days, with respect to securities issued or fully guaranteed or insured
by the United States government; (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's; (f) securities with maturities of six
months or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition; or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"CD ASSESSMENT RATE": for any day as applied to any ABR Loan, the annual
assessment rate in effect on such day that is payable by a member of the Bank
Insurance Fund maintained by the Federal Deposit Insurance Corporation (the
"FDIC") classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss. 327.4 (or any successor provision) to the FDIC (or any successor) for
the FDIC's (or such successor's) insuring time deposits at offices of such
institution in the United States.
"CD RESERVE PERCENTAGE": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board as in effect
from time to time) in respect of new non-personal time deposits in Dollars
having a maturity of 30 days or more.
"CITRUS PARK": the community center located in Tampa, Florida.
"CLOSING DATE": the date on which the conditions precedent set forth in
Section 4.1 shall have been satisfied, which date shall not be later than
January 25, 2001.
"CODE": the Internal Revenue Code of 1986, as amended from time to time.
"COLLATERAL": all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"COMMITMENT": as to any Lender, the obligation of such Lender to make loans
to the Borrower from time to time hereunder in a principal amount not to exceed
the amount set forth under the heading "Commitment" opposite such Lender's name
on Schedule 1.1A. The original aggregate amount of the Commitments is
$1,250,000,000.
"COMMITMENT FEE RATE": 0.35% per annum.
"COMMON SHARES": as defined in the recitals hereto.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated, that
is under common control with any Group Member within the meaning of Section 4001
of ERISA or is part of a group that includes any Group Member and that is
treated as a single employer under Section 414 of the Code.
"COMPLIANCE CERTIFICATE": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.
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5
"CONDUIT LENDER": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument,
subject to the consent of the Administrative Agent and the Borrower (which
consent shall not be unreasonably withheld); PROVIDED, that the designation by
any Lender of a Conduit Lender shall not relieve the designating Lender of any
of its obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to
its Conduit Lender, and PROVIDED, FURTHER, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to Section 2.12, 2.13, 2.14 or
9.5 than the designating Lender would have been entitled to receive in respect
of the extensions of credit made by such Conduit Lender or (b) be deemed to have
any Commitment.
"CONFIDENTIAL INFORMATION MEMORANDUM": the Confidential Information
Memorandum dated October 2000 and furnished to certain Lenders.
"CONTINUING DIRECTORS": the directors of Hexalon on the Closing Date, after
giving effect to the Merger and the other transactions contemplated hereby, and
each other director, if, in each case, such other director's nomination for
election to the board of directors of Hexalon is recommended by at least 66-2/3%
of the then Continuing Directors.
"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.
"COPLEY PLACE": the urban mixed use development located in Boston,
Massachusetts.
"DEFAULT": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"DISPOSITION": with respect to any property, any sale, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; PROVIDED,
HOWEVER, that a Disposition shall not include any such transaction solely
between Loan Parties or in connection with the mortgaging or other transfer of a
Property as security for any permitted Secured Mortgage Indebtedness). The terms
"DISPOSE" and "DISPOSED OF" shall have correlative meanings.
"DOCUMENTATION AGENT": as defined in the preamble hereto.
"DOLLARS and "$": dollars in lawful currency of the United States.
"DOMESTIC SUBSIDIARY": any Subsidiary of RNA organized under the laws of
any jurisdiction within the United States.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, 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 human health or the environment,
as now or may at any time hereafter be in effect.
"EQUIPMENT": equipment which is personal property used in connection with
the maintenance of any Property.
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"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"EURODOLLAR BASE RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate screen (or otherwise on such screen),
the "EURODOLLAR BASE RATE" shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which is based
upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula:
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR 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).
"EVENT OF DEFAULT": any of the events specified in Section 7, PROVIDED that
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"EXCLUDED FOREIGN SUBSIDIARY": any Foreign Subsidiary in respect of which
either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would,
in the good faith judgment of the Borrower, result in adverse tax consequences
to the Borrower.
"EXCLUDED SUBSIDIARY": RNA Abbey, Inc., HRE Kravco III, Inc. or any of
their respective Subsidiaries or any Subsidiary of the Borrower (other than Head
Acquisition) or any other Subsidiary that is prohibited from becoming a
Guarantor without the consent of a joint venture partner or lender.
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal
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7
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for the day of such
transactions received by The Chase Manhattan Bank from three federal funds
brokers of recognized standing selected by it.
"FOREIGN SUBSIDIARY": any Subsidiary of RNA that is not a Domestic
Subsidiary.
"FLORIDA MALL": the regional mall located in Orlando, Florida.
"FUNDING OFFICE": the office of the Administrative Agent specified in
Section 9.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United States as in
effect from time to time, except that for purposes of Section 6.1, GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the most recent audited
financial statements referred to in Section 3.1(b). In the event that any
"Accounting Change" (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Borrower and the Administrative Agent agree to enter
into negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the financial condition of the Group Members shall be
the same after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Hexalon Entities, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred. "Accounting Changes" refers to changes in accounting
principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants or, if applicable, the SEC.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"GROUP MEMBERS": the collective reference to the Borrower, the Guarantors
and their respective Subsidiaries.
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and the Guarantors,
substantially in the form of Exhibit A.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"), any
obligation of (a) the guaranteeing person or (b) another Person (including 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 OBLIGATIONS")
of any other third Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, including 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
<PAGE>
8
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. 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.
"GUARANTORS": each Subsidiary of RNA other than the Borrower, any Excluded
Subsidiary and any Excluded Foreign Subsidiary.
"HEAD ACQUISITION": as defined in the preamble hereto.
"HEAD LLC": as defined in the preamble hereto.
"HEDGE AGREEMENTS": all derivatives, swaps, caps or collar agreements or
similar arrangements dealing with interest rates, currency exchange rates or
commodities, and all other obligations documented under a master agreement in a
form published by the International Swap Dealers Association or similar
agreement.
"HEXALON": as defined in the preamble hereto.
"HEXALON AFFILIATES": the collective reference to Head LLC and its members.
"HEXALON ENTITIES": the collective reference to Hexalon, the Hexalon
Affiliates and Head Acquisition.
"IMPROVEMENTS": all buildings, fixtures, structures, parking areas,
landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with any Group Member
and (c) any items of personal property.
"INDEBTEDNESS": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation value of all
redeemable preferred Capital Stock of such Person where the redemption of such
Capital Stock is required to occur or, at the election of the holder thereof,
may occur within one year of the date of such determination, (h) all Guarantee
Obligations of
<PAGE>
9
such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation, and
(j) for the purposes of Sections 6.1 and 7(e) only, all net obligations, if any,
of such Person in respect of Hedge Agreements. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
Indebtedness shall not include any indebtedness of Loan Parties to other Loan
Parties or to Affiliates so long as, in the case of indebtedness to Affiliates,
such indebtedness is unsecured and subordinated to the repayment in full of the
Obligations.
"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.
"INTELLECTUAL PROPERTY": the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to sue at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest Period,
(c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period, and
(d) as to any Loan, the date of any repayment or prepayment made in respect
thereof.
"INTEREST PERIOD": as 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, 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, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business 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:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business 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 Business Day;
(ii) the Borrower may not select an Interest Period that would extend
beyond the date final payment is due on the Loans;
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10
(iii) any Interest Period that begins on the last Business 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 Business Day of a calendar month; and
(iv) 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.
"INVESTMENTS": as defined in Section 6.6.
"JOINT VENTURES": any partnerships, limited liability companies, joint
ventures, trusts, associations or corporations held or owned by any Group Member
that are not wholly owned by such Group Member and/or other Group Members.
"LENDER AFFILIATE": (a) any Affiliate of any Lender, (b) any Person that is
administered or managed by any Lender and that is engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business and (c) with respect to any Lender
which is a fund that invests in commercial loans and similar extensions of
credit, any other fund that invests in commercial loans and similar extensions
of credit and is managed or advised by the same investment advisor as such
Lender or by an Affiliate of such Lender or investment advisor.
"LENDERS": as defined in the preamble hereto; PROVIDED, that unless the
context otherwise requires, each reference herein to the Lenders shall be deemed
to include any Conduit Lender.
"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 any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing, but excluding rights of first
refusal or similar rights and inchoate liens on partnership interests or similar
interests under documents governing Joint Ventures or holdings therein).
"LOAN": any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": this Agreement, the Security Documents and the Notes.
"LOAN PARTIES": each Group Member that is a party to a Loan Document.
"MAINPLACE": the regional mall located in Santa Ana, California.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
Transaction, (b) the business, property, operations, condition (financial or
otherwise) or prospects of the Group Members taken as a whole or (c) 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 asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"MERGER": as defined in the recitals hereto.
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11
"MERGER AGREEMENT": as defined in the recitals hereto.
"MERGER CREDIT AGREEMENT": means that Merger Credit Agreement to be entered
into among Hexalon, the Hexalon Affiliates, the Borrower., the several parties
lenders thereto and The Chase Manhattan Bank, as administrative agent.
"MERGER DOCUMENTATION": collectively, the Merger Agreement and all
schedules, exhibits and annexes thereto and all side letters and agreements
affecting the terms thereof or entered into in connection therewith.
"MOODY'S": Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": in connection with any Disposition, the proceeds
thereof in the form of cash and Cash Equivalents (including any such proceeds
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Disposition, net of (i) attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset that is the subject of such Disposition (other than any Lien pursuant
to a Security Document), and (ii) other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or reasonably estimated
to be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements).
"NON-EXCLUDED TAXES": as defined in Section 2.13(a).
"NON-U.S. LENDER": as defined in Section 2.13(d).
"NOTES": the collective reference to any promissory note evidencing Loans.
"OAKBROOK CENTER": the regional mall located in Oak Brook, Illinois.
"OBLIGATIONS": the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender (or, in the case of Specified Hedge
Agreements, any affiliate of any Lender), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, any Specified Hedge Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
"OFFER TO PURCHASE": as defined in the recitals hereto.
"OLD ORCHARD CENTER": the regional mall located in Skokie, Illinois.
<PAGE>
12
"OTHER TAXES": any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"PARTICIPANT": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).
"PERMITTED LINE OF BUSINESS": as defined in Section 6.13.
"PERSON": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"PHEASANT LANE MALL": the regional mall located in Nashua, New Hampshire.
"PHEASANT LANE MORTGAGE": the participating mortgages with respect to the
Pheasant Lane Mall.
"PLAN": at a particular time, any employee benefit plan that is covered by
Title IV of ERISA and/or Section 412 of the Code and/or Section 302 of ERISA and
in respect of which any Group Member or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069 or Section
4212(c) of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PREFERRED SHARES": as defined in the recitals hereto.
"PRO FORMA BALANCE SHEET": as defined in Section 3.1(a).
"PROJECTIONS": as defined in Section 5.2(c).
"PROPERTY": any facility or property owned, leased or operated by any Group
Member or any Joint Venture.
"REAL PROPERTY": all of the present and future right, title and interest
(including, without limitation, any leasehold estate) in (i) any plots, pieces
or parcels of land, (ii) any Improvements of every nature whatsoever (the rights
and interests described in clauses (i) and (ii) above being the "Premises"),
(iii) all easements, rights of way, gores of land or any lands occupied by
streets, ways, alleys, passages, sewer rights, water courses, water rights and
powers, and public places adjoining such land, and any other interests in
property constituting appurtenances to the Premises, or which hereafter shall in
any way belong, relate or be appurtenant thereto, (iv) all hereditaments, gas,
oil, minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in, on or
benefiting the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in clauses (iii) and (iv) above.
"RECOVERY EVENT": any settlement of or payment in respect of any property
or casualty insurance claim or any condemnation proceeding relating to any asset
of any Group Member or any Joint Venture.
<PAGE>
13
"REGISTER": as defined in Section 9.6(d).
"REGULATION U": Regulation U of the Board as in effect from time to time.
"REIT": a domestic trust or corporation that qualifies as a real estate
investment trust under the provisions of Sections 856, ET SEQ. of the Code.
"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(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"REQUIRED LENDERS": at any time, the holders of more than 66 2/3% of the
sum of (a) the aggregate unpaid principal amount of the Loans then outstanding
and (b) the aggregate amount of the unutilized Commitments then in effect.
"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": the chief executive officer, president or chief
financial officer of the relevant Group Member, but in any event, with respect
to financial matters, the chief financial officer of the relevant Group Member.
"RESTRICTED PAYMENTS": as defined in Section 6.5.
"RNA": as defined in the recitals hereto.
"SEC": the Securities and Exchange Commission, any successor thereto and
any analogous Governmental Authority.
"SECURED MORTGAGE INDEBTEDNESS": any Indebtedness secured by a mortgage on
any Real Property.
"SECURITY DOCUMENTS": the collective reference to the Guarantee and
Collateral Agreement and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"SHARES": as defined in the recitals hereto.
"SINGLE EMPLOYER PLAN": any Plan that is covered by Title IV of ERISA, but
that is not a Multiemployer Plan.
"SOLVENT": when used with respect to any Person, means that, as of any date
of determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing
<PAGE>
14
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"S&P": Standard & Poor's Ratings Services.
"SPECIFIED HEDGE AGREEMENT": any Hedge Agreement (a) entered into by any
Loan Party and any Lender or Lender Affiliate and (b) that has been designated
by the relevant Lender and such Loan Party, by written notice to the
Administrative Agent, as a Specified Hedge Agreement. The designation of any
Hedge Agreement as a Specified Hedge Agreement shall not create in favor of such
Lender or Lender Affiliate any rights in connection with the management or
release of any Collateral or of the obligations of any Loan Party under the
Guarantee and Collateral Agreement. A Specified Hedge Agreement shall not cease
to be a Specified Hedge Agreement as a result of a Lender assigning or having
repaid and terminated all of its Loans and Commitments.
"SUBSIDIARY": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of RNA.
"SYNDICATION AGENT": as defined in the preamble hereto.
"SYNTHETIC PURCHASE AGREEMENT": any agreement pursuant to which any Group
Member is or may become obligated to make (a) any payment in connection with the
purchase by any third party from a Person other than a Group Member of any
Capital Stock of any Group Member or any Indebtedness referred to in Section 6.7
or (b) any payment (except as otherwise expressly permitted by Section 6.5 or
6.7) the amount of which is determined by reference to the price or value at any
time of any such Capital Stock or Indebtedness; PROVIDED, that no phantom stock
or similar plan providing for payments only to current or former directors,
officers or employees of any Group Member (or to their heirs or estates) shall
be deemed to be a Synthetic Purchase Agreement.
"TARGET": as defined in the recitals hereto.
"TENDER OFFER": as defined in the recitals hereto.
"TENDER OFFER DOCUMENTATION": (i) the Offer to Purchase, (ii) related
offering circular, letter of transmittal and notice of guaranteed delivery,
(iii) all documents filed by or on behalf of the Borrower or its Affiliates with
the U.S. Securities Exchange Commission, any stock exchange or other regulatory
authority in connection with the Tender Offer and (iv) all amendments,
modifications or supplements to any of the foregoing.
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15
"TERMINATION DATE": the date that is the earlier of the date that is six
months after the Closing Date and the date of the consummation of the Merger.
"TERM LOAN PERCENTAGE": the percentage which the aggregate principal amount
of such Lender's Loans then outstanding constitutes of the aggregate principal
amount of the Loans then outstanding.
"TRANSACTION": the Tender Offer, the Merger and the refinancings of certain
indebtedness of USC L.P.
"TRANSFEREE": any Assignee or Participant.
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
"UNIT VOTING SHARES": as defined in the recitals hereto.
"UNITED STATES": the United States of America.
"USC L.P.": as defined in the recitals hereto.
"WATER TOWER PLACE": the mixed use development located in Chicago,
Illinois.
"WHOLLY OWNED SUBSIDIARY GUARANTOR": any Guarantor that is at least 99%
owned directly or indirectly by RNA.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when
used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to any Group Member 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, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation", (iii) the word "incur" shall be construed to mean incur,
create, issue, assume, become liable in respect of or suffer to exist (and the
words "incurred" and "incurrence" shall have correlative meanings), (iv) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights, and (v) references to agreements or
other Contractual Obligations shall, unless otherwise specified, be deemed to
refer to such agreements or Contractual Obligations as amended, supplemented,
restated or otherwise modified from time to time.
(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>
16
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 COMMITMENTS. Each Lender severally agrees to make Loans to the Borrower
from time to time during the period from the Closing Date to and including the
Termination Date in an aggregate principal amount up to but not exceeding the
amount of the Commitment of such Lender. The Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.6.
2.2 PROCEDURE FOR BORROWING. The Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative
Agent prior to 12:00 Noon, New York City time, one Business Day prior to the
anticipated Closing Date) requesting that the Lenders make the Loans on the
Closing Date and specifying the amount to be borrowed. The Loans made on the
Closing Date shall initially be ABR Loans and, unless otherwise agreed by the
Administrative Agent in its sole discretion, no Loan may be converted into or
continued as a Eurodollar Loan having an Interest Period in excess of one month
prior to the date that is 30 days after the Closing Date. Upon receipt of such
notice the Administrative Agent shall promptly notify each Lender thereof. Not
later than 12:00 Noon, New York City time, on the Closing Date each Lender shall
make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Loan or Loans to be made by such
Lender. The Administrative Agent shall credit the account of the Borrower on the
books of such office of the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the Lenders in immediately
available funds.
2.3 REPAYMENT OF LOANS. The Borrower shall repay all outstanding Loans on
the Termination Date.
2.4 OPTIONAL PREPAYMENTS. The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent at least two Business
Days prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of ABR Loans, which notice shall specify the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans or ABR
Loans; PROVIDED, that if a Eurodollar Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 2.14. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant 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 accrued interest to such
date on the amount prepaid. Partial prepayments of Loans shall be in an
aggregate principal amount of at least $1,000,000.
2.5 COMMITMENT FEES, ETC. (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 date hereof to the Termination Date, computed at
the Commitment Fee Rate on the average daily unused amount of the Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each November, February and May and on the
Termination Date, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates from time to time agreed to in writing by the Borrower
and the Administrative Agent.
2.6 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect from
time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior 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
<PAGE>
17
from time to time to convert ABR Loans to Eurodollar Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election (which notice shall specify the length of the initial Interest
Period therefor), PROVIDED that no ABR Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Lenders have determined in its or their
sole discretion not to permit such conversions. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrower giving
irrevocable 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 when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuations, and PROVIDED, FURTHER, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
2.7 LIMITATIONS ON EURODOLLAR TRANCHES. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto,
the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to at least $5,000,000 and (b) no more than
ten Eurodollar Tranches shall be outstanding at any one time.
2.8 INTEREST RATES AND PAYAMENT 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 ABR Loan shall bear interest at a rate per annum equal to the ABR
plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section PLUS 3% and (ii) if all or a portion of any interest payable on
any Loan or any commitment 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 a rate per annum equal to the rate
then applicable to ABR Loans PLUS 3%, in each case, with respect to clauses (i)
and (ii) above, from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
PROVIDED that interest accruing pursuant to paragraph (c) of this Section shall
be payable from time to time on demand.
2.9 COMPUTATION OF INTEREST AND FEES. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
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18
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest 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. The
Administrative Agent shall deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.8(a).
2.10 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 the Required
Lenders that the Eurodollar Rate or the Eurodollar Base Rate, as the case may
be, determined or to be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders or Lender (as conclusively certified
by such Lenders or Lender) of making or maintaining their or its affected Loans
or Loan during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (i) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (ii) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (iii) any outstanding Eurodollar Loans shall
be converted, on the last day of the then-current Interest Period, to ABR 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 Loans to Eurodollar Loans.
2.11 PRO RATA TREATMENT AND PAYMENTS. (a) Each payment by the Borrower on
account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made PRO RATA according to the respective Term Loan Percentages
of the Lenders.
(b) 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.
Amounts prepaid on account of the Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New
York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, 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. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless
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19
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(d) 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 share 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 the Administrative Agent may,
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 at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans, on
demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by
the Borrower prior to the date of any payment due to be made by the Borrower
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
PRO RATA shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days after such due
date, the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall be
deemed to limit the rights of the Administrative Agent or any Lender against the
Borrower.
2.12 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 or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.13 and changes in the
rate of tax on the overall net income of such Lender);
(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 that is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
<PAGE>
20
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, 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.
(b) If any Lender becomes entitled to claim any additional amounts pursuant
to this paragraph, 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.
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, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction; PROVIDED that the Borrower shall not be required to
compensate a Lender pursuant to this paragraph for any amounts incurred more
than six months prior to the date that such Lender notifies the Borrower of such
Lender's intention to claim compensation therefor; and PROVIDED FURTHER that, if
the circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.13 TAXES. (a) All payments made by the Borrower under this Agreement
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 other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("NON-EXCLUDED TAXES") or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, 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 and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, PROVIDED, HOWEVER, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the
<PAGE>
21
time such Lender becomes a party to this Agreement, except to the extent that
such Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such Non-Excluded
Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other 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 the relevant
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 or Other 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.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (a "NON-U.S. LENDER") shall deliver to the
Borrower and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit F and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, PROVIDED that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.14 INDEMNITY. The Borrower agrees to indemnify each Lender for, and to
hold each Lender harmless from, any loss or expense that 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
<PAGE>
22
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 of or conversion from Eurodollar Loans 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 that 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 that 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) that 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. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.15 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.12 or 2.13(a) with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; PROVIDED, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and
PROVIDED, FURTHER, that nothing in this Section shall affect or postpone any of
the obligations of the Borrower or the rights of any Lender pursuant to Section
2.12 or 2.13(a).
2.16 REPLACEMENT OF LENDERS. The Borrower shall be permitted to replace any
Lender that (a) requests reimbursement for amounts owing pursuant to Section
2.12 or 2.13(a), or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; PROVIDED that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.15 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.12 or 2.13(a), (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 2.14 if any Eurodollar Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 9.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (viii) until such
time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.12 or 2.13(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each Hexalon Entity and the Borrower hereby
jointly and severally represent and warrant to the Administrative Agent and each
Lender that:
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23
3.1 FINANCIAL CONDITION. (a) The projected PRO FORMA consolidated balance
sheet of the Group Members as at November 1, 2000 (including the assumptions
thereto) (the "PRO FORMA BALANCE SHEET"), copies of which have heretofore been
furnished to each Lender, has been prepared giving effect (as if such events had
occurred on such date) to (i) the consummation of the Merger, (ii) the Loans to
be made on the Closing Date and the use of proceeds thereof, (iii) the loans to
be made under the Merger Credit Agreement on the date of the consummation of the
Merger and (iv) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Borrower as of the date of delivery thereof, and
presents fairly on a PRO FORMA basis the estimated financial position of the
Group Members as at November 1, 2000 assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of Hexalon as at December 31,
1998 and December 31, 1999 and the related consolidated statements of income and
of cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from Arthur Andersen LLP, present fairly
the consolidated financial condition of Hexalon and its Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of Hexalon as at June 30, 2000, and the related unaudited
consolidated statements of income and cash flows for the six-month period ended
on such date, present fairly the consolidated financial condition of Hexalon and
its Subsidiaries as at such date, and the consolidated results of its operations
and its consolidated cash flows for the six-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 the
aforementioned firm of accountants and disclosed therein). No Group Member has
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph. During the period
from December 31, 1999 to and including the date hereof there has been no
Disposition by Hexalon and its Subsidiaries, taken as a whole, of any material
part of its business or property.
(c) The audited consolidated balance sheets of the Target as at December
31, 1998 and December 31, 1999 and the related consolidated statements of income
and of cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from KPMG LLP, present fairly the
consolidated financial condition of the Target and its Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Target as at June 30, 2000, and the related unaudited
consolidated statements of income and cash flows for the six-month period ended
on such date, present fairly the consolidated financial condition of the Target
and its Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the six-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 the aforementioned firm of accountants and disclosed
therein). During the period from December 31, 1999 to and including the date
hereof there has been no Disposition by the Target and its Subsidiaries, taken
as a whole, of any material part of its business or property.
3.2 NO CHANGE. Since the date of the Pro Forma Balance Sheet, there has
been no development or event that has had or could reasonably be expected to
have a Material Adverse Effect.
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24
3.3 EXISTENCE; COMPLIANCE WITH LAW. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the 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 corporation and in 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 except to the extent that the
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect 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,
reasonably be expected to have a Material Adverse Effect.
3.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Loan Party has the
power and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to obtain
extensions of credit hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the extensions of credit on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the Merger and the extensions of credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the other Loan Documents, except (i) consents, authorizations, filings
and notices that have been obtained or made and are in full force and effect and
(ii) the filings referred to in Section 3.19. Each Loan Document has been duly
executed and delivered on behalf of each Loan Party a party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party a party
thereto, enforceable against each such Loan Party 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 this Agreement
and the other Loan Documents, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of any Group Member and will not result in, or require, the creation
or imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation (other than under this Agreement or any other Loan
Document) applicable to any Group Member could reasonably be expected to have a
Material Adverse Effect.
3.6 LITIGATION. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of any
Group Member, threatened by or against any Group Member or against any of 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) that could
reasonably be expected to have a Material Adverse Effect.
3.7 NO DEFAULT. No Group Member is in default under or with respect to any
of its Contractual Obligations in any respect that could reasonably be expected
to have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
3.8 OWNERSHIP OF PROPERTY; LIENS. Each Group Member has 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 none of such
property is subject to any Lien except as permitted by Section 6.2.
<PAGE>
25
3.9 INTELLECTUAL PROPERTY. Each Group Member owns, or is licensed to use,
all Intellectual Property necessary for the conduct of its business as currently
conducted. No material claim has been asserted and is pending by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does any Group Member know of
any valid basis for any such claim. The use of Intellectual Property by each
Group Member does not infringe on the rights of any Person in any material
respect.
3.10 TAXES. Each Group Member has filed or caused to be filed all Federal,
state and other material tax returns that 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 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 relevant Group Member); no tax Lien
has been filed, and, to the knowledge of each Group Member, no claim is being
asserted, with respect to any such tax, fee or other charge.
3.11 FEDERAL REGULATIONS. No part of the proceeds of any Loans, and no
other extensions of credit hereunder, will be used for "buying" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect in any
manner that violates the provisions of the Regulations of the Board. 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-3 or FR Form U-1, as
applicable, referred to in Regulation U.
3.12 LABOR MATTERS. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against any Group Member pending or, to the knowledge of any
Group Member, threatened; (b) hours worked by and payment made to employees of
each Group Member have not been in violation of the Fair Labor Standards Act or
any other applicable Requirement of Law dealing with such matters; and (c) all
payments due from any Group Member on account of employee health and welfare
insurance have been paid or accrued as a liability on the books of the relevant
Group Member.
3.13 ERISA. Neither a Reportable Event nor an "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, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither any Group Member nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a liability under ERISA which would have a Material Adverse Effect, and
neither any Group Member nor any Commonly Controlled Entity would become subject
to any liability which would have a Material Adverse Effect under ERISA if any
such Group Member 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. No
Responsible Officer of any Group Member has knowledge of any Multiemployer Plan
that is in Reorganization or Insolvent.
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3.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
3.15 SUBSIDIARIES. Except as disclosed to the Administrative Agent by the
Borrower in writing from time to time after the Closing Date, (a) Schedule 3.15
sets forth the name and jurisdiction of incorporation of each Subsidiary and, as
to each such Subsidiary, the percentage of each class of Capital Stock owned by
any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors' qualifying shares and
options to acquire certain assets granted to a former investment advisor of
Hexalon) of any nature relating to any Capital Stock of any Group Member, except
as created by the Loan Documents.
3.16 USE OF PROCEEDS. The proceeds of the Loans shall be used to finance
the Tender Offer, to pay related fees and expenses and to refinance, to the
extent necessary, certain existing Indebtedness of Hexalon and USC L.P and their
respective Subsidiaries.
3.17 ENVIRONMENTAL MATTERS. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the Properties do not contain any Materials of Environmental
Concern in amounts or concentrations or under circumstances that
constitute a violation of, or could reasonably be expected to give rise to
liability under, any Environmental Law;
(b) no Group Member 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 Properties or the business operated by any
Group Member (the "BUSINESS"), nor does any Group Member have
knowledge or reason to believe that any such notice will be received or is
being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to
a location that 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 Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any applicable
Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of each Group Member, threatened in
writing, under any Environmental Law to which any Group Member is or
will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of any Group Member in connection with the
Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could reasonably be expected to
give rise to liability under Environmental Laws; and
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27
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or about the Properties or violation of any Environmental Law
with respect to the Properties or the Business.
3.18 ACCURACY OF INFORMATION, ETC. No statement or information contained in
this Agreement, any other Loan Document, the Confidential Information Memorandum
or any other document, certificate or statement furnished by or on behalf of any
Loan Party to the Administrative Agent or the Lenders, or any of them, for use
in connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The projections and PRO
FORMA financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Group Members to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to
be viewed as fact and that actual results during the period or periods covered
by such financial information may differ from the projected results set forth
therein by a material amount. As of the date hereof, the representations and
warranties contained in the Merger Documentation are true and correct in all
material respects. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and statements
furnished to the Administrative Agent and the Lenders for use in connection with
the transactions contemplated hereby and by the other Loan Documents.
3.19 SECURITY DOCUMENTS. The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Collateral Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule
3.19 in appropriate form are filed in the offices specified on Schedule 3.19,
the Guarantee and Collateral Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral and the proceeds thereof, as security for the Obligations (as
defined in the Guarantee and Collateral Agreement), in each case prior and
superior in right to any other Person (except, in the case of Collateral other
than Pledged Stock, Liens permitted by Section 6.2).
3.20 SOLVENCY. The Group Members, taken as a whole, are, and after giving
effect to the Merger and the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be and will continue to
be, Solvent.
3.21 CERTAIN DOCUMENTS. The Borrower has delivered to the Administrative
Agent a complete and correct copy of the Tender Offer Documentation and the
Merger Documentation, including any amendments, supplements or modifications
with respect to any of the foregoing.
3.22 REIT STATUS. Each of Hexalon and the Target qualifies as a REIT under
the Code.
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28
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO INITIAL EXTENSION OF CREDIT. The agreement of each Lender
to make the initial extension of credit requested to be made by it is subject to
the satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the following conditions precedent:
(a) CREDIT AGREEMENT; Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement or, in the
case of the Lenders, an Addendum, executed and delivered by the
Administrative Agent, each Hexalon Entity, the Borrower and each
Person listed on Schedule 1.1A, (ii) the Guarantee and Collateral
Agreement, executed and delivered by the Borrower and each Guarantor and
(iii) an Acknowledgement and Consent in the form attached to the
Guarantee and Collateral Agreement, executed and delivered by each Issuer
(as defined therein), if any, that is not a Loan Party.
In the event that any one or more Persons listed on Schedule 1.1A have
not executed and delivered an Addendum on the date scheduled to be the
Closing Date (each such Person being referred to herein as a "Non-Executing
Person"), the condition referred to in clause (i) above shall nevertheless
be deemed satisfied if on such date the Borrower and the Administrative
Agent shall have designated one or more Persons (the "Designated Lenders")
to assume, in the aggregate, all of the Commitments that would have been
held by the Non-Executing Persons (subject to each such Designated Lender's
consent and its execution and delivery of an Addendum). Schedule 1.1A shall
automatically be deemed to be amended to reflect the respective Commitments
of the Designated Lenders and the omission of the Non-Executing Persons as
Lenders hereunder.
(b) TENDER OFFER, ETC. The following transactions shall have been
consummated, in each case on terms and conditions reasonably satisfactory
to the Lenders:
(i) The Merger Agreement shall have been entered into among
RNA, Hexalon, the Borrower and the Target in a form satisfactory to
the Administrative Agent.
(ii) The Tender Offer shall have been consummated in accordance
with applicable law and pursuant to the Merger Agreement
(including that shares of the capital stock of the Target shall
have been tendered and purchased in the Tender Offer or shall
otherwise be owned by the Borrower upon the initial purchase in
the Tender Offer that are sufficient to assure approval of the
Merger), and no material provision thereof shall have been waived,
amended, supplemented or otherwise modified.
(iii) the Administrative Agent shall be reasonably satisfied with
the capital structure of each Loan Party, including as contemplated
by the Merger;
(iv) (A) the Administrative Agent shall have received
satisfactory evidence that USC L.P.'s existing revolving credit
facility shall have been terminated and all amounts thereunder
shall have been paid in full and (B) satisfactory arrangements
shall have been made for the termination of all Liens granted in
connection therewith.
(v) No shareholders rights plan or statutory provision that
would impede, limit or adversely affect the consummation of the
Tender Offer or the Merger in the proposed manner shall be in effect,
and any material conditions or requirements to or for the
consummation of the Tender Offer and the Merger (including
receipt of all necessary government and material third party
approvals for the Tender Offer and the Merger) shall have been
satisfied or shall be reasonably capable of being satisfied.
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29
(vi) The Borrower shall have executed and delivered to each
Lender a Purpose Statement on Form U-1 in form and substance
satisfactory to such Lender.
(vii) The documents filed publicly by the Borrower and the Target
in connection with the Tender Offer and the Merger shall have
been furnished to the Administrative Agent and shall be in
reasonably satisfactory form and substance to the Administrative
Agent.
(c) INDEBTEDNESS. The Borrower shall have no Indebtedness outstanding
as of the Closing Date other than in connection with the Loan Documents
and any intercompany indebtedness owed by the Hexalon Entities shall have
been amended in a satisfactory manner to the extent necessary to make
such indebtedness subordinated to the obligations of the Hexalon
Entities under the Guarantee and Collateral Agreement and to make
interest payable thereunder deferrable.
(d) PRO FORMA BALANCE SHEET; PROJECTIONS; FINANCIAL STATEMENTS. (1)
The Lenders shall have received (i) the Pro Forma Balance Sheet, (ii)
audited consolidated financial statements of Hexalon and its
Subsidiaries and the Target and its Subsidiaries for the 1998 and 1999
fiscal years and (iii) unaudited interim consolidated financial
statements of Hexalon and its Subsidiaries and the Target and its
Subsidiaries for each quarterly period ended subsequent to the date of
the latest applicable financial statements delivered pursuant to clause
(ii) of this paragraph as to which such financial statements are
available, and such financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of Hexalon and its Subsidiaries and the
Target and its Subsidiaries, as reflected in the financial statements or
projections contained in the Confidential Information Memorandum.
(2) The Lenders shall have received and be reasonably satisfied
with the financial projections (including the assumptions on which
such projections are based) for each of the Hexalon Entities and their
respective Subsidiaries, the other Guarantors and their Subsidiaries
and the Borrower and its Subsidiaries after giving effect to each of
the Tender Offer and the Merger and the financings contemplated
thereby.
(3) The Lenders shall have received and be reasonably satisfied
with the historical and projected operating statements and balance
sheets with respect to each parcel of real property owned or leased by
each of the Loan Parties.
(e) APPROVALS. All governmental and material third party approvals
necessary or, in the discretion of the Administrative Agent, advisable
in connection with the Transaction, the financing contemplated hereby
and the continuing operations of the Borrower and its Subsidiaries shall
have been obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or
otherwise impose adverse conditions on the Tender Offer, the Merger or
the financing thereof.
(f) LIEN SEARCHES. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where the
chief executive office or sole place of business of each of the
Borrower, the Hexalon Entities and the other material Loan Parties and
the Target and its Subsidiaries is located, and such search shall reveal
no liens on any of the assets of such Loan Parties except for Liens
permitted by Section 6.2 or discharged on or prior to the Closing Date
pursuant to documentation satisfactory to the Administrative Agent.
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30
(g) PARTNERSHIP AGREEMENTS. The Administrative Agent shall have
received and be reasonably satisfied with the partnership agreement of
the Borrower and the form of the partnership agreement for USC L.P. to
be in effect upon consummation of the Merger, which partnership
agreements shall, in any event, provide for the Borrower's ability to
sell, refinance and distribute cash flow from USC L.P.'s properties
(with sole exception being the prohibition of the sale of the following
properties: Water Tower Place, Mainplace, Copley Place and Old Orchard
Center).
(h) DILIGENCE. The Administrative Agent shall be satisfied in all
respects with its due diligence investigation of the Target and its
Subsidiaries (including, without limitation, as it relates to the
Target's Joint Ventures and the assignability of contracts thereunder).
(i) FEES. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and expenses
of legal counsel), on or before the Closing Date. All such amounts will
be paid with proceeds of Loans made on the Closing Date and will be
reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.
(j) CLOSING CERTIFICATE. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments.
(k) LEGAL OPINIONS. The Administrative Agent shall have received
the following executed legal opinions:
(i) the legal opinion of Arnall Golden & Gregory, LLP, counsel
to the Borrower and its Subsidiaries, substantially in the form of
Exhibit E-1;
(ii) the legal opinion of Winston & Strawn, special counsel to
the Borrower and its Subsidiaries, substantially in the form of
Exhibit E-2; and
(iii) to the extent consented to by the relevant counsel, each
legal opinion, if any, delivered in connection with the Merger
Agreement, accompanied by a reliance letter in favor of the Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(l) PLEDGED STOCK; STOCK POWERS; PLEDGED NOTES. The Administrative
Agent shall have received (i) the certificates representing the shares
of Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof.
(m) FILINGS, REGISTRATIONS AND RECORDINGS. Each document (including
any Uniform Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with
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31
respect to Liens expressly permitted by Section 6.2), shall be in proper
form for filing, registration or recordation.
(n) SOLVENCY CERTIFICATE. The Administrative Agent shall have
received a solvency certificate from the chief financial officer of
Hexalon.
4.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of each Lender to
make any extension of credit requested to be made by it on any date (including
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 any Loan Party in or pursuant to the Loan Documents
shall be true and correct 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) REGULATION U. The making of such extension of credit shall comply
with Regulation U.
Each borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower and each Hexalon Entity as of the date of such
extension of credit that the conditions contained in this Section 4.2 have
been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each Hexalon Entity and the Borrower hereby jointly and severally agree
that, so long as the Commitments remain in effect or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, each Hexalon Entity
and the Borrower shall and shall cause each of the Subsidiaries to:
5.1 FINANCIAL STATEMENTS. Furnish to the Administrative Agent (which shall
furnish to each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Group Members, a copy of the audited
consolidated balance sheet of the Group Members as at the end of such
year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative
form the figures for the previous year (excluding a comparison between
fiscal year 2000 and fiscal year 2001), reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by Arthur Andersen LLP or other
independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Group Members, the unaudited consolidated balance
sheet of the Group Members as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form the
figures for the previous year (excluding a comparison between any of
the first three quarters of fiscal year 2000 and fiscal year 2001),
certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments).
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32
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Administrative Agent
(which shall furnish to each Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified
in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's
knowledge, each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents to which it is a
party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) in the case of
quarterly or annual financial statements, a Compliance Certificate
containing all information and calculations necessary for determining
compliance by each Group Member with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year
of the Group Members, as the case may be;
(c) as soon as available, and in any event no later than 60 days (or
in the case of fiscal year 2000, 90 days) after the end of each fiscal
year of the Group Members, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance
sheet of the Group Members as of the end of the following fiscal year,
the related consolidated statements of projected cash flow, projected
changes in financial position and projected income and a description
of the underlying assumptions applicable thereto) (collectively, the
"PROJECTIONS"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
(d) no later than 10 Business Days prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification with respect to the Tender Offer Documentation
or the Merger Documentation;
(e) within five days after the same are sent, copies of all financial
statements and reports that any Group Member sends to the holders of
any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports that any Group Member may make to, or file with,
the SEC; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
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
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
<PAGE>
33
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the relevant Group Member.
5.4 MAINTENANCE OF EXISTENCE; COMPLIANCE. (a) (i) Preserve, renew and keep
in full force and effect its organizational existence and (ii) take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as
otherwise permitted by Section 6.3 and except, in the case of clause (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (b) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.5 MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted and (b) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. (a) 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 (b) 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 and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Group Members
with officers and employees of the Group Members and with their independent
certified public accountants.
5.7 NOTICES. Promptly give notice to the Administrative Agent (which shall
notify each Lender):
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) in
which the amount involved is $30,000,000 or more and not covered by
insurance, (ii) in which injunctive or similar relief is sought or
(iii) which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within
30 days after any Group Member knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a 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 any Group Member or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
<PAGE>
34
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the relevant
Group Member proposes to take with respect thereto.
5.8 ENVIRONMENTAL LAWS. (a) Comply in all material respects with, and use
reasonable efforts to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply in all material respects with and maintain, and use reasonable efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects 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 in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
5.9 ADDITIONAL COLLATERAL, ETC. (a) With respect to any Capital Stock or
any intercompany notes acquired after the Closing Date by any Group Member
(other than (x) any Capital Stock or intercompany notes described in paragraph
(b) or (c) below and (y) Capital Stock or intercompany notes acquired by any
Excluded Subsidiary or any Excluded Foreign Subsidiary) as to which the
Administrative Agent, for the benefit of the Lenders, does not have a perfected
Lien, unless prohibited by a Requirement of Law or Contractual Obligation,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a security interest in such property and
(ii) take all actions necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority security
interest in such Capital Stock and/or intercompany notes, including the filing
of Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent.
(b) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary) created or acquired (which, for the purposes of this paragraph (b),
shall include any existing Subsidiary that ceases to be an Excluded Foreign
Subsidiary) after the Closing Date by any Group Member (other than by any Group
Member that is an Excluded Subsidiary or an Excluded Foreign Subsidiary), unless
prohibited by a Requirement of Law or Contractual Obligation, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a perfected first priority security interest in the Capital Stock and
intercompany obligations of such new Subsidiary that is owned by any such Group
Member, (ii) deliver to the Administrative Agent the certificates representing
such Capital Stock, and any intercompany notes evidencing such obligations,
together with undated stock powers and endorsements, in blank, executed and
delivered by a duly authorized officer of the relevant Group Member, (iii)
except in the case of an Excluded Subsidiary (until it ceases to qualify as
such), cause such new Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement, (B) to take such actions necessary or advisable to grant
to the Administrative Agent for the benefit of the Lenders a perfected first
priority security interest in the Collateral described in the Guarantee and
Collateral Agreement with respect to such new Subsidiary, including the filing
of Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent and
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(C) to deliver to the Administrative Agent a certificate of such Subsidiary,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, and (iv) if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Excluded Foreign Subsidiary created or acquired
after the Closing Date by any Group Member (other than by any Group Member that
is an Excluded Subsidiary or an Excluded Foreign Subsidiary), promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by any such Group Member (provided that in no event
shall more than 66% of the total outstanding voting Capital Stock of any such
new Subsidiary be required to be so pledged), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the relevant Group Member, and take such other action as may be necessary or, in
the opinion of the Administrative Agent, desirable to perfect the Administrative
Agent's security interest therein, and (iii) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
5.10 REIT STATUS. In the case of each of Hexalon and the Target, maintain
its status as a REIT under the Code.
SECTION 6. NEGATIVE COVENANTS
Each Hexalon Entity and the Borrower hereby jointly and severally agree
that, so long as the Commitments remain in effect or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, each Hexalon Entity
and the Borrower shall not, and shall not permit any of the Subsidiaries to,
directly or indirectly:
6.1 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to exist
any Indebtedness, except (a) Indebtedness under this Agreement and the other
Loan Documents, (b) fees and expenses incurred in connection with the
Transaction, (c) debt outstanding on the date hereof and listed on Schedule 6.1
and any refinancings, refundings, renewals or extensions thereof (without
shortening the maturity thereof or increasing the principal amount thereof) and
(d) in connection with the securitization of Florida Mall; PROVIDED that the Net
Cash Proceeds from any such securitization are promptly applied to prepay the
Loans in the following manner: FIRST, to ABR Loans and, SECOND, to Eurodollar
Loans; and such prepayment shall be accompanied by accrued interest to the date
of such prepayment in the amount prepaid.
6.2 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, whether now owned or hereafter acquired, except:
(a) Liens for taxes not yet due or that are being contested in good
faith by appropriate proceedings, PROVIDED that adequate reserves with
respect thereto are maintained on the books of the relevant Group
Member in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that
are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
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36
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of any
Group Member;
(f) Liens with respect to Capital Leases of Equipment entered into in
the ordinary course of business of the Group Members pursuant to which
the aggregate Indebtedness under such Capital Leases does not exceed
$500,000 for any Property;
(g) Liens created pursuant to the Security Documents;
(h) Liens securing permitted Secured Mortgage Indebtedness that is
non-recourse (exclusive of normal and customary carve-outs) to any
Loan Party; and
(i) Liens the aggregate outstanding principal amount of the
Indebtedness secured thereby on all properties does not exceed
$10,000,000 at any one time.
6.3 FUNDAMENTAL CHANGES. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) (i) any Subsidiary may be merged or consolidated with or into the
Borrower (PROVIDED that the Borrower shall be the continuing or
surviving corporation); (ii) any Guarantor may be merged or
consolidated with or into any other Guarantor; or (iii) any Subsidiary
of USC L.P. may be merged or consolidated with or into USC L.P.
(PROVIDED that USC L.P. shall be the continuing or surviving entity)
or with or into any other Subsidiary of USC L.P. (PROVIDED that USC
L.P.'s direct or indirect equity interest in the surviving Subsidiary
shall not be less than its direct or indirect equity interest in the
non-surviving Subsidiary;
(b) (i) any Subsidiary may Dispose of all or substantially all of its
assets to the Borrower (upon voluntary liquidation or otherwise); (ii)
any Guarantor may Dispose of all or substantially all of its assets to
any other Guarantor (upon voluntary liquidation or otherwise); (iii)
any Subsidiary of USC L.P. may Dispose of all or substantially all of
its assets to USC L.P. or to any other Subsidiary of USC L.P.
(PROVIDED that USC L.P.'s direct or indirect equity interest in the
Subsidiary receiving the assets shall not be less than its direct or
indirect equity interest in the Subsidiary disposing the assets) (in each
case, upon voluntary liquidation or otherwise); or (iv) any Subsidiary may
Dispose of all or substantially all of its assets pursuant to a Disposition
permitted by Section 6.4;
6.4 DISPOSITION OF PROPERTY. Dispose of any of its property, whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
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37
(b) the sale of inventory or the leasing of Property in the ordinary
course of business;
(c) Dispositions permitted by Section 6.3(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Wholly Owned Subsidiary Guarantor;
(e) Dispositions of any assets (upon voluntary liquidation or
otherwise) by (i) any Subsidiary to the Borrower, (ii) any Guarantor
to any other Guarantor or (iii) any Subsidiary of USC L.P. to USC L.P.
or to any other Subsidiary of USC L.P. (PROVIDED that USC L.P.'s
direct or indirect equity interest in the Subsidiary receiving the assets
shall not be less than its direct or indirect equity interest in the
Subsidiary disposing the assets);
(f) the Disposition of any membership interest in William E. Simon &
Sons Realty Investment, LLC and Soma Simon, LLC; PROVIDED that the Net
Cash Proceeds from any such Disposition are promptly applied to prepay
the Loans in the following manner: FIRST, to ABR Loans and, SECOND, to
Eurodollar Loans; and such prepayment shall be accompanied by accrued
interest to the date of such prepayment in the amount prepaid.
(g) the Disposition of other property having a fair market value not
to exceed $10,000,000 in the aggregate;
6.5 RESTRICTED PAYMENTS. Make any Restricted Payment (other than to one or
more Hexalon Entities and their Subsidiaries). For purposes of this provision,
"Restricted Payment" means (x) any dividend or other distribution on any shares
of the Hexalon Entities' Capital Stock (except dividends payable solely in
shares of their respective Capital Stock or in rights to subscribe for or
purchase shares of such Capital Stock), or (y) any payment on account of the
purchase, redemption, retirement or acquisition (including merger consideration)
of (a) any shares of the Hexalon Entities' Capital Stock, or (b) any option,
warrant or other right to acquire shares of the Hexalon Entities' Capital Stock.
6.6 INVESTMENTS. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, or purchase
any Real Property or Property under construction from, any Person (all of the
foregoing, "INVESTMENTS"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) purchases or other acquisitions by the Borrower of Shares;
(d) intercompany Investments by any Group Member in (i) the Borrower,
(ii) any Person that, prior to such investment, is a Wholly Owned
Subsidiary Guarantor and (iii) USC L.P. or any of its Subsidiaries,
PROVIDED that any such Investment made in USC L.P. or any of its
Subsidiaries by the Borrower or any Hexalon Entity shall be lent as
intercompany debt, and not contributed as equity, and shall be evidenced by
an intercompany note that is pledged to the Administrative Agent, for the
benefit of the Lenders, under the Guarantee and Collateral Agreement;
(e) Investments in Joint Ventures,
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(f) Investments in Real Property;
(g) Investments in notes secured by mortgages on any Real Property
(other than Pheasant Lane Mall) of any Person;
(h) Investments in Property under construction.
6.7 OPTIONAL PAYMENTS AND MODIFICATIONS OF CERTAIN DEBT INSTRUMENTS;
SYNTHETIC PURCHASE AGREEMENTS. (a) Make or offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of or otherwise
optionally or voluntarily defease or segregate funds with respect to any Secured
Mortgage Indebtedness (other than (i) in connection with any refinancing of such
Secured Mortgage Indebtedness (PROVIDED that from and after any such refinancing
this Section 6.7 shall apply to the Indebtedness incurred in connection with
such refinancing), (ii) any repayment of such Secured Mortgage Indebtedness in
connection with the sale of any of the encumbered Real Property under contract
and (iii) any de minimis payments in connection with releases of Property); (b)
amend, modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of any Secured
Mortgage Indebtedness (other than any such amendment, modification, waiver or
other change that would extend the maturity or reduce the amount of any payment
of principal thereof or reduce the rate or extend any date for payment of
interest thereon); (c) amend, modify, waive or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of the preferred partnership units of USC L.P. (other than any such
amendment, modification, waiver or other change that (i) would extend the
scheduled redemption date or reduce the amount of any scheduled redemption
payment or reduce the rate or extend any date for payment of dividends thereon
and (ii) does not involve the payment of a consent fee); or (d) enter into or be
party to, or make any payment under, any Synthetic Purchase Agreement.
6.8 TRANSACTIONS WITH AFFILIATES. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than the Borrower and its Subsidiaries or any Wholly Owned Subsidiary
Guarantor) unless such transaction is (a) otherwise permitted under this
Agreement, (b) in the ordinary course of business of the relevant Group Member,
and (c) upon fair and reasonable terms no less favorable to the relevant Group
Member than it would obtain in a comparable arm's length transaction with a
Person that is not an Affiliate.
6.9 SALES AND LEASEBACKS. Enter into any arrangement with any Person
providing for the leasing by any Group Member of real or personal property that
has been or is to be sold or transferred by such Group Member to such Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of such Group Member.
6.10 CHANGES IN FISCAL PERIODS. Permit the fiscal year of any Group Member
to end on a day other than December 31 or change any Group Member's method of
determining fiscal quarters.
6.11 NEGATIVE PLEDGE CLAUSES. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of any Group Member
to create, incur, assume or suffer to exist any Lien upon any of its property or
revenues, whether now owned or hereafter acquired, other than (a) this Agreement
and the other Loan Documents, (b) any agreements governing any purchase money
Liens, Capital Lease Obligations or Secured Mortgage Indebtedness otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby) and (c) any agreement governing
Liens on Citrus Park in effect on the Closing Date.
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6.12 CLAUSES RESTRICTING DISTRIBUTIONS. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of (a)
any Subsidiary of the Borrower or any Guarantor to (i) make Restricted Payments
in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or such Guarantor or any other Subsidiary of
the Borrower or such Guarantor, (ii) make loans or advances to, or other
Investments in, the Borrower or such Guarantor or any other Subsidiary of the
Borrower or such Guarantor or (iii) transfer any of its assets to the Borrower
or such Guarantor or any other Subsidiary of the Borrower or such Guarantor or
(b) any Hexalon Entity to (i) pay any Indebtedness owed to the Borrower, (ii)
make loans or advances to, or other Investments in, the Borrower or (iii)
transfer any of its assets to the Borrower, except in either case for such
encumbrances or restrictions existing under or by reason of (x) any restrictions
existing under the Loan Documents and (y) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Capital Stock
or assets of such Subsidiary.
6.13 LINES OF BUSINESS. Enter into any business, either directly or through
any Subsidiary, except for those businesses in which the Group Members are
engaged on the date of this Agreement (after giving effect to the Merger) or
that are reasonably related thereto (each, a "PERMITTED LINE OF BUSINESS"); and,
in the case of the Borrower, (a) hold any assets other than Capital Stock of
Head Acquisition, cash, and intercompany promissory notes,(b) have any
liabilities other than liabilities under this Agreement and fees and expenses in
connection with the Transaction or (c) engage in any business other than (i)
owning Capital Stock of Head Acquisition and activities incidental or related
thereto, (ii) acting as the Borrower hereunder and pledging the Capital Stock of
Head Acquisition owned by it to the Administrative Agent, for the benefit of the
Lenders, pursuant to the Guarantee and Collateral Agreement and (iii) lending
certain proceeds hereof to USC L.P. in accordance with Section 6.6 on the date
hereof for the purpose of repaying certain existing indebtedness of USC L.P; and
in the case of Head Acquisition, (a) hold any assets other than Capital Stock of
the Target, cash, and intercompany promissory notes,(b) have any liabilities
other than liabilities under this Agreement and fees and expenses in connection
with the Transaction or (c) engage in any business other than (i) owning Capital
Stock of the Target and activities incidental or related thereto and (ii)
pledging the Capital Stock of the Target owned by it to the Administrative
Agent, for the benefit of the Lenders, pursuant to the Guarantee and Collateral
Agreement.
6.14 AMENDMENTS TO TENDER DOCUMENTS AND MERGER DOCUMENTS. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the indemnities and licenses furnished to any Group Member
pursuant to the Tender Offer Documentation or the Merger Documentation such that
after giving effect thereto such indemnities or licenses shall be materially
less favorable to the interests of the Loan Parties or the Lenders with respect
thereto or (b) otherwise amend, supplement or otherwise modify the terms and
conditions of the Tender Offer Documentation or the Merger Documentation or any
such other documents except for any such amendment, supplement or modification
that (i) becomes effective after the Closing Date and (ii) could not reasonably
be expected to have a Material Adverse Effect.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan or any other amount payable hereunder or under any
other Loan Document, within five days after any such interest or other
amount becomes due in accordance with the terms hereof; or
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(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that 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 inaccurate in any material respect on or
as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 5.4(a) (with
respect to the Borrower only), Section 5.6(a) or Section 6 of this
Agreement or Sections 6.4 and 6.6(b) of the Guarantee and Collateral
Agreement; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30
days after notice to the Borrower from the Administrative Agent or the
Required Lenders; or
(e) any Group Member shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but
excluding the Loans and any Indebtedness to a Loan Party) on the
scheduled or original due date with respect thereto; or (ii) default
in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the
case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; PROVIDED, that a default, event or condition
described in clause (i), (ii) or (iii) of this paragraph (e) shall not
at any time constitute an Event of Default unless, at such time, one
or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred
and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $10,000,000 (or, in
the case of Secured Mortgage Indebtedness that is non-recourse
(exclusive of normal and customary carve-outs) to any Loan Party,
$100,000,000); or
(f) (i) any Group Member 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 any Group Member shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Group Member any case, proceeding or other
action of a nature referred to in clause (i) above that (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 any Group Member 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 that results in the entry of an order for
any such relief that shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the
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41
entry thereof; or (iv) any Group Member 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) any Group Member shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (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 any Group Member 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) any Group Member 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,
could, in the sole judgment of the Required Lenders, reasonably be
expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any
Group Member involving in the aggregate a liability (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $30,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, to
be in full force and effect, or any Loan Party or any Affiliate of any
Loan Party shall so assert, or any 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
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force
and effect or any Loan Party or any Affiliate of any Loan Party shall so
assert; or
(k) (i) RNA shall cease to have the power to vote or direct the
voting of securities having a majority of the ordinary voting power for
the election of directors of each of the Hexalon Entities (determined on
a fully diluted basis); (ii) RNA shall cease to own of record and
beneficially an amount of common stock of each of the Hexalon Entities
equal to at least 80% of the amount of common stock of each of the
Hexalon Entities owned by RNA of record and beneficially as of the
Closing Date; (iii) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), excluding RNA, shall become, or obtain
rights (whether by means or warrants, options or otherwise) to become,
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than 20% of the
outstanding common stock of any of the Hexalon Entities; (iv) the board
of directors of Hexalon shall cease to consist of a majority of
Continuing Directors; (v) the Hexalon Entities shall cease to own and
control, of record and beneficially, directly, 100% of each class of
outstanding Capital Stock of the Borrower free and clear of all Liens
(except Liens created by the Guarantee and Collateral Agreement); or
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(l) Hexalon or the Target shall fail to maintain its status as a REIT
for federal income tax purposes;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, the following action may be taken:
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 (with accrued interest thereon) and all other
amounts owing under this Agreement 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 by the Borrower.
SECTION 8. THE AGENTS
8.1 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.
8.2 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.
8.3 EXCULPATORY PROVISIONS. Neither any Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) 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 to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party 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 Agents 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 any Loan Party a party thereto to perform its obligations hereunder or
thereunder. The Agents 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 any Loan Party.
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43
8.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument,
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 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 (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. 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 (or, if so specified by this Agreement, all 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.
8.5 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 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 (or, if so specified by this Agreement, all Lenders);
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.
8.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any 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 Loan Parties and their
affiliates 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 any 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
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, 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 any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
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44
8.7 INDEMNIFICATION. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (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 such Aggregate Exposure
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 that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such 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 such 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 that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such 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.
8.8 AGENT IN ITS INDIVIDUAL CAPACITY. Each Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Agent were not an Agent. With respect to its
Loans made or renewed by it, each 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 an Agent, and the terms "Lender" and "Lenders"
shall include each Agent in its individual capacity.
8.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower. 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 (unless an Event of Default shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), 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. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 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.
8.10 DOCUMENTATION AGENT AND SYNDICATION AGENT. Neither the Documentation
Agent nor the Syndication Agent shall have any duties or responsibilities
hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the
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45
provisions of this Section 9.1. The Required Lenders and each Loan Party to the
relevant Loan Document may, or, with the written consent of the Required
Lenders, the Administrative Agent and each Loan Party party to the relevant Loan
Document may, from time to time, (a) enter into 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 Loan Parties 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, HOWEVER, that no
such waiver and no such amendment, supplement or modification shall (i) forgive
the principal amount or extend the final scheduled date of maturity of any Loan,
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 written
consent of each Lender directly affected thereby; (ii) eliminate or reduce the
voting rights of any Lender under this Section 9.1 without the written consent
of such Lender; (iii) reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the Collateral or release all or
substantially all of the Guarantors from their obligations under this Agreement
and the Guarantee and Collateral Agreement, in each case without the written
consent of all Lenders; (iv) amend, modify or waive any provision of Section
2.11 without the written consent of the Required Lenders; or (v) amend, modify
or waive any provision of Section 8 without the written consent of the
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 Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position 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; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
For the avoidance of doubt, this Agreement may be amended (or amended and
restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrower (a) to add one or more additional credit facilities to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "ADDITIONAL EXTENSIONS OF CREDIT") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Loans and the
accrued interest and fees in respect thereof and (b) to include appropriately
the Lenders holding such credit facilities in any determination of the Required
Lenders.
9.2 NOTICES. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered, or three Business Days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower, each Hexalon Entity and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
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46
Borrower: 909 North Michigan Avenue
Suite 1500
Chicago, Illinois 60611
Attention: Daniel S. Weaver
Telecopy: 312-915-2001
Telephone: 312-915-2000
with a copy to: General Counsel
with a copy to: Arnall Golden & Gregory, LLP
2800 One Atlantic Center
Atlanta, Georgia 30309
Attention: James E. Dorsey, Esq.
Telecopy: 404-873-8609
Telephone: 404-873-8608
Hexalon Entities: 909 North Michigan Avenue
Suite 1500
Chicago, Illinois 60611
Attention: Daniel S. Weaver
Telecopy: 312-915-2001
Telephone: 312-915-2000
with a copy to: General Counsel
Administrative 270 Park Avenue
Agent: New York, New York 10017
Attention: John Mix
Telecopy: 212-270-3513
Telephone: 212-270-9562
with a copy to: Loan Agency Services
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Telecopy: 212-552-5701
Telephone: 212-552-7400
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
9.3 NO WAIVER; CUMULATIVE REMEDIES. 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.
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47
9.4 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 and other extensions of credit hereunder.
9.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable 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 the reasonable fees and
disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted
to the Borrower prior to the Closing Date (in the case of amounts to be paid on
the Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (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 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, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that 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 and their
respective officers, directors, employees, affiliates, agents and controlling
persons (each, an "INDEMNITEE") 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 the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the Properties and the reasonable
fees and expenses of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against any Loan Party under any Loan Document
(all the foregoing in this clause (d), collectively, the "INDEMNIFIED
LIABILITIES"), PROVIDED, that the Borrower shall have no obligation hereunder to
any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, each Hexalon Entity and the Borrower
agree not to assert and to cause their respective Subsidiaries not to assert,
and hereby waive and agree to cause their respective Subsidiaries to waive, all
rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section 9.5 shall be payable not later than 10 days after
written demand therefor. Statements payable by the Borrower pursuant to this
Section 9.5 shall be submitted to Daniel S. Weaver, Chief Financial Officer
(Telephone No. 312-915-2000) (Telecopy No. 312-915-2001), at the address of the
Borrower set forth in Section 9.2, or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Administrative
Agent. The agreements in this Section 9.5 shall survive repayment of the Loans
and all other amounts payable hereunder.
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48
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Hexalon Entities, the Lenders, the Administrative Agent, all future holders of
the Loans 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 other than any Conduit Lender may, without the consent of
the Borrower, in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a "PARTICIPANT")
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. 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. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Loans or
any fees payable hereunder, or postpone the date of the final maturity of the
Loans, in each case to the extent subject to such participation. The Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, PROVIDED that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 9.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14
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
2.13, 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.
(c) Any Lender other than any Conduit Lender (an "ASSIGNOR") may, in
accordance with applicable law, at any time and from time to time assign to any
Lender or any Lender Affiliate or, with the consent of the Borrower and the
Administrative Agent (which, in each case, shall not be unreasonably withheld or
delayed), to an additional bank, financial institution or other entity (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, executed
by such Assignee, such Assignor and any other Person whose consent is required
pursuant to this paragraph, and delivered to the Administrative Agent for its
acceptance and recording in the Register; PROVIDED that, unless otherwise agreed
by the Borrower and the Administrative Agent, no such assignment to an Assignee
(other than any Lender or any Lender Affiliate) shall be in an aggregate
principal amount of less than $5,000,000, except in the case of an assignment of
all of a Lender's interests under this Agreement. For purposes of the proviso
contained in the preceding sentence, the amount described therein shall be
aggregated in respect of each Lender and its Lender Affiliates, if any. Any such
assignment shall be ratable as between this Agreement and the Merger Credit
Agreement. 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
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49
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment and/or Loans as
set forth therein, and (y) the Assignor 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 of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto). Notwithstanding any provision of this Section 9.6,
the consent of the Borrower shall not be required for any assignment that occurs
when an Event of Default shall have occurred and be continuing. Notwithstanding
the foregoing, any Conduit Lender may assign at any time to its designating
Lender hereunder without the consent of the Borrower or the Administrative Agent
any or all of the Loans it may have funded hereunder and pursuant to its
designation agreement and without regard to the limitations set forth in the
first sentence of this Section 9.6(c).
(d) The Administrative Agent shall, on behalf of the Borrower, maintain at
its address referred to in Section 9.2 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 the 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, each
other Loan Party, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Loans and any
Notes evidencing the Loans recorded therein for all purposes of this Agreement.
Any assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance,
and thereupon one or more new Notes shall be issued to the designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
9.6(c), together with payment to the Administrative Agent of a registration and
processing fee of $4,000, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) record the information contained therein
in the Register on the effective date determined pursuant thereto.
(f) For avoidance of doubt, the parties to this Agreement acknowledge that
the provisions of this Section 9.6 concerning assignments relate only to
absolute assignments and that such provisions do not prohibit assignments
creating security interests, including any pledge or assignment by a Lender to
any Federal Reserve Bank in accordance with applicable law.
(g) The Borrower, upon receipt of written notice from the relevant Lender,
agrees to issue Notes to any Lender requiring Notes to facilitate transactions
of the type described in paragraph (f) above.
(h) Each Hexalon Entity, the Borrower, each Lender and the Administrative
Agent hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit Lender;
PROVIDED, however, that each Lender designating any Conduit Lender hereby agrees
to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
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50
9.7 ADJUSTMENTS; SET-OFF. (a) Except to the extent that this Agreement
expressly provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "BENEFITED LENDER") shall,
at any time after the Loans and other amounts payable hereunder shall
immediately become due and payable pursuant to Section 7, receive any payment of
all or part of the Obligations owing to it, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; PROVIDED, HOWEVER,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to any Loan Party, any
such notice being expressly waived by each Loan Party party hereto to the extent
permitted by applicable law, upon any amount becoming due and payable by any
Loan Party hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the relevant Loan Party. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such setoff and application made by such Lender, PROVIDED that the failure
to give such notice shall not affect the validity of such setoff and
application.
9.8 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
9.9 SEVERABILITY. Any provision of this Agreement that 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.
9.10 INTEGRATION. This Agreement and the other Loan Documents represent the
entire agreement of the Hexalon Entities, the Borrower, the Administrative Agent
and the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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9.12 SUBMISSION TO JURISDICTION; WAIVERS. Each Hexalon Entity and the
Borrower hereby irrevocably and unconditionally:
(a) 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 New York, the courts of the United States for
the Southern District of New York, and appellate courts from any thereof;
(b) 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;
(c) 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
such Hexalon Entity or the Borrower, as the case may be, 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;
(d) 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
(e) 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.
9.13 ACKNOWLEDGEMENTS. Each Hexalon Entity and 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;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to such Hexalon Entity or 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 Hexalon Entities 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 Hexalon Entities, the Borrower and the
Lenders.
9.14 RELEASES OF GUARANTEES AND LIENS. (a) Notwithstanding anything to the
contrary contained herein or in any other Loan Document, the Administrative
Agent is hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender except as expressly required by Section 10.1)
to take any action requested by the Borrower having the effect of releasing any
Collateral or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has
been consented to in accordance with Section 10.1 or (ii) under the
circumstances described in paragraph (b) below.
<PAGE>
52
(b) At such time as the Loans, the Reimbursement Obligations and the other
obligations under the Loan Documents (other than obligations under or in respect
of Hedge Agreements) shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created by the Security Documents, and the Security
Documents and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Loan Party under the Security
Documents shall terminate, all without delivery of any instrument or performance
of any act by any Person.
9.15 CONFIDENTIALITY
. Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; PROVIDED that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any Lender Affiliate, (b) subject to
an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Hedge
Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates, (d) upon the request or demand of
any Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
9.16 WAIVERS OF JURY TRIAL. THE HEXALON ENTITIES, 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.
9.17 DELIVERY OF ADDENDA. Each initial Lender shall become a party to this
Agreement by delivering to the Administrative Agent an Addendum duly executed by
such Lender.
<PAGE>
53
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.
HEAD ACQUISITION, L.P.
By Hexalon Real Estate, Inc., its general partner
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
HEAD ACQUISITION CORP.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
HEXALON REAL ESTATE, INC.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
HEAD ACQUISITION, L.L.C.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
RODAMCO USA, INC.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
DETROIT INVESTMENTS, INC.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
745 FIFTH, INC.
<PAGE>
54
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
REALCO FIFTH, INC.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
RNA COAST INVESTMENTS, INC.
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
MOTOWN MALL LIMITED, INC.
By Motown Mall General, Inc., its general partner
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
NOVI MALL ASSOCIATES
By: /s/ Daniel S. Weaver
---------------------------------------------
Name: Daniel S. Weaver
Title:
THE CHASE MANHATTAN BANK, as Administrative
Agent and as a Lender
By: /s/ Tom Kozlark
---------------------------------------------
Name: Tom Kozlark
Title:
Bank of America, N.A., as Syndication Agent
and as a Lender
By: /s/ Renee Sampson
---------------------------------------------
Name: Renee Sampson
Title:
<PAGE>
55
Cooperatieve Centrale
Raiffeisen Boerenleenbank B.A.,
"Rabobank International", New York Branch,
as Documentation Agent and as a Lender
By: /s/ Tom Dawe
---------------------------------------------
Name: Tom Dawe
Title:
<PAGE>
LENDER ADDENDUM
The undersigned Lender (i) agrees to all of the provisions of the
Credit Agreement, dated as of November 2, 2000 (the "Credit Agreement"),
among Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc.,
Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast
Investments, Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head
Acquisition Corp., Head Acquisition, L.P. (the "Borrower"), the Lenders party
thereto, the Documentation Agent and Syndication Agent named therein and The
Chase Manhattan Bank, as Administrative Agent, and (ii) becomes a party
thereto, as a Lender, with obligations applicable to such Lender thereunder,
including, without limitation, the obligation to make extensions of credit to
the Borrower in an aggregate principal amount not to exceed the amount of its
Commitment as set forth opposite the undersigned Lender's name in Schedule
1.1A to the Credit Agreement, as such amount may be changed from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
Cooperatieve Centrale
Raiffeisen Boereenlenbank B.A.,
"Rabobank Nederland", New York Branch
By: /s/ Tomas Dawe
Name: Tomas Dawe
Title: V.P.
By: /s/ Edward Peyser
Name: Edward Peyser
Title: Executive Director
Dated as of November 2, 2000
<PAGE>
LENDER ADDENDUM
The undersigned Lender (i) agrees to all of the provisions of the
Credit Agreement, dated as of November 2, 2000 (the "Credit Agreement"),
among Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc.,
Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast
Investments, Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head
Acquisition Corp., Head Acquisition, L.P. (the "Borrower"), the Lenders party
thereto, the Documentation Agent and Syndication Agent named therein and The
Chase Manhattan Bank, as Administrative Agent, and (ii) becomes a party
thereto, as a Lender, with obligations applicable to such Lender thereunder,
including, without limitation, the obligation to make extensions of credit to
the Borrower in an aggregate principal amount not to exceed the amount of its
Commitment as set forth opposite the undersigned Lender's name in Schedule
1.1A to the Credit Agreement, as such amount may be changed from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
The Chase Manhattan Bank
By: /s/ Tomas Kozlark
Name: Tomas Kozlark
Title: V.P.
Dated as of November 2, 2000
<PAGE>
LENDER ADDENDUM
The undersigned Lender (i) agrees to all of the provisions of the
Credit Agreement, dated as of November 2, 2000 (the "Credit Agreement"),
among Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc.,
Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast
Investments, Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head
Acquisition Corp., Head Acquisition, L.P. (the "Borrower"), the Lenders party
thereto, the Documentation Agent and Syndication Agent named therein and The
Chase Manhattan Bank, as Administrative Agent, and (ii) becomes a party
thereto, as a Lender, with obligations applicable to such Lender thereunder,
including, without limitation, the obligation to make extensions of credit to
the Borrower in an aggregate principal amount not to exceed the amount of its
Commitment as set forth opposite the undersigned Lender's name in Schedule
1.1A to the Credit Agreement, as such amount may be changed from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement. Notwithstanding the foregoing, Bank One's
commitment in this Credit Agreement will not exceed $70,000,000.
Bank One, NA
By: /s/ Scott S. Solis
Name: Scott S. Solis
Title: Vice President
Dated as of November 2, 2000
<PAGE>
LENDER ADDENDUM
The undersigned Lender (i) agrees to all of the provisions of the
Credit Agreement, dated as of November 2, 2000 (the "Credit Agreement"),
among Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc.,
Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast
Investments, Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head
Acquisition Corp., Head Acquisition, L.P. (the "Borrower"), the Lenders party
thereto, the Documentation Agent and Syndication Agent named therein and The
Chase Manhattan Bank, as Administrative Agent, and (ii) becomes a party
thereto, as a Lender, with obligations applicable to such Lender thereunder,
including, without limitation, the obligation to make extensions of credit to
the Borrower in an aggregate principal amount not to exceed the amount of its
Commitment as set forth opposite the undersigned Lender's name in Schedule
1.1A to the Credit Agreement, as such amount may be changed from time to time
as provided in the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
Bank of America, N.A.
By: /s/ Renee Sampson
Name: Renee Sampson
Title: Vice President
Dated as of November 2, 2000
<PAGE>
Schedule 1.1A
<TABLE>
<CAPTION>
Lender Commitment
------ ----------
<S> <C>
The Chase Manhattan Bank $780,000,000
Bank of America, N.A. 200,000,000
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank
International", New York Branch 200,000,000
Bank One, NA 70,000,000
</TABLE>
<PAGE>
Exhibit A
===============================================================================
FORM OF
GUARANTEE AND COLLATERAL AGREEMENT
made by
HEXALON REAL ESTATE, INC.
HEAD ACQUISITION, L.L.C.
RODAMCO USA, INC.
DETROIT INVESTMENTS, INC.
745 FIFTH, INC.
REALCO FIFTH, INC.
RNA COAST INVESTMENTS, INC.
MOTOWN MALL LIMITED, INC.
NOVI MALL ASSOCIATES
HEAD ACQUISITION CORP.
HEAD ACQUISITION, L.P.,
certain of its Affiliates,
in favor of
THE CHASE MANHATTAN BANK
as Administrative Agent
Dated as of November __, 2000
===============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. DEFINED TERMS..........................................................................................1
1.1 DEFINITIONS............................................................................................1
1.2 OTHER DEFINITIONAL PROVISIONS..........................................................................4
SECTION 2. GUARANTEE..............................................................................................5
2.1 GUARANTEE..............................................................................................5
2.2 RIGHT OF CONTRIBUTION..................................................................................5
2.3 NO SUBROGATION.........................................................................................5
2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS..............................................6
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL...................................................................6
2.6 PAYMENTS...............................................................................................7
2.7 REINSTATEMENT..........................................................................................7
SECTION 3. GRANT OF SECURITY INTEREST.............................................................................7
SECTION 4. CERTIFICATED INTERESTS.................................................................................7
4.1 PLEDGED PARTNERSHIP INTERESTS..........................................................................7
4.2 PLEDGED LLC INTERESTS..................................................................................8
SECTION 5. REPRESENTATIONS AND WARRANTIES.........................................................................8
5.1 TITLE; NO OTHER LIENS..................................................................................8
5.2 PERFECTED FIRST PRIORITY LIENS.........................................................................8
5.3 CHIEF EXECUTIVE OFFICE.................................................................................8
5.4 PLEDGED SECURITIES.....................................................................................8
SECTION 6. COVENANTS..............................................................................................9
6.1 DELIVERY OF INSTRUMENTS AND CERTIFICATED SECURITIES....................................................9
6.2 PAYMENT OF OBLIGATIONS.................................................................................9
6.3 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION......................................9
6.4 CHANGES IN LOCATIONS, NAME, ETC........................................................................9
6.5 NOTICES...............................................................................................10
6.6 PLEDGED SECURITIES....................................................................................10
6.7 CREDIT AGREEMENT COVENANTS............................................................................11
SECTION 7. REMEDIAL PROVISIONS...................................................................................11
7.1 INVESTMENT PROPERTY...................................................................................11
7.2 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT....................................................12
7.3 APPLICATION OF PROCEEDS...............................................................................12
7.4 CODE AND OTHER REMEDIES...............................................................................12
7.5 REGISTRATION RIGHTS...................................................................................13
7.6 WAIVER; DEFICIENCY....................................................................................13
SECTION 8. THE ADMINISTRATIVE AGENT..............................................................................14
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
8.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC...........................................14
8.2 DUTY OF ADMINISTRATIVE AGENT..........................................................................15
8.3 EXECUTION OF FINANCING STATEMENTS.....................................................................15
8.4 AUTHORITY OF ADMINISTRATIVE AGENT.....................................................................15
SECTION 9. MISCELLANEOUS.........................................................................................16
9.1 AMENDMENTS IN WRITING.................................................................................16
9.2 NOTICES...............................................................................................16
9.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES...................................................16
9.4 ENFORCEMENT EXPENSES; INDEMNIFICATION.................................................................16
9.5 SUCCESSORS AND ASSIGNS................................................................................16
9.6 SET-OFF...............................................................................................16
9.7 COUNTERPARTS..........................................................................................17
9.8 SEVERABILITY..........................................................................................17
9.9 SECTION HEADINGS......................................................................................17
9.10 INTEGRATION..........................................................................................17
9.11 GOVERNING LAW........................................................................................17
9.12 SUBMISSION TO JURISDICTION; WAIVERS..................................................................17
9.13 ACKNOWLEDGMENTS......................................................................................18
9.14 ADDITIONAL GRANTORS..................................................................................18
9.15 RELEASES.............................................................................................18
9.16 WAIVER OF JURY TRIAL.................................................................................19
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule 1 Notice Addresses
Schedule 2 Pledged Securities
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive Offices of Grantors
Schedule 5 Grantors
</TABLE>
<PAGE>
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of November __, 2000,
made by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the "GRANTORS"), in favor of THE CHASE
MANHATTAN BANK as Administrative Agent for the banks and other financial
institutions (the "LENDERS") from time to time parties to the Credit Agreement,
dated as of November __, 2000 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among HEXALON REAL ESTATE, INC.,
HEAD ACQUISITION, L.L.C., RODAMCO USA, INC., DETROIT INVESTMENTS, INC., 745
FIFTH, INC., REALCO FIFTH, INC., RNA COAST INVESTMENTS, INC., MOTOWN MALL
LIMITED, INC., NOVI MALL ASSOCIATES, HEAD ACQUISITION CORP., HEAD ACQUISITION,
L.P. (the "BORROWER"), the Lenders, the Syndication Agent and the Documentation
Agent parties thereto and THE CHASE MANHATTAN BANK, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms are used herein as defined in the
New York UCC: Account, Certificated Security, Chattel Paper, General Intangibles
and Instruments.
The following terms shall have the following meanings:
"AGREEMENT": this Guarantee and Collateral Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
<PAGE>
2
"BORROWER OBLIGATIONS": the collective reference to the unpaid
principal of and interest on the Loans and all other obligations and
liabilities of the Borrower (including, without limitation, interest
accruing at the then applicable rate provided in the Credit Agreement after
the maturity of the Loans and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) to the
Agents or any Lender (or, in the case of any Specified Hedge Agreement, any
Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit Agreement,
this Agreement, the other Loan Documents, any Specified Hedge Agreement or
any other document made, delivered or given in connection with any of the
foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel that
are required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the
Administrative Agent as provided in Section 7.2.
"FOREIGN SUBSIDIARY": any Subsidiary of RNA organized under the laws
of any jurisdiction outside the United States of America.
"FOREIGN SUBSIDIARY VOTING STOCK": the voting Capital Stock of any
Foreign Subsidiary.
"GUARANTOR OBLIGATIONS": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2),
any other Loan Document to which such Guarantor is a party, or any
Specified Hedge Agreement to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel that are required to be
paid by such Guarantor pursuant to the terms of this Agreement or any other
Loan Document).
"GUARANTOR": the Grantors listed as "Guarantors" on SCHEDULE 5.
"INTERCOMPANY NOTE": any promissory note evidencing loans made by any
Pledgor to RNA or any of its Subsidiaries.
"INTERCOMPANY OBLIGATIONS": all obligations, whether constituting
General Intangibles or otherwise, owing to any Pledgor by any Affiliate of
such Pledgor.
"ISSUERS": the collective reference to each issuer of any Pledged
Securities or Pledged Proceeds.
"NEW YORK UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"OBLIGATIONS": (i) in the case of the Borrower and any other Pledgor
that is not also a Guarantor, the Borrower Obligations, and (ii) in the
case of each Pledgor that is also a Guarantor, its Guarantor Obligations.
<PAGE>
3
"PLEDGED LLC INTERESTS": in each case, whether now existing or
hereafter acquired, all of a Pledgor's right, title and interest in and to:
(i) any Issuer that is a limited liability company, but not any
of such Pledgor's obligations from time to time as a holder of
interests in any such Issuer (unless the Administrative Agent or its
designee, on behalf of the Administrative Agent, shall elect to become
a holder of interests in any such Issuer in connection with its
exercise of remedies pursuant to the terms hereof);
(ii) any and all moneys due and to become due to such Pledgor
now or in the future by way of a distribution made to such Pledgor in
its capacity as a holder of interests in any such Issuer or otherwise
in respect of such Pledgor's interest as a holder of interests in any
such Issuer;
(iii) any other property of any such Issuer to which such Pledgor
now or in the future may be entitled in respect of its interests in
any such Issuer by way of distribution, return of capital or
otherwise;
(iv) any other claim or right which such Pledgor now has or may
in the future acquire in respect of its interests in any such Issuer;
(v) the organizational documents of any such Issuer;
(vi) all certificates, options or rights of any nature
whatsoever that may be issued or granted by any such Issuer to such
Pledgor while this Agreement is in effect; and
(vii) to the extent not otherwise included, all Proceeds of any
or all of the foregoing.
"PLEDGED NOTES": all promissory notes listed on SCHEDULE 2, all
Intercompany Notes at any time issued to any Pledgor and all other
promissory notes issued to any Pledgor by any Affiliate of such Pledgor.
"PLEDGED PARTNERSHIP INTERESTS": in each case, whether now existing or
hereafter acquired, all of a Pledgor's right, title and interest in and to:
(i) any Issuer that is a partnership, but not any of such
Pledgor's obligations from time to time as a general or limited
partner, as the case may be, in any such Issuer (unless the
Administrative Agent or its designee, on behalf of the Administrative
Agent, shall elect to become a general or limited partner, as the case
may be, in any such Issuer in connection with its exercise of remedies
pursuant to the terms hereof);
(ii) any and all moneys due and to become due to such Pledgor
now or in the future by way of a distribution made to such Pledgor in
its capacity as a general partner or limited partner, as the case may
be, in any such Issuer or otherwise in respect of such Pledgor's
interest as a general partner or limited partner, as the case may be,
in any such Issuer;
(iii) any other property of any such Issuer to which such Pledgor
now or in the future may be entitled in respect of its interests as a
general partner or limited partner,
<PAGE>
4
as the case may be, in any such Issuer by way of distribution, return
of capital or otherwise;
(iv) any other claim or right which such Pledgor now has or may
in the future acquire in respect of its general or limited partnership
interests in any such Issuer;
(v) the partnership agreement or other organizational documents
of any such Issuer;
(vi) all certificates, options or rights of any nature
whatsoever that may be issued or granted by any such Issuer to such
Pledgor while this Agreement is in effect; and
(vii) to the extent not otherwise included, all Proceeds of any
or all of the foregoing.
"PLEDGED PROCEEDS": the reference to any Proceeds which have been
pledged pursuant to the Agreement.
"PLEDGED SECURITIES": the collective reference to the Pledged Notes
and the Pledged Stock, together with the Proceeds thereof.
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 2,
together with any other shares, stock certificates, options, interests or
rights of any nature whatsoever in respect of the Capital Stock of any
Person that may be issued or granted to, or held by, any Pledgor while this
Agreement is in effect including, in any event, the Pledged LLC Interests
and Pledged Partnership Interests.
"PLEDGORS": the Grantors listed as "Pledgors" on SCHEDULE 5.
"PROCEEDS": all "proceeds" as such term is defined in Section 9-306(1)
of the New York UCC and, in any event, shall include, without limitation,
all dividends, distributions or other income from the Pledged Securities,
collections thereon or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"RNA": Rodamco North America N.V.
"SECURITIES ACT": the Securities Act of 1933, as amended.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof," "herein",
"hereto" 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 and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Pledgor, shall refer to such
Pledgor's Collateral or the relevant part thereof.
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5
SECTION 2. GUARANTEE
2.1 GUARANTEE. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement the Borrower may be
free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Lender from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full and the Commitments are terminated.
2.2 RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent and the Lenders for the full
amount guaranteed by such Guarantor hereunder.
2.3 NO SUBROGATION. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower on
account of the Borrower Obligations are
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6
paid in full and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Borrower Obligations shall not have been paid in full, such amount shall be held
by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations may be rescinded and any of the Borrower Obligations continued, and
the Borrower Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released and the Credit Agreement and the other Loan Documents
and any other documents executed and delivered in connection therewith may, from
time to time, be amended, modified, supplemented or terminated, in whole or in
part and any collateral security, guarantee or right of offset at any time held
for the payment of the Borrower Obligations may be sold, exchanged, waived,
surrendered or released. Neither any Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Borrower Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 2 or acceptance
of the guarantee contained in this Section 2; the Borrower Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Borrower and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Borrower or any of the Guarantors
with respect to the Borrower Obligations. Each Guarantor understands and agrees
that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Borrower Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against the Administrative Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrower, any other Guarantor or any other Person or against
any collateral security or guarantee for the Borrower Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other Person or any such
<PAGE>
7
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Lender against any Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
2.6 PAYMENTS. Each Guarantor hereby guarantees that payments
hereunder will be paid to The Chase Manhattan Bank, as Administrative Agent,
without set-off or counterclaim in Dollars at their office located at 270 Park
Avenue, New York, New York 10017.
2.7 REINSTATEMENT. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
SECTION 3. GRANT OF SECURITY INTEREST
Each Pledgor hereby assigns and transfers to the Administrative Agent,
and hereby grants to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in, all of the following property now owned or at
any time hereafter acquired by such Pledgor or in which such Pledgor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "COLLATERAL"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Pledgor's Obligations:
(i) all Pledged Securities;
(ii) all Intercompany Obligations;
(iii) all books and records pertaining to the Collateral; and
(iv) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing, all collateral security and guarantees
given by any Person with respect to any of the foregoing and any
Instruments evidencing any of the foregoing.
Notwithstanding the foregoing, (i) this Agreement shall not constitute an
assignment or pledge of, or a grant of a security interest in or lien on, any
Collateral to the extent that such assignment, pledge or grant of a security
interest or lien with respect to such Collateral is prohibited by, constitutes a
breach of, or results in the termination of the terms of any contract,
agreement, instrument or indenture relating to such Collateral; PROVIDED that
the foregoing limitation shall not affect, limit, restrict or impair the grant
by any Pledgor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due or other right of
payment under any such contract, agreement, instrument or indenture, and (ii) in
no event shall more than 66% of the total outstanding Foreign Subsidiary Voting
Equity Interest of any Foreign Subsidiary be required to be pledged hereunder.
SECTION 4. CERTIFICATED INTERESTS
4.1 PLEDGED PARTNERSHIP INTERESTS. Concurrently with the delivery to
the Administrative Agent of any certificate representing any Pledged Partnership
Interests, the relevant Pledgor shall, if requested by the Administrative Agent,
deliver an undated power covering such certificate, duly executed in blank by
such Pledgor.
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8
4.2 PLEDGED LLC INTERESTS. Concurrently with the delivery to the
Administrative Agent of any certificate representing any Pledged LLC Interests,
the relevant Pledgor shall, if requested by the Administrative Agent, deliver an
undated power covering such certificate, duly executed in blank by such Pledgor.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Pledgor hereby represents and warrants
to the Agents and each Lender that:
5.1 TITLE; NO OTHER LIENS. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Lenders pursuant to
this Agreement and the other Liens permitted to exist on the Collateral by the
Credit Agreement, such Pledgor owns each item of the Collateral shown on
SCHEDULE 2 as owned by it free and clear of any and all Liens or claims of
others. No financing statement or other public notice with respect to all or any
part of the Collateral is on file or of record in any public office, except such
as have been filed in favor of the Administrative Agent, for the ratable benefit
of the Lenders, pursuant to this Agreement or as are permitted by the Credit
Agreement or for which releases have been tendered on the Closing Date.
5.2 PERFECTED FIRST PRIORITY LIENS. The security interests granted
pursuant to this Agreement (a) constitute valid perfected security interests in
all of the Collateral in favor of the Administrative Agent, for the ratable
benefit of the Lenders, as collateral security for such Pledgor's Obligations,
enforceable in accordance with the terms hereof against all creditors of such
Pledgor and any Persons purporting to purchase any Collateral from such Pledgor
and (b) are prior to all other Liens on the Collateral in existence on the date
hereof except for unrecorded Liens permitted by the Credit Agreement which have
priority over the Liens on the Collateral by operation of law.
5.3 CHIEF EXECUTIVE OFFICE. On the date hereof, such Pledgor's
jurisdiction of organization and the location of such Pledgor's chief executive
office or sole place of business are specified on SCHEDULE 4.
5.4 PLEDGED SECURITIES. (a) The shares of Pledged Stock pledged by
such Pledgor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer the Capital Stock of which is
pledged by such Pledgor or, in the case of Foreign Subsidiary Voting Stock, if
less, 66% of the outstanding Foreign Subsidiary Voting Stock of each relevant
Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Pledgor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
<PAGE>
9
SECTION 6. COVENANTS
Each Pledgor covenants and agrees that, from and after the date of
this Agreement until the Obligations shall have been paid in full and the
Commitments shall have terminated:
6.1 DELIVERY OF INSTRUMENTS AND CERTIFICATED SECURITIES. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Certificated Security, such Instrument or
Certificated Security issued to such Pledgor shall be immediately delivered to
the Administrative Agent, duly indorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement.
6.2 PAYMENT OF OBLIGATIONS. Such Pledgor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral pledged by it or in respect of income or profits therefrom,
as well as all claims of any kind (including, without limitation, claims for
labor, materials and supplies) against or with respect to the Collateral pledged
by it, except that no such charge need be paid if the amount or validity thereof
is currently being contested in good faith by appropriate proceedings, reserves
in conformity with GAAP with respect thereto have been provided on the books of
such Pledgor and such proceedings could not reasonably be expected to result in
the sale, forfeiture or loss of any material portion of the Collateral or any
interest therein.
6.3 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER
DOCUMENTATION. (a) Such Pledgor shall maintain the security interest in its
assets created by this Agreement as a perfected security interest having at
least the priority described in Section 5.2 and shall defend such security
interest against the claims and demands of all Persons whomsoever.
(b) Such Pledgor will furnish to the Administrative Agent and the
Lenders from time to time statements and schedules further identifying and
describing the assets and property of such Pledgor and such other reports in
connection therewith as the Administrative Agent may reasonably request, all in
reasonable detail.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of such Pledgor, such Pledgor
will promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Pledged Securities and any other relevant Collateral, taking
any actions necessary to enable the Administrative Agent to obtain "control"
(within the meaning of the applicable Uniform Commercial Code) with respect
thereto.
6.4 CHANGES IN LOCATIONS, NAME, ETC. Such Pledgor will not, except
upon prior written notice to the Administrative Agent:
(a) change its jurisdiction of organization or the location of its
chief executive office (other than a change of location of its chief executive
office within the same county) or sole place of business from that referred to
in Section 5.3; or
(b) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become misleading;
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10
unless within 30 days of the taking of any such actions, such Pledgor has
delivered to the Administrative Agent all additional executed financing
statements and other documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the security interests
provided for herein.
6.5 NOTICES. Such Pledgor will advise the Administrative Agent and
the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral pledged by it
which would adversely affect the ability of the Administrative Agent to exercise
any of its remedies hereunder; and
(b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral pledged by it or on the security interests created hereby.
6.6 PLEDGED SECURITIES. (a) If such Pledgor shall become entitled to
receive or shall receive any certificate (including, without limitation, any
certificate representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Pledgor shall accept the same as the agent of the Administrative
Agent and the Lenders, hold the same in trust for the Administrative Agent and
the Lenders and deliver the same forthwith to the Administrative Agent in the
exact form received, duly indorsed by such Pledgor to the Administrative Agent,
if required, together with an undated power covering such certificate duly
executed in blank by such Pledgor and with, if the Administrative Agent so
requests, signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Pledged Securities upon the liquidation or
dissolution of any Issuer shall be paid over to the Administrative Agent to be
held by it hereunder as additional collateral security for the Obligations, and
in case any distribution of capital shall be made on or in respect of the
Pledged Securities or any property shall be distributed upon or with respect to
the Pledged Securities pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security
interest in favor of the Administrative Agent, be delivered to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Pledged Securities shall be received by such
Pledgor, such Pledgor shall, until such money or property is paid or delivered
to the Administrative Agent, hold such money or property in trust for the
Lenders, segregated from other funds of such Pledgor, as additional collateral
security for the Obligations.
(b) Without the prior written consent of the Administrative Agent,
such Pledgor will not (i) vote to enable, or take any other action to permit,
any Issuer to issue any Capital Stock of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange for
any Capital Stock of any nature of any Issuer, except as permitted by the Credit
Agreement, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or
grant any option with respect to, the Pledged Securities or Proceeds thereof
(except pursuant to a transaction expressly permitted by the Credit Agreement),
(iii) create, incur or permit to exist any Lien, or any claim of any Person with
respect to, any of the Pledged Securities or Proceeds thereof, or any interest
therein, except for the security interests created by this Agreement or (iv)
enter into any agreement or undertaking restricting the right or ability of such
Pledgor or the Administrative Agent to sell, assign or transfer any of the
Pledged Securities hereunder or Proceeds thereof.
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(c) In the case of each Pledgor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
6.6(a) with respect to the Pledged Securities issued by it and (iii) the terms
of Sections 7.1(c) and 7.5 shall apply to it, MUTATIS MUTANDIS, with respect to
all actions that may be required of it pursuant to Section 7.1(c) or 7.5 with
respect to the Pledged Securities issued by it.
6.7 CREDIT AGREEMENT COVENANTS. Such Pledgor will and will cause each
of its Subsidiaries to comply with the provisions of Section 5 and Section 6 of
the Credit Agreement as they relate to such Pledgor and its Subsidiaries.
SECTION 7. REMEDIAL PROVISIONS
7.1 INVESTMENT PROPERTY. (a) Unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Pledgor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 7.1(b), each Pledgor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
organizational rights with respect to the Pledged Securities; PROVIDED, HOWEVER,
that no vote shall be cast or right exercised or other action taken which, in
the Administrative Agent's reasonable judgment, would impair the Collateral or
which would be inconsistent with or result in any violation of any provision of
the Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Pledgor or Pledgors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii)
any or all of the Pledged Securities shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, organizational and other rights
pertaining to such Pledged Securities at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Pledged Securities as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Securities upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the
organizational structure of any Issuer, or upon the exercise by any Pledgor or
the Administrative Agent of any right, privilege or option pertaining to such
Pledged Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Pledgor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(c) Each Pledgor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Pledgor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Pledgor, and each Pledgor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Administrative Agent.
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7.2 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT. If an Event
of Default shall occur and be continuing, all Proceeds received by any Pledgor
consisting of cash, checks and other near-cash items shall be held by such
Pledgor in trust for the Administrative Agent and the Lenders, segregated from
other funds of such Pledgor, and shall, forthwith upon receipt by such Pledgor,
be turned over to the Administrative Agent in the exact form received by such
Pledgor (duly indorsed by such Pledgor to the Administrative Agent, if
required). All Proceeds received by the Administrative Agent hereunder shall be
held by the Administrative Agent in a Collateral Account maintained under its
sole dominion and control. All Proceeds while held by the Administrative Agent
in a Collateral Account (or by such Pledgor in trust for the Administrative
Agent and the Lenders) shall continue to be held as collateral security for all
the Obligations and shall not constitute payment thereof until applied as
provided in Section 7.3.
7.3 APPLICATION OF PROCEEDS. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as the
Administrative Agent may elect, and any part of such funds which the
Administrative Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the
Administrative Agent to the Borrower or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full and the Commitments shall have
terminated shall be paid over to the Borrower or to whomsoever may be lawfully
entitled to receive the same.
7.4 CODE AND OTHER REMEDIES. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Pledgor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in any
Pledgor, which right or equity is hereby waived and released. Each Pledgor
further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Pledgor's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any
action taken by it pursuant to this Section 7.4, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(1)(c) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to
any Pledgor. To the extent permitted by applicable law, each Pledgor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Lender arising out of the
<PAGE>
13
exercise by them of any rights hereunder. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other
disposition.
7.5 REGISTRATION RIGHTS. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 7.4, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Pledgor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Pledgor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Pledgor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Pledgor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section 7.5 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Pledgor further agrees that a breach of any of the covenants contained in
this Section 7.5 will cause irreparable injury to the Administrative Agent and
the Lenders, that the Administrative Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 7.5 shall be specifically enforceable
against such Pledgor, and such Pledgor hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Credit Agreement.
7.6 WAIVER; DEFICIENCY. Each Pledgor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Pledgor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
<PAGE>
14
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC. (a)
Each Pledgor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Pledgor and in the name of such Pledgor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Pledgor hereby gives the Administrative Agent the power and right, on behalf of
such Pledgor, without notice to or assent by such Pledgor, to do any or all of
the following:
(i) in the name of such Pledgor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due in respect
of any Collateral and file any claim or take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such moneys
due in respect of any Collateral whenever payable;
(ii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iii) execute, in connection with any sale provided for in Section 7.4
or 7.5, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(iv) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3)
sign and indorse any notices and other documents in connection with any of
the Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other
right in respect of any Collateral; (5) defend any suit, action or
proceeding brought against such Pledgor with respect to any Collateral; (6)
settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate and (7) generally, sell,
transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the
Administrative Agent were the absolute owner thereof for all purposes, and
do, at the Administrative Agent's option and such Pledgor's expense, at any
time, or from time to time, all acts and things which the Administrative
Agent deems necessary to protect, preserve or realize upon the Collateral
and the Administrative Agent's and the Lenders' security interests therein
and to effect the intent of this Agreement, all as fully and effectively as
such Pledgor might do.
(b) Anything in this Section 8.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this Section 8.1(a) unless an Event of Default
shall have occurred and be continuing.
(c) If any Pledgor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, after
prior notice to such Pledgor, but without any
<PAGE>
15
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(d) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 8.1, together with interest
thereon at a rate per annum equal to the highest rate per annum at which
interest would then be payable on any category of past due ABR Loans under the
Credit Agreement, from the date of payment by the Administrative Agent to the
date reimbursed by the relevant Pledgor, shall be payable by such Pledgor to the
Administrative Agent on demand.
(e) Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
8.2 DUTY OF ADMINISTRATIVE AGENT. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely to
protect the Administrative Agent's and the Lenders' interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender to
exercise any such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Pledgor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
8.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Pledgor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Pledgor in such form and in such offices as the Administrative
Agent determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
8.4 AUTHORITY OF ADMINISTRATIVE AGENT. Each Pledgor acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Pledgors, 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 no Pledgor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
<PAGE>
16
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 9.1 of the Credit Agreement.
9.2 NOTICES. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 9.2 of the Credit Agreement; PROVIDED that any such
notice, request or demand to or upon any Grantor shall be addressed to such
Grantor at its notice address set forth on SCHEDULE 1.
9.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
9.4 ENFORCEMENT EXPENSES; INDEMNIFICATION. (a) Each Grantor agrees to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in collecting against such Grantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Grantor is a party,
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.
(b) Each Grantor agrees to pay, and to save the Administrative Agent
and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral.
(c) Each Grantor agrees to pay, and to save the Administrative Agent
and the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to Section 9.5 of the Credit
Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; PROVIDED
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
9.6 SET-OFF. Each Grantor hereby irrevocably authorizes the
Administrative Agent and each Lender at any time and from time to time while an
Event of Default pursuant shall have occurred
<PAGE>
17
and be continuing, without notice to such Grantor or any other Grantor, any such
notice being expressly waived by each Grantor, to set-off and appropriate and
apply any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Administrative Agent or
such Lender to or for the credit or the account of such Grantor, or any part
thereof in such amounts as the Administrative Agent or such Lender may elect,
against and on account of the obligations and liabilities of such Grantor to the
Administrative Agent or such Lender hereunder and claims of every nature and
description of the Administrative Agent or such Lender against such Grantor, in
any currency, whether arising hereunder, under the Credit Agreement, any other
Loan Document or otherwise, as the Administrative Agent or such Lender may
elect, whether or not the Administrative Agent or any Lender has made any demand
for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each Lender shall notify
such Grantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, PROVIDED that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender under this
Section 9.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent or such
Lender may have.
9.7 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
9.8 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.
9.9 SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
9.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 SUBMISSION TO JURISDICTION; WAIVERS. Each Grantor hereby
irrevocably and unconditionally:
(a) 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
<PAGE>
18
courts of the State of New York, the courts of the United States of America
for the Southern District of New York, and appellate courts from any
thereof;
(b) 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;
(c) 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 such
Grantor at its address referred to in Section 9.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) 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
(e) 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.
9.13 ACKNOWLEDGMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the Administrative
Agent and Lenders, 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 Grantors and the Lenders.
9.14 ADDITIONAL GRANTORS. Each Subsidiary of RNA that is required to
become a party to this Agreement pursuant to Section 5.9 of the Credit Agreement
shall become a Grantor for all purposes of this Agreement upon execution and
delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1
hereto.
9.15 RELEASES. (a) At such time as the Loans and the other Obligations
(other than Obligations in respect of Specified Hedge Agreements) shall have
been paid in full, the Commitments have been terminated, the Collateral shall be
released from the Liens created hereby, and this Agreement and all obligations
(other than those expressly stated to survive such termination) of the
Administrative Agent and each Grantor hereby shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Pledgors. At the request and sole
expense of any Pledgor following any such termination, the Administrative Agent
shall deliver to such Pledgor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Pledgor such documents as such
Pledgor shall reasonable request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Pledgor in a transaction permitted by the Credit Agreement,
then the Administrative Agent, at the request
<PAGE>
19
and sole expense of such Pledgor, shall execute and deliver to such Pledgor all
releases or other documents reasonably necessary or desirable for the release of
the Liens created hereby on such Collateral. At the request and sole expense of
the Borrower, a Grantor shall be released from its obligations hereunder (i) in
the event that all the Capital Stock of such Grantor shall be sold, transferred
or otherwise disposed of or (ii) upon such Grantor becoming an Excluded
Subsidiary, in each case in a transaction permitted by the Credit Agreement;
PROVIDED that the Borrower shall have delivered to the Administrative Agent, at
least ten Business Days prior to the date of the proposed release, a written
request for release identifying the relevant Grantor and the terms of the
transaction in reasonable detail, including the price thereof, if applicable,
and any expenses in connection therewith, together with a certification by the
Borrower stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.
9.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
<PAGE>
20
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
HEXALON REAL ESTATE, INC.
By:
----------------------------------
Name:
Title:
HEAD ACQUISITION, L.L.C.
By:
----------------------------------
Name:
Title:
RODAMCO USA, INC.
By:
----------------------------------
Name:
Title:
DETROIT INVESTMENTS, INC.
By:
----------------------------------
Name:
Title:
745 FIFTH, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
REALCO FIFTH, INC.
By:
----------------------------------
Name:
Title:
RNA COAST INVESTMENTS, INC.
By:
----------------------------------
Name:
Title:
MOTOWN MALL LIMITED, INC.
By Motown Mall General, Inc.,
its general partner
By:
----------------------------------
Name:
Title:
NOVI MALL ASSOCIATES
By:
----------------------------------
Name:
Title:
HEAD ACQUISITION, CORP.
By:
----------------------------------
Name:
Title:
HEAD ACQUISITION, L.P.
By Hexalon Real Estate, Inc.,
its general partner
By:
----------------------------------
Name:
Title:
<PAGE>
BELLWETHER PROPERTIES OF FLORIDA
(LIMITED)
By:
----------------------------------
Name:
Title:
HRE - COUNTRYSIDE, INC.
By:
----------------------------------
Name:
Title:
HRE - CLEARWATER, INC.
By:
----------------------------------
Name:
Title:
GREAT NORTHERN PARTNERSHIP
By:
----------------------------------
Name:
Title:
NORTH OLMSTED, INC.
By:
----------------------------------
Name:
Title:
MOTOWN MALL GENERAL, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
TLN LIMITED PARTNERSHIP
By:
----------------------------------
Name:
Title:
DETROIT PARTNERS LIMITED PARTNERSHIP
By:
----------------------------------
Name:
Title:
DETROIT PARTNERS II LIMITED PARTNERSHIP
By:
----------------------------------
Name:
Title:
MAPLEWOOD MALL ASSOCIATES LIMITED
PARTNERSHIP
By:
----------------------------------
Name:
Title:
HRE MAPLEWOOD, INC.
By:
----------------------------------
Name:
Title:
HRE MINNEAPOLIS, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
HRE NORTH STAR, INC.
By:
----------------------------------
Name:
Title:
HRE SAN ANTONIO, INC.
By:
----------------------------------
Name:
Title:
NORTH STAR MALL ASSOCIATES LIMITED
PARTNERSHIP
By:
----------------------------------
Name:
Title:
SOUTH PARK MALL LIMITED PARTNERSHIP
By:
----------------------------------
Name:
Title:
HRE - SOUTH PARK, INC.
By:
----------------------------------
Name:
Title:
HRE-CHARLOTTE, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
745 ASSOCIATES
By:
----------------------------------
Name:
Title:
RODAMCO PARTNERS
By:
----------------------------------
Name:
Title:
RNA-SI-SKS, LLC
By:
----------------------------------
Name:
Title:
RNA-SI, LLC
By:
----------------------------------
Name:
Title:
HRE ALTAMONTE, INC.
By:
----------------------------------
Name:
Title:
HRE DANBURY, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
HRE VALENCIA, INC.
By:
----------------------------------
Name:
Title:
HRE PARAMUS PARK, INC.
By:
----------------------------------
Name:
Title:
HRE NASHLAND, INC.
By:
----------------------------------
Name:
Title:
HRE TWELVE OAKS, INC.
By:
----------------------------------
Name:
Title:
HRE - PHEASANT LANE, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
SCHEDULE 1
NOTICE ADDRESSES
c/o Hexalon Real Estate, Inc.
950 East Paces Ferry Road
Suite 2275
Atlanta, Georgia 30326-1119
<PAGE>
SCHEDULE 2
DESCRIPTION OF PLEDGED SECURITIES
Pledged LLC Interests:
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------
Name of Limited
Pledgor Liability Company Type of Interest
-------------------------------------------------------------------------------
<S> <C> <C>
RNA Coast Investments, Inc RNA-SI, LLC 100% membership interest
RNA-SI-SKS, LLC 100% membership interest
Head Acquisition, LLC 7.8% membership interest
Rodamco USA, Inc. Head Acquisition, LLC 0.2% membership interest
Realco Fifth, Inc. Head Acquisition, LLC 23% membership interest
745 Fifth, Inc. Head Acquisition, LLC 23% membership interest
Detroit Investment, Inc. Head Acquisition, LLC 22% membership interest
Novi Mall Associates Head Acquisition, LLC 2% membership interest
Motown Mall Limited, Inc. Head Acquisition, LLC 22% membership interest
-------------------------------------------------------------------------------
</TABLE>
<PAGE>
Pledged Partnership Interests:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Name of
Pledgor Partnership Type of Interest
----------------------------------------------------------------------------------------------
<S> <C> <C>
HRE-Countryside, Inc. Bellwether Properties of Florida (Limited) 1% GP
HRE-Clearwater, Inc. Bellwether Properties of Florida (Limited) 99% LP
Hexalon Real Estate, Inc. Great Northern Partnership 83.34%
745 Associates 50%
Head Acquisition, L.P. 79% GP
Head Acquisition, LLC Head Acquisition, L.P. 21% LP
North Olmstead, Inc. Great Northern Partnership 16.66%
Detroit Partners Limited TLN Limited Partnership 59% GP
Partnership
Detroit Partners II Limited TLN Limited Partnership 36.9% Class A
Partnership
4.1% LP Class B
Motown Mall General, Inc. Novi Mall Associates 0.112%
Detroit Partners Limited Partnership 50% GP
Detroit Partners II Limited Partnership 50% LP
TLN Limited Partnership Novi Mall Associates 99.888%
Motown Mall Limited, Inc. Detroit Partners Limited Partnership 50% LP
Detroit Partners II Limited Partnership 50% LP
HRE Maplewood, Inc. Maplewood Mall Associates Ltd. 0.65% GP &
Partnership
0.35% LP
----------------------------------------------------------------------------------------------
<PAGE>
HRE Minneapolis, Inc. Maplewood Mall Associates Ltd. 99% LP
Partnership
HRE North Star, Inc. North Star Mall Associates Limited 0.35%GP
Partnership
0.65% LP
HRE San Antonio, Inc. North Star Mall Associates Limited 99% LP
Partnership
HRE-South Park, Inc. South Park Mall Limited 1% GP
Partnership
HRE-Charlotte, Inc. (N.C.) South Park Mall Limited Partnership 99% LP
Rodamco Partners 745 Associates 50%
745 Fifth, Inc. Rodamco Partners 50%
Realco Fifth, Inc. Rodamco Partners 50%
----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Pledged Stock:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Stock
Class of Certificate No. of
Pledgor Issuer Stock No. Shares
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hexalon Real Estate, Inc. HRE-Countryside, Inc. C 1 100
HRE-Clearwater, Inc. C 1 100
HRE-Maplewood, Inc. C 1 100
HRE Minneapolis, Inc. C 1 100
HRE North Star, Inc. C 1 1,000
HRE San Antonio, Inc. C 1 100
HRE South Park, Inc. (N.C.) C 1 1,000
HRE-Charlotte, Inc. (N.C.) C 1 1,000
HRE Finance, Inc. C 1 100
HRE Altamonte, Inc. C 1 100
HRE Danbury, Inc. C 1 100
HRE Valencia, Inc. C 1 1,000
HRE Paramus Park, Inc. C 1 100
HRE Nashland, Inc. C 1 100
HRE Twelve Oaks, Inc. C 1 1,000
HRE Pheasant Lane Store, C 1 1,000
Inc.
HRE-South Park, Inc. (Del.) C 2 1,000
Rodamco USA, Inc. North Olmsted, Inc. C 1 100
Detroit Investments, Inc. Motown Mall General, Inc. C 1 100
Head Acquisition, L.P. Head Acquisition Corp. C 1 100
Head Acquisition Corp. Urban Shopping Centers, Inc. C 140 14,585,849
C 130 19,472
C 139 2,119,406
C 138 4,083,677
----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Pledged Notes:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Pledgor/Payee Issuer Principal Amount
----------------------------------------------------------------------------------------------
<S> <C> <C>
HRE Finance, Inc. North Olmsted, Inc. $ 15,000,000.00
Great Northern Partnership $ 10,000,000.00
HRE Plano, Inc. $ 83,000,000.00
HRE West Town Associates, L.P. $ 71,750,000.00
South Park Mall Limited $300,000,000.00
Partnership
HRE Plano, Inc. $ 12,000,000.00
HRE Collin Creek, Inc. Hexalon Real Estate, Inc. $ 5,460,000.00
Hexalon Real Estate, Inc. Detroit Partners Limited $109,000,000.00
Partnership
Detroit Partners II Limited $ 60,000,000.00
Partnership
Detroit Partners II Limited $ 9,000,000.00
Partnership
Rodamco Partners $ 95,000,000.00
North Olmsted, Inc. $ 30,000,000.00
Head Acquisition, L.P. Hexalon Real Estate, Inc. $ 95,410,417.18
Hexalon Real Estate, Inc. $ 19,000,000.00
Urban Shopping Centers, L.P. $ 32,000,000.00
Novi Mall Associates Head Acquisition, L.L.C. $ 19,000,000.00
----------------------------------------------------------------------------------------------
</TABLE>
Pledged Proceeds
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Pledgor Source of Proceeds Pledgor's Percentage
----------------------------------------------------------------------------------------------
<S> <C> <C>
HRE Finance, Inc. Pheasant Lane Store, Inc. 82%
745 Fifth, Inc. Proceeds received by Rodamco Partner as fee 50%
owner under ground lease
Realco Fifth, Inc. Proceeds received by Rodamco Partners as fee 50%
owner under ground lease
----------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
[List each office where a financing statement is to be filed]
Actions with respect to Pledged Stock
<PAGE>
SCHEDULE 4
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE OF EACH GRANTOR
950 East Paces Ferry Road
Suite 2275
Atlanta, Georgia 30326-1119
<PAGE>
SCHEDULE 5
GRANTORS
<TABLE>
<S> <C> <C>
Name of Entity Grantor Pledgor
-------------- ------- -------
</TABLE>
<PAGE>
ACKNOWLEDGMENT AND CONSENT(1)
The undersigned hereby acknowledges receipt of a copy of the Guarantee
and Collateral Agreement, dated as of November __, 2000 (the "AGREEMENT"),
made by the Grantors parties thereto for the benefit of THE CHASE MANHATTAN
BANK, as Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 6.6(a) of
the Agreement.
3. The terms of Sections 7.1(c) and 7.5 of the Agreement shall apply to
it, MUTATIS MUTANDIS, with respect to all actions that may be required of it
pursuant to Section 7.1(c) or 7.5 of the Agreement.
[NAME OF ISSUER]
By:______________________________
Name:
Title:
Address for Notices:
_________________________________
_________________________________
_________________________________
Fax: ____________________________
------------------------
(1) This consent is necessary only with respect to any Issuer which is
not also a Grantor.
<PAGE>
Annex 1 to the
Guarantee and Collateral Agreement
----------------------------------
ASSUMPTION AGREEMENT, dated as of ________________, ____, made by
______________________________, a ______________ (the "ADDITIONAL GRANTOR"), in
favor of THE CHASE MANHATTAN BANK, as Administrative Agent (in such capacity,
the "ADMINISTRATIVE AGENT") for the banks and other financial institutions or
entities (the "LENDERS") parties to the Credit Agreement referred to below. All
capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement.
W I T N E S S E T H :
WHEREAS, HEXALON REAL ESTATE, INC., HEAD ACQUISITION, L.L.C., RODAMCO
USA, INC., DETROIT INVESTMENTS, INC., 745 FIFTH, INC., REALCO FIFTH, INC., RNA
COAST INVESTMENTS, INC., MOTOWN MALL LIMITED, INC., NOVI MALL ASSOCIATES, HEAD
ACQUISITION CORP., HEAD ACQUISITION, L.P. (the "BORROWER"), the Lenders, the
Administrative Agent and the other Agents named therein have entered into a
Credit Agreement, dated as of November __, 2000 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT");
WHEREAS, in connection with the Credit Agreement, the Borrower and
certain of its Affiliates (other than the Additional Grantor) have entered into
the Guarantee and Collateral Agreement, dated as of November __, 2000 (as
amended, supplemented or otherwise modified from time to time, the "GUARANTEE
AND COLLATERAL AGREEMENT"), in favor of the Administrative Agent for the benefit
of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a
party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. GUARANTEE AND COLLATERAL AGREEMENT. By executing and delivering
this Assumption Agreement, the Additional Grantor, as provided in Section 9.14
of the Guarantee and Collateral Agreement, hereby becomes a party to the
Guarantee and Collateral Agreement as a Grantor thereunder with the same force
and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in the Schedules to the
Guarantee and Collateral Agreement. The Additional Grantor hereby represents and
warrants that each of the representations and warranties contained in Section 5
of the Guarantee and Collateral Agreement is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
HRE-COUNTRYSIDE, INC.
HRE-CLEARWATER, INC.
NORTH OLMSTED, INC.
HEXALON REAL ESTATE, INC.
MOTOWN MALL
By:___________________________
Name:
Title:
<PAGE>
Annex 1-A to the
Assumption Agreement
--------------------
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
<PAGE>
EXHIBIT B
FORM OF
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section 5.2(b) of
the Credit Agreement, dated as of November ___, 2000 (as amended, supplemented
or otherwise modified from time to time (the "CREDIT AGREEMENT"), among Hexalon
Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc., Detroit
Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast Investments,
Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head Acquisition Corp.,
Head Acquisition, L.P. (the "BORROWER"), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and The Chase Manhattan
bank, as administrative agent (in such capacity, the "ADMINISTRATIVE AGENT").
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
1. I am the duly elected, qualified and acting Chief Financial Officer
of the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Credit Agreement and the Loan
Documents and have made or caused to be made under my supervision, a review in
reasonable detail of the transactions and condition of the Borrower during the
accounting period covered by the financial statements attached hereto as
ATTACHMENT 1 (the "FINANCIAL STATEMENTS"). Such review did not disclose the
existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this
Certificate, of any condition or event which constitutes a Default or Event of
Default, except as set forth below.
4. Attached hereto as ATTACHMENT 2 are the computations showing
compliance with the covenants set forth in Section 6.1, 6.2, 6.4, 6.5, and 6.6
of the Credit Agreement.
5. Each of the representations and warranties set forth in Section 3
of the Credit Agreement are true and correct as of the date written below.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
____, 200__.
_________________________________
Name:
Title:
<PAGE>
Attachment 1
to Compliance Certificate
[Attach Financial Statements]
<PAGE>
Attachment 2
to Compliance Certificate
The information described herein is as of ______, ____, and pertains
to the period from _________, ____ to ________________ __, ____.
[Set forth Covenant Calculations]
<PAGE>
EXHIBIT C
FORM OF
CLOSING CERTIFICATE
Pursuant to Section 4.1(h) of the Credit Agreement, dated as of
November ___, 2000 (the "CREDIT AGREEMENT"; terms defined therein being used
herein as therein defined), among Hexalon Real Estate, Inc., Head Acquisition,
L.L.C., Rodamco USA, Inc., Detroit Investments, Inc., 745 Fifth, Inc., Realco
Fifth, Inc., RNA Coast Investments, Inc., Motown Mall Limited, Inc., Novi Mall
Associates, Head Acquisition Corp., Head Acquisition, L.P. (the "BORROWER"), the
Lenders party thereto, the Documentation Agent and Syndication Agent named
therein and The Chase Manhattan Bank, as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT"), the undersigned [INSERT TITLE OF OFFICER] of
[INSERT NAME OF LOAN PARTY] (the "CERTIFYING LOAN PARTY") hereby certifies as
follows:
1. The representations and warranties of the Certifying Loan Party set
forth in each of the Loan Documents to which it is a party or which are
contained in any certificate furnished by or on behalf of the Certifying Loan
Party pursuant to any of the Loan Documents to which it is a party are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on the date hereof, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date.
2. ___________________ is the [duly elected and qualified Corporate
Secretary][General Partner][Managing Member] of the Certifying Loan Party and
the signature set forth for such officer below is such officer's true and
genuine signature.
3. No Default or Event of Default has occurred and is continuing as of
the date hereof or after giving effect to the Loans to be made on the date
hereof and the use of proceeds thereof. [Borrower only]
4. The conditions precedent set forth in Section 4.1 of the Credit
Agreement were satisfied as of the Closing Date. [Borrower only]
The undersigned [Corporate Secretary][General Partner][Managing
Member] of the Certifying Loan Party certifies as follows:
1. There are no liquidation or dissolution proceedings pending or to
my knowledge threatened against the Certifying Loan Party, nor has any other
event occurred adversely affecting or threatening the continued corporate
existence of the Certifying Loan Party.
2. The Certifying Loan Party is a [corporation][limited
partnership][limited liability company] duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its organization.
3. Attached hereto as ANNEX 1 is a true and complete copy of
resolutions duly adopted by the[Board of Directors][General Partner][Managing
Member] of the Certifying Loan Party on _________________; such resolutions have
not in any way been amended, modified, revoked or rescinded, have been in full
force and effect since their adoption to and including the date hereof and are
<PAGE>
2
now in full force and effect and are the only corporate proceedings of the
Certifying Loan Party now in force relating to or affecting the matters referred
to therein.
4. Attached hereto as ANNEX 2 is a true and complete copy of the
[By-Laws][Partnership Agreement][Membership Agreement] of the Certifying Loan
Party as in effect on the date hereof.
5. Attached hereto as ANNEX 3 is a true and complete copy of the
[Certificate of Incorporation][Certificate of Organization][Certificate of
Formation] of the Certifying Loan Party as in effect on the date hereof.
6. The following persons are now duly elected and qualified officers
of the Certifying Loan Party holding the offices indicated next to their
respective names below, and the signatures appearing opposite their respective
names below are the true and genuine signatures of such officers, and each of
such officers is duly authorized to execute and deliver on behalf of the
Certifying Loan Party each of the Loan Documents to which it is a party and any
certificate or other document to be delivered by the Certifying Loan Party
pursuant to the Loan Documents to which it is a party:
<TABLE>
<CAPTION>
Name Office Signature
---- ------ ---------
<S> <C> <C>
Gerald E. Eagan Chairman and Chief Exective Officer ________________________
Lee M. Letchford President ________________________
Daniel S. Weaver Vice President, Treasurer and Secretary ________________________
Sharon E. Bair Vice President and Assistant Secretary ________________________
Thomas F. Heyse Vice President ________________________
Paula A. Ball Assistant Secretary ________________________
James E. Dorsey Assistant Secretary ________________________
Andrew J. Schut Assistant Secretary ________________________
</TABLE>
IN WITNESS WHEREOF, the undersigned have hereunto set our names as of
the date set forth below.
-------------------------- ------------------------------
Name: Name:
Title: Title: [Corporate Secretary]
[General Partner]
[Managing Member]
Date: _______________, 200_
<PAGE>
ANNEX 1
[Board Resolutions]
<PAGE>
ANNEX 2
[By Laws][Partnership Agreement][Membership Agreement]
<PAGE>
ANNEX 3
[Certificate of Incorporation][Certificate of Organization]
[Certificate of Formation]
<PAGE>
EXHIBIT D
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of November ___,
2000 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Hexalon Real Estate, Inc., Head Acquisition, L.L.C.,
Rodamco USA, Inc., Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth,
Inc., RNA Coast Investments, Inc., Motown Mall Limited, Inc., Novi Mall
Associates, Head Acquisition Corp., Head Acquisition, L.P. (the "BORROWER"), the
Lenders party thereto, the Documentation Agent and Syndication Agent named
therein and The Chase Manhattan Bank, as administrative agent for the Lenders
(in such capacity, the "ADMINISTRATIVE AGENT"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "ASSIGNOR") and the
Assignee identified on Schedule l hereto (the "ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"ASSIGNED FACILITY"; collectively, the "ASSIGNED FACILITIES"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Affiliates or any other obligor
or the performance or observance by the Borrower, any of its Affiliates or any
other obligor of any of their respective obligations under the Credit Agreement
or any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 3.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the Agents
or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Agents to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agents by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
<PAGE>
2
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section
2.13(d) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "EFFECTIVE
DATE"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Assignment and Acceptance with respect to
the Credit Agreement, dated as of November ___, 2000,
among Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc.,
Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast
Investments, Inc., Motown Mall Limited, Inc., Novi Mall Associates,
Head Acquisition Corp., Head Acquisition, L.P. (the "BORROWER"),
the Lenders party thereto, the Documentation
Agent and Syndication Agent named therein
and The Chase Manhattan Bank, as Administrative Agent
Name of Assignor: _______________________
Name of Assignee: _______________________
Effective Date of Assignment: _________________
Principal
Credit Facility Assigned Amount Assigned
------------------------ ---------------
$_________________
[Name of Assignee] [Name of Assignor]
By:_________________________ By:______________________________
Title: Title:
Accepted for Recordation in the Register: Required Consents (if any):
THE CHASE MANHATTAN BANK, as [Name of Borrower]
Administrative Agent
By:______________________________ By:______________________________
Title: Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:______________________________
Title:
<PAGE>
EXHIBIT F
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Credit Agreement, dated as of November ___, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco
USA, Inc., Detroit Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA
Coast Investments, Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head
Acquisition Corp., Head Acquisition, L.P. (the "Borrower"), the Lenders party
thereto, the Documentation Agent and Syndication Agent named therein and The
Chase Manhattan Bank, as administrative agent (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement. ______________________ (the "Non-U.S. Lender") is providing
this certificate pursuant to Section 2.13(d) of the Credit Agreement. The
Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of the Loans
in respect of which it is providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section 881(c)(3)(A)
of the Internal Revenue Code of 1986, as amended (the "Code"). In this regard,
the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for purposes of
any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements.
3. The Non-U.S. Lender is not a 10-percent shareholder of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code.
4. The Non-U.S. Lender is not a controlled foreign corporation receiving
interest from a related person within the meaning of Section 881(c)(3)(C) of the
Code.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-U.S. LENDER]
By:______________________________________
Name:
Title:
Date: ___________________________________
<PAGE>
EXHIBIT G
FORM OF
LENDER ADDENDUM
The undersigned Lender (i) agrees to all of the provisions of the Credit
Agreement, dated as of November ___, 2000 (the "Credit Agreement"), among
Hexalon Real Estate, Inc., Head Acquisition, L.L.C., Rodamco USA, Inc., Detroit
Investments, Inc., 745 Fifth, Inc., Realco Fifth, Inc., RNA Coast Investments,
Inc., Motown Mall Limited, Inc., Novi Mall Associates, Head Acquisition Corp.,
Head Acquisition, L.P. (the "Borrower"), the Lenders party thereto, the
Documentation Agent and Syndication Agent named therein and The Chase Manhattan
Bank, as Administrative Agent, and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its Commitment as set
forth opposite the undersigned Lender's name in Schedule 1.1A to the Credit
Agreement, as such amount may be changed from time to time as provided in the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
-----------------------------------------
(Name of Lender)
By:______________________________________
Name:
Title:
Dated as of ________________, 200_ [Insert scheduled Closing Date]
<PAGE>
Exhibit E-1
[Form of Arnall, Golden & Gregory Opinion]
November 2, 2000
The Chase Manhattan Bank,
as Administrative Agent for the several banks
and other financial institutions or entities that
are parties to the "Credit Agreement"
referred to below (collectively, the "Lenders")
270 Park Avenue
New York, New York 10017
and
The Lenders
Re: Tender Credit Facility (the "Facility"), made as of November 2,
2000, by The Chase Manhattan Bank, as Administrative Agent
("Administrative Agent") for the Lenders to Head Acquisition,
L.P., a Delaware limited partnership (the "Borrower") pursuant to
a Credit Agreement, dated as of November 2, 2000 (the "Credit
Agreement") among Hexalon Real Estate, Inc., a Delaware
corporation ("HRE"); Head Acquisition, L.L.C., a Delaware limited
liability company; Rodamco USA, Inc., a Delaware corporation;
Detroit Investments, Inc., a Delaware corporation; 745 Fifth,
Inc., a Delaware corporation; Realco Fifth, Inc., a Delaware
corporation; RNA Coast Investments, Inc., a Delaware corporation;
Motown Mall Limited, Inc., a Delaware corporation; Novi Mall
Associates, a Michigan co-partnership ("NMA"); Head Acquisition
Corp., a Delaware corporation (collectively with Borrower, the
"Borrower Parties"); Borrower and the Lenders.
Ladies and Gentlemen:
We have acted as counsel to: (a) the Borrower Parties; (b) those
corporations, limited partnerships and limited liability companies listed on
SCHEDULE A attached hereto and made a part hereof (collectively, the "Delaware
Hexalon Guarantors"); and (c) those corporations, limited partnerships and
general partnerships listed on SCHEDULE B attached hereto and made a part hereof
(collectively, the "Other Hexalon Guarantors"; the Delaware Hexalon Guarantors
and the Other Hexalon Guarantors sometimes being collectively referred to as the
"Hexalon Guarantors") with respect to the Facility to be made available by the
Lenders. In connection therewith, you have requested our opinion as to the
matters hereinafter set forth.
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 2
A. INSTRUMENTS AND DOCUMENTS EXAMINED
-----------------------------------
In preparing this Opinion Letter, we have examined originals or copies of
the following documents (items 1-3 being collectively referred to as the "Credit
Facility Documents"):
1. Credit Agreement;
2. Guarantee and Collateral Agreement, dated as of November 2, 2000, by and
among the Borrower Parties and the Hexalon Guarantors in favor of the
Administrative Agent (the "Collateral Agreement");
3. UCC-1 Financing Statements, dated as of November 2, 2000, by and among
the Borrower Parties and the Hexalon Guarantors, to be filed in the
State of Georgia (collectively, the "Financing Statements");
4. Articles of Incorporation, as amended, Bylaws, minute books, resolutions
and Certificates of Good Standing issued by the Secretary of State of
the State of Delaware with respect to such of the Borrower Parties and
Hexalon Guarantors that are corporations;
5. Limited Partnership Agreements, Certificates of Limited Partnership and
consents of such of the Borrower Parties and Hexalon Guarantors that are
limited partnerships; and
6. Certificates of Formation, Operating Agreements and consents of such of
the Borrower Parties and Hexalon Guarantors that are limited liability
companies.
In addition, in preparing this Opinion Letter, we have reviewed such other
documents as we have deemed necessary or appropriate in order to deliver the
opinions hereinafter expressed.
B. ASSUMPTIONS
-----------
The opinions expressed herein are subject to the following assumptions, in
addition to any other specific assumptions set forth elsewhere herein:
1. All copies of the Credit Facility Documents and all records,
certificates, letters and other documents examined by us are accurate,
true, complete and correct copies of the originals thereof. All factual
warranties, representations and statements made by the parties in the
Credit Facility Documents or in any other documents attendant to the
Facility are accurate, true and correct.
2. Each of the individuals executing the Credit Facility Documents (other
than on behalf of the Borrower Parties or the Hexalon Guarantors) has
the requisite legal
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 3
capacity, and all signatures on the Credit Facility
Documents (other than on behalf of the Borrower Parties and Hexalon
Guarantors) are genuine.
3. Each of the individuals executing the Credit Facility Documents has
sufficient legal competency to do so.
4. The Financing Statements shall be properly filed and recorded in a
timely manner with the Office of the Clerk of the Superior Court of any
county in the State of Georgia (as applicable, the "Filing Office"), and
all filing fees and any other taxes, charges or fees due in connection
therewith shall be promptly paid when due.
5. The Credit Facility Documents have been duly authorized by all requisite
corporate, trust company or other power and authority, properly executed
and delivered on behalf of the parties thereto (other than the Borrower
Parties and the Hexalon Guarantors), by duly authorized officers,
members, trustees or partners thereof, by each respective party to each
of the respective Credit Facility Documents (other than the Borrower
Parties and the Hexalon Guarantors), as the case may be.
6. The applicable Borrower Parties or Hexalon Guarantors have title to, or
the rights described in, the collateral covered by the Financing
Statements.
7. The Financing Statements give a correct address of the secured party
from which information concerning the security interest to be perfected
thereby may be obtained and give the correct mailing addresses and tax
identification numbers of the applicable Borrower Parties or Hexalon
Guarantors.
With your permission, we have made no investigation of the facts underlying
the foregoing assumptions, but we wish to advise you that nothing has come to
our attention which would indicate that we are not justified in making such
assumptions or that any such assumptions are incorrect. Except as set forth
herein, we have made no investigation regarding the accuracy or veracity of any
warranties, representations and statements of fact contained in any documents,
records, instruments, letters or other writings examined by us, nor have you
requested us to do so, and we express no opinion herein regarding the same. No
opinion is expressed herein regarding the existence or nonexistence of, or the
effect of, any form of fraud, misrepresentation, mistake, duress or criminal
activity upon the Credit Facility Documents, the execution of delivery thereof
or the transactions contemplated thereby, and we have made no investigation of
the facts or law pertaining to such conduct, none of which has occurred to our
knowledge.
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 4
C. OPINIONS
--------
Based upon the foregoing and the qualifications hereinafter set forth, we
are of the opinion that:
1. Each Borrower Party that is identified as a Delaware corporation on
page 1 of this Opinion Letter and each Hexalon Guarantor that is identified
as a Delaware corporation on SCHEDULE A to this Opinion Letter is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.
2. Each Borrower Party that is identified as a Delaware limited
partnership on page 1 of this Opinion Letter and each Hexalon Guarantor that
is identified as a Delaware limited partnership on SCHEDULE A to this Opinion
Letter is a limited partnership organized, validly existing and in good
standing under the laws of the State of Delaware.
3. Each Borrower Party that is identified as a Delaware limited
liability company on page 1 of this Opinion Letter and each Hexalon Guarantor
that is identified as a Delaware limited liability company on SCHEDULE A to
this Opinion Letter is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware.
4. Each Borrower Party (other than NMA) and each Delaware Hexalon
Guarantor has the applicable corporate, limited partnership, limited
liability company or other power and authority, as applicable: (a) to execute
and deliver each of the Credit Facility Documents to which such Borrower
Party (other than NMA) or Delaware Hexalon Guarantor is a party; (b) to
borrow and perform its respective obligations thereunder; and (c) to grant
the security interests to be granted by it pursuant to the Collateral
Agreement. All necessary corporate, limited partnership, limited liability
company or other action, as applicable, has been taken to authorize the
execution, delivery and performance of each Credit Facility Document to which
a particular Borrower Party (other than NMA) or Delaware Hexalon Guarantor is
a party, by the applicable Borrower Party (other than NMA) or Delaware
Hexalon Guarantor.
5. Each of the Credit Facility Documents has been validly executed and
delivered by the applicable Borrower Party (other than NMA) or Delaware
Hexalon Guarantor.
6. With respect to any Borrower Party (other than NMA) and any Delaware
Hexalon Guarantor, (a) its execution and delivery of the Credit Facility
Documents to which such Borrower Party or Delaware Hexalon Guarantor is a
party; (b) its borrowings in accordance with the terms of the Credit Facility
Documents; (c) the performance of its payment obligations thereunder; and (d)
the granting of any security interests, if any, to be granted by it pursuant
to the Collateral Agreement will not result in any violation of: (i) the
certificate of incorporation or by-laws of each such Borrower Party or
Delaware Hexalon Guarantor that is a corporation; (ii) the limited
partnership agreement of each such Borrower Party or Delaware Hexalon
Guarantor that is a limited partnership; and (iii) the articles of
organization or operating agreement of each such Borrower Party or Delaware
Hexalon Guarantor that is a limited liability company.
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 4
7. With respect to any Borrower Party (other than NMA) and any Hexalon
Guarantor, (a) its execution and delivery of the Credit Facility Documents to
which such Borrower Party or Hexalon Guarantor is a party; (b) its borrowings
in accordance with the terms of the Credit Facility Documents; (c) the
performance of its payment obligations thereunder; and (d) the granting of
any security interests, if any, to be granted by it pursuant to the
Collateral Agreement will not result in any violation of any Federal, Georgia
or Delaware statute or any order known to us issued by any Federal, Georgia
or Delaware court or governmental agency or body, assuming that the proceeds
of the borrowings contemplated by the Credit Facility Documents will be used
in accordance with the terms of the Credit Agreement. For the purposes of
this Opinion Letter, any opinions expressed herein regarding the statutes and
laws of the State of Delaware or the orders of any court or governmental
agency or body of the State of Delaware are expressly limited to our review
of the general corporation, limited liability company and limited partnership
laws of the State of Delaware.
8. No consent, approval, authorization, order, filing, registration or
qualification of or with any Federal, Georgia or Delaware governmental agency
or body is required for the execution and delivery by any Borrower Party or
Hexalon Guarantor of the Credit Facility Documents to which it is a party,
the borrowings by any Borrower Party in accordance with the terms of the
Credit Facility Documents, the performance by the Borrower Parties or Hexalon
Guarantors of their respective payment obligations under the Credit Facility
Documents or the granting of any security interests under the Collateral
Agreement, except for filings required for the perfection of security
interests granted pursuant to the Collateral Agreement. For the purposes of
this Opinion Letter, any opinions expressed herein regarding the requirements
of any governmental agency or body of the State of Delaware are expressly
limited to those requirements arising under the general corporation, limited
liability company and limited partnership laws of the State of Delaware.
9. Each Financing Statement constitutes a valid and legally binding
obligation of each Borrower Party or Hexalon Guarantor that is a party
thereto, enforceable against such Borrower Party or Hexalon Guarantor in
accordance with its terms.
10. No Borrower Party or Hexalon Guarantor is an "investment company"
within the meaning of and subject to regulation under the Investment Company
Act of 1940, as amended, or a "holding company," or a "subsidiary company" of
a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
11. Assuming the Borrower Parties will comply with the provisions of the
Credit Agreement relating to the use of proceeds, the making of the Loans
under the Credit Agreement will not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
12. Each of the Financing Statements is in appropriate form under the
laws of the State of Georgia and the Uniform Commercial Code as enacted in
Georgia (the "Georgia UCC") for filing in a Filing Office.
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 6
13. Upon the filing of the Financing Statements in a Filing Office, the
Administrative Agent will have a perfected security interest for the benefit
of the Lenders in that portion of the collateral described in the Collateral
Agreement that is covered by Article 9 of the Georgia UCC (collectively, the
"Article 9 Collateral") in which a security interest may be perfected by
filing a financing statement pursuant to the Georgia UCC.
Our opinions expressed in this Paragraph C.13 above are subject to the
following qualifications in addition to the other qualifications set forth in
this Opinion Letter:
(a) We express no opinion as to any Borrower Party's or Hexalon
Guarantor's right in or title to any of the collateral described in the
Financing Statements.
(b) In the case of non-identifiable cash proceeds, continuation of
perfection of Administrative Agent's security interest therein is
limited to the extent set forth in Section 9-306 of the Georgia UCC.
(c) In the case of a security interest in or pledge of money or
"instruments" (as such term is defined in Article 9 of the Georgia
UCC), other than money or instruments constituting "chattel paper" (as
such term is defined in Article 9 of the Georgia UCC), such security
interest cannot be perfected by filing of the Financing Statements,
but must be perfected by taking physical possession thereof.
(d) In the case of all collateral, Section 9-403 of the Georgia UCC
requires the filing of continuation statements within six months prior
to the expiration of each five-year period following the original
filing of such Financing Statements describing such collateral in
order to continue the perfection of Administrative Agent's security
interest therein perfected by the filing of such Financing Statements.
(e) In the case of property which becomes collateral after the date
hereof, Section 552 of the Federal Bankruptcy Code limits the extent to
which property acquired by a debtor after the commencement of a case
under the Federal Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the debtor
before the commencement of such case.
(f) We wish to point out that the perfection of a security interest
that is perfected by the filing of a Financing Statement will be
terminated (1) under Section 9-402 of the Georgia UCC as to any Collateral
acquired by any Borrower Party or Hexalon Guarantor more than four
months after such Borrower Party or Hexalon Guarantor changes its
name, identity or corporate structure so as to make the Financing
Statement seriously misleading, unless new appropriate financing
statements indicating the new name, identity or corporate structure of
such
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 7
Borrower Party or Hexalon Guarantor are properly filed before the
expiration of such four months; and (2) under Section 9-103 and 9-104 of
the Georgia UCC as to any collateral consisting of accounts, general
intangible, mobile goods or chattel paper, four months after such
Borrower Party or Hexalon Guarantor changes its chief executive office
to a new jurisdiction outside the jurisdiction in which such Borrower
Party or Hexalon Guarantor has its chief executive office (or, if
earlier, when perfection under the laws of such jurisdiction would
have ceased as set forth above) unless such security interests are
perfected in such new jurisdiction before that termination.
(g) No opinion is given herein with regard to the priority of any
security title, security interest, or lien created hereby.
14. All of the shares of capital stock described on Schedule 2 to the
Collateral Agreement are owned of record by the Borrower Parties and the Hexalon
Guarantors, collectively.
D. QUALIFICATIONS
---------------
All of the opinions and confirmations expressed above are based upon and
subject to the qualifications, limitations and exceptions set forth below:
1. We are admitted to practice only in the State of Georgia and we
express no opinion as to matters governed by any laws other than
the laws of the State of Georgia, the federal laws of the
United States of America and the general corporation, limited
liability company and limited partnership law of the State of
Delaware.
2. This Opinion Letter is limited to the matters expressly set forth
herein, and no opinion is to be inferred or may be implied
beyond the matters expressly so stated.
3. This Opinion Letter may not be relied upon by any person other
than the stated recipients for any other purposes or used,
circulated, quoted or otherwise referred to for any other
purpose.
4. We have not made an examination of title to any collateral,
including the Article 9 Collateral, and we express no opinion
with respect thereto or to the priority of any liens or security
interests arising under any of the Credit Facility Documents.
Insofar as they relate to the creation, perfection and effect of
perfection or non-perfection of a security interest in collateral
subject to the Georgia UCC, the opinions set forth herein are
further limited to such collateral which is governed by Georgia
law on the perfection or non-perfection of a security interest in
personal property, as set forth in the Georgia UCC. It should be
noted that Georgia UCC Section 9-103 governs the choice of state
law for questions of perfection
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 8
and the effect of perfection or non-perfection of collateral
subject to the Georgia UCC, which matters may not be waived
by agreement.
5. Except as expressly provided for herein, no opinion is given herein
as to any laws regulating the business of the any Lender,
including, without limitation, (a) the types of investments that
can be made by the Administrative Agent or any Lender; or (b) the
legal lending limit of the Administrative Agent or any Lender
6. Whenever the phrases, "to our knowledge," "known to us"; or words
of similar import are used in this Opinion Letter, it is intended
to indicate that the current actual, conscious knowledge of the
attorneys within this firm who have devoted substantive attention
to the Facility (and not to the knowledge of the firm generally)
is not inconsistent with that portion of this Opinion Letter which
such phrase qualifies. Except as may otherwise be expressly stated
herein: (a) we have made no independent investigation with respect
to such matters and have examined only the files of the Borrower
Parties and Hexalon Guarantors at this firm which were generated
in connection with the Facility; and (b) we have not made any other
examination of our files or the files of the Borrower Parties or
the Hexalon Guarantors (wherever located).
7. The opinions set forth above are based solely upon the laws and
regulations of the United States of America and the State of
Georgia, and the general corporate, limited partnership or limited
liability company laws of the State of Delaware and state of facts
as stated in the Credit Facility Documents in effect on the date
hereof. We undertake no obligation to advise you of facts or
changes in law occurring after the date of this Opinion Letter
which might affect the opinions expressed herein. Nothing herein
shall be construed to be an opinion as to the applicability or
effect of the laws of any other jurisdiction or of the provisions
of any Credit Facility Document that is governed under laws of a
state other than the State of Georgia, the general corporate,
limited partnership or limited liability company laws of the
State of Delaware or a country other than the United States of
America. Nothing contained herein is intended to be, nor
shall it be deemed to be, an expression of an opinion with respect
to (a) compliance with state, local or federal permits or
approvals (including those relating to land use planning,
environmental matters, and zoning) or the effect thereof, if any,
on the enforceability of the Credit Facility Documents, or
(b) federal or state tax matters (including, without limitation,
any opinion as to the characterization of the transaction for tax
or accounting purposes).
<PAGE>
The Chase Manhattan Bank
November 2, 2000
Page 9
This Opinion Letter has been provided solely for the benefit of
Administrative Agent and its successors and assigns, the parties listed on
SCHEDULE C attached hereto and any rating agency in connection with the
securitization of the Facility, and their respective counsel, and no other
person or entity shall be entitled to rely hereon without the express written
consent of the undersigned. As such, this Opinion Letter shall not be quoted
from, in whole or in part, or otherwise be referred to in any financial
statement or other documents, nor filed with or furnished to any governmental
agency, without the prior written consent of the undersigned.
Very truly yours,
ARNALL GOLDEN & GREGORY, LLP
<PAGE>
SCHEDULE A
DELAWARE HEXALON GUARANTORS
-----------------------------
<TABLE>
<CAPTION>
----------------------------------------------------------- -----------------------------------------------------------
ENTITY STATE OF ORGANIZATION
------- ---------------------
<S> <C>
----------------------------------------------------------- -----------------------------------------------------------
HRE - Countryside, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE-Clearwater, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
North Olmsted, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
Motown Mall General, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
TLN Limited Partnership Delaware limited partnership
----------------------------------------------------------- -----------------------------------------------------------
Maplewood Mall Associates Limited Partnership Delaware limited partnership
----------------------------------------------------------- -----------------------------------------------------------
HRE Maplewood, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Minneapolis, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE North Star, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE San Antonio, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
North Star Mall Associates Limited Partnership Delaware limited partnership
----------------------------------------------------------- -----------------------------------------------------------
HRE Finance, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
RNA-SI-SKS, LLC Delaware limited liability company
----------------------------------------------------------- -----------------------------------------------------------
RNA-SI, LLC Delaware limited liability company
----------------------------------------------------------- -----------------------------------------------------------
HRE Altamonte, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Danbury, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Valencia, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Paramus Park, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Nashland, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Twelve Oaks, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE Pheasant Lane Store, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE-South Park, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE-Charlotte, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
745 Fifth, Inc. Delaware corporation
----------------------------------------------------------- -----------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE B
----------
OTHER HEXALON GUARANTORS
<TABLE>
<CAPTION>
----------------------------------------------------------- -----------------------------------------------------------
<S> <C>
ENTITY STATE OF ORGANIZATION
----------------------------------------------------------- -----------------------------------------------------------
Bellwether Properties of Florida (Limited) Florida limited partnership
----------------------------------------------------------- -----------------------------------------------------------
Great Northern Partnership Ohio general partnership
----------------------------------------------------------- -----------------------------------------------------------
Detroit Partners Limited Partnership Michigan limited partnership
----------------------------------------------------------- -----------------------------------------------------------
Detroit Partners II Limited Partnership Michigan limited partnership
----------------------------------------------------------- -----------------------------------------------------------
South Park Mall Limited Partnership North Carolina limited partnership
----------------------------------------------------------- -----------------------------------------------------------
HRE-South Park, Inc. North Carolina corporation
----------------------------------------------------------- -----------------------------------------------------------
HRE-Charlotte, Inc. North Carolina corporation
----------------------------------------------------------- -----------------------------------------------------------
745 Associates New York general partnership
----------------------------------------------------------- -----------------------------------------------------------
Rodamco Partners (f/k/a Fifth Avenue Partners) New York general partnership
----------------------------------------------------------- -----------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE C
----------
LENDERS
1. THE CHASE MANHATTAN BANK
2. BANK OF AMERICA, N.A.
3. COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
4. BANK ONE, NA
<PAGE>
Exhibit E-2
[Form of Winston & Strawn Opinion]
November 2, 2000
The Chase Manhattan Bank, individually
and as Administrative Agent
270 Park Avenue
New York, New York 10017
The Lenders signatory to the
Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as special counsel to Hexalon Real Estate, Inc., a Delaware
corporation ("HEXALON"), Head Acquisition, L.L.C., a Delaware limited liability
company ("HEAD LLC"), Head Acquisition, L.P., a Delaware limited partnership
("HEAD LP"), and Head Acquisition Corp., a Delaware corporation ("HAC"), in
connection with that certain Tender Facility Credit Agreement dated as of the
date hereof (the "CREDIT AGREEMENT") by and among Hexalon, Head LLC, Rodamco
USA, Inc., a Delaware corporation ("RUSA"), Detroit Investments, Inc., a
Delaware corporation ("DII"), 745 Fifth, Inc., a Delaware corporation ("745"),
Realco Fifth, Inc., a Delaware corporation ("REALCO"), RNA Coast Investments,
Inc., a Delaware corporation ("RNACI"), Motown Mall Limited, Inc., a Delaware
corporation ("MMLI"), Novi Mall Associates, a Michigan co-partnership ("NOVI"),
Head LP, as Borrower, HAC, the financial institutions signatory thereto as
lenders (the "LENDERS"), and The Chase Manhattan Bank, as administrative agent
(the "AGENT") on behalf of the Lenders, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch, as
documentation agent, and Bank of America, N.A., as syndication agent.
Capitalized terms used herein, but not otherwise defined herein, shall have the
meanings ascribed to such terms in the Credit Agreement. This opinion letter is
delivered to you at our clients' request pursuant to Section 4.1(k)(ii) of the
Credit Agreement.
In rendering the opinions set forth herein, we have examined:
(i) the Certificate of Incorporation and Bylaws of Hexalon and HAC;
(ii) resolutions of the board of directors of Hexalon and HAC with
respect to the transactions referred to herein;
(iii) the Amended and Restated Agreement of Limited Partnership of Head LP;
<PAGE>
Page 2
(iv) the Amended and Restated Limited Liability Company Agreement of Head
LLC;
(v) the Credit Agreement;
(vi) that certain Guarantee and Collateral Agreement dated as of the date
hereof by HAC, Hexalon, Head LLC, Head LP, RUSA, DII, 745, Realco,
RNACI, MMLI, Novi and the entities listed on Exhibit A attached
hereto (the "SUBSIDIARIES") (the "GUARANTEE AND COLLATERAL
AGREEMENT"); and
(vii) the financing statements on Form UCC-1 (the "FINANCING STATEMENTS")
under the Illinois UCC delivered to the Agent, for the benefit of
the Lenders, for filing in the office of the Secretary of State of
Illinois (the "FILING OFFICE");
(the Credit Agreement and the Guarantee and Collateral Agreement are
collectively hereinafter referred to as the "CREDIT DOCUMENTS") and such other
agreements, instruments, and documents, and such questions of law as we have
deemed necessary or appropriate to enable us to render the opinions expressed
below. Additionally, we have examined originals or copies, certified to our
satisfaction, of such certificates of public officials and officers and
representatives of the Credit Parties (as defined below) and we have made such
inquiries of officers and representatives of the Credit Parties as we have
deemed relevant or necessary, as the basis for the opinions set forth herein.
Hexalon, Head LP, Head LLC and HAC are collectively referred to herein as the
"CREDIT PARTIES" and individually as a "CREDIT PARTY".
In rendering the opinions expressed below, we have, with your consent,
assumed that the signatures of persons (other than the Credit Parties) signing
all documents in connection with which this opinion is rendered are genuine, all
documents submitted to us as originals or duplicate originals are authentic and
all documents submitted to us as copies, whether certified or not, conform to
authentic original documents. In giving the opinions expressed below, we have
assumed with your permission and without independent investigation or
verification of any kind the correctness of certain opinions set forth in the
separate opinions of Arnall, Golden & Gregory dated the date hereof and
delivered to you pursuant to Section 4.1(k)(i) of the Credit Agreement.
Additionally, we have, with your consent, assumed and relied upon the following:
(a) the accuracy and completeness of all certificates and other statements,
documents, records, financial statements and papers reviewed by us, and the
accuracy and completeness of all representations, warranties, schedules and
exhibits contained in the Credit Documents, with respect to the factual matters
set forth therein;
(b) all parties to the documents reviewed by us are duly organized, validly
existing and in good standing under the laws of all jurisdictions where they are
conducting their businesses or otherwise required to be so qualified, and have
full power and authority to execute, deliver and perform under such documents,
all such documents have been duly authorized, executed and delivered by such
parties and that each such document constitutes the valid and legally binding
obligation of each such party (other than the Credit Parties and the
Subsidiaries), enforceable against such party (other than the Credit Parties and
the Subsidiaries) in accordance with its terms and that all necessary consents,
approvals, authorizations, registrations, declarations and filings (governmental
or otherwise) and all other conditions precedent with
<PAGE>
Page 3
respect to the legal and valid execution and delivery of and performance under,
the documents that we have examined by each party thereto other than the Credit
Parties have been made or satisfied or have occurred and are in full force and
effect;
(c) neither the Agent, the Lenders nor any of their representatives have
any knowledge (actual or constructive) of any adverse claim, lien, security
interest, claim, encumbrance, interest or other condition of title affecting any
of the Collateral under the Credit Documents, except for Liens described in the
Credit Documents or any of the schedules thereto;
(d) all items of Collateral for which possession must be taken by a secured
party in order to perfect its security interest under Section 9-304 of the
Uniform Commercial Code as currently enacted in Illinois (the "ILLINOIS UCC") or
Section 9-304 of the Uniform Commercial Code as currently enacted in New York
(the "NEW YORK UCC") are in the possession or constructive possession of the
Agent and not in the possession of any Credit Party, affiliates or agents or any
other person acting on behalf of any Credit Party;
(e) The Credit Parties have "rights" in and to each item of Collateral
within the meaning of Section 9-203 of the Illinois UCC or Section 9-203 of the
New York UCC consistent with and sufficient for purposes of the Credit
Documents;
(f) the proceeds of the Loans to be made on the Closing Date have been
disbursed;
(g) the descriptions of the Collateral in the applicable Credit Documents
reasonably describe the property intended to be described as Collateral;
(h) the Financing Statements shall be properly filed and recorded in a
timely manner with the Filing Office, and all filing fees and any other taxes,
charges or fees due in connection therewith shall be promptly paid when due; and
(i) the Financing Statements give a correct address of the secured party
from which information concerning the security interest to be perfected thereby
may be obtained and give the correct mailing addresses and tax identification
numbers of the applicable Credit Parties.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual present knowledge of the particular Winston & Strawn attorneys who have
represented the Credit Parties during the course of our representation of the
Credit Parties in connection with the Credit Documents. Except as expressly set
forth herein, we have not undertaken any independent investigation, examination
or inquiry to determine the existence or absence of any facts (and have not
caused the review of any court file or indices) and no inference as to our
knowledge concerning any facts should be drawn as a result of the limited
representation undertaken by us.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that:
1. The execution and delivery by any Credit Party of the Credit Documents
to which it is a party, its borrowings in accordance with the terms of the
Credit Documents, performance of its payment obligations thereunder and granting
of the security interests to be granted by it
<PAGE>
Page 4
pursuant to the Guarantee and Collateral Agreement will not result in any
violation of (a) the organizational documents of such Credit Party or (b)
assuming that proceeds of borrowings will be used in accordance with the
terms of the Credit Agreement, any Federal, New York or Illinois statute or
any rule or regulation issued pursuant to any Federal, New York or Illinois
statute or any order known to us issued by any court or governmental agency
or body.
2. No consent, approval, authorization, order, filing, registration or
qualification of or with any Federal, New York or Illinois governmental agency
or body is required for the execution and delivery by any Credit Party of the
Credit Documents to which it is a party, the borrowings by any Credit Party in
accordance with the terms of the Credit Documents or the performance by the
Credit Parties of their respective payment obligations under the Credit
Documents or the granting of any security interests under the Guarantee and
Collateral Agreement, except filings required for the perfection of security
interests granted pursuant to the Guarantee and Collateral Agreement; provided,
however, that we express no opinion in this paragraph with respect to matters
relating to title or ownership of, liens or security interests in, or the
transfer of, property.
3. Assuming that each of the Credit Documents is a valid and legally
binding obligation of the Lender party thereto, each Credit Document constitutes
the valid and legally binding obligation of each Credit Party and Subsidiary
which is a party thereto, enforceable against such Credit Party and Subsidiary
in accordance with its terms.
Our opinions expressed in paragraph 3 are subject to the following
qualifications, in addition to the other qualifications set forth in this
opinion letter:
(A) the execution, delivery and performance of the Credit Documents by each
of the parties thereto will not violate the respective parties' constituting
documents; and
(B) all Credit Documents have been duly authorized by all necessary
corporate, partnership or limited liability company or other action on the part
of all parties thereto, have been duly executed and delivered by such parties
and are the legal, valid and binding obligations of such parties under the
substantive laws of all applicable jurisdictions other than the State of New
York.
4. Each of the Financing Statements is in appropriate form for filing in
the Filing Office.
5. The Guarantee and Collateral Agreement creates in favor of the Agent for
the benefit of the Lenders a security interest in the collateral described
therein in which a security interest may be created under Article 9 of the New
York UCC (the "ARTICLE 9 COLLATERAL").
6. Upon the filing in the Filing Office of the Financing Statements, the
Agent will have a perfected security interest for the benefit of the Lenders in
that portion of the Article 9 Collateral in which a security interest is
perfected by filing a financing statement under the Illinois UCC.
Our opinions expressed in paragraph 6 are subject to the following
qualifications, in addition to the other qualifications set forth in this
opinion letter:
<PAGE>
Page 5
(A) in the case of non-identifiable cash proceeds, continuation of
perfection of Agent's security interest therein is limited to the extent set
forth in Section 9-306 of the Illinois UCC or Section 9-306 of the New York UCC;
(B) in the case of a security interest in or pledge of money or
"instruments" (as such term is defined in Article 9 of the Illinois UCC or
Article 9 of the New York UCC), other than money or instruments constituting
"chattel paper" (as such term is defined in Article 9 of the Illinois UCC or
Article 9 of the New York UCC), such security interest cannot be perfected by
the filing of financing statements, but must be perfected by taking physical
possession thereof;
(C) in the case of all collateral, Section 9-403 of the Illinois UCC or
Section 9-403 of the New York UCC requires the filing of continuation statements
within six months prior to the expiration of each five-year period following the
original filing of such financing statements describing such collateral in order
to continue the perfection of the Agent's security interest therein perfected by
the filing of such financing statements;
(D) in the case of property which becomes collateral after the date hereof,
Section 552 of the U.S. Bankruptcy Code limits the extent to which property
acquired by a debtor after the commencement of a case under the U.S. Bankruptcy
Code may be subject to a security interest arising from a security agreement
entered into by the debtor before the commencement of such case; and
(E) the perfection of a security interest that is perfected by the filing
of a financing statement will be terminated (1) under Section 9-402 of the
Illinois UCC as to any Collateral acquired by any Credit Party more than four
months after such Credit Party changes its name, identity or corporate structure
so as to make the financing statement seriously misleading, unless new
appropriate financing statements indicating the new name, identity or corporate
structure of such Credit Party are properly filed before the expiration of such
four months; and (2) under Sections 9-103 and 9-104 of the Illinois UCC or
Sections 9-103 and 9-104 of the New York UCC as to any collateral consisting of
accounts, general intangibles, mobile goods or chattel paper, four months after
such Credit Party changes its chief executive office to a new jurisdiction
outside the jurisdiction in which such Credit Party has its chief executive
office (or, if earlier, when perfection under the laws of such jurisdiction
would have ceased as set forth above) unless such security interests are
perfected in such new jurisdiction before that termination.
7. The Guarantee and Collateral Agreement creates in favor of the Agent for
the benefit of the Lenders a security interest under the New York UCC in the
investment property identified on Schedule 2 to the Guarantee and Collateral
Agreement (the "PLEDGED SECURITIES"). Assuming that the Pledged Securities are
"securities" as defined in Section 8-102(15) or 8-103 of the New York UCC, the
Agent will have a perfected security interest in the Pledged Securities for the
benefit of the Lenders under the New York UCC upon delivery to the Agent for the
benefit of the Lenders in the State of New York of the certificates representing
the Pledged Securities in registered form, indorsed in blank by an effective
indorsement or accompanied by undated stock powers with respect thereto duly
indorsed in blank by an effective indorsement. Assuming the Agent does not have
notice of any adverse claim to the Pledged Securities, the Agent will acquire
the security interest in the Pledged Securities for the benefit of the Lenders
free of any adverse claim.
<PAGE>
Page 6
The opinions as expressed herein are subject to the following
qualifications:
(a) the enforceability of the Credit Documents and the obligations of the
Credit Parties thereunder and the availability of certain rights and remedial
provisions provided for in the Credit Documents are subject to the effect of
bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization,
arrangement, liquidation, conservatorship, and moratorium laws and are subject
to limitations imposed by other laws and judicial decisions relating to or
affecting the rights of creditors or secured creditors generally, and general
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity) upon the availability of injunctive relief or
other equitable remedies, including, without limitation, where (i) the breach of
such covenants or provisions imposes restrictions or burdens upon a debtor and
it cannot be demonstrated that the enforcement of such remedies, restrictions or
burdens is reasonably necessary for the protection of a creditor; (ii) a
creditor's enforcement of such remedies, covenants or provisions under the
circumstances, or the manner of such enforcement, would violate such creditor's
implied covenant of good faith and fair dealing, or would be commercially
unreasonable; or (iii) a court having jurisdiction finds that such remedies,
covenants or provisions were, at the time made, or are in application,
unconscionable as a matter of law or contrary to public policy;
(b) as to our opinions set forth in paragraph 3 hereof, we express no
opinion as to the enforceability of cumulative remedies to the extent such
cumulative remedies purport to or would have the effect of compensating the
party entitled to the benefits thereof in amounts in excess of the actual loss
suffered by such party;
(c) we express no opinion as to any Collateral (other than the Pledged
Securities) as to which the creation and perfection of security interests
therein are not governed by Article 9 of the Illinois UCC or Article 9 of the
New York UCC or any Collateral consisting of goods that are or may become
fixtures on any premises, nor do we express any opinion with respect to the
creation, perfection or enforceability of security interests in property in
which it is illegal or violative of governmental rules or regulations to grant a
security interest, or "general intangibles" (as defined in the Illinois UCC or
the New York UCC) which terminate or become terminable (pursuant to the terms of
an agreement) if a security interest is granted therein, property subject to
negative pledge clauses of which the Agent or the Lenders are aware, or any
security interest in any "accounts," "chattel paper," "documents," "instruments"
or "general intangibles" (as defined in the Illinois UCC or the New York UCC)
with respect to which the account debtor or obligor is the United States of
America, any state, county, city, municipality or other governmental body, or
any department, agency or instrumentality thereof, unless the same has been
assigned to the Agent pursuant to and in accordance with the Assignment of
Claims Act of 1940, as amended, or any similar law or regulation relating to the
assignment or pledge thereof;
(d) except as set forth in paragraphs 6 and 7 above, we express no opinion
as to the creation or perfection of a security interest in any Collateral, and
we express no opinion as to the priority of any security interest;
(e) we have not made nor undertaken to make any investigation of the state
of title to the Collateral or the location thereof and we express no opinion
with respect to the existence or title of such Collateral, any Credit Party's
right in such Collateral, the location thereof or to the
<PAGE>
Page 7
priority of the liens, security interests or pledges granted or purported to
be granted by the Credit Documents;
(f) any purported assignment of any agreement or any governmental approval,
license or permit may be subject to restrictions upon assignment or transfer
which, although not necessarily applicable to assignments intended as security,
may be required to be satisfied before the Agent will be treated as an assignee
(other than a collateral assignee) thereof, except to the extent that consents
to or approvals of such assignment have been obtained from the appropriate
governmental body or third party;
(g) the rights of debtors, guarantors and other secured parties to receive
notices under Sections 9-504 and 9-505 of the Illinois UCC or Sections 9-504 and
9-505 of the New York UCC may not be waived prior to default and the failure to
comply with such notice requirements may bar or limit the recovery of any
deficiency remaining after the retention or sale of repossessed Collateral and
further, we express no opinion as to the right of the Agent to enforce any of
its rights without notice to the Credit Parties and without judicial hearing or
without bond, nor do we express any opinion as to whether the periods of notice
set forth in the Credit Documents are enforceable;
(h) certain provisions of the Credit Documents regarding the application of
proceeds realized from the sale of Collateral do not make reference (although
they do not have to in order to enable the Agent to exercise the rights and
remedies of a secured party under the Illinois UCC or the New York UCC) to the
Agent's and the Lenders' obligations to satisfy indebtedness due to the holders
of subordinate security interests in such collateral under certain conditions
under Section 9-504(1)(c) of the Illinois UCC or Section 9-504 (1)(c) the New
York UCC or to account to the Credit Parties for any surplus proceeds;
(i) notwithstanding certain language of the Credit Documents, the Agent and
the Lenders may be limited to recovering only reasonable expenses with respect
to the retaking, holding, preparing for sale or lease, selling, leasing and the
like of Collateral and reasonable attorneys' fees and legal expenses and only
reasonable compensation for funding losses, increased costs or yield protection;
(j) the duties to exercise reasonable care in the custody and preservation
of Collateral in a secured party's possession, to deal with and to dispose of
Collateral in a commercially reasonable manner as required by the Illinois UCC
or the New York UCC or other applicable law may not be disclaimed by agreement,
modified, waived or released prior to a default;
(k) provisions in the Credit Documents deemed to impose the payment of
interest on interest may be unenforceable, void or voidable under applicable
law;
(l) any rights of the Agent to foreclose its liens or enforce its remedies
against the Collateral must be enforced pursuant to the provisions of the
Illinois UCC or the New York UCC and other applicable federal, state or local
laws;
(m) we express no opinion as to the validity, binding effect or
enforceability of any indemnification provisions of the Credit Documents;
<PAGE>
Page 8
(n) requirements in the Credit Documents specifying that provisions thereof
may only be waived in writing may not be valid, binding or enforceable to the
extent that an oral agreement or an implied agreement by trade practice or
course of conduct has been created modifying any provision of such documents;
(o) we express no opinion with respect to the validity, binding effect or
enforceability of any provision of the Credit Documents which purports to
authorize the Agent or any Lender to sign or file financing statements or other
documents without the signature of any Credit Party (except to the extent a
secured party may execute and file financing statements without the signature of
the debtor under Section 9-402(2) of the Illinois UCC or Section 9-402 (2) the
New York UCC);
(p) we express no opinion with respect to the validity, binding effect or
enforceability of any purported waiver, release or disclaimer under any of the
Credit Documents relating to (i) statutory or equitable rights and defenses of
any Credit Party which are not subject to waiver, release or disclaimer, or (ii)
rights or claims of, or duties owing to, any Credit Party (including, without
limitation, any waiver, release or disclaimer of any provision of the Illinois
UCC or the New York UCC) to the extent limited by Sections 1-102(3), 9-207 and
9-501(3) of the Illinois UCC or Sections 1-102(3), 9-207 and 9-501(3) of the New
York UCC or other provisions of applicable law, or to the extent such rights,
claims and duties otherwise exist as a matter of law except to the extent any
Credit Party has effectively so waived, released or disclaimed such rights,
claims or duties in accordance with Section 9-501 of the Illinois UCC or Section
9-501 of the New York UCC or other applicable law;
(q) we express no opinion as to the Agent's ability to use "self-help"
remedies to repossess the Collateral if a breach of the peace were to occur and
if any provisions in the Credit Documents grant "self-help" remedies, they may
be enforceable only after the entry of an order by a court having jurisdiction
over the matter permitting the enforcement of such remedies;
(r) certain other rights, remedies and waivers (other than those reflected
in the foregoing qualifications and assumptions) contained in the Credit
Documents may be rendered ineffective, or limited by, applicable laws, rules,
regulations, constitutional requirements or judicial decisions governing such
provisions, but such laws, rules, regulations, constitutional limitations and
judicial decisions do not, in our opinion (subject to the other qualifications
and comments set forth in this opinion letter), make the Credit Documents
inadequate for the practical realization of the benefits and/or security
provided by such Credit Documents, although they may result in a delay thereof
(and we express no opinion with respect to the economic consequences of any such
delay);
(s) we express no opinion with respect to the applicability or effect of
federal or state anti-trust, tax, securities or "blue sky" laws or Regulations
T, U or X of the Board of Governors of the Federal Reserve System with respect
to the transactions contemplated by the Credit Documents;
(t) we express no opinion with respect to the validity, binding effect or
enforceability of any provision of the Credit Documents purporting to establish
evidentiary standards or a consent to jurisdiction and venue or waiving service
of process or demand or notice and hearing
<PAGE>
Page 9
or constitutional rights (including a jury trial) or purporting to eliminate any
obligation to marshall assets;
(u) we express no opinion with respect to any provisions of the Credit
Documents purporting to appoint any Person as attorney-in-fact or agent for any
Credit Party;
(v) we express no opinion as to the severability of any provision of the
Credit Documents; and
(w) we express no opinion as to the enforceability of any provisions in the
Credit Documents relating to consent to jurisdiction insofar as such provisions
purport to confer subject matter jurisdiction to a federal court.
The opinions expressed herein are based upon and are limited to the laws of
the State of Illinois, the State of New York and the laws of the United States
of America and we express no opinion with respect to the laws of any other state
or jurisdiction.
Our opinions set forth in this letter are based upon the facts in existence
and laws in effect on the date hereof and we expressly disclaim any obligation
to update our opinions herein, regardless of whether changes in such facts or
laws come to our attention after the delivery hereof.
This opinion letter is solely for the benefit of the addressees hereof in
connection with the execution and delivery of the Credit Agreement, provided
that this opinion letter may be relied upon by any Lender which becomes a party
to the Credit Agreement in accordance with Section 9.6 of the Credit Agreement.
This opinion letter may not be relied upon in any manner by any other person and
may not be disclosed, quoted or otherwise referred to without our prior written
consent.
Very truly yours,
WINSTON & STRAWN
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
------------------------------------------------------------ ---------------------------------------------------------
ENTITY STATE OF ORGANIZATION
------ ---------------------
------------------------------------------------------------ ---------------------------------------------------------
<S> <C>
Bellwether Properties of Florida (Limited) Florida limited partnership
------------------------------------------------------------ ---------------------------------------------------------
HRE - Countryside, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE - Clearwater, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
North Olmsted, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
Motown Mall General, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
TLN Limited Partnership Delaware limited partnership
------------------------------------------------------------ ---------------------------------------------------------
Detroit Partners Limited Partnership Michigan limited partnership
------------------------------------------------------------ ---------------------------------------------------------
Detroit Partners II Limited Partnership Michigan limited partnership
------------------------------------------------------------ ---------------------------------------------------------
Maplewood Mall Associates Limited Partnership Delaware limited partnership
------------------------------------------------------------ ---------------------------------------------------------
HRE Maplewood, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE Minneapolis, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE North Star, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE San Antonio, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
North Star Mall Associates Limited Partnership Delaware limited partnership
------------------------------------------------------------ ---------------------------------------------------------
HRE Finance, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
South Park Mall Limited Partnership North Carolina limited partnership
------------------------------------------------------------ ---------------------------------------------------------
HRE - South Park, Inc. North Carolina corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE - Charlotte, Inc. North Carolina corporation
------------------------------------------------------------ ---------------------------------------------------------
RNA-SI-SKS, LLC Delaware limited liability company
------------------------------------------------------------ ---------------------------------------------------------
RNA-SI, LLC Delaware limited liability company
------------------------------------------------------------ ---------------------------------------------------------
HRE Altamonte, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE Danbury, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------------------ ---------------------------------------------------------
ENTITY STATE OF ORGANIZATION
------ ---------------------
------------------------------------------------------------ ---------------------------------------------------------
<S> <C>
HRE Valencia, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE Paramus Park, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE Nashland, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE Twelve Oaks, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE Pheasant Lane Store, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE-South Park, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
HRE-Charlotte, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
Rodamco USA, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
Detroit Investments, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
745 Fifth, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
Realco Fifth, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
RNA Coast Investments, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
Motown Mall Limited, Inc. Delaware corporation
------------------------------------------------------------ ---------------------------------------------------------
Novi Mall Associates Michigan co-partnership
------------------------------------------------------------ ---------------------------------------------------------
Great Northern Partnership Ohio general partnership
------------------------------------------------------------ ---------------------------------------------------------
745 Associates New York general partnership
------------------------------------------------------------ ---------------------------------------------------------
Rodamco Partners New York general partnership
------------------------------------------------------------ ---------------------------------------------------------
</TABLE>
