<PAGE>
EXHIBIT 99.2
AMENDED AND RESTATED LOAN AGREEMENT
between
CT OPERATING PARTNERSHIP, L.P.,
as Borrower
The Lenders Party Hereto
as Lenders
and
GENERAL ELECTRIC CAPITAL CORPORATION
as Administrative Agent
Date: As of December 15, 2000
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TABLE OF CONTENTS
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Page No.
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ARTICLE 1 CERTAIN DEFINITIONS...................................... 1
Section 1.1 Certain Definitions...................................... 1
ARTICLE 2 LOAN TERMS............................................... 28
Section 2.1 The Commitments, Loans and Notes......................... 28
Section 2.2 Letters of Credit........................................ 30
Section 2.3 Funding of Borrowings.................................... 35
Section 2.4 Interest Elections....................................... 35
Section 2.5 Termination and Reduction of Commitments................. 36
Section 2.6 Interest Rate; Late Charge............................... 37
Section 2.7 Terms of Payment......................................... 37
Section 2.8 Security; Sinking Fund................................... 40
Section 2.9 Release of Project....................................... 41
Section 2.10 Payments; Pro Rata Treatment; Etc........................ 42
Section 2.11 Yield Protection; Etc.................................... 45
Section 2.12 Borrowing Base Determination............................. 51
Section 2.13 Fees..................................................... 54
ARTICLE 3 INSURANCE, CONDEMNATION, AND LOCKBOX ACCOUNT............. 55
Section 3.1 Insurance................................................ 55
Section 3.2 Use and Application of Insurance Proceeds................ 57
Section 3.3 Condemnation Awards...................................... 57
Section 3.4 Lockbox Account.......................................... 58
ARTICLE 4 ENVIRONMENTAL MATTERS.................................... 60
Section 4.1 Certain Definitions...................................... 60
Section 4.2 Representations and Warranties on Environmental Matters.. 60
Section 4.3 Covenants on Environmental Matters....................... 60
Section 4.4 Allocation of Risks and Indemnity........................ 61
Section 4.5 No Waiver................................................ 61
ARTICLE 5 LEASING MATTERS.......................................... 62
Section 5.1 Representations and Warranties on Leases................. 62
Section 5.2 Standard Lease Form; Approval Rights..................... 62
Section 5.3 Covenants................................................ 63
Section 5.4 Tenant Estoppels......................................... 64
ARTICLE 6 REPRESENTATIONS AND WARRANTIES........................... 64
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Section 6.1 Organization and Power................................... 64
Section 6.2 Validity of Loan Document................................ 65
Section 6.3 Liabilities; Litigation.................................. 65
Section 6.4 Taxes and Assessments.................................... 66
Section 6.5 Other Agreements; Defaults............................... 66
Section 6.6 Compliance with Law...................................... 66
Section 6.7 Location of Borrower..................................... 66
Section 6.8 ERISA.................................................... 66
Section 6.9 Margin Stock............................................. 67
Section 6.10 Tax Filings.............................................. 67
Section 6.11 Solvency................................................. 67
Section 6.12 Full and Accurate Disclosure............................. 67
Section 6.13 Properties............................................... 67
Section 6.14 Management Agreement..................................... 69
Section 6.15 REIT Status.............................................. 69
Section 6.16 Ownership of Projects and Property....................... 69
Section 6.17 REIT Debt................................................ 70
ARTICLE 7 FINANCIAL REPORTING NOTIFICATION REQUIREMENTS............ 70
Section 7.1 Financial Statements..................................... 70
Section 7.2 Notices of Material Event................................ 72
Section 7.3 Audits................................................... 75
ARTICLE 8 COVENANTS................................................ 75
Section 8.1 Cash Sales............................................... 75
Section 8.2 Taxes; Charges........................................... 76
Section 8.3 Project Management....................................... 76
Section 8.4 Operation; Maintenance; Inspection....................... 76
Section 8.5 Taxes on Security........................................ 76
Section 8.6 Legal Existence; Name, Etc............................... 76
Section 8.7 Reserved................................................. 77
Section 8.8 Books and Records; Inspection Rights..................... 77
Section 8.9 Further Assurances....................................... 77
Section 8.10 Outstanding REIT Debt.................................... 78
Section 8.11 Payment of Obligations................................... 78
Section 8.12 Indemnification.......................................... 78
Section 8.13 Compliance with Laws..................................... 79
Section 8.14 Use of Proceeds and Letters of Credit.................... 79
Section 8.15 Ownership of Projects and Properties..................... 79
ARTICLE 9 EVENTS OF DEFAULT........................................ 79
Section 9.1 Payments................................................. 79
Section 9.2 Reserved................................................. 80
Section 9.3 Financial Covenants...................................... 80
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Section 9.4 Reserved................................................. 80
Section 9.5 Sale, Encumbrance, Etc................................... 80
Section 9.6 Representations and Warranties........................... 80
Section 9.7 Reserved................................................. 80
Section 9.8 Involuntary Bankruptcy or Other Proceeding............... 80
Section 9.9 Voluntary Petitions, Etc................................. 80
Section 9.10 Default under Material Indebtedness...................... 80
Section 9.11 Judgments................................................ 81
Section 9.12 ERISA Event.............................................. 81
Section 9.13 Change in Control........................................ 81
Section 9.14 Material Adverse Event................................... 81
Section 9.15 REIT Status.............................................. 81
Section 9.16 Merger................................................... 81
Section 9.17 Environmental Event...................................... 81
Section 9.18 Sinking Fund Deficiency.................................. 82
Section 9.19 Covenants................................................ 82
ARTICLE 10 REMEDIES................................................. 82
Section 10.1 Remedies - Insolvency Events............................. 82
Section 10.2 Remedies - Other Events.................................. 82
Section 10.3 Lender's Right to Perform the Obligations................ 82
ARTICLE 11 MISCELLANEOUS............................................ 83
Section 11.1 Notices.................................................. 83
Section 11.2 Amendments, Waivers, Etc................................. 84
Section 11.3 Limitation on Interest................................... 84
Section 11.4 Invalid Provisions....................................... 85
Section 11.5 Reimbursement of Expenses................................ 85
Section 11.6 Approvals; Third Parties; Conditions..................... 86
Section 11.7 Lenders, Issuing Bank and Administrative Agent Not in
Control; No Partnership.................................. 86
Section 11.8 Time of the Essence...................................... 87
Section 11.9 Successors and Assigns; Secondary Market Transactions.... 87
Section 11.10 Renewal, Extension or Rearrangement...................... 88
Section 11.11 Waivers.................................................. 88
Section 11.12 Cumulative Rights........................................ 88
Section 11.13 Singular and Plural...................................... 88
Section 11.14 Phrases.................................................. 88
Section 11.15 Exhibits and Schedules................................... 88
Section 11.16 Titles of Articles, Sections and Subsections............. 89
Section 11.17 Promotional Material; Confidentiality.................... 89
Section 11.18 Survival................................................. 90
Section 11.19 Waiver of Jury Trial..................................... 90
Section 11.20 Waiver of Punitive or Consequential Damages.............. 90
Section 11.21 Governing Law............................................ 90
Section 11.22 Entire Agreement......................................... 91
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Section 11.23 Counterparts............................................. 91
Section 11.24 Assignments and Participations........................... 92
Section 11.25 Release.................................................. 93
ARTICLE 12 NEGATIVE COVENANTS....................................... 94
Section 12.1 Indebtedness and Other Financial Covenants............... 94
Section 12.2 Liens.................................................... 95
Section 12.3 Fundamental Changes...................................... 95
Section 12.4 Investments, Loans, Advances, Guarantees and
Acquisitions............................................. 96
Section 12.5 Hedging Agreements....................................... 96
Section 12.6 Transactions with Affiliates............................. 96
Section 12.7 Margin Regulations; Securities Laws...................... 97
ARTICLE 13 THE ADMINISTRATIVE AGENT................................. 97
Section 13.1 Appointment, Powers and Immunities....................... 97
Section 13.2 Reliance by Administrative Agent......................... 98
Section 13.3 Defaults................................................. 98
Section 13.4 Rights as a Lender....................................... 98
Section 13.5 Standard of Care; Indemnification........................ 99
Section 13.6 Non-Reliance on Administrative Agent and Other Lenders... 99
Section 13.7 Failure to Act........................................... 100
Section 13.8 Resignation of Administrative Agent...................... 100
Section 13.9 Limitation on Liability of the Administrative Agent's,
the Issuing Bank's and the Lenders' Officers,
Employees, etc........................................... 100
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<PAGE>
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT C - FORM OF BORROWING BASE CERTIFICATE
EXHIBIT D - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E - FORM OF SUBORDINATION AND ATTORNMENT
AGREEMENT
EXHIBIT F - DUE DILIGENCE REQUEST FORM
EXHIBIT G - FORM OF TENANT NOTICE
EXHIBIT H - FORM OF BORROWING REQUEST
SCHEDULE 1 - COMMITMENTS
SCHEDULE 2.1 - ADVANCE CONDITIONS
SCHEDULE 2.12 - INITIAL PROJECTS
SCHEDULE 6.1(2) - ORGANIZATIONAL CHART
SCHEDULE 6.3(3) - INDEBTEDNESS
SCHEDULE 6.13(1) - OWNED PROPERTIES
SCHEDULE 6.13(2) - LEASED PROPERTIES
SCHEDULE 6.14 - MANAGEMENT AGREEMENTS
v
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
This Amended and Restated Loan Agreement (this "Agreement") is entered into
---------
as of December 15, 2000 among CT OPERATING PARTNERSHIP, L.P., a limited
partnership duly organized and validly existing under the laws of the State of
California ("Borrower"); each of the lenders that is a signatory hereto
--------
identified under the caption "LENDERS" on the signature pages hereof and each
lender that becomes a "Lender" after the date hereof pursuant to Section
-------
11.24(2) (individually, a "Lender" and, collectively, the "Lenders"); and
-------- ------ -------
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, as administrative
agent for the Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
--------------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower and General Electric Capital Corporation, as Lender
and Administrative Agent, entered into a Loan Agreement (the "Existing Loan
-------------
Agreement"), dated as of March 31, 2000 and amended by letter agreements dated
---------
May 26, 2000 and November 30, 2000; and
WHEREAS, the parties hereto have agreed to amend and restate the terms and
conditions contained in the Existing Loan Agreement in their entirety as
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. The Existing Loan Agreement is hereby modified so that all of the
terms and conditions of the Existing Loan Agreement shall be restated in their
entirety as set forth herein, and the Borrower agrees to comply with and be
subject to all of the terms, covenants and conditions of this Agreement.
II. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and assigns, and shall be deemed
to be effective as of the date hereof.
III. Any reference in the Notes, the Guaranty, any other Loan Document or
any other document executed in connection with this Agreement to the Existing
Loan Agreement shall be deemed to refer to this Agreement.
ARTICLE 1
CERTAIN DEFINITIONS
-------------------
Section 1.1 Certain Definitions. As used herein, the following terms have
-------------------
the meanings indicated:
(1) "ABR Limitation" has the meaning assigned in Section 2.1(7).
-------------- --------------
<PAGE>
(2) "Additional Costs" has the meaning assigned in Section
----------------
2.10(1)(a).
----------
(3) "Adjusted EBITDA" means, for any Person, for any period, (i)
---------------
EBITDA for such Person, for such period, as adjusted to eliminate the straight-
lining of rents, less (ii) the Capital Expenditure Reserve Amount for such
----
Person's Properties for such period.
(4) "Adjusted Libor Rate" means, for any Interest Period for any
-------------------
Eurodollar Loan, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the Libor
Base Rate for such Interest Period divided by 1 minus the Reserve Requirement
---------- -----
(if any) for such Interest Period.
(5) "Adjusted Net Operating Income" means, for any period, with
-----------------------------
respect to any Property, the Net Operating Income relating to such Property for
such period less (i) the Capital Expenditure Reserve Amount relating to such
Property, and (ii) a management fee equal to the greater of three percent (3%)
of gross revenues for such Property and the actual management fees for such
Property.
(6) "Advance Date" has the meaning assigned in Section 2.10(3).
------------ ---------------
(7) "Affiliate" means, with respect to any Person, (a) any
---------
corporation in which such Person or any partner, shareholder, director, officer,
member, or manager of such Person directly or indirectly owns or controls more
than ten percent (10%) of the beneficial interest, (b) any partnership, joint
venture or limited liability company in which such Person or any partner,
shareholder, director, officer, member, or manager of such Person is a partner,
joint venturer or member, (c) any trust in which such Person or any partner,
shareholder, director, officer, member or manager of such Person is a trustee or
beneficiary, (d) any entity of any type which is directly or indirectly owned or
controlled by such Person or any partner, shareholder, director, officer, member
or manager of such Person, (e) any partner, shareholder, director, officer,
member, manager or employee of such Person, (f) any Person related by birth,
adoption or marriage to any partner, shareholder, director, officer, member,
manager, or employee of such Person, or (g) in the case of Borrower, any
Borrower Party.
(8) "Agency" means The Redevelopment Agency of the City of Burbank
------
and any successor thereto.
(9) "Agency Notes" shall mean (a) that certain Promissory Note to
------------
Haagen-Burbank Partners (Phase 2 Loan), dated November 15, 1989, made payable by
the Agency to the order of Haagen-Burbank Partners (the predecessor-in-interest
to the Borrower) in the principal amounts of $18,500,000, (b) that certain
Promissory Note to Haagen-Burbank Partners (Purchase Money Note), dated December
6, 1990, made payable by the Agency to the order of Haagen-Burbank Partners (the
predecessor-in-interest to the Borrower) in the principal amounts of $33,000,000
and (c) the undenominated Promissory Note to Haagen-Burbank Partners (Second
Implementation Agreement Note) issued by the Agency to Haagen-Burbank Partners
(the predecessor-in-interest to the Borrower) pursuant to the Second
Implementation Agreement, dated September 23, 1993, between the Agency and
Haagen-Burbank Partners (the predecessor-in-interest to the Borrower), together
with any amendments or other modifications thereto and any replacements or
substitutes therefor.
2
<PAGE>
(10) "Agreement" means this Loan Agreement, as amended from time to
---------
time.
(11) "Alternate Base Rate" means, for any day, a rate per annum equal
-------------------
to the Prime Rate in effect for such day plus (a) two percent (2.0%) per annum,
----
if and for so long as the Loan-to-Value Ratio is greater than 75%, (b) one and
three-quarters percent (1.75%) per annum, if and for so long as the Loan-to-
Value Ratio is greater than 70%, but less than or equal to 75%, and (c) one and
one-half percent (1.5%) per annum, if and for so long as the Loan-to-Value Ratio
is 70% or less.
(12) "Alternate Base Rate Loans" means Loans that bear interest at
-------------------------
rates based upon the Alternate Base Rate.
(13) "Applicable Lending Office" means, for each Lender and for each
-------------------------
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the respective signature pages
hereof or such other office of such Lender (or of an affiliate of such Lender)
as such Lender may from time to time specify to the Administrative Agent and the
Borrower as the office by which its Loans of such Type are to be made and
maintained; provided that no Lender shall be permitted to change its Applicable
-------- ----
Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 2.11(2) or Section 2.11(3), Borrower would be unable to
--------------- ---------------
maintain any Loans as Eurodollar Loans; or (ii) Borrower would be required to
make any payment to such Lender pursuant to the provisions of Section 2.11(1) or
---------------
Section 2.11(6).
---------------
(14) "Applicable Margin" means (a) three percent (3.0%) per annum, if
-----------------
and for so long as the Loan-to-Value Ratio is greater than 75%, (b) two and
three-quarters percent (2.75%) per annum, if and for so long as the Loan-to-
Value Ratio is greater than 70%, but less than or equal to 75%, and (c) two and
one-half percent (2.5%) per annum if and for so long as the Loan-to-Value Ratio
is 70% or less.
(15) "Applicable Percentage" means, with respect to any Lender, the
---------------------
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
(16) "Appraisal" means an appraisal of a Project prepared by an MAI
---------
appraiser satisfactory to the Administrative Agent, which appraisal must also
(a) satisfy the requirements of Title XI of the Federal Institution Reform,
Recovery and Enforcement Act of 1989 and the regulations promulgated thereunder
(including the appraiser with respect thereto) and (b) be otherwise in form and
substance satisfactory to the Administrative Agent.
(17) "Appraised Value" means, with respect to any Project, the fair
---------------
market value thereof as determined by and as set forth in the Appraisal relating
thereto.
(18) "Assignment and Acceptance" means an Assignment and Acceptance,
-------------------------
duly executed by the parties thereto, in substantially the form of Exhibit B
-------
hereto and consented to by the Administrative Agent in accordance with Section
-------
11.24(2).
--------
3
<PAGE>
(19) "Assignment of Rents and Leases" means an Assignment of Rents and
------------------------------
Leases, executed by Borrower for the benefit of the Administrative Agent (on
behalf of the Lenders), and pertaining to leases of space in a Project, as the
same may be modified or amended from time to time.
(20) "Availability Period" means the period from and including the
-------------------
Closing Date to but excluding the earlier of the Maturity Date and such earlier
date on which the Commitments terminate in accordance with the terms of this
Agreement.
(21) "Available Credit" means, at any time, an amount equal to (i) the
----------------
lower of (A) the then effective Commitments of the Lenders and (B) the
applicable Borrowing Base at such time minus (ii) the sum of (A) total Credit
-----
Exposure of all the Lenders at such time and (B) if the REIT Debt has not been
fully paid, the amount of the Blocked Availability.
(22) "Basle Accord" means the proposals for risk-based capital
------------
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
(23) "Blocked Availability" has the meaning assigned in Section
-------------------- -------
2.12(8).
-------
(24) "Borrower Party" means any Guarantor, any general partner in
--------------
Borrower, and any general partner in any partnership that is a general partner
in Borrower, at any level.
(25) "Borrower's Investment" means, with respect to any Property,
---------------------
Borrower's or any of its Subsidiaries' investment in such Property (including
all investments constituting, evidencing or secured by an interest in property,
whether tangible or intangible and whether real, personal or mixed, that is used
or intended for use in, or in any manner connected with or relating to, the
ownership or leasing of such Property, specifically including, without
limitation, investments in Subsidiaries owning or leasing Properties), at cost,
on a consolidated basis, provided that in determining the cost of such
-------- ----
investments, there shall be included (i) the amount of all cash paid and the
value (as reasonably determined by the Company for purposes of such investment)
of any other property transferred therefor by Borrower or its Subsidiary, (ii)
the amount of all Indebtedness and other obligations assumed or incurred by
Borrower or its Subsidiary or to which Borrower or its Subsidiary takes subject,
and (iii) the value (as determined by the Company for the purposes of such
investment) of all equity securities of which the issuer is an entity that is,
or upon such investment will be, included within Borrower or its Subsidiary and
which are issued (otherwise than for cash) to, or retained by, any person other
than Borrower or its Subsidiary in connection with such investment.
(26) "Borrowing" means a Loan that is made, Converted or Continued as
---------
of any given date.
(27) "Borrowing Base" means, at any given time, subject to Section
-------------- -------
2.12 (including, without limitation, Section 2.12(3)),
---- ----------------
4
<PAGE>
(1) prior to the date on which the Loan-to-Value Ratio is reduced to
70% or less, the least of: (a) the lesser of (i) 78% of the Underwritten Value
of all of the Projects, (ii) 70% of the Appraised Value of all of the Projects
and (iii) an amount that results in the Loan-to-Value Ratio being equal to the
Closing Date Loan-to-Value Ratio; (b) an amount that results in the Borrower
attaining a Cash on Cash Return of 12.5%; and (c) an amount that results in the
Borrower attaining a Debt Service Coverage of 1.25 to 1 calculated using
Adjusted Net Operating Income for the Projects at such time for the four-quarter
period ending as of the end of the most recent fiscal quarter for which
financial statements are required to be delivered hereunder and annualized Debt
Service assuming that the entire Credit Exposure at such time is bearing
interest at the highest market Contract Rate available as of the date of
determination for Loans Continued or Converted on such date for any then
available Interest Period selected by the Administrative Agent; and
(2) from and after the date on which the Loan-to-Value Ratio is
reduced to 70% or less, the least of: (a) the lesser of (i) 70% of the
Underwritten Value of all of the Projects and (ii) 65% of the Appraised Value of
all of the Projects; (b) an amount that results in the Borrower attaining a Cash
on Cash Return of 13%; and (c) an amount that results in the Borrower attaining
a Debt Service Coverage of 1.4 to 1 calculated using Adjusted Net Operating
Income for the Projects at such time for the four-quarter period ending as of
the end of the most recent fiscal quarter for which financial statements are
required to be delivered hereunder and assuming that the entire Credit Exposure
at such time is bearing interest at the highest market Contract Rate available
as of the date of determination for Loans Continued or Converted on such date
for any then available Interest Period selected by the Administrative Agent.
Notwithstanding the foregoing, the Borrowing Base shall be reduced by
$475,300 (the "Borrowing Base Adjustment") until each of the following
-------------------------
conditions (the "Food 4 Less Conditions") has been satisfied: (a) Borrower shall
----------------------
have remitted to Fleming Companies, Inc. ("Fleming") all amounts due to Fleming
-------
under subsection 5.2 of that certain Shopping Center Lease dated as of March 31,
2000 between Borrower, as landlord, and Fleming, as tenant, relating to the
"Food 4 Less" Store located at the Southern Palms Center and (b) Borrower shall
have delivered to Administrative Agent evidence of the same in form and
substance reasonably satisfactory to Administrative Agent.
Each of the Borrower, the Administrative Agent and each Lender
acknowledges and agrees that the Borrowing Base as of the Closing Date is
$185,831,000, after giving effect to the Borrowing Base Adjustment.
(28) "Borrowing Base Certificate" means a certificate of Borrower
--------------------------
substantially in the form of Exhibit C.
---------
(29) "Borrowing Base Imbalance" has the meaning assigned to such term
------------------------
in Section 2.7(6) hereof.
--------------
(30) "Borrowing Request" means a request by Borrower for a Borrowing
-----------------
in accordance with Section 2.1(3).
--------------
5
<PAGE>
(31) "Business Day" means (a) any day other than a Saturday, a Sunday,
------------
or other day on which commercial banks located in New York City, New York or Los
Angeles, California are authorized or required by law to remain closed and (b)
in connection with a Borrowing of, a payment or prepayment of principal of or
interest on, a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Borrower with respect to any such Borrowing, payment,
prepayment or Conversion, the term "Business Day" shall also exclude a day on
which banks are not open for dealings in Dollar deposits in the London interbank
market.
(32) "Capital Expenditure Reserve Amount" means, for any Property, the
----------------------------------
greater of (i) an amount per annum equal to $0.30 multiplied by the number of
rentable square feet for such Property and (ii) as of the first day of each
calendar quarter, an amount equal to the actual Capital Expenditures for such
Property for the immediately preceding consecutive (4) four calendar quarters.
(33) "Capital Expenditures" means, for any period, the aggregate of
--------------------
all expenditures (whether payable in cash or other property or accrued as a
liability (but without duplication) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Company's, Borrower's
or any of its Subsidiaries' fixed asset accounts as reflected in any of their
respective balance sheets; provided, however, that Capital Expenditures shall
-------- -------
(a) include the sum of all expenditures by the Consolidated Businesses for
tenant improvements, leasing commissions and property level capital expenditures
(e.g., roof replacement, parking lot repairs, etc.) and (b) exclude capital
expenditures in connection with expansions, initial developments and initial
lease-up of Properties and the lease-up of any space at a Property which has
been vacant for more than one (1) year.
(34) "Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
-------------------------
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody's
provided that such Cash and Cash Equivalents shall mature within one (1) year of
-------- ----
the acquisition thereof.
(35) "Cash Collateral Account Agreement" means that certain Pledge
---------------------------------
Agreement, dated as of June 1, 2000 between Borrower and the Administrative
Agent, as the same may be amended or otherwise modified from time to time in
accordance with the terms thereof.
(36) "Cash on Cash Return" means, at any given time, the ratio,
-------------------
expressed as a percentage, of (a) Adjusted Net Operating Income for all Projects
for the immediately preceding four (4) full fiscal quarters to (b) the amount of
the Credit Exposure at such time.
(37) "Change in Control" means (a) the acquisition of ownership,
-----------------
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in
6
<PAGE>
effect on the date hereof) other than Prometheus, of shares representing more
than 25% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Company; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Company by
Persons who were neither (i) nominated by the board of directors of the Company
nor (ii) appointed by directors so nominated; or (c) the acquisition of direct
or indirect control of Borrower or the Company by any Person or group other than
Prometheus.
(38) "Closing Date" means December 15, 2000.
(39) "Closing Date Loan-to-Value Ratio" means 78%.
--------------------------------
(40) "Code" means the Internal Revenue Code of 1986, as amended from
----
time to time.
(41) "Commitment" means, as to each Lender, the obligation of such
----------
Lender to make a Loan and to acquire participations in Letters of Credit in a
principal amount up to but not exceeding the amount set opposite the name of
such Lender on Schedule 1 under the caption "Commitment" or, in the case of a
----------
Person that becomes a Lender pursuant to an assignment permitted under Section
-------
11.24(2), as specified in the respective instrument of assignment pursuant to
--------
which such assignment is effected, in any case as such Commitment may be (a)
reduced from time to time pursuant to Section 2.5 and (b) reduced or increased
-----------
from time to time pursuant to assignments by or to such Lender pursuant to
Section 11.24. The original aggregate principal amount of the Commitments is
-------------
$193,000,000.
(42) "Company" means Center Trust, Inc., a Maryland corporation.
-------
(43) "Compliance Certificate" means a certificate of Borrower
----------------------
substantially in the form of Exhibit D.
---------
(44) "Consolidated Businesses" means the Company, Borrower and their
-----------------------
wholly-owned Subsidiaries and, to the extent allocable to the Company, the
Borrower and their wholly-owned Subsidiaries in accordance with GAAP, any other
Person in whom the Company, Borrower or their wholly-owned Subsidiaries holds an
investment, which investment is accounted for in the financial statements of the
Company, the Borrower or their wholly-owned Subsidiaries on an equity basis of
accounting and whose financial results would be consolidated under GAAP with the
financial results of the Company, the Borrower and their wholly-owned
Subsidiaries.
(45) "Contingent Obligation" as to any Person means, without
---------------------
duplication, (i) any contingent obligation of such Person required to be shown
on such Person's balance sheet in accordance with GAAP, and (ii) any obligation
required to be disclosed in the footnotes to such Person's financial statements
in accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. The amount of any Contingent Obligation described in clause (ii) shall
be deemed to be (a) with respect to a guaranty of interest or interest and
principal, or
7
<PAGE>
operating income guaranty, the sum of all payments required to be made
thereunder (which in the case of an operating income guaranty shall be deemed to
be equal to the debt service for the note secured thereby), calculated at the
interest rate applicable to such Indebtedness, through (i) in the case of an
interest or interest and principal guaranty, the stated date of maturity of the
obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the applicable Borrower required to be
delivered pursuant hereto. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion shall be deemed to be a Contingent
Obligation in an amount equal to any such claim. Subject to the preceding
sentence, (i) in the case of a joint and several guaranty given by such Person
and another Person (but only to the extent such guaranty is recourse, directly
or indirectly to the applicable Borrower), the amount of the guaranty shall be
deemed to be 100% thereof unless and only to the extent that (X) such other
Person has delivered Cash and Cash Equivalents to secure all or any part of such
Person's guaranteed obligations or (Y) such other Person holds an Investment
Grade Rating from either Moody's or S&P, and (ii) in the case of a guaranty,
(whether or not joint and several) of an obligation otherwise constituting
Indebtedness of such Person, the amount of such guaranty shall be deemed to be
only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees of
loan commitments or of construction loans to the extent such commitments or
loans have not been drawn upon.
(46) "Continue" "Continuation" and "Continued" refer to the
-------- ------------ ---------
continuation pursuant to Section 2.4 of a Eurodollar Loan from one Interest
-----------
Period to the next Interest Period for such Loan.
(47) "Contract Rate" has the meaning assigned in Section 2.6.
------------- -----------
(48) "Convert" "Conversion" and "Converted" refer to a conversion
------- ---------- ---------
pursuant to the terms of this Agreement of one Type of Loans into another Type
of Loans, which may be accompanied by the transfer by a Lender (at its sole
discretion) of a Loan from one Applicable Lending Office to another.
(49) "Credit Exposure" means, at any time, the sum of the outstanding
---------------
principal amount of the Loans and the LC Exposure at such time.
(50) "Debt Service" means the aggregate interest and fees due under
------------
the Loan Documents for the period of time for which calculated.
8
<PAGE>
(51) "Debt Service Coverage" means, for the period of time for which
---------------------
calculation is being made, the ratio of Adjusted Net Operating Income from the
Projects to Debt Service.
(52) "Default Rate" means the lesser of (a) the maximum rate of
------------
interest allowed by applicable law, and (b) five percent (5%) per annum in
excess of (i) with respect to Alternate Base Rate Loans, the Alternate Base Rate
as in effect from time to time or (ii) with respect to Eurodollar Loans, the
respective Contract Rate for such Eurodollar Loan.
(53) "Dollars" and "$" means lawful money of the United States of
------- -
America.
(54) "EBITDA" means, for any Person for any period, the Net Income
------
(Loss) of such Person for such period taken as a single accounting period, plus
----
(a) the sum of the following amounts of such Person and its subsidiaries for
such period determined on a consolidated basis in conformity with GAAP to the
extent included in the determination of such Net Income (Loss): (i) depreciation
expense, (ii) amortization expense and other non-cash charges, (iii) interest
expense, (iv) income tax expense, (v) extraordinary losses (and other losses on
asset sales not otherwise included in extraordinary losses determined on a
consolidated basis in conformity with GAAP), and (vi) minority interests in
Unconsolidated Entities, less (b) the sum of the following amounts of such
----
Person and its subsidiaries determined on a consolidated basis in conformity
with GAAP to the extent included in the determination of such Net Income (Loss):
(i) extraordinary gains (and in the case of Borrower, other gains on asset sales
not otherwise included in extraordinary gains determined on a consolidated basis
in conformity with GAAP), (ii) the applicable share of Net Income (Loss) of such
Person's Unconsolidated Entities; plus (c) the portion allocable to such Person
----
of EBITDA of such Person's Unconsolidated Entities.
(55) "Eligible Project Documents" means, with respect to any Eligible
--------------------------
Project, the following documents:
(a) A description of such Eligible Project, such description to
include the age and location of such Eligible Project together with a
current rent roll therefor;
(b) A copy of the most recent ALTA Owner's Policy of Title Insurance
(or commitment to issue such a policy to Borrower or its Subsidiary owning
or to own such Eligible Project) relating to such Eligible Project showing
the identity of the fee titleholder thereto and all matters of record as of
its date;
(c) A PML study for such Eligible Project prepared by a consultant
acceptable to the Administrative Agent;
(d) Engineering, mechanical, structural and maintenance studies
performed by third party consultants with respect to such Eligible Project
acceptable to the Administrative Agent;
(e) A Site Assessment of such Eligible Project;
9
<PAGE>
(f) A Borrowing Base Certificate setting forth on a pro forma basis
the Borrowing Base and the Available Credit assuming that such Eligible
Project is accepted as a Project for the purposes of the Borrowing Base;
and
(g) Such other information as the Administrative Agent may reasonably
request in order to evaluate the Eligible Project;
provided that with respect to any Eligible Project, the Majority Lenders may
-------- ----
waive delivery of any of the Eligible Project Documents.
(56) "Eligible Projects" means, collectively, such of the Properties
-----------------
wholly owned by Borrower as shall (A) be approved by the Administrative Agent
and (B) either (i) be approved by the Majority Lenders or (ii) subject to the
provisions of Section 2.12, meet at any time and from time to time, each of the
------------
following minimum criteria:
(a) such Property is Unencumbered;
(b) such Property is free of all material structural and title
defects other than Permitted Encumbrances;
(c) such Property is, as of the date upon which such Property is to
be included in the Borrowing Base and as of the end of each succeeding
fiscal quarter, (i) in compliance, in all material respects, with all
applicable Environmental Laws, and (ii) not subject to any material
Environmental Liabilities and Costs, in each case as initially verified by
a written report of an environmental consultant reasonably acceptable to
the Administrative Agent;
(d) such Property is an unenclosed, anchored neighborhood shopping
center or power center;
(e) such Property is owned in fee simple by Borrower; and
(f) such Property has, as of the date upon which such Property is
included in the Borrowing Base and as of the end of each succeeding fiscal
quarter, a PML of 20% or less of the replacement cost therefor, in each
case as initially verified by a PML study prepared by a consultant
reasonably acceptable to the Administrative Agent.
(57) "Environmental Claim" means any notice of violation, action,
-------------------
claim, Environmental Lien, demand, abatement or other order or direction
(conditional or otherwise) by any governmental authority or any other Person for
personal injury (including sickness, disease or death), tangible or intangible
property damage, damage to the environment, nuisance, pollution, contamination
or other adverse effects on the environment, or for fines, penalties or
restriction, resulting from or based upon (i) the existence, or the continuation
of the existence, of a Release (including, without limitation, sudden or non-
sudden accidental or non-accidental Releases) of, or exposure to, any Hazardous
Material or odor, audible noise or other nuisance, or other Release in, into or
onto the environment (including, without limitation, the air, soil, surface
water or groundwater) at, in, by, from or related to any property owned,
operated or leased by Borrower or any of its Subsidiaries or any activities or
operations thereof; (ii) the environmental
10
<PAGE>
aspects of the transportation, storage, treatment or disposal of Hazardous
Materials in connection with any property owned, operated or leased by Borrower
or any of its Subsidiaries or their operations or facilities; or (iii) the
violation, or alleged violation, of any Environmental Laws, orders or
environmental permits of or from any governmental authority relating to
environmental matters connected with any property owned, leased or operated by
Borrower or any of its Subsidiaries.
(58) "Environmental Indemnity" means the Joint and Several Hazardous
-----------------------
Material Guaranty and Indemnification Agreement among the Administrative Agent,
Borrower and the Company.
(59) "Environmental Laws" has the meaning assigned in Article 4.
------------------
(60) "Environmental Liabilities and Costs" means as to any Person, all
-----------------------------------
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all reasonable fees, disbursements and expenses
of counsel, experts and consultants and costs of investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
claim or demand by any other Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, including,
without limitation, any thereof arising under any Environmental Law,
environmental permit, order or agreement with any governmental authority or
other Person, and which relate to any environmental, health or safety condition,
or a Release or threatened Release, and result from the past, present or future
operations of, or ownership of property by, such Person or any of its
subsidiaries.
(61) "Environmental Lien" means any Lien in favor of any governmental
------------------
authority arising under any Environmental Law.
(62) "Equity Infusion" means the purchase by Prometheus from the
---------------
Company pursuant to the Stock Purchase Agreement of up to 15,666,666 shares of
the Company's Common Stock at a purchase price of $15.00 per share and a total
purchase price of $234,999,990.
(63) "ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended from time to time.
(64) "ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
(65) "ERISA Event" means (a) any "reportable event", as defined in
-----------
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by Borrower or any of its ERISA
Affiliates of any liability
11
<PAGE>
under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
(66) "Eurodollar Loans" means Loans that bear interest at rates based
----------------
on rates referred to in the definition of "Libor Base Rate".
(67) "Event of Default" has the meaning assigned in Article 9.
----------------
(68) "Exchangeable Debt" shall mean the Indebtedness evidenced by the
-----------------
71/4% Exchangeable Subordinated Debentures Due 2003 issued by the Borrower in
the original principal amount of $30,000,000.
(69) "Extension Conditions" means with respect to a permitted
--------------------
extension of the Maturity Date for the Loans:
(a) Borrower delivers to the Administrative Agent written notice (an
"Extension Notice") requesting such extension at least ninety (90) days,
----------------
but not more than one hundred twenty (120) days, prior to the then
applicable Maturity Date;
(b) no Event of Default or Potential Default exists on the date of
the Administrative Agent's receipt of the Extension Notice or on the date
of the effectiveness of the extension of the Maturity Date;
(c) Borrower pays to the Administrative Agent (on behalf of the
Lenders), a non-refundable extension fee equal to one quarter of one
percent (0.25%) of the then amount of the Commitments;
(d) Borrower executes and delivers to the Administrative Agent prior
to the then applicable Maturity Date, in form reasonably acceptable to the
Administrative Agent, an amendment to the Loan Documents evidencing such
extension, together with all title date-down endorsements, updated Site
Assessments, engineering reports and Appraisals (each dated as of a date
not more than one hundred eighty (180) days prior to the then applicable
Maturity Date), and other documentation reasonably required by the
Administrative Agent;
(e) Borrower delivers a Compliance Certificate; and
(f) Borrower pays to the Administrative Agent, on demand, all
reasonable costs and expenses incurred by the Administrative Agent in
connection with such extension.
12
<PAGE>
(70) "Federal Funds Rate" means, for any day, the rate per annum
------------------
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is
--------
to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Bankers Trust Company on such Business Day
on such transactions as determined by the Administrative Agent, or such other
commercial bank as reasonably selected by the Administrative Agent.
(71) "Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Company.
(72) "Fixed Charges" means, with respect to any fiscal period, the
-------------
sum of (a) Total Interest Expense and (b) the aggregate of all scheduled
principal payments on Total Outstanding Indebtedness according to GAAP made or
required to be made during such fiscal period for the Consolidated Businesses
(but excluding balloon payments of principal due upon the stated maturity of an
Indebtedness), and (c) the aggregate of all dividends payable on the Company's
or any of its consolidated Subsidiaries' preferred stock.
(73) "GAAP" means generally accepted accounting principles in the
----
United States of America.
(74) "GECC" means General Electric Capital Corporation.
----
(75) "Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, however, that the term Guarantee shall not
--------
include endorsements for collection or deposit in the ordinary course of
business.
(76) "Guarantors" means the Persons, if any, executing a Guaranty,
----------
including the Company.
(77) "Guaranty" means the instruments of guaranty, if any, now or
--------
hereafter in effect from a Guarantor to the Administrative Agent (on behalf of
the Lenders).
13
<PAGE>
(78) "Hazardous Materials" has the meaning assigned in Article 4.
-------------------
(79) "Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
(80) "Indebtedness" means, for any Person, without duplication: (a)
------------
all indebtedness of such Person for borrowed money, for amounts drawn under a
letter of credit, or for the deferred purchase price of property for which such
Person or its assets is liable (excluding current trade payables incurred in the
ordinary course of business), (b) all unfunded amounts under a letter of credit
for which such Person would be liable, if such amounts were drawn under the
letter of credit, (c) all amounts required to be paid by such Person as a
guaranteed payment to partners, members (or other equity holders) or a preferred
or special dividend, including any mandatory redemption of shares or interests,
(d) all indebtedness guaranteed by such Person, directly or indirectly, (e) all
obligations under leases that constitute capital leases for which such Person is
liable, (f) all obligations of such Person under interest rate swaps, caps,
floors, collars and other interest hedge agreements, in each case whether such
Person is liable contingently or otherwise, as obligor, guarantor or otherwise,
or in respect of which obligations such Person otherwise assures a creditor
against loss, (g) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (h) all obligations of such Person upon which
interest charges are customarily paid, (i) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (j) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (k) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. 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 provide that such Person is not liable therefor.
(81) "Interest Election Request" means a request by Borrower to
-------------------------
Convert or Continue a Borrowing in accordance with Section 2.4.
-----------
(82) "Interest Period" means with respect to any Eurodollar Borrowing,
---------------
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two or three
months thereafter, as Borrower may elect; provided, that (i) if any Interest
--------
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period, (iii) if any Interest Period would otherwise end
after the Maturity Date, the related Loan shall not be Continued as, or
Converted into, a Eurodollar Loan and shall bear interest at the Alternate Base
Rate and (iv) Borrower may not elect two or three month Interest Periods until
120 days after the Closing Date or such earlier
14
<PAGE>
date as the Administrative Agent shall notify Borrower of the completion of its
syndication efforts. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent Conversion or Continuation of such Borrowing.
(83) "Investment Grade Rating" means a rating for a Person's senior
-----------------------
long-term unsecured debt of BBB- or better from S&P or a rating of Baa3 or
better from Moody's.
(84) "Issuing Bank" means, from and after the date on which the Loans
------------
are syndicated to one or more financial institutions in accordance with Section
-------
11.24, a Lender that (a) is designated in writing by the Administrative Agent,
-----
each other Lender and the Borrower as the Issuing Bank hereunder and (b) accepts
such designation and agrees to be the issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.2(9). The Issuing Bank
-------------
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate. It is acknowledged and agreed that, as of the Closing Date, there is
no Issuing Bank.
(85) "Lazard Agreements" means, collectively, the Stockholders
-----------------
Agreement, the Stock Purchase Agreement and the Registration Rights Agreement.
(86) "LC Disbursement" means a payment made by the Issuing Bank
---------------
pursuant to a Letter of Credit.
(87) "LC Exposure" means, at any time, the sum of (a) the aggregate
-----------
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
(88) "Letter of Credit" means any letter of credit issued pursuant to
----------------
this Agreement.
(89) "LFSRI" means LF Strategic Realty Investors, L.P., a Delaware
-----
limited partnership.
(90) "Libor Base Rate" means, for any Interest Period for any
---------------
Eurodollar Loan, the rate per annum appearing on Page 3750 of the Dow Jones
Markets (Telerate) Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m. London time on the date two
Business Days prior to the first day of such Interest Period as the rate for the
offering of Dollar deposits having a term comparable to such Interest Period,
provided that if such rate does not appear on such page, or if such page shall
--------
cease to be publicly available, or if the information contained on such page, in
the reasonable judgment of the Administrative Agent shall cease accurately to
reflect the rate offered by leading banks in the London interbank market as
reported by any publicly available source of similar
15
<PAGE>
market data selected by the Administrative Agent, the Libor Base Rate for such
Interest Period shall be determined from such substitute financial reporting
service as the Administrative Agent in its discretion shall determine.
(91) "Lien" means any interest, or claim thereof, in the Project
----
securing an obligation owed to, or a claim by, any Person other than the owner
of the Project, whether such interest is based on common law, statute or
contract, including the lien or security interest arising from a deed of trust,
mortgage, assignment, encumbrance, pledge, security agreement, conditional sale
or trust receipt or a lease, consignment or bailment for security purposes. The
term "Lien" shall include reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting the Project.
(92) "Loans" means the loans to be made by the Lenders to Borrower
-----
under this Agreement.
(93) "Loan Documents" means: (a) this Agreement, (b) the Notes, (c)
--------------
the Guaranty, (d) the Environmental Indemnity, (e) the Mortgages, (f) the
Assignments of Rents and Leases, (g) the Cash Collateral Account Agreement, (h)
the Lockbox Agreement, (i) the Subordination of Management Agreement, (j)
Uniform Commercial Code financing statements, (k) such assignments of management
agreements, contracts and other rights as may be required by the Administrative
Agent, (l) all other documents evidencing, securing, governing or otherwise
pertaining to the Obligations, and (m) all amendments, modifications, renewals,
substitutions and replacements of any of the foregoing.
(94) "Loan-to-Value Ratio" means, as of the date such calculation is
-------------------
being made, the ratio of (a) the then outstanding principal amount of the Loans
to (b) the Underwritten Value of the Projects.
(95) "Lockbox Agreement" has the meaning assigned in Section 3.4.
----------------- -----------
(96) "Majority Lenders" means Lenders holding at least 50% of the
----------------
Commitments.
(97) "Management Agreements" means those certain Management Agreements
---------------------
between Managers and Borrower with respect to the management of the Projects by
the Managers, as identified in Schedule 6.14, together with any management
-------------
agreements entered into with future Managers in accordance with the terms of
this Agreement.
(98) "Managers" means the property managers identified in Schedule
-------- --------
6.14 which are initially the managers of the Projects under the Management
----
Agreements, together with any successor property managers appointed for the
Projects in accordance with the terms of this Agreement.
(99) "Material Adverse Effect" means a material adverse effect on (a)
-----------------------
the business, assets, operations, or condition, financial or otherwise, of the
Company, the Borrower and their Subsidiaries taken as a whole, (b) the ability
of the Borrower or the Company to
16
<PAGE>
perform any of their respective obligations under the Loan Documents or (c) the
rights or benefits available to the Lenders under the Loan Documents.
(100) "Material Indebtedness" means Indebtedness (other than the
---------------------
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Borrower and its Subsidiaries in an aggregate
principal amount exceeding $25,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
(101) "Maturity Date" means the earlier of April 1, 2002, or any
-------------
earlier date on which all of the Obligations are required to be paid in full, by
acceleration or otherwise, under this Agreement or any of the other Loan
Documents; provided, however, that Borrower may extend the scheduled Maturity
-------- -------
Date to April 1, 2003 provided that all of the Extension Conditions with respect
to such extension are satisfied, all as reasonably determined by the
Administrative Agent, and such extension will be effective as of the date which
is the later to occur of (x) thirty (30) days after delivery of the Extension
Notice and (y) the date of the satisfaction of the Extension Conditions,
provided such effective date is not later than April 1, 2002.
(102) "Moody's" means Moody's Investors Service, Inc.
-------
(103) "Mortgage" means a Mortgage, Security Agreement and Fixture
--------
Filing, a Deed of Trust, Security Agreement and Fixture Filing, or a Deed to
Secure Debt, Security Agreement and Fixture Filing, executed by Borrower in
favor of the Administrative Agent (on behalf of the Lenders), covering a Project
and any amendments, modifications, renewals, substitutions and replacements
thereof.
(104) "Mortgage Documents" means with respect to any Eligible
------------------
Project, the following documents, where applicable, in the forms accepted by the
Administrative Agent for the Projects, subject to appropriate revisions for
state or property specific requirements:
(a) a duly executed and acknowledged Mortgage, Assignment of Rents
and Leases, Environmental Indemnity and Subordination of Management
Agreement for such Eligible Project;
(b) a commitment for a title insurance policy (the "Title Insurance
---------------
Policy") issued by a title company reasonably acceptable to the
------
Administrative Agent, in such form and amounts as are reasonably acceptable
to the Administrative Agent, insuring that the Mortgage is a valid first
priority Lien on such Eligible Project subject only to such exceptions to
title as shall be acceptable to the Administrative Agent in its reasonable
discretion and containing such endorsements and affirmative insurance as
the Administrative Agent may reasonably require (including, without
limitation, the endorsements and affirmative insurance issued with the
title insurance policies insuring the Mortgages on the Initial Mortgaged
Properties) and as are obtainable in the applicable jurisdiction, and true
copies of each document, instrument or certificate required by the
17
<PAGE>
terms of each such policy or Mortgage to be, or have been, filed, recorded,
executed or delivered in connection therewith;
(c) an opinion reasonably satisfactory to the Administrative Agent of
counsel and/or local counsel retained by Borrower with respect to the due
execution and delivery, validity and enforceability of the Mortgage
Documents and such other matters as may be reasonably required by the
Administrative Agent;
(d) duly executed UCC-1 Financing Statements under the applicable
Uniform Commercial Code to be filed in connection with such Mortgage in
form and substance reasonably satisfactory to the Administrative Agent, to
perfect the Lien created by the applicable Mortgage;
(e) (i) duly executed and acknowledged estoppel certificates in form
and substance reasonably satisfactory to the Administrative Agent, each
such estoppel certificate to be received by the Administrative Agent not
later than 60 days after the date through which rent has been paid as
indicated in such estoppel certificate, from such number of tenants of such
Eligible Project as, when aggregated with tenants of the Projects included
for purposes of the Borrowing Base that have delivered acceptable estoppel
certificates, account for not less than 75% of the aggregate base rental
revenues from all of the Projects and (ii) duly executed and acknowledged
Subordination and Attornment Agreements (in recordable form and otherwise
in the form attached as Exhibit E hereto) from such number of tenants of
---------
such Eligible Project as, when aggregated with (y) tenants of the Projects
included for purposes of the Borrowing Base that have delivered acceptable
Subordination and Attornment Agreements, and (z) other tenants of such
Eligible Project and such other Projects who occupy the Projects under
Leases that are, by their terms, subject and subordinate to the Liens of
the respective Mortgages, account for not less than 75% of the aggregate
base rental revenues from all of the Projects. For purposes of
subparagraphs (i) and (ii) of this paragraph (e), with respect to each
Project, the number of tenants of such Project that have delivered
acceptable estoppel certificates or Subordination and Attornment Agreements
shall be calculated as of the date of the Mortgage unless the
Administrative Agent shall, in it sole and absolute discretion, permit
calculation as of a later date;
(f) an ALTA survey and surveyor's certification for such Eligible
Project, in form and substance reasonably satisfactory to the
Administrative Agent and dated not more than six (6) months prior to the
date such Eligible Project is to become a Project;
(g) payment to the Administrative Agent, or as the Administrative
Agent may direct, of all title insurance premiums, documentary, stamp or
intangible taxes, recording fees and mortgage taxes payable in connection
with the recording of any of the Mortgage Documents or the issuance of the
Title Insurance Policy;
(h) an Appraisal for such Eligible Project dated not more than one
hundred eighty (180) days prior to the date such Eligible Project is to
become a Project;
18
<PAGE>
(i) written instructions to each tenant at such Eligible Project in
substantially the form of Exhibit G; and
---------
(i) such additional documents, information and materials relating to
such Eligible Project as the Administrative Agent may reasonably request.
(105) "Multiemployer Plan" means a multiemployer plan as defined in
------------------
Section 4001(a)(3) of ERISA.
(106) "Net Income (Loss)" means, for any Person for any period, the
----------------
aggregate of net income (or loss) of such Person and its subsidiaries for
such period, determined on a consolidated basis in conformity with GAAP.
(107) "Net Offering Proceeds" means all cash or other assets received
---------------------
by the Company as a result of the sale of Stock or Stock Equivalents in the
Company, less reasonable costs and expenses paid or incurred by the Company
in connection with such sale.
(108) "Net Operating Income" means net operating income as determined
--------------------
in accordance with GAAP (and adjusted to eliminate the straight lining of
rents), except as otherwise provided in Section 2.12(3) with respect to the
--------------
Wal-Mart at Baldwin Hills, if such Property becomes a Project hereunder.
(109) "Net Proceeds" means, with respect to any Property or the Agency
------------
Notes or any interest in any Property or any Agency Note, the gross
purchase price, loan amount or other proceeds from the sale, transfer,
financing, refinancing, taking or other disposition of such Property or
Agency Note (or any interest therein in either) after the payment of any
reasonable and customary expenses which are incurred by the Borrower in
connection with such sale, transfer, financing, refinancing, taking or
other disposition and which are payable to any Person who is not Affiliated
with the Borrower (including Indebtedness which must be repaid in
connection with such sale, transfer, financing, refinancing, taking or
disposition and transfer taxes, brokerage commissions, escrow agent
settlement and closing fees, and document or recording fees payable in
connection with such sale, transfer financing, refinancing, taking or
disposition); provided, however, that Net Proceeds shall not include any
-------- -------
award or other compensation for the condemnation or other taking of any
Property (other than the Projects) which is subject to a Lien in favor of
the holder of any Secured Indebtedness relating to such Property, except to
the extent provided in Section 3.3 hereof with respect to excess awards
-----------
and/or compensation.
(110) "Net Proceeds Remittance Period" means the period commencing on
------------------------------
(and including) the Closing Date and ending on the later to occur of (a)
the date on which the Borrower satisfies the REIT Debt Requirements and (b)
the date on which the Loan-to-Value Ratio is 70% or less.
(111) "Notes" means the promissory notes of even date herewith as
-----
provided for in Section 2.1(6) and all promissory notes delivered in
-------------
substitution or exchange therefor, in each case as the same may be
consolidated, severed, modified, amended or extended from time to time.
19
<PAGE>
(112) "Obligations" means the Loans, the LC Exposure, the Reduction
-----------
Fee and all other advances, debts, liabilities, obligations, covenants and
duties owing by Borrower to the Lenders and the Issuing Bank, or any Affiliates
of the Lenders and the Issuing Bank (of every type and description, present or
future, whether or not evidenced by any note, guaranty or other instrument)
arising under this Agreement or under any other Loan Document, whether or not
for the payment of money, loan, guaranty, indemnification, foreign exchange
transaction or Hedging Agreement or in any other manner, whether direct or
indirect (including, without limitation, those acquired by assignment), absolute
or contingent, due or to become due, now existing or hereafter arising under
this Agreement or under any other Loan Document. The term "Obligations"
includes, without limitation, all interest, charges, expenses, fees, attorneys'
fees and disbursements and any other sum chargeable to Borrower under this
Agreement or any other Loan Document.
(113) "Participant" has the meaning assigned in Section 11.24(3).
----------- ---------------
(114) "Payor" has the meaning assigned in Section 2.10(3).
----- --------------
(115) "PBGC" means the Pension Benefit Guaranty Corporation referred
----
to and defined in ERISA and any successor entity performing similar functions.
(116) "Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes, assessments or governmental
charges or claims that are not yet due or are being contested in compliance
with Section 8.11;
------------
(b) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 8.11;
------------
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
government contracts, utility payments, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) easements, zoning restrictions, rights-of-way, minor defects,
encroachments or irregularities in title and similar encumbrances on Real
Property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct
of business of Borrower or any Subsidiary;
(f) any Lien securing the Obligations; and
20
<PAGE>
(g) with respect to any particular Project, the exceptions to title
noted in the Title Insurance Policy issued to the Administrative Agent with
respect to such Project, provided that the term "Permitted Encumbrances"
-------- ----
shall not include any Lien securing Indebtedness other than Liens securing
the Obligations.
(117) "Permitted Investments" means:
--------- -----------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) certificates of deposit in an amount less than or equal to
$100,000 in the aggregate issued by any other bank insured by the Federal
Deposit Insurance Corporation;
(e) money market funds invested primarily in one or more of the
foregoing; and
(f) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above.
(118) "Permitted Securities Options" means any stock options,
----------------------------
restricted stock and other rights of any kind in or with respect to Stock of the
Company or Borrower issued or granted to, or held by, any employee or director
of the Company or Borrower.
(119) "Person" means any individual, corporation, partnership, joint
------
venture, association, joint stock company, trust, trustee, estate, limited
liability company, unincorporated organization, real estate investment trust,
government or any agency or political subdivision thereof, or any other form of
entity.
(120) "Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which Borrower or any
ERISA Affiliate is (or, if
21
<PAGE>
such plan were terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
(121) "PML" means, with respect to any Project, the probable maximum
---
loss for such Project for earthquake insurance coverage.
(122) "Potential Default" means the occurrence of any event or
-----------------
condition which, with the giving of notice, the passage of time, or both, would
constitute an Event of Default.
(123) "Prepayment Date" has the meaning assigned in Section 2.7(5).
--------------- -------------
(124) "Prime Rate" means the highest prime rate (or base rate)
----------
reported in the Money Rates column or section of The Wall Street Journal as the
rate in effect for corporate loans at large U.S. money center commercial banks
(whether or not such rate has actually been charged by any such bank) from time
to time. If The Wall Street Journal ceases publication of the Prime Rate, the
"Prime Rate" shall mean the prime rate (or base rate) announced by Bankers Trust
Company, New York, New York (whether or not such rate has actually been charged
by such bank). If such bank discontinues the practice of announcing the Prime
Rate, the "Prime Rate" shall mean the prime or base rate charged by a large
United States commercial bank selected by the Administrative Agent to its most
creditworthy large corporate borrowers.
(125) "Project" means an Eligible Project subject to a Mortgage in
-------
favor of the Administrative Agent.
(126) "Project Release" has the meaning assigned in Section 2.9.
--------------- -----------
(127) "Prometheus" means Prometheus Western Retail, LLC, a Delaware
limited liability company.
(128) "Property" means any retail property owned by the Consolidated
--------
Businesses.
(129) "Proposed Lender" has the meaning assigned in Section 2.11(7).
--------------- --------------
(130) "Reduction Fee" has the meaning assigned in Section 2.7(9).
------------- -------------
(131) "Reduction Fee Percentage" means (a) one percent (1.0%) if the
------------------------
Extension Conditions have not been satisfied and (b) one-half of one percent
(0.5%) if the Extension Conditions have been satisfied.
(132) "Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated as of June 1, 1997, between the Company and Prometheus.
(133) "Regulation D" means Regulation D of the Board of Governors of
------------
the Federal Reserve System of the United States of America (or any successor),
as the same may be modified and supplemented and in effect from time to time.
22
<PAGE>
(134) "Regulatory Change" means, with respect to any Lender, any
-----------------
change after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
(135) "REIT" means a domestic trust or corporation that qualifies as a
----
real estate investment trust under the provisions of Sections 856, et seq. of
-- ---
the Code.
(136) "REIT Debt" shall mean, collectively, the Exchangeable Debt and
---------
the Unsecured Debt.
(137) "REIT Debt Fee" has the meaning assigned in Section 2.12(8).
------------- --------------
(138) "REIT Debt Requirements" shall mean either (i) the satisfaction
----------------------
in full of the REIT Debt or (ii) the sum of the principal amounts of the Blocked
Availability and the Sinking Fund equaling or exceeding the amount necessary to
fully satisfy the REIT Debt.
(139) "REIT Debt Statement" has the meaning assigned in Section 8.10.
------------------- ------------
(140) "Related Parties" means, with respect to any specified Person,
---------------
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
(141) "Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal,
leaching or mig ration on or into the indoor or outdoor environment or into or
out of any property.
(142) "Released Project" has the meaning assigned in Section 2.9.
---------------- -----------
(143) "Remedial Action" means all actions, including without
---------------
limitation any capital expenditures, required or necessary to (i) clean up,
remove, treat or in any other way address any Hazardous Material or other
substance in the indoor or outdoor environment, (ii) prevent the Release or
threat of Release, or minimize the further Release, of any Hazardous Material or
other substance so it does not migrate or endanger or threaten to endanger
public health or welfare or the indoor or outdoor environment, (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care, or
(iv) bring facilities on any property owned or leased by the Borrower or any of
its Subsidiaries into compliance with all Environmental Laws.
(144) "Requesting Lender" has the meaning assigned in Section 2.11(7).
----------------- --------------
(145) "Required Payment" has the meaning assigned in Section 2.10(3).
---------------- --------------
(146) "Reserve Requirement" means, for any Interest Period for any
-------------------
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal,
23
<PAGE>
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the Federal Reserve System
in New York City with deposits exceeding $1,000,000,000 against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall include any other reserves
required to be maintained by such member banks by reason of any Regulatory
Change with respect to (i) any category of liabilities that includes deposits by
reference to which the Eurodollar Base Rate for any Interest Period for any
Eurodollar Loans is to be determined as provided in the definition of "Libor
Base Rate" or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
(147) "Responsible Officer" means the President or any Senior Vice
-------------------
President or Financial Officer of the Company.
(148) "S&P" means Standard & Poor's Rating Services, a division of The
---
McGraw-Hill Companies, Inc.
(149) "Secured Indebtedness" means any Indebtedness of Borrower or any
--------------------
Subsidiary secured by a Lien.
(150) "Securities" means any stock, shares, voting trust certificates,
----------
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
(151) "Sinking Fund" has the meaning assigned in Section 2.8.
------------ -----------
(152) "Site Assessment" means a "Phase I" environmental assessment for
---------------
a Project prepared by an engineer engaged by the Administrative Agent at
Borrower's expense, and in a manner reasonably satisfactory to the
Administrative Agent, based upon an investigation, consistent with good
customary and commercial practice, relating to and making appropriate inquiries
concerning the existence of Hazardous Materials on or about such Project, and
the past or present Release of any such substances.
(153) "State" means, for each Project, the State in which such Project
-----
is located.
(154) "Stock" means shares of capital stock, beneficial or partnership
-----
interests, participations or other equivalents (regardless of how designated) of
or in a corporation or equivalent entity, whether voting or non-voting, and
includes, without limitation, common stock and preferred stock.
(155) "Stock Equivalents" means all securities (other than Stock)
-----------------
convertible into or exchangeable for Stock and all warrants, options or other
rights to purchase or subscribe for any stock, whether or not presently
convertible, exchangeable or exercisable.
24
<PAGE>
(156) "Stockholders Agreement" means the Stockholders Agreement dated
----------------------
as of June 1, 1997, by and among Lazard Freres Real Estate Investors, LLC,
LFSRI, Prometheus and the Company.
(157) "Stock Purchase Agreement" means the Stock Purchase Agreement
------------------------
dated as of July 1, 1997, by and among Prometheus, LFSRI and the Company.
(158) "Subordination and Attornment Agreements" means a Subordination,
---------------------------------------
Non-Disturbance and Attornment Agreement (in recordable form and otherwise in
the form attached as Exhibit E hereto).
(159) "Subordination of Management Agreements" means those certain
-------------------------------------
Manager's Consent and Subordination of Management Agreements by the Managers in
favor of the Administrative Agent (on behalf of the Lenders).
(160) "subsidiary" means, with respect to any Person (the "parent")
---------- ------
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
(161) "Subsidiary" means any subsidiary of the Company and/or
----------
Borrower.
(162) "Total Adjusted EBITDA" means, for any period, the aggregate
---------------------
sum of the Adjusted EBITDA for the Consolidated Businesses.
(163) "Total Interest Expense" means, for any period, the sum of (i)
----------------------
interest expense of the Consolidated Businesses paid during such period and (ii)
interest expense of the Consolidated Businesses accrued and/or capitalized for
such period, in each case including participating interest expense but excluding
extraordinary interest expense, and net of amortization of deferred costs
associated with new financings or refinancings of existing Indebtedness.
(164) "Total Outstanding Indebtedness" means, for any period, the sum
------------------------------
of (i) the amount of Indebtedness of the Consolidated Businesses set forth on
the then most recent quarterly financial statements of Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, and (ii) to the
extent quantified, the Contingent Obligations of the Consolidated Businesses.
(165) "Total Value" means, for any period, the aggregate sum of (i)
-----------
with respect to any Property (other than the Projects) which has been owned by
the Consolidated Businesses for not less than four (4) consecutive fiscal
quarters, as of the first day of each fiscal quarter for
25
<PAGE>
the immediately preceding consecutive four (4) fiscal quarters, an amount equal
to Adjusted Net Operating Income relating to such Property for such period
divided by 9.5%, (ii) with respect to any Property (other than the Projects)
----------
which has been owned by Borrower or the Consolidated Businesses for less than
four (4) consecutive fiscal quarters, an amount equal to Borrower's Investment
in such Property, (iii) with respect to the Projects, the lesser of the
Appraised Value and the Underwritten Value thereof, and (iv) the Cash and Cash
Equivalents of the Consolidated Business.
(166) "Type" has the meaning assigned in Section 1.2.
---- -----------
(167) "Unconsolidated Entity" means, with respect to any Person, at
---------------------
any date, any other Person in whom such Person holds an investment, which
investment is accounted for in the financial statements of such Person on an
equity basis of accounting and whose financial results would not be consolidated
under GAAP with the financial results of such Person on the consolidated
financial statements of such Person, if such statements were prepared as of such
date.
(168) "Underwritten Value" means, with respect to the Projects, the
------------------
value of the Projects as determined by the Administrative Agent from time to
time in accordance with its then customary underwriting standards. It is
understood that the Underwritten Value of the Projects will fluctuate over time
and that, following the occurrence of any facts or circumstances that bear upon
the Underwritten Value of the Projects and/or the Administrative Agent's
methodology for determining the same, (i) the Borrower shall have the right, at
the Borrower's sole cost and expense, to submit to the Administrative Agent not
more frequently than once each calendar month copies of new leases, lease
modifications and other documents, materials and information, all certified by a
Responsible Officer as being true, correct and complete, which bear upon the
Underwritten Value of any of the Projects and request, based upon such
information, that the Administrative Agent re-determine the Underwritten Value
of the Project(s) in question and (ii) the Administrative Agent shall have the
right, at the Borrower's sole cost and expense, to re-determine the Underwritten
Value of the Projects (or any of them) on written notice to the Borrower and/or
request that the Borrower submit (and the Borrower shall thereafter promptly
submit) to the Administrative Agent copies of any documents, materials and
information, all certified by a Responsible Officer as being true, correct and
complete, which bear upon the Underwritten Value of any of the Projects and re-
determine the Underwritten Value of the Project(s) in question on written notice
to the Borrower; provided, however, that (a) the Administrative Agent shall not
-------- -------
redetermine the Underwritten Value of any individual Project under this clause
(ii) more frequently than one (1) time each calendar month and (b) the Borrower
shall have the right, at its sole cost and expense, to request that the
Administrative Agent review any re-determination of Underwritten Value by the
Administrative Agent under this clause (ii) by giving written notice of such
request for review to the Administrative Agent at any time during the ten (10)
day period following the Administrative Agent's re-determination of Underwritten
Value under this clause (ii), it being understood that the Administrative
Agent's initial re-determination of the Underwritten Value of any given project
shall continue to be the Underwritten Value thereof until such time (if any) as
the Administrative Agent shall advise the Borrower in writing of a further
revised Underwritten Value for such Project.
26
<PAGE>
(169) "Unencumbered" means, with respect to any Property, at any date
------------
of determination, that such Property on such date:
(a) is not subject to any Liens (including restrictions on
transferability or assignability) of any kind (including any such Lien or
restriction imposed by (i) any agreement governing Indebtedness, and (ii)
the organizational documents of Borrower or any of its Subsidiaries), but
excluding Permitted Encumbrances;
(b) is not subject to any agreement (including (i) any agreement
governing Indebtedness, and (ii) if applicable, the organizational
documents of Borrower or any of its Subsidiaries) which prohibits or limits
the ability of Borrower or any of its Subsidiaries to create, incur, assume
or suffer to exist any Lien upon such Property, other than Permitted
Encumbrances (excluding any agreement or organizational document which
limits generally the amount of Indebtedness which may be incurred by
Borrower or its Subsidiaries); and
(c) is not subject to any agreement (including any agreement
governing Indebtedness) which entitles any Person to the benefit of any
Lien (other than Permitted Encumbrances) on such Property, or would entitle
any Person to the benefit of any such Lien upon the occurrence of any
contingency (including, without limitation, pursuant to an "equal and
ratable" clause).
For the purposes of this Agreement, any Property owned by a Subsidiary of
Borrower shall not be deemed to be Unencumbered unless both (i) such Property
and (ii) all stock or ownership interests owned directly or indirectly by
Borrower in such Subsidiary is Unencumbered.
(170) "Unmatured Surviving Obligation" means, as of any date, an
------------------------------
Obligation which is contingent and unliquidated and not due and owing on such
date and which pursuant to provisions of this Agreement survives termination of
this Agreement and the repayment of the Loans and LC Disbursements.
(171) "Unsecured Debt" shall mean the Indebtedness evidenced by the
--------------
7 1/2% Convertible Subordinated Debentures Due 2001, Series A and B, issued by
the Company in the original principal amount of $150,000,000.
(172) "Wal-Mart Lease" shall mean the lease, dated January 24, 2000,
--------------
as amended by an addendum, dated January 24, 2000 and an amendment, dated
November 9, 2000, between Borrower and Wal-Mart Real Estate Business Trust.
(173) "Withdrawal Liability" means liability to a Multiemployer Plan
--------------------
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Types of Loan. Loans hereunder are distinguished by "Type".
-------------
The "Type" of a Loan refers to whether such Loan is an Alternate Base Rate Loan
or a Eurodollar Loan, each of which constitutes a Type.
27
<PAGE>
ARTICLE 2
LOAN TERMS
----------
Section 2.1 The Commitments, Loans and Notes.
--------------------------------
(1) Loans. Each Lender severally agrees, on the terms and conditions
-----
of this Agreement (including, without limitation, the satisfaction or waiver of
the conditions set forth in Schedule 2.1), to make Loans to Borrower from time
------------
to time in Dollars during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender's Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total Credit Exposures exceeding the
total Commitments; provided, however, that at no time shall any Lender be
-------- -------
obligated to make a Loan or Loans (i) in excess of such Lender's Applicable
Percentage of the Available Credit or (ii) if the REIT Debt is outstanding
(except for (x) Loans being used to repay or acquire, in whole or in part, the
REIT Debt while the amount of the Blocked Availability is in excess of the face
principal amount of the then outstanding REIT Debt and all accrued and unpaid
interest thereon and (y) a Borrowing of the Borrowing Base Adjustment upon
satisfaction of the Food 4 Less Conditions). Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Loans. Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
respective Commitments.
(2) Borrowings.
----------
(a) Subject to Sections 2.1(7), 2.11(1), 2.11(2) and 2.11(3), each
-------------- ------ ------ ------
Borrowing shall be comprised entirely of Alternate Base Rate Loans or Eurodollar
Loans as the Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or
affiliate of such Lender to make such Loan; provided that (i) any exercise of
-------- ----
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement and (ii) each Lender shall use
reasonable efforts to select a domestic or foreign branch or affiliate that
would not result in the Borrower being required to pay additional amounts
pursuant to Section 2.11(1) or Section 2.11(6) or make Eurodollar Loans
-------------- --------------
unavailable under Section 2.11(3).
--------------
(b) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $4,000,000. At the time that each
Alternate Base Rate Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than $1,000,000;
provided that an Alternate Base Rate Borrowing may be in an aggregate amount
-------- ----
that is equal to the entire unused balance of the total Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.2(5). Borrowings of more than one Type may be outstanding at the same
-------------
time; provided that there shall not at any time be more than a total of five (5)
-------- ----
Eurodollar Borrowings outstanding.
28
<PAGE>
(c) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to Convert or Continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
(3) Requests for Borrowings. To request a Borrowing, the Borrower
-----------------------
shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time,
three (3) Business Days before the date of the proposed Borrowing or (b) in the
case of an Alternate Base Rate Borrowing, not later than 12:00 noon, New York
City time, two (2) Business Day before the date of the proposed Borrowing;
provided that any such notice of an Alternate Base Rate Borrowing to finance the
-------- ----
reimbursement of an LC Disbursement as contemplated by Section 2.2(5) may be
-------------
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in the form of Exhibit H hereto (or
---------
otherwise as approved by the Administrative Agent) and signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information:
(i) the aggregate amount of the requested Borrowing and the
intended use thereof, which shall be a use permitted under Section
-------
8.14;
----
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an Alternate Base Rate
Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.3.
-----------
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be (x) an Alternate Base Rate Borrowing if permitted
pursuant to Section 2.1(7) or (y) if not permitted as a Eurodollar Borrowing
-------------
under Section 2.1(7), a Eurodollar Borrowing with an Interest Period of one (1)
-------------
month's duration (subject to the limitations set forth in Section 2.1(2)(b)).
----------------
If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then Borrower shall be deemed to have selected an Interest Period of
one (1) month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
(4) Lending Offices. The Loans of each Lender shall be made and
---------------
maintained at such Lender's Applicable Lending Office for Loans of such Type.
(5) Several Obligations. The failure of any Lender to make any Loan
-------------------
to be made by it on the date specified therefor shall not relieve any other
Lender of its obligation to
29
<PAGE>
make its Loan, and neither any Lender nor the Administrative Agent shall be
responsible for the failure of any other Lender to make a Loan to be made by
such other Lender.
(6) Notes.
-----
(a) Loan Notes. The Loans made by each Lender shall be evidenced by
----------
a single promissory note of Borrower substantially in the form of Exhibit
-------
A, payable to such Lender in a principal amount equal to the amount of its
-
Commitment as originally in effect and otherwise duly completed.
(b) Endorsements on Notes. The date, amount, Type, interest rate and
---------------------
duration of Interest Period (if applicable) of each Loan made by each
Lender to Borrower, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books and, prior to any
transfer of the Note held by it, endorsed by such Lender on the schedule
attached to such Note or any continuation thereof; provided that the
--------
failure of such Lender to make any such recordation or endorsement shall
not affect the obligations of Borrower to make a payment when due of any
amount owing hereunder or under such Note in respect of such Loans.
(c) Substitution, Exchange and Subdivision of Notes. No Lender shall
-----------------------------------------------
be entitled to have its Note substituted or exchanged for any reason, or
subdivided for promissory notes of lesser denominations, except in
connection with a permitted assignment of all or any portion of such
Lender's Commitment, Loans and Note pursuant to Section 11.24 and/or in
-------------
connection with a Secondary Market Transaction pursuant to Section 11.9
------------
and/or pursuant to Section 11.10 (and, if requested by any Lender, Borrower
-------------
agrees to so substitute or exchange any Note).
(d) Loss, Theft, Destruction or Mutilation of Notes. In the event of
-----------------------------------------------
the loss, theft or destruction of any Note, upon Borrower's receipt of a
reasonably satisfactory indemnification agreement executed in favor of
Borrower by the holder of such Note, or in the event of the mutilation of
any Note, upon the surrender of such mutilated Note by the holder thereof
to Borrower, Borrower shall execute and deliver to such holder a new
replacement Note in lieu of the lost, stolen, destroyed or mutilated Note.
(7) Limitation on Alternate Base Rate Loans. Notwithstanding any
---------------------------------------
other provision of this Agreement, the maximum principal amount of Alternate
Base Rate Loans which may be outstanding at any given time shall be $25,000,000
(the "ABR Limitation"). Borrower shall not be entitled to request, or to elect
--------------
to Convert any Borrowing into, an Alternate Base Rate Loan if such Borrowing or
Conversion, as the case may be, would cause the amount of Alternate Base Rate
Loans outstanding at any given time to exceed the ABR Limitation, except under
the circumstances provided in Sections 2.2(5), 2.11(1), 2.11(2) and 2.11(3) and
--------------------------------------------
as contemplated under clause (iii) of the definition of Interest Period.
Section 2.2 Letters of Credit.
-----------------
(1) General. Subject to the terms and conditions set forth herein
-------
(including, without limitation, satisfaction or waiver of the conditions set
forth in Schedule 2.1) and provided that an Issuing Bank has been designated in
------------
writing by the Administrative Agent, each
30
<PAGE>
Lender and Borrower and such Issuing Bank has accepted such designation and
agreed to issue Letters of Credit hereunder, the Borrower may request the
issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(2) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension, the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (3) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that) (A)
it is in an amount not less than $100,000 and (B) after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$25,000,000, (ii) the sum of the total Credit Exposures shall not exceed the
total Commitments and (iii) not more than ten (10) Letters of Credit have been
issued and are outstanding hereunder.
(3) Expiration Date. Each Letter of Credit shall expire at or prior
---------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is thirty (30) days prior to the Maturity Date.
(4) Participations. By the issuance of a Letter of Credit (or an
--------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (5) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter
31
<PAGE>
of Credit or the occurrence and continuance of a Potential Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(5) Reimbursement. If the Issuing Bank shall make any LC
-------------
Disbursement in respect of a Letter of Credit, then Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or,
if such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided,
--------
however, that the Borrower may, subject to the conditions to borrowing set forth
-------
herein, request in accordance with Section 2.1(3) that such payment be financed
--------------
with an Alternate Base Rate Borrowing in an equivalent amount and, to the extent
so financed, the Borrower's obligation to make such payment shall be discharged
and replaced by the resulting Alternate Base Rate Borrowing and, if such
Alternate Base Rate Borrowing would cause the aggregate amount of the Alternate
Base Rate Borrowings to exceed the ABR Limitation, then, to the extent required
to reduce the aggregate amount of the Alternate Base Rate Borrowings to the ABR
Limitation, such Alternate Base Rate Borrowing shall be Converted into a
Eurodollar Borrowing by either adding the principal amount of such Alternate
Base Rate Borrowing to the principal amount of the Eurodollar Borrowing which is
next scheduled to be Continued hereunder or, if no Eurodollar Borrowings are
outstanding, by Converting such Alternate Base Rate Loan into a Eurodollar Loan
on the earliest day on which the Borrower would be able to obtain a Eurodollar
Loan under Section 2.1. If the Borrower fails to make such payment when due,
-----------
the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.3 with respect to Loans made by such Lender (and Section
----------- -------
2.3 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
--- ------- --------
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than
the funding of Alternate Base Rate Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(6) Obligations Absolute. Borrower's obligation to reimburse LC
--------------------
Disbursements as provided in paragraph (5) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability
32
<PAGE>
of any Letter of Credit or this Agreement, or any term or provision therein;
(ii) any draft or other document presented under a Letter of Credit proving to
be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect; provided that payment by the Issuing Bank
-------- ----
under such Letter of Credit against presentation of such draft or document shall
not have constituted gross negligence or willful misconduct of the Issuing Bank;
(iii) payment by the Issuing Bank under a Letter of Credit against presentation
of a draft or other document that does not comply with the terms of such Letter
of Credit; provided that such payment shall not have constituted gross
-------- ----
negligence or willful misconduct of the Issuing Bank; or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder; provided that such other circumstance or happening shall not have
-------------
been the result of gross negligence or willful misconduct of the Issuing Bank.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
-------- ----
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(7) Disbursement Procedures. The Issuing Bank shall, promptly
-----------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
-------- ----
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(8) Interim Interest. If the Issuing Bank shall make any LC
----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and
33
<PAGE>
including the date such LC Disbursement is made to but excluding the date that
the Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to Alternate Base Rate Loans; provided that, if the Borrower fails to
-------- ----
reimburse such LC Disbursement when due pursuant to paragraph (5) of this
Section, then Section 2.6(3) shall apply. Interest accrued pursuant to this
-------------
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (5)
of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(9) Replacement of the Issuing Bank. The Issuing Bank may be
-------------------------------
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.13(2). From and after the effective date of
--------------
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(10) Cash Collateralization. If any Event of Default shall occur and
----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Majority Lenders demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid interest thereon; provided that the
-------- ----
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in Sections 9.8 or 9.9. Such deposit shall be
-------------------
held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of the Majority Lenders) be
applied to satisfy other obligations of the Borrower under this Agreement. If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of
34
<PAGE>
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived.
Section 2.3 Funding of Borrowings Each Lender shall make each Loan to be
---------------------
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower not later than 3:00 p.m., New York City time, by wire transfer
of immediately available funds to an account in the United States designated by
the Borrower; provided, however, that (i) Alternate Base Rate Loans made to
-------- -------
finance the reimbursement of an LC Disbursement as provided in Section 2.2(5)
--------------
shall be remitted by the Administrative Agent to the Issuing Bank and (ii) Loans
made from Blocked Availability shall, at the Administrative Agent's option, be
remitted by the Administrative Agent to the holders of the REIT Debt (or the
trustee for such holders or, in the case of an acquisition of REIT Debt
permitted hereunder, to the broker or dealer acquiring the REIT Debt in question
on behalf of the Borrower or the Company).
Section 2.4 Interest Elections.
------------------
(1) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the event of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, Borrower may elect to Convert such Borrowing to a different Type or
to Continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(2) To make an election pursuant to this Section, Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.1(3) if the Borrower were
--------------
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(3) Each telephonic and written Interest Election Request shall
specify the following information:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
35
<PAGE>
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an Alternate Base
Rate Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period then Borrower shall be deemed to have selected an
Interest Period of one (1) month's duration.
(4) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(5) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be Continued as
a Eurodollar Borrowing having an Interest Period of one (1) month's duration.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Majority Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Borrowing may be Converted to or Continued as a
Eurodollar Borrowing having an Interest Period other than one (1) month and (ii)
unless repaid, each Eurodollar Borrowing having an Interest Period greater than
one (1) month shall be Converted to an Eurodollar Borrowing having an Interest
Period of one (1) month at the end of the Interest Period applicable thereto.
Section 2.5 Termination and Reduction of Commitments
----------------------------------------
(1) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(2) Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
-------- ----
an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Sections 2.6 or 2.8 the sum of the Credit Exposures would exceed the total
-------------------
Commitments.
(3) Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (2) of this Section at least
three (3) Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination
-------- ----
36
<PAGE>
of the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
(4) Notwithstanding anything to the contrary in this Agreement, during
the Net Proceeds Remittance Period, amounts that are repaid may not be
reborrowed, except to pay or acquire (in whole or, subject to the conditions
hereof, in part) the REIT Debt.
Section 2.6 Interest Rate; Late Charge.
--------------------------
(1) The Loans comprising each Alternate Base Rate Borrowing shall bear
interest at a rate of interest per annum equal to the Alternate Base Rate. The
Loans comprising each Eurodollar Borrowing shall bear interest at a rate of
interest per annum equal to the Adjusted Libor Rate plus the Applicable Margin
----
(the "Contract Rate").
-------------
(2) Interest shall be computed on the basis of a fraction, the
denominator of which is three hundred sixty (360) and the numerator of which is
the actual number of days elapsed from the date of the initial advance or the
date on which the immediately preceding payment was due.
(3) If Borrower fails to pay any installment of interest or principal
on the date on which the same is due, Borrower shall pay to the Administrative
Agent (on behalf of the Lenders), as liquidated damages and not as a penalty,
interest at the Default Rate on such amount from the date when due until paid,
but not in excess of the maximum amount of interest allowed by applicable law.
In addition, but without duplicating amounts due under the prior sentence, while
any Event of Default exists, the Loans shall bear interest at the Default Rate;
provided, however, that during the continuance of an Event of Default the
-------- -------
Administrative Agent may suspend the right of Borrower to Continue any Loan as a
Eurodollar Loan having an Interest Period of greater than one (1) month, in
which event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) into Eurodollar Loans having an Interest Period of
greater than one (1) month.
Section 2.7 Terms of Payment. The Loans shall be payable as follows:
----------------
(1) Interest. Borrower shall pay interest in arrears on (a) in the
--------
case of a Eurodollar Borrowing, the last day of each Interest Period (or, in the
case of a Eurodollar Borrowing with an Interest Period of more than one (1)
month's duration, each day prior to the last day of such Interest Period that
occurs at intervals of one (1) month's duration after the first day of such
Interest Period) and (b) in the case of an Alternate Base Rate Borrowing, the
first Business Day of each month, in any case until all Obligations are paid in
full; provided, however, that (i) interest accrued pursuant to Section 2.6(3)
-------- ------- --------------
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an Alternate Base Rate Loan prior to the
end of the Availability Period), accrued interest on the principal amount repaid
or prepaid shall be payable on the date of such repayment or prepayment and
37
<PAGE>
(iii) in the event of any Conversion of any Eurodollar Loan prior to the end of
the then current Interest Period therefor, accrued interest on such Loan shall
be payable on the effective date of such Conversion.
(2) Payment on Property Sales. If, during the Net Proceeds Remittance
-------------------------
Period, the Borrower or any of its Subsidiaries sells, finances, refinances or
otherwise transfers (as defined in Section 8.1) or disposes of any of the
-----------
Properties or the Agency Notes or any of the Properties (or any portion thereof)
is taken in a condemnation proceeding, then the Borrower shall notify the
Administrative Agent with respect thereto as provided in Section 7.2 and all Net
-----------
Proceeds from the sale, financing, refinancing, transfer, taking or other
disposition of such Property or any of the Agency Notes, as applicable, shall be
paid to the Administrative Agent for application to the outstanding principal
balance of the Loans, concurrently with the closing of such sale, financing,
refinancing or other transfer. In connection with any such sale, financing,
refinancing, transfer, taking or other disposition of any Property or any of the
Agency Notes occurring during the Net Proceeds Remittance Period, Borrower shall
deliver to the Administrative Agent, to the extent not previously delivered
under Section 7.2, a closing or settlement statement showing the calculation of
-----------
Net Proceeds, certified by a Responsible Officer as being true, correct and
complete, and, within five (5) days after the Administrative Agent's request
(and, in the case of any sale, financing, refinancing, transfer, taking or other
disposition of any Project during the Net Proceeds Remittance Period, on or
prior to the closing date for any such sale, financing, refinancing, transfer,
taking or other disposition if requested by the Administrative Agent prior to
such closing), copies of all bills, invoices, agreements and instruments in
support thereof. In the event that, at the time of any such sale, financing,
refinancing, transfer, taking or other disposition occurring during the Net
Proceeds Remittance Period, there are no Loans outstanding, then the Net
Proceeds from such sale, financing, refinancing, transfer, taking or other
disposition shall be deposited into the Sinking Fund for disbursement in
accordance with Section 2.8.
-----------
(3) Maturity. On the Maturity Date, Borrower shall pay to the
--------
Administrative Agent (on behalf of the Lenders) all outstanding principal,
accrued and unpaid interest, and any other Obligations (other than Unmatured
Surviving Obligations) due under the Loan Documents.
(4) Voluntary Prepayment. Borrower shall have the right at any time
--------------------
and from time to time to prepay any Borrowing in whole or in part, without
premium (except for any applicable Reduction Fee) or penalty, subject to prior
notice in accordance with this paragraph. Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 12:00 noon, New York City time, three (3) Business Days before the date of
prepayment, or (ii) in the case of prepayment of an Alternate Base Rate
Borrowing, not later than 12:00 noon, New York City time, one (1) Business Day
before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
-------- ----
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.5(3), then such notice of prepayment may be revoked if
--------------
such notice of termination is revoked in accordance with Section 2.5(3).
--------------
Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a
38
<PAGE>
Borrowing of the same Type as provided in Section 2.1. Each prepayment of a
-----------
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.7(1) and any applicable expenses pursuant to Section
------------- -------
2.11(5).
------
(5) Mandatory Prepayment. If, at any time from and after the Closing
--------------------
Date, (i) the Company or Borrower merges or consolidates with another Person and
the Company or Borrower, as the case may be, is not the surviving entity, or
(ii) the Company, Borrower, any of its consolidated Subsidiaries ceases to
provide property management services (excluding for such purposes property
management contracts with third parties that are terminable on not more than 30
days' notice) to Properties accounting for at least 80% of the aggregate base
rental revenues from all of the Properties in which Borrower has an ownership
interest (the date any such event shall occur being the "Prepayment Date"),
---------------
Borrower shall be required to prepay the Loans in their entirety as if the
Prepayment Date were the Maturity Date and the Commitments thereupon shall be
terminated. Borrower shall immediately make such prepayment on the Prepayment
Date and shall return or cause to be returned all Letters of Credit to the
Issuing Bank. In connection with the prepayment of any Loan prior to the
maturity thereof, Borrower shall also pay any applicable expenses pursuant to
Section 2.11(5) hereof. Each such prepayment shall be applied to prepay ratably
--------------
the Loans of the Lender. Amounts prepaid pursuant to this subsection (5) may not
be reborrowed.
(6) Borrowing Base Imbalance. If at any time the aggregate Credit
------------------------
Exposure of the Lenders at such time exceeds the lower of (a) the Borrowing Base
minus the Blocked Availability and (b) the then effective Commitments at such
-----
time (a "Borrowing Base Imbalance"), Borrower shall prepay the Loans then
------------------------
outstanding in an amount equal to such excess, together with accrued interest
within one (1) Business Day of such event occurring. It is understood that a
Borrowing Base Imbalance may occur or exist as a result of, among other things,
changes to the Underwritten Value of any of the Projects and/or the
determination or re-determination of the Appraised Value of any of the Projects.
In connection with any such prepayment, Borrower shall also pay any applicable
expenses pursuant to Section 2.11(5).
---------------
(7) Application of Payments. All payments received by the
-----------------------
Administrative Agent under the Loan Documents shall be applied: first, to any
-----
fees and expenses then due to the Administrative Agent and the Lenders under the
Loan Documents, including the Reduction Fee; second, to any Default Rate
------
interest or late charges; third, to accrued and unpaid interest; and fourth, to
----- ------
the principal sum and other amounts due under the Loan Documents; provided,
--------
however, that, if an Event of Default exists the Administrative Agent shall
-------
apply such payments in any order or manner as the Administrative Agent shall
determine.
(8) Amortization. Borrower shall make a payment to the Administrative
------------
Agent for the benefit of the Lenders on account of the principal amount of the
Loans in an amount equal to $1,400,000 (A) commencing on the first interest
payment date to occur after December 31, 2000 and continuing on each interest
payment date thereafter that occurs at intervals of one month's duration until
such time as (i) the REIT Debt has been fully paid and (ii) the Loan-to-Value
Ratio is reduced to 75% or less and (B) thereafter, monthly on the first
interest payment date to occur in each month (if any) that the Loan-to-Value
Ratio is more than 75% as of the first Business Day of such month. Payments
made by Borrower under this
39
<PAGE>
subsection (8) shall be in addition to (and not credited by) payments made by
Borrower under subsection (2) above.
(9) Reduction Fee. Borrower shall pay to the Administrative Agent (on
-------------
behalf of the Lenders) a fee (the "Reduction Fee") in an amount equal to the
-------------
applicable Reduction Fee Percentage of:
(a) the principal amount of any reduction in the Commitments,
simultaneously with any termination or reduction of the Commitments under
Section 2.5 or otherwise which occurs after the expiration of the Net
-----------
Proceeds Remittance Period (including, without limitation, a termination of
the Commitments as a result of the occurrence of the Maturity Date);
(b) if any termination or reduction of the Commitments occurs during
the Net Proceeds Remittance Period, but occurs in connection with a
repayment that results in the expiration of the Net Proceeds Remittance
Period, to the extent of and simultaneously with any such termination or
reduction of the Commitments which occurs while the Loan-to-Value Ratio is
less than 70% assuming that such termination or reduction (and repayment)
is made in a series of one dollar ($1.00) terminations or reductions (and
repayments) (as applicable); and
(c) the difference, on the Maturity Date, between (x) the highest
amount of the Commitments from time to time minus (y) the amount of the
Commitments as of the date of the expiration of the Net Proceeds Remittance
Period (after giving effect to clause (b) above), on the Maturity Date.
It is the intention of the parties that a Reduction Fee shall ultimately be
paid on 100% of the highest amount of the Commitments from time to time.
If all of the Commitments are terminated during the Net Proceeds Remittance
Period (including, without limitation, a termination of the Commitments as
a result of the occurrence of the Maturity Date), then, without duplicating
any of the foregoing payments, a Reduction Fee shall be paid on the date of
such termination on 100% of the highest amount of the Commitments from time
to time. To the extent any Reduction Fee is not paid when due, the same
shall be accompanied by interest thereon at the Default Rate from the date
when due to the date when paid.
Section 2.8 Security; Sinking Fund.
----------------------
(1) The Loans shall be secured by the Mortgages creating a first lien
on each of the Projects, the Assignment of Rents and Leases and the other Loan
Documents.
(2) As further security for the Loan, Borrower agrees that if, at any
time prior to the satisfaction of the REIT Debt Requirements, the Borrower or
any of its Subsidiaries sells, finances, refinances, transfers (as defined in
Section 8.1) or otherwise disposes of any or all of the Properties or the Agency
-----------
Notes, then all Net Proceeds from the sale, financing, refinancing, transfer or
other disposition of such Property or the Agency Notes shall be paid to the
Administrative Agent for application to the outstanding principal balance of the
Loans. In the event that, at the time of any such sale, financing, refinancing,
transfer or other disposition, there
40
<PAGE>
are no Loans outstanding, then the Net Proceeds from such sale, financing,
refinancing, transfer or other disposition shall be deposited into an account
(the "Sinking Fund") with the Administrative Agent for the benefit of Lenders,
------------
which Sinking Fund shall be under the sole dominion and control of the
Administrative Agent and shall be disbursed by the Administrative Agent as
herein required. The Sinking Fund shall be entitled "CT Operating Partnership,
L.P. for the Benefit of General Electric Capital Corporation, as the
Administrative Agent and Secured Party," provided that the Administrative Agent
shall have the option to cause the financial institution maintaining such
account to change the name of the Sinking Fund by giving notice to Borrower and
such institution. Borrower hereby grants to the Administrative Agent a first
priority security interest in the Sinking Fund and all deposits at any time
contained therein and the proceeds thereof and will take all actions necessary
to maintain in favor of the Administrative Agent a perfected first priority
security interest in the Sinking Fund, including, without limitation, executing
and filing UCC-1 Financing Statements and continuations thereof and entering
into agreements reasonably required to confirm the Administrative Agent's
dominion and control over the Sinking Fund. Except to the extent provided in the
next sentence, the Administrative Agent shall have the sole right to make
withdrawals from the Sinking Fund and all reasonable out-of-pocket costs and
expenses for establishing and maintaining the Sinking Fund shall be paid by
Borrower. Provided that no Potential Default, Event of Default or Borrowing Base
Imbalance exists and is continuing, funds on deposit in the Sinking Fund shall,
at the request of the Borrower, be paid by the Administrative Agent either (a)
to or at the direction of the holders of the REIT Debt in reduction of the REIT
Debt, whether upon the scheduled maturity of the REIT Debt or at any time prior
thereto, or (b) to or at the direction of the Borrower, provided that in
connection with any such disbursement there shall be an increase in the amount
of the Blocked Availability by an amount equal to the amount of such
disbursement. All funds on deposit in the Sinking Fund following the occurrence
and during the continuance of an Event of Default may be applied by the
Administrative Agent in such order and priority as the Administrative Agent
shall determine. No delay or omission of the Administrative Agent or the Lenders
in exercising any right under this Section shall impair any such right, or shall
be construed as a waiver of, or acquiescence in, any Event of Default.
Section 2.9 Release of Project. Provided that no Potential Default, Event
------------------
of Default or Borrowing Base Imbalance has occurred and is continuing (or would
occur or exist as a result of or following a Project Release), Borrower shall
have the right, subject to the provisions of this Section 2.9 and Section
----------- -------
2.12(5) hereof, to obtain a release of a Project from the Lien of the Mortgage
-------
Documents relating thereto (a "Project Release"). In the event Borrower seeks
---------------
to obtain a Project Release, the Administrative Agent shall release such Project
(the "Released Project") from the Lien of the Mortgage Documents relating
----------------
thereto, but only upon satisfaction of all of the following conditions:
(i) Any request for Project Release shall be made in writing to
the Administrative Agent no less than five (5) Business Days prior to
the date of the requested Project Release;
(ii) The proposed Released Project is being sold to or financed
by a Person that is unaffiliated with either the Borrower or the
Company pursuant to a bona-fide arm's length sale or financing
transaction and, in the case of any sale of
41
<PAGE>
the Media City Center Project, the gross proceeds payable to Borrower
are not less than $100,000,000;
(iii) During the Net Proceeds Remittance Period, Borrower shall
pay to the Administrative Agent, concurrently with such Project
Release, 100% of the Net Proceeds from the sale or financing of such
Released Project (or such lesser amount as may at the time be required
to bring about an expiration of the Net Proceeds Remittance Period)
for the payment of Loans pursuant to Section 2.7(2) or deposit into
--------------
the Sinking Fund pursuant to Section 2.8;
-----------
(iv) Borrower shall pay all of the Administrative Agent's
reasonable costs and expenses, including counsel fees and
disbursements, incurred in connection with the Project Release and the
review and approval of the documents and information required to be
delivered in connection therewith; and
(v) Borrower shall deliver to the Administrative Agent
simultaneously with the request referred to in clause (i) above, (A) a
Borrowing Base Certificate signed by a Responsible Officer of
Borrower, representing and certifying the pro forma calculations after
--- -----
giving effect to the proposed Project Release, and if such pro forma
Borrowing Base Certificate demonstrates that the Project Release would
result in a Borrowing Base Imbalance, Borrower shall not be entitled
to such Project Release unless Borrower shall prepay Loans
concurrently with such Project Release and otherwise in accordance
with Section 2.(6), and (B) a certification from a Responsible Officer
-------------
as to the bona-fide arm's length nature of the proposed sale of such
Released Property and, until the expiration of the Net Proceeds
Remittance Period, a calculation of the Net Proceeds expected to
result therefrom, together with such supporting documentation with
respect to such calculation as the Administrative Agent may reasonably
request.
Section 2.10 Payments; Pro Rata Treatment; Etc.
---------------------------------
(1) Payments Generally.
------------------
(a) Payments by Borrower. Except to the extent otherwise provided
--------------------
herein, all payments of principal, interest, LC Disbursements and other
amounts to be made by Borrower under this Agreement and the Notes, and,
except to the extent otherwise provided therein, all payments to be made by
Borrower under any other Loan Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
the Administrative Agent at an account designated by the Administrative
Agent by notice to Borrower, not later than 1:00 p.m., New York City time,
on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Application of Payments. Subject to the provisions of Section
----------------------- -------
2.7(7), Borrower shall, at the time of making each payment under this
------
Agreement or any Note for the account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s)
thereof) the Loans, LC Disbursements or other amounts payable
42
<PAGE>
by Borrower hereunder to which such payment is to be applied (and in the
event that Borrower fails to so specify, or if an Event of Default has
occurred and is continuing, the Administrative Agent may distribute such
payment to the Lenders and the Issuing Bank for application in such manner
as it may determine to be appropriate, subject to Section 2.10(2) and any
--------------
other agreement among the Administrative Agent, the Lenders and the Issuing
Bank with respect to such application).
(c) Forwarding of Payments by Administrative Agent. Except as
----------------------------------------------
otherwise agreed by the Administrative Agent, the Lenders and the Issuing
Bank, each payment received by the Administrative Agent under this
Agreement or any Note for account of any Lender or the Issuing Bank shall
be paid by the Administrative Agent promptly to such Lender or the Issuing
Bank, as applicable, in immediately available funds, for the account of
such Lender's Applicable Lending Office for the Loan or other Obligation in
respect of which such payment is made (if applicable).
(d) Extensions to Next Business Day. If the due date of any payment
-------------------------------
under this Agreement or any Note would otherwise fall on a day that is not
a Business Day, such date shall be extended to the next succeeding Business
Day, and interest shall be payable for any principal so extended for the
period of such extension.
(2) Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (a) each advance of a Loan from the Lenders under Section 2.1(1) shall
--------------
be made from the Lenders, and any termination of the obligation to make an
advance of the Loans shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
except as otherwise provided in Section 2.11(4), Loans shall be allocated pro
---------------
rata among the Lenders according to the amounts of their respective Commitments
(in the case of the making of Loans) or their respective Loans (in the case of
Conversions or Continuations of Loans); (c) each payment or prepayment of
principal of Loans or unreimbursed LC Disbursements by Borrower shall be made
for the account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans or unreimbursed LC Disbursements held by them;
and (d) each payment of interest on Loans or unreimbursed LC Disbursements by
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest on such Loans or unreimbursed LC Disbursements then due
and payable to the respective Lenders.
(3) Non-Receipt of Funds by the Administrative Agent. Unless the
------------------------------------------------
Administrative Agent shall have been notified by a Lender or Borrower (in either
case, the "Payor") prior to the date on which the Payor is to make payment to
-----
the Administrative Agent of (in the case of a Lender) the proceeds of a Loan to
be made by such Lender hereunder or (in the case of Borrower) a payment to the
Administrative Agent for account of any Lender hereunder or the Issuing Bank (in
either case, such payment being herein called the "Required Payment"), which
----------------
notice shall be effective upon receipt, that the Payor does not intend to make
the Required Payment to the Administrative Agent, the Administrative Agent may
assume that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available to
the intended recipient(s) on such date; and, if the Payor has not in fact made
the Required Payment to the Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the amount so made
available
43
<PAGE>
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
------------
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (a) the Federal Funds Rate for such day
in the case of payments returned to the Administrative Agent by any of the
Lenders or (b) the applicable interest rate due hereunder with respect to
payments returned by Borrower to the Administrative Agent and, if such
recipient(s) shall fail promptly to make such payment, the Administrative Agent
shall be entitled to recover such amount, on demand, from the Payor, together
with interest as aforesaid, provided that if neither the recipient(s) nor the
--------
Payor shall return the Required Payment to the Administrative Agent within three
(3) Business Days of the Advance Date, then, retroactively to the Advance Date,
the Payor and the recipient(s) shall each be obligated to pay interest on the
Required Payment as follows:
(a) if the Required Payment shall represent a payment to be made by
Borrower to the Lenders or the Issuing Bank, Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay interest
in respect of the Required Payment at the Default Rate (without duplication
of the obligation of Borrower under Section 2.6 to pay interest on the
-----------
Required Payment at the Default Rate), it being understood that the return
by the recipient(s) of the Required Payment to the Administrative Agent
shall not limit such obligation of Borrower under Section 2.6 to pay
-----------
interest at the Default Rate in respect of the Required Payment, and
(b) if the Required Payment shall represent proceeds of a Loan to be
made by the Lenders to Borrower, the Payor and Borrower shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment pursuant to whichever of the rates specified in
Section 2.6 is applicable to the Type of such Loan, it being understood
-----------
that the return by Borrower of the Required Payment to the Administrative
Agent shall not limit any claim Borrower may have against the Payor in
respect of such Required Payment.
(4) Sharing of Payments, Etc.
------------------------
(a) Right of Set-off. Borrower agrees that, in addition to (and
----------------
without limitation of) any right of set-off, banker's lien or counterclaim
a Lender may otherwise have, each Lender shall be entitled, at its option
(to the fullest extent permitted by law), at any time after the occurrence
and during the continuance of an Event of Default, to set off and apply any
deposit (general or special, time or demand, provisional or final), or
other indebtedness, held by it for the credit or account of Borrower at any
of its offices, in Dollars or in any other currency, against any principal
of or interest on any of such Lender's Loans, participations in LC
Disbursements or any other Obligations payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness is then due to Borrower), in which case it shall promptly
notify Borrower and the Administrative Agent thereof, provided that such
--------
Lender's failure to give such notice shall not affect the validity thereof.
(b) Sharing. If any Lender shall obtain from Borrower payment of any
-------
principal of or interest on any Loan or any participation in LC
Disbursements owing to it or payment of any other amount under this
Agreement or any other Loan Document
44
<PAGE>
through the exercise of any right of set-off, banker's lien or counterclaim
or similar right or otherwise (other than from the Administrative Agent as
provided herein), and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest on the Loans,
participations in LC Disbursements or such other amounts then due hereunder
or thereunder by Borrower to such Lender than the percentage received by
any other Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender,
direct interests in) the Loans, participations in LC Disbursements or such
other amounts, respectively, owing to such other Lenders (or in interest
due thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all
the Lenders shall share the benefit of such excess payment (net of any
expenses that may be incurred by such Lender in obtaining or preserving
such excess payment) pro rata in accordance with the unpaid principal of
and/or interest on the Loans, participations in LC Disbursements or such
other amounts, respectively, owing to each of the Lenders. To such end all
the Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is rescinded or
must otherwise be restored.
(c) Consent by Borrower. Borrower agrees that any Lender so
-------------------
purchasing such a participation (or direct interest) may exercise all
rights of set-off, banker's lien, counterclaim or similar rights with
respect to such participation as fully as if such Lender were a direct
holder of Loans, participations in LC Disbursements or other amounts (as
the case may be) owing to such Lender in the amount of such participation.
(d) Rights of Lenders; Bankruptcy. Nothing contained herein shall
-----------------------------
require any Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of Borrower.
If, under any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a set-off to which this Section
-------
2.10(4) applies, such Lender shall, to the extent practicable, exercise its
-------
rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section 2.10(4) to share in the
---------------
benefits of any recovery on such secured claim.
Section 2.11 Yield Protection; Etc.
----------------------
(1) Additional Costs.
----------------
(a) Costs of Making or Maintaining Eurodollar Loans. Borrower shall
-----------------------------------------------
pay directly to each Lender and the Issuing Bank from time to time such
amounts as such Lender or the Issuing Bank may reasonably determine to be
necessary to compensate such Lender or the Issuing Bank for any costs that
such Lender or the Issuing Bank determines are attributable to its making
or maintaining of any Eurodollar Loans or issuing or maintaining any
Letters of Credit or its obligation to make any Eurodollar Loans or issue
or participate in any Letters of Credit hereunder, or any reduction in any
amount receivable by such Lender or the Issuing Bank hereunder in respect
of any of such Loans or Letters of Credit or such obligations (such
increases in costs and
45
<PAGE>
reductions in amounts receivable being herein called "Additional Costs"),
----------------
resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) or the Issuing Bank to any tax, duty or other charge in
respect of such Loans or its Note or any Letters of Credit or changes the
basis of taxation of any amounts payable to such Lender or the Issuing Bank
under this Agreement or its Note in respect of any of such Loans or any
Letters of Credit (excluding changes in the rate of tax on the overall net
income or franchise taxes in lieu of taxes on the overall net income of
such Lender or of such Applicable Lending Office or the Issuing Bank by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office or the Issuing Bank has its principal office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement used in the determination
of the Adjusted Libor Rate for any Interest Period for such Loan) relating
to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender (including, without limitation, any of
such Loans or any deposits referred to in the definition of "Libor Base
Rate") or the Issuing Bank, or any commitment of such Lender (including,
without limitation, the Commitment of such Lender hereunder) or the Issuing
Bank; or
(iii) imposes any other condition affecting this Agreement or its Note
(or any of such extensions of credit or liabilities) or its Commitment or
any Letter of Credit or its participation therein.
If any Lender or the Issuing Bank requests compensation from Borrower under this
paragraph (a), Borrower may, by notice to such Lender or the Issuing Bank (with
-------------
a copy to the Administrative Agent), suspend the obligation of such Lender
thereafter to make or Continue Eurodollar Loans or suspend the obligation of the
Issuing Bank to issue or maintain Letters of Credit, or to Convert Loans into
Eurodollar Loans, until the Regulatory Change giving rise to such request ceases
to be in effect (in which case the provisions of Section 2.11(4) shall be
---------------
applicable), provided that such suspension shall not affect the right of such
--------
Lender or the Issuing Bank to receive the compensation so requested, and shall
be permitted to obtain Alternate Base Rate Loans.
(b) Costs Attributable to Regulatory Change or Risk-Based Capital
-------------------------------------------------------------
Guidelines. Without limiting the effect of the foregoing provisions of this
----------
Section 2.11(1) (but without duplication), Borrower shall pay directly to
---------------
each Lender and the Issuing Bank from time to time on request such amounts
as such Lender or the Issuing Bank may determine to be necessary to
compensate such Lender or the Issuing Bank (or, without duplication, the
bank holding company of which such Lender or the Issuing Bank is a
subsidiary) for any costs that it determines are attributable to the
maintenance by such Lender or the Issuing Bank (or any Applicable Lending
Office or such bank holding company), pursuant to any law or regulation or
any interpretation, directive or request (whether or not having the force
of law and whether or not failure to comply therewith would be unlawful) of
any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital
46
<PAGE>
guideline or other requirement (whether or not having the force of law and
whether or not the failure to comply therewith would be unlawful) hereafter
issued by any government or governmental or supervisory authority
implementing at the national level the Basle Accord, of capital in respect
of its Commitment or Loans or Letters of Credit (such compensation to
include, without limitation, an amount equal to any reduction of the rate
of return on assets or equity of such Lender or the Issuing Bank (or any
Applicable Lending Office or such bank holding company) to a level below
that which such Lender or the Issuing Bank (or any Applicable Lending
Office or such bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request.
(c) Notification and Certification. Each Lender or the Issuing Bank,
------------------------------
as applicable, shall notify Borrower of any event occurring after the date
hereof entitling such Lender or the Issuing Bank to compensation under
paragraph (a) or (b) of this Section 2.11(1) as promptly as practicable,
------------- --- ---------------
but in any event within 180 days, after such Lender or the Issuing Bank
obtains actual knowledge thereof; provided that (i) if any Lender or the
--------
Issuing Bank fails to give such notice within 180 days after such an event,
such Lender or the Issuing Bank shall, with respect to compensation payable
pursuant to this Section 2.11(1) in respect of any costs resulting from
---------------
such event, only be entitled to payment under this Section 2.11(1) for
---------------
costs incurred from and after the date 180 days prior to the date that such
Lender or the Issuing Bank does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such
Lender affected by such event if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the sole
opinion of such Lender, be disadvantageous to such Lender, except that such
Lender shall have no obligation to designate an Applicable Lending Office
located in the United States of America. Each Lender or the Issuing Bank,
as applicable, will furnish to Borrower a certificate setting forth the
basis and amount of each request by such Lender or the Issuing Bank, as
applicable, for compensation under paragraph (a) or (b) of this Section
------------- --- -------
2.11(1). Determinations and allocations by any Lender or the Issuing Bank,
-------
as applicable, for purposes of this Section 2.11(1) of the effect of any
---------------
Regulatory Change pursuant to paragraph (a) of this Section 2.11(1), or of
------------- ---------------
the effect of capital maintained pursuant to paragraph (b) of this Section
------------- -------
2.11(1), on its costs or rate of return of maintaining Loans or issuing,
-------
maintaining or participating in Letters of Credit or its obligation to make
Loans or to issue, maintain or participate in Letters of Credit, or on
amounts receivable by it in respect of Loans or Letters of Credit, and of
the amounts required to compensate such Lender or the Issuing Bank, as
applicable, under this Section 2.11(1), shall be conclusive, provided that
--------------- --------
such determinations and allocations are made on a reasonable basis.
(2) Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of the Libor Base Rate for
any Interest Period for any Eurodollar Loan:
(a) the Administrative Agent determines, which determination shall
be conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of Libor Base Rate are not being provided in
the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for Eurodollar Loans as provided herein; or
47
<PAGE>
(b) the Majority Lenders determine, which determination shall be
conclusive, and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of Libor Base Rate upon the basis of
which the rate of interest for Eurodollar Loans for such Interest Period is
to be determined are not likely adequately to cover the cost to such
Lenders of making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, the Lenders shall be
under no obligation to make additional Eurodollar Loans, to Continue Eurodollar
Loans or to Convert Loans of any other Type into Eurodollar Loans, and Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or such Loans shall be
automatically Converted into Alternate Base Rate Loans.
(3) Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
Borrower thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section
-------
2.11(4) shall be applicable).
-------
(4) Treatment of Affected Loans. If the obligation of any Lender to
---------------------------
make or to Continue Eurodollar Loans, or to Convert Alternate Base Rate Loans
into Eurodollar Loans, shall be suspended pursuant to Section 2.11(1) or
---------------
2.11(3), such Lender's Loans shall be automatically Converted into Alternate
-------
Base Rate Loans on the last day(s) of the then current Interest Period(s) for
Loans (or, in the case of a Conversion resulting from a circumstance described
in Section 2.11(3), on such earlier date as such Lender may specify to Borrower
---------------
with a copy to the Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 2.11(1) or
---------------
2.11(3) that gave rise to such Conversion no longer exist:
-------
(a) to the extent that such Lender's Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied
to such Lender's Loans shall be applied instead to its Alternate Base Rate
Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Alternate
Base Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Alternate Base Rate Loans.
If such Lender gives notice to Borrower with a copy to the Administrative Agent
that the circumstances specified in Section 2.11(1) or 2.11(3) that gave rise to
--------------- -------
the Conversion of such Lender's Loans pursuant to this Section 2.11(4) no longer
---------------
exist (which such Lender agrees to do promptly upon such circumstances ceasing
to exist) at a time when Eurodollar Loans made by other Lenders are outstanding,
such Lender's Alternate Base Rate Loans shall be automatically
48
<PAGE>
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Alternate Base Rate Loans and Eurodollar Loans are allocated
among the Lenders ratably (as to principal amounts, Types and Interest Periods)
in accordance with their respective Commitments.
(5) Compensation. Borrower shall pay to the Administrative Agent for
------------
account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, prepayment or Conversion of a Eurodollar Loan made
by such Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to the Administrative Agent's or the
Lenders' rights referred to in Article 10) on a date other than the last
----------
day of the Interest Period for such Loan; or
(b) any failure by Borrower for any reason to borrow a Eurodollar
Loan from such Lender on the date for such borrowing specified in the
relevant Borrowing Request given to the Administrative Agent in accordance
with the terms of this Agreement.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
----
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Page 3750 of the Dow Jones
Markets (Telerate) Service or other publicly available source as described in
the definition of Libor Base Rate.
(6) U.S. Taxes.
----------
(a) Gross-up for Deduction or Withholding of U.S. Taxes. Borrower
---------------------------------------------------
agrees to pay to each Lender and Issuing Bank that is not a U.S. Person
such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person hereunder after deduction for or
withholding in respect of any U.S. Taxes imposed with respect to such
payment (or in lieu thereof, payment of such U.S. Taxes by such non-U.S.
Person), will not be less than the amount stated herein to be then due and
payable, provided that the foregoing obligation to pay such additional
--------
amounts shall not apply:
(i) to any payment to any Lender or Issuing Bank hereunder unless
such Lender or Issuing Bank is, on the date hereof (or on the date it
becomes a Lender hereunder as provided in Section 11.24(2) or an Issuing
----------------
Bank hereunder as provided in Section 2.2)
-----------
49
<PAGE>
and on the date of any change in the Applicable Lending Office of such
Lender, entitled to submit either a Form 1001 (relating to such Lender or
Issuing Bank and entitling it to a complete exemption from withholding on
all interest to be received by it hereunder) or a Form 4224 (relating to
all interest to be received by such Lender or Issuing Bank hereunder), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by
such non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes hereof, (A) "U.S. Person" means a citizen, national or resident
-----------
of the United States of America, a corporation, limited liability company,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" means any present or future tax, assessment or other charge or levy
----------
imposed by or on behalf of the United States of America or any taxing authority
thereof or therein, (C) "Form 1001" means Form 1001 (Ownership, Exemption, or
---------
Reduced Rate Certificate) of the Department of the Treasury of the United States
of America and (D) "Form 4224" means Form 4224 (Exemption from Withholding of
---------
Tax on Income Effectively Connected with the Conduct of a Trade or Business in
the United States) of the Department of the Treasury of the United States of
America. Each of the Forms referred to in the foregoing clauses (C) and (D)
shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
(b) Evidence of Deduction, Etc. Within 30 days after paying any
--------------------------
amount to the Administrative Agent or any Lender from which it is required
by law to make any deduction or withholding, and within 30 days after it is
required by law to remit such deduction or withholding to any relevant
taxing or other authority, Borrower shall deliver to the Administrative
Agent for delivery to such non-U.S. Person evidence reasonably satisfactory
to such Person of such deduction, withholding or payment (as the case may
be).
(c) Notification and Certification. Each Lender or the Issuing Bank,
------------------------------
as applicable, shall notify Borrower of any event occurring after the date
hereof entitling such Lender or the Issuing Bank to payments under
paragraph (a) of this Section 2.11(6) as promptly as practicable, but in
------------- ---------------
any event within 180 days, after such Lender or the Issuing Bank obtains
actual knowledge thereof; provided that if any Lender or the Issuing Bank
--------
fails to give such notice within 180 days after it actually knew, or should
reasonably have known, of such an event, such Lender or the Issuing Bank
shall, with respect to payments due pursuant to this Section 2.11(6) in
---------------
respect of any additional payments resulting from such event, only be
entitled to payment under this Section 2.11(6) for additional payments
---------------
relating to periods from and after the date 180 days prior to the date that
such Lender or the Issuing Bank does give such notice. Each
50
<PAGE>
Lender or the Issuing Bank, as applicable, will furnish to Borrower a
certificate setting forth the basis and amount of each request by such
Lender or the Issuing Bank, as applicable, for payments under paragraph (a)
-------------
of this Section 2.11(6) and the amount set forth on such certificate shall
---------------
be conclusive absent manifest error and shall be paid by Borrower within
ten (10) days after receipt of such certificate.
(7) Replacement of Lenders. If any Lender requests compensation
----------------------
pursuant to Section 2.11(1) or 2.11(6), or any Lender's obligation to Continue
--------------- -------
Loans of any Type, or to Convert Loans of any Type into the other Type of Loan,
shall be suspended pursuant to Section 2.11(2) or 2.11(3) or any Lender defaults
--------------- -------
in its obligation to fund Loans hereunder (any such Lender requesting such
compensation, or whose obligations are so suspended or who has defaulted, being
herein called a "Requesting Lender"), Borrower, upon three (3) Business Days
-----------------
notice, may require that such Requesting Lender transfer all of its right, title
and interest under this Agreement and such Requesting Lender's Note to any bank
or other financial institution (a "Proposed Lender") identified by Borrower that
---------------
is reasonably satisfactory to the Administrative Agent and the Issuing Bank (i)
if such Proposed Lender agrees to assume all of the obligations of such
Requesting Lender hereunder, and to purchase all of such Requesting Lender's
Loans and participations in LC Disbursements hereunder for consideration equal
to the aggregate outstanding principal amount of such Requesting Lender's Loans
and participations in LC Disbursements, together with interest thereon to the
date of such purchase (to the extent not paid by Borrower), and reasonably
satisfactory arrangements are made for payment to such Requesting Lender of all
other amounts accrued and payable hereunder to such Requesting Lender as of the
date of such transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 2.11(5) as if all of such Requesting Lender's
---------------
Loans were being prepaid in full on such date) and (ii) if such Requesting
Lender has requested compensation pursuant to Section 2.11(1) or 2.11(6), such
--------------- -------
Proposed Lender's aggregate requested compensation, if any, pursuant to Section
-------
2.11(1) or 2.11(6) with respect to such Requesting Lender's Loans is lower than
------- -------
that of the Requesting Lender. Subject to the provisions of Section 11.24(2),
----------------
such Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of Borrower hereunder, the
agreements of Borrower contained in Sections 2.11(1), 2.11(6) and 11.5 (without
---------------- ------- ----
duplication of any payments made to such Requesting Lender by Borrower or the
Proposed Lender) shall survive for the benefit of such Requesting Lender under
this Section 2.11(7) with respect to the time prior to such replacement. The
---------------
right to replace a defaulting Lender under this Section shall not in any way
reduce any rights which Borrower may have against such Lender as a consequence
of such default.
Section 2.12 Borrowing Base Determination.
----------------------------
(1) Initial Projects. As of the date hereof, the Administrative
----------------
Agent and the Lenders have accepted the Properties listed on Schedule 2.12 as
-------- ----
Projects for the purposes of the Borrowing Base as of the Closing Date, provided
--------
that the parties acknowledge and agree that: (a) Borrower owns only a ground
----
interest in the Media City Center Project, (b) the Media City Center Project is
partially enclosed and (c) the PML for the Media City Center Project is greater
than 20%.
51
<PAGE>
(2) Additional Projects. If Borrower desires that the
-------------------
Administrative Agent accept an additional Property as an Eligible Project for
the purposes of the Borrowing Base, Borrower shall so notify the Administrative
Agent in writing and deliver to the Administrative Agent a duly executed and
completed due diligence request form in the form attached as Exhibit F hereto.
---------
The Administrative Agent's acceptance of such Property in the Borrowing Base
shall not be unreasonably withheld, conditioned or delayed, provided that such
-------- ----
Property shall meet the requirements for Eligible Projects specified herein and
provided further that, except as provided below in clauses (3) and (6), a
-------- ------- ----
Property shall not be accepted as an Eligible Project unless and until Borrower
has delivered to the Administrative Agent (i) Mortgage Documents in respect of
such Property including, without limitation, the payments specified in clause
(g) of the definition of Mortgage Documents, and (ii) the Eligible Project
Documents relating to such Property in form and substance reasonably
satisfactory to the Administrative Agent.
(3) Wal-Mart at Baldwin Hills. If the Borrower desires that the
-------------------------
Administrative Agent accept the Property known as the Wal-Mart at the Baldwin
Hills Mall in Los Angeles, California as an Eligible Project for the purposes of
the Borrowing Base, then, subject to satisfaction of any other applicable
requirements with respect thereto, (a) the Administrative Agent agrees to
consider such request notwithstanding that such Property is a single-tenant
retail store and that an Appraisal may not be available at such time, (b) the
Underwritten Value of such Property shall be as determined by the Administrative
Agent in accordance with its customary underwriting standards, and (c) until the
tenant under the Wal-Mart Lease has been paying monthly base rent for four (4)
full fiscal quarters, the monthly rental payments made by the tenant under the
Wal-Mart Lease shall be annualized for purposes of determining Net Operating
Income when calculating the Borrowing Base, except that if the payment of
monthly base rent has not commenced, the Administrative Agent shall account for
the fact that rental payments have not yet commenced by determining an amount to
be utilized as Net Operating Income with respect to such Property when
calculating the Borrowing Base. The amount to be utilized as Net Operating
Income with respect to such Property shall be an annualized number based upon,
among other things, (i) market Contract Rates available at such time, (ii) the
Applicable Margin and Debt Service Coverage at such time, (iii) the time
remaining until the tenant under the Wal-Mart Lease commences monthly base rent
payments and (iv) the Administrative Agent's expectations with respect to
interest rates during the period from the date such Property becomes a Project
until the date on which the tenant under the Wal-Mart Lease commences monthly
base rent payments. For informational purposes only, the Underwritten Value of
such Property as of the Closing Date is $8,449,000 and the annual Net Operating
Income is $875,000 (each of which is based upon the Administrative Agent's
customary underwriting standards and the conditions described in items (i)-(iv)
above as presently applied), and such Underwritten Value and Net Operating
Income shall remain in effect for three (3) months from the Closing Date
(assuming no change in circumstances which could give rise to a change in such
Underwritten Value or Net Operating Income), but shall remain subject to change
at the time the Property becomes a Project (based upon the conditions described
in item (i)-(iv) above, each as applied at such time).
(4) Inspections. The Administrative Agent, at the expense of the
-----------
Lender (except as hereinafter provided), may make physical and other
verifications of any Properties included as Eligible Projects in any reasonable
manner and through any medium that the Administrative Agent considers advisable,
and Borrower shall furnish all such assistance and
52
<PAGE>
information as the Administrative Agent may require in connection therewith.
Notwithstanding the foregoing, if any inspection of a Property results in the
Administrative Agent determining that such Property is not an Eligible Project,
then such inspection shall be at the expense of the Borrower and the Borrower
shall reimburse the Administrative Agent for its reasonable expenses in
connection therewith within ten (10) days after written request.
(5) Required Number and Value of Projects. At no time shall (a)
-------------------------------------
there be less than five (5) Projects included in the collateral for the
Obligations, (b) the Underwritten Value of all of the Projects be less than
$100,000,000 or (c) the Underwritten Value of the Media City Center Project be
permitted, for purposes of determining the Borrowing Base, to be greater than
the lesser of $104,000,000 and an amount equal to fifty-six percent (56%) of the
Underwritten Value of all of the Projects (including the Media City Center
Project) and in the event that the Underwritten Value of the Media City Center
Project is greater than the lesser of $104,000,000 and an amount equal to fifty-
six percent (56%) of the Underwritten Value of all of the Projects (including
the Media City Center Project), the Borrowing Base shall not be increased by or
credited with the amount by which the Underwritten Value of the Media City
Center Project is greater than the lesser of $104,000,000 and an amount equal to
fifty-six percent (56%) of the Underwritten Value of all of the Projects
(including the Media City Center Project).
(6) Appraisals. It is acknowledged and agreed that an Appraisal has
----------
not yet been delivered in respect of the Project known as Rosedale Village in
Bakersfield, Kern County, California, that such Appraisal is being or shall be
prepared and that, upon the delivery thereof, adjustments may be required to the
Borrowing Base, including, without limitation, adjustments that may result in a
Borrowing Base Imbalance. The Administrative Agent shall have the right, at the
expense of Borrower, to require reappraisals of the Projects if the same are
required pursuant to a legal requirement, provided that no more than one
-------- ----
reappraisal shall be required in any twelve (12) month period.
(7) Ineligibility. Notwithstanding anything to the contrary set
-------------
forth herein, a Property shall cease to be an Eligible Project (and a Project
for Borrowing Base purposes) if it shall cease to comply with the requirements
therefor set forth herein, unless otherwise approved by the Majority Lenders at
the time of such ineligibility.
(8) Blocked Availability. If, in connection with and as a result any
--------------------
sale, financing, refinancing, transfer or other disposition of any of the
Properties or the Agency Notes (or any interest therein) by the Borrower or any
of its Subsidiaries during the Net Proceeds Remittance Period and the payment by
the Borrower to the Administrative Agent of the Net Proceeds from such the sale,
financing, refinancing, transfer or other disposition as provided in Sections
--------
2.7(2) or 2.8, there would otherwise be an increase in the amount of the
-------------
Available Credit, then the Borrower agrees that the amount of such increase (the
aggregate amount of such increases, as the same may be further increased
pursuant to Section 2.8(2) or decreased as hereinafter provided, being
--------------
hereinafter referred to as the "Blocked Availability") shall, notwithstanding
--------------------
anything to the contrary in this Agreement, not be recognized as a part of the
Available Credit and shall instead be reserved exclusively for the payment, at
the request of the Borrower, to or at the direction of the holders of the REIT
Debt and on account of the payment in full of the REIT Debt and upon any such
payment in full of the REIT Debt any remaining Blocked Availability shall
thereafter be treated as Available Credit; provided, however, that if
-------- -------
53
<PAGE>
and to the extent that the amount of the Blocked Availability is in excess of
the face principal amount of the then outstanding REIT Debt and all accrued and
unpaid interest thereon, then the Blocked Availability may be used to repay or
acquire less than all of the REIT Debt. Concurrently with any repayment,
prepayment or acquisition (in whole or in part) of REIT Debt by the Borrower,
the Company and/or any other member of the Consolidated Business by payment of
an amount less than the face principal amount thereof and all accrued and unpaid
interest thereon in accordance with the terms thereof, Borrower shall pay a fee
(the REIT Debt Fee") to the Administrative Agent, on behalf of the Lenders, in
--------------
an amount equal to fifty (50%) percent of the difference between (x) the face
principal amount of the REIT Debt prepaid, repaid or acquired and all then
accrued and unpaid interest thereon in accordance with the terms thereof and (y)
the amount actually paid to the holder of the REIT Debt in question in respect
of the prepayment, repayment or acquisition of the REIT Debt in question (such
differential being referred to as a "Discount"), but only from and after (and to
--------
the extent that) the Borrower, the Company and/or any other member of the
Consolidated Business have collectively realized or otherwise accumulated
$5,000,000 in Discounts. Any request by Borrower for a Borrowing of the Blocked
Availability shall be subject to satisfaction of all conditions applicable to a
Borrowing hereunder and, in addition to such conditions, it shall be a condition
to any Borrowing of the Blocked Availability that the Borrower shall have
provided evidence, reasonably satisfactory to the Administrative Agent, to the
Administrative Agent as to (A) the amount necessary at such time to fully pay
and retire the REIT Debt, (B) the face principal amount of any REIT Debt
previously repaid or acquired by the Borrower, the Company and/or any other
member of the Consolidated Business and the amount actually paid in respect of
such repayment or acquisition and (C) the payment instructions of the holders of
the REIT Debt (or the trustee for such holders or, in the case of an acquisition
of REIT Debt permitted hereunder, of the broker or dealer acquiring the REIT
Debt in question on behalf of the Borrower or the Company) and shall also
provide to the Administrative Agent, concurrently with the Borrowing of the
Blocked Availability (or, if not available at such time, as soon thereafter as
is practicable), instruments from the holders of the REIT Debt (or the trustee
for such holders) acknowledging satisfaction and discharge (or assignment) of
the REIT Debt in question to the extent that Borrower is entitled to receive
such information (or, in the case of an acquisition of REIT Debt permitted
hereunder, a copy of the confirmation provided by such broker or dealer to the
Borrower or the Company with respect to such acquisition).
Section 2.13 Fees.
----
(1) Borrower agrees to pay to the Administrative Agent for the
account of each Lender an unused facility fee, which shall accrue at a rate of
0.375% per annum on the daily amount of the unused Commitment of such Lender
during the period from and including the date hereof to but excluding the date
on which such Commitment terminates. Accrued unused facility fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing as of
the date hereof. All unused facility fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(2) Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at a rate of 2.50% per annum on the
average daily amount of such Lender's LC Exposure
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(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the date hereof to but excluding the later
of the date on which such Lender's Commitment terminates and the date on which
such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at the rate or rates per annum separately
agreed upon between Borrower and the Issuing Bank on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the date hereof to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing as of the date hereof; provided that all
such fees shall be payable on the date on which the Commitments terminate and
any such fees accruing after the date on which the Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank pursuant to
this paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(3) Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between Borrower and the Administrative Agent.
(4) Borrower agrees to pay the REIT Debt Fee as provided in
Section 2.12(8).
---------------
(5) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
ARTICLE 3
INSURANCE, CONDEMNATION, AND LOCKBOX ACCOUNT
--------------------------------------------
Section 3.1 Insurance. Borrower shall maintain insurance as follows:
---------
(1) Casualty; Business Interruption. Borrower and each of its
-------------------------------
Subsidiaries shall keep each Property insured against damage by fire and the
other hazards covered by a standard extended coverage and all-risk insurance
policy for the full insurable value thereof (without reduction for depreciation
or co-insurance), and shall maintain such other casualty insurance as reasonably
required by the Administrative Agent. Borrower and each of its Subsidiaries
shall keep each Property insured against loss by flood if such Property is
located in an area identified by the Federal Emergency Management Agency as an
area having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968 (and any successor act
thereto) in an amount at least equal to the lesser of (i) the maximum amount of
the Loans or (ii) the maximum limit of coverage available under said
55
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act. Borrower and each of its Subsidiaries shall maintain use and occupancy
insurance covering, as applicable, rental income or business interruption, with
coverage in an amount not less than twelve (12) months anticipated gross rental
income or gross business earnings, as applicable in each case, attributable to
the Properties. In addition, Borrower and each of its Subsidiaries shall obtain
earthquake insurance in amounts and in form and substance reasonably
satisfactory to the Administrative Agent in the event and to the extent any of
the Properties is located in an area with a high degree of seismic activity as
reasonably determined by the Administrative Agent. The proceeds of insurance
paid on account of any damage or destruction to any Project shall be paid to the
Administrative Agent to be applied as provided in Section 3.2. Administrative
-----------
Agent acknowledges that, as of the Closing Date, the insurance coverages in
effect on the Closing Date are satisfactory to Administrative Agent.
(2) Liability. Borrower and each of its Subsidiaries shall maintain
---------
(a) commercial general liability insurance with respect to each Property
providing for limits of liability of not less than $5,000,000 for both injury to
or death of a person and for property damage per occurrence, and (b) other
liability insurance as reasonably required by the Administrative Agent.
(3) Form and Quality. All insurance policies covering any of the
----------------
Projects shall be endorsed in form and substance reasonably acceptable to the
Administrative Agent to name the Administrative Agent (on behalf of the Lenders)
as an additional insured, loss payee or mortgagee thereunder, as its interest
may appear, with loss payable to the Administrative Agent, without contribution,
under a standard New York (or local equivalent) mortgagee clause. All such
insurance policies and endorsements shall be fully paid for and contain such
provisions and expiration dates and be in such form and issued by such insurance
companies licensed to do business in the relevant State, with a rating of "A-IX"
or better as established by Best's Rating Guide (or an equivalent rating
reasonably approved in writing by the Administrative Agent). Each policy shall
provide that such policy may not be cancelled or materially changed except upon
thirty (30) days' prior written notice of intention of non-renewal, cancellation
or material change to the Administrative Agent and that no act or thing done by
Borrower or any of its Subsidiaries shall invalidate any policy as against the
Administrative Agent or any Lender. If Borrower or any of its Subsidiaries fails
to maintain insurance in compliance with this Section 3.1, the Administrative
-----------
Agent may obtain such insurance and pay the premium therefor and Borrower shall,
on demand, reimburse the Administrative Agent for all reasonable expenses
incurred in connection therewith. Borrower shall assign the policies or proofs
of insurance covering any of the Projects to the Administrative Agent (on behalf
of the Lenders), in such manner and form that the Administrative Agent and its
successors and assigns shall at all times have and hold the same as security for
the payment of the Loans. Borrower shall deliver copies of all original policies
certified to the Administrative Agent by the insurance company or authorized
agent as being true copies, together with the endorsements required hereunder.
The proceeds of insurance policies coming into the possession of the
Administrative Agent shall not be deemed trust funds, and the Administrative
Agent shall be entitled to apply such proceeds as herein provided.
(4) Adjustments. Borrower shall give immediate written notice of
-----------
any loss at any of the Projects to the insurance carrier and to the
Administrative Agent. If an Event of Default has occurred and is continuing,
Borrower hereby irrevocably authorizes and empowers
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the Administrative Agent, as attorney-in-fact for Borrower coupled with an
interest, to make proof of loss, to adjust and compromise any claim under
insurance policies, to appear in and prosecute any action arising from such
insurance policies, to collect and receive insurance proceeds, and to deduct
therefrom the Administrative Agent's expenses incurred in the collection of such
proceeds. Nothing contained in this Section 3.1(4), however, shall require the
--------------
Administrative Agent or any Lender to incur any expense or take any action
hereunder.
Section 3.2 Use and Application of Insurance Proceeds. The Administrative
-----------------------------------------
Agent shall apply insurance proceeds relating to any of the Projects to costs of
restoring a Project or to the Obligations as follows:
(1) if the loss is less than or equal to $250,000, the
Administrative Agent shall apply the insurance proceeds to restoration provided
(a) no Event of Default, Potential Default or Borrowing Base Imbalance exists,
and (b) Borrower promptly commences and is diligently pursuing restoration of
the Project;
(2) if the loss (A) exceeds $250,000 but is not more than (B)
$1,000,000, then the Administrative Agent shall apply the insurance proceeds to
restoration provided that at all times during such restoration (a) no Event of
Default, Potential Default or Borrowing Base Imbalance exists; (b) the
Administrative Agent determines that there are sufficient funds available to
restore and repair the Project to a condition reasonably approved by the
Administrative Agent; (c) the Administrative Agent determines that restoration
and repair of the Project to a condition reasonably approved by the
Administrative Agent will be completed within 12 months after the date of loss
or casualty (or such later date on which the business interruption insurance
maintained for such Project expires) and in any event ninety (90) days prior to
the Maturity Date; and (d) Borrower promptly commences and is diligently
pursuing restoration of the Project;
(3) if the conditions set forth above are not satisfied or the loss
exceeds the maximum amount specified in clause (B) of Section 3.2(2) above, in
--------------
the Administrative Agent's sole discretion, the Administrative Agent may
(subject to the approval of the Majority Lenders) apply any insurance proceeds
it may receive to the payment of the Obligations or allow all or a portion of
such proceeds to be used for the restoration of a Project; and
(4) insurance proceeds applied to restoration will be disbursed on
receipt of satisfactory plans and specifications, contracts and subcontracts,
schedules, budgets, lien waivers and architects' certificates, and otherwise in
accordance with prudent commercial construction lending practices for
construction loan advances. If, after the restoration is completed and all costs
relating thereto have been paid, there are excess insurance proceeds, then the
Administrative Agent shall apply such excess proceeds in accordance with Section
-------
2.7(2).
------
Section 3.3 Condemnation Awards. Borrower shall immediately notify the
-------------------
Administrative Agent of the institution of any proceeding for the condemnation
or other taking of a Property or any portion thereof. In the case of a
condemnation or other taking of a Project, the Administrative Agent may
participate in any such proceeding and Borrower will deliver to the
Administrative Agent all instruments necessary or required by the Administrative
Agent to permit such participation. In the case of a condemnation or other
taking of a Project, without the
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Administrative Agent's prior consent (subject to the approval of the Majority
Lenders), Borrower (1) shall not agree to any compensation or award, and (2)
shall not take any action or fail to take any action which would cause the
compensation to be determined. All awards and compensation for the taking or
purchase in lieu of condemnation of a Project or any part thereof are hereby
assigned to and shall be paid to the Administrative Agent and applied by
Administrative Agent as provided in Section 2.7(2). If an Event of Default
--------------
exists and is continuing, Borrower authorizes the Administrative Agent to
collect and receive awards and compensation relating to any of the Projects, to
give proper receipts and acquittances therefor, and in the Administrative
Agent's sole discretion (which the Administrative Agent shall exercise at the
direction of the Majority Lenders) to apply the same in accordance with Section
-------
2.7(2), notwithstanding that the Obligations may not then be due and payable, or
------
to the restoration of a Project; provided, however, that if the award is less
-------- -------
than or equal to $250,000 and Borrower requests that such proceeds be used for
non-structural site improvements (such as landscape, driveway, walkway and
parking area repairs) required to be made as a result of such condemnation, the
Administrative Agent will apply the award to such restoration in accordance with
disbursement procedures applicable to insurance proceeds provided there exists
no Potential Default, Event of Default or Borrowing Base Imbalance, and if,
after such restoration is completed and all costs relating thereto have been
paid, there is an excess condemnation award or other compensation, the
Administrative Agent shall apply such excess in accordance with Section 2.7(2).
--------------
In addition, if, in connection with any condemnation or other taking of a
Property which is not a Project, the Borrower or any of its Subsidiaries
receives any condemnation awards or other compensation which are not applied to
the restoration and repair of the Property relating thereto or not otherwise
applied pursuant to agreements relating to such Property, Borrower shall remit
the same to the Administrative Agent for application in accordance with Section
-------
2.7(2). Borrower, upon request by the Administrative Agent, shall execute all
------
instruments requested to confirm the assignment of the awards and compensation
to the Administrative Agent, free and clear of all liens, charges or
encumbrances.
Section 3.4 Lockbox Account.
---------------
(1) Borrower has established and will maintain with Bank of America
(the "Lockbox Bank") a separate segregated account (no. 14200-06771) for the
------------
Projects (the "Lockbox Account"). The Lockbox Account is owned by the Borrower
---------------
for income tax purposes but is subject to a Three-Party Agreement Relating to
Lockbox Services (With Activation) dated as of June 1, 2000, among the Lockbox
Bank, the Borrower and the Administrative Agent (the "Lockbox Agreement").
-----------------
Borrower has granted to the Administrative Agent a first priority security
interest in the Lockbox Account and all deposits at any time contained therein
and the proceeds thereof pursuant to the Cash Collateral Account Agreement and
will take all actions necessary to maintain in favor of the Administrative Agent
a perfected first priority security interest in the Lockbox Account, including,
without limitation, executing and filing UCC-1 financing statements and
continuations thereof and entering into agreements to confirm the Administrative
Agent's dominion and control over each Lockbox Account and sending notices to
the Lockbox Bank. The Administrative Agent shall have the sole right to make
withdrawals from the Lockbox Account and all costs and expenses for establishing
and maintaining the Lockbox Account shall be paid by Borrower when due.
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(2) Borrower has delivered, or has caused the Manager to, deliver
or concurrently herewith will deliver, or cause Manager to deliver written
instructions in substantially the form of Exhibit G hereto to all tenants under
---------
leases at the Projects to deliver all rents and other amounts payable thereunder
directly to the Lockbox Bank for deposit into the Lockbox Account. Borrower
shall, and shall cause Manager to, deposit all amounts received by Borrower or
Manager and relating to any of the Projects into the Lockbox Account promptly
upon receipt.
(3) Unless an Event of Default exists and is continuing, the
Lockbox Bank shall be permitted to sweep on a daily basis all funds in the
Lockbox Account to an account maintained by, and under the sole dominion and
control of, the Borrower (such account being referred to as the "Borrower
--------
Account") as designated in writing by Borrower. Borrower shall be entitled to
-------
use and apply all funds deposited into the Borrower Account. If an Event of
Default exists and is continuing, the Administrative Agent may, at its option,
instruct the Lockbox Bank to cease sweeping funds into the Borrower Account and
all funds will be swept daily from the Lockbox Account to an account (the "Cash
----
Management Account") in the name of the Administrative Agent for the benefit of
------------------
Lenders, which Cash Management Account shall be under the sole dominion and
control of the Administrative Agent. The Cash Management Account shall be
entitled "CT Operating Partnership, L.P. for the benefit of General Electric
Capital Corporation, as the Administrative Agent and Secured Party," provided
that the Administrative Agent shall have the option to cause the financial
institution maintaining such account to change the name of the Cash Management
Account by giving notice to Borrower and such institution. Borrower hereby
grants to the Administrative Agent a first priority security interest in the
Cash Management Account and all deposits at any time contained therein and the
proceeds thereof and will take all actions necessary to maintain in favor of the
Administrative Agent a perfected first priority security interest in the Cash
Management Account, including, without limitation, executing and filing UCC-1
Financing Statements and continuations thereof and entering into agreements to
confirm the Administrative Agent's dominion and control over the Cash Management
Account and/or any sub-accounts thereof and sending notices to the institution
maintaining the Cash Management Account. The Administrative Agent shall have the
sole right to make withdrawals from the Cash Management Account and, unless
Borrower is no longer the owner of the Projects, all reasonable out-of-pocket
costs and expenses for establishing and maintaining the Cash Management Account
shall be paid by Borrower. All funds on deposit in the Lockbox Account or in the
Cash Management Account following the occurrence and during the continuance of
an Event of Default may be applied by the Administrative Agent in such order and
priority as the Administrative Agent shall determine. No delay or omission of
the Administrative Agent or the Lenders in exercising any right under this
Section shall impair any such right, or shall be construed as a waiver of, or
acquiescence in, any Event of Default.
(4) If Borrower receives any rents or other income from any Project,
then (i) such amounts shall be held in trust for the benefit, and as the
property, of Administrative Agent, subject to the terms of this Agreement and
the other Loan Documents, (ii) such amounts shall not be commingled with any
other funds or property of Borrower and (iii) Borrower shall deposit such
amounts into the Lockbox Account within two (2) Business Days of receipt.
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ARTICLE 4
ENVIRONMENTAL MATTERS
---------------------
Section 4.1 Certain Definitions. As used herein, the following terms have
-------------------
the meanings indicated:
(1) "Environmental Laws" means any applicable federal, state or
------------------
local law (whether imposed by statute, or administrative or judicial order, or
common law), now or hereafter enacted, governing health, safety, industrial
hygiene, the environment or natural resources, or Hazardous Materials,
including, such laws governing or regulating the use, generation, storage,
removal, recovery, treatment, handling, transport, disposal, control, discharge
of, or exposure to, Hazardous Materials.
(2) "Hazardous Materials" means any substance, material, waste or
-------------------
mixture which is or shall be listed, defined, or otherwise determined by any
governmental authority to be hazardous, toxic, dangerous or otherwise regulated,
controlled or giving rise to liability under any Environmental Laws, including
(a) petroleum or chemical products, whether in liquid, solid, or gaseous form,
or any fraction or by-product thereof, (b) asbestos or asbestos-containing
materials, (c) polychlorinated biphenyls (pcbs), (d) radon gas, (e) any
explosive or radioactive substances and (f) lead or lead-based paint.
Section 4.2 Representations and Warranties on Environmental Matters.
-------------------------------------------------------
Borrower represents and warrants to the Administrative Agent and the Lenders
that, to Borrower's knowledge, except as set forth in the Site Assessments, (1)
no Hazardous Material is now or was formerly Released at or about any Property,
(2) all permits, licenses, approvals and filings required by Environmental Laws
for the use of each Property have been obtained, and the use, operation and
condition of each Property do not, and did not previously, violate any
Environmental Laws in any material respect, (3) no civil, criminal or
administrative action, suit, claim, hearing, investigation or proceeding has
been brought or been threatened, nor have any settlements been reached by or
with any parties or any liens imposed, in connection with any Property
concerning Hazardous Materials or Environmental Laws and (4) no underground
storage tanks exist at any Property.
Section 4.3 Covenants on Environmental Matters.
----------------------------------
(1) Borrower shall (a) comply strictly and in all material respects
with applicable Environmental Laws; (b) notify the Administrative Agent
immediately upon Borrower's discovery of any Release of any Hazardous Material
at, upon, under, within, contiguous to or otherwise affecting any Property in
violation of any Environmental Law; (c) promptly remove such Hazardous Materials
and remediate such Property in full compliance with Environmental Laws and in
accordance with the recommendations and specifications of an independent
environmental consultant approved by the Administrative Agent, except to the
extent being contested in accordance with Section 8.11; and (d) promptly forward
------------
to the Administrative Agent copies of all orders, notices, permits, applications
and reports made or received in connection with any Release or the presence of
any Hazardous Material, as they may affect any Property or Borrower.
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(2) Borrower shall not cause, shall prohibit any other Person
within the control of Borrower from causing, and shall use prudent, commercially
reasonable efforts to prohibit other Persons (including tenants) from causing
any Release of any Hazardous Materials at, upon, under, within or about any
Property.
(3) If Administrative Agent or any Lender has a reasonable
suspicion that there may be a material violation of any Environmental Law
related to the Property, Hazardous Materials at or near a Property or a breach
of representations under Section 4.2, or if an Event of Default exists, Borrower
-----------
shall provide to the Administrative Agent, at Borrower's expense promptly upon
the written request of the Administrative Agent from time to time, a Site
Assessment or, if required by the Administrative Agent, an update to any
existing Site Assessment, to assess the presence or absence of any Hazardous
Materials and the potential costs in connection with abatement, cleanup or
removal of any Hazardous Materials found on, under, at or within any Property.
Borrower shall pay the cost of no more than one such Site Assessment or update
for each Property in any three (3) month period.
Section 4.4 Allocation of Risks and Indemnity. As between Borrower, the
---------------------------------
Administrative Agent, the Issuing Bank and the Lenders, all risk of loss
associated with non-compliance with Environmental Laws, or with the presence of
any Hazardous Material at, upon, within, contiguous to or otherwise affecting
each Property, shall lie solely with Borrower. Accordingly, Borrower shall bear
all risks and costs associated with any loss (including any loss in value
attributable to Hazardous Materials), damage or liability therefrom, including
all costs of removal of Hazardous Materials or other remediation required by
Environmental Laws. Borrower shall indemnify, defend and hold the Administrative
Agent and the Lenders harmless from and against all loss, liabilities, damages,
claims, costs and expenses (including reasonable costs of defense) arising out
of or associated, in any way, with the non-compliance with Environmental Laws,
or the existence of Hazardous Materials in, on, or about any Property, or a
breach of any representation, warranty or covenant contained in this Article 4,
---------
whether based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute or common law, including those arising from the joint,
concurrent, or comparative negligence of the Administrative Agent and the
Lenders; provided, however, that Borrower shall not be liable under such
-------- -------
indemnification to the extent such loss, liability, damage, claim, cost or
expense results solely from the Administrative Agent's or any Lender's gross
negligence or willful misconduct. Borrower's obligations under this Section 4.4
-----------
shall arise upon the discovery of the presence of any Hazardous Material,
whether or not any governmental authority has taken or threatened any action in
connection with the presence of any Hazardous Material, and whether or not the
existence of any such Hazardous Material or potential liability on account
thereof is disclosed in the Site Assessment and shall continue notwithstanding
the repayment of the Loans or any transfer or sale of any right, title and
interest in the applicable Property (by foreclosure, deed in lieu of foreclosure
or otherwise).
Section 4.5 No Waiver. Notwithstanding any provision in this Article 4 or
---------
elsewhere in the Loan Documents, or any rights or remedies granted by the Loan
Documents, the Administrative Agent and the Lenders do not waive and expressly
reserves all rights and benefits now or hereafter accruing to the Administrative
Agent and/or any Lenders under the "security interest" or "secured creditor"
exception under applicable Environmental Laws, as the same may be amended. No
action taken by the Administrative Agent and/or any Lender pursuant to the
61
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Loan Documents shall be deemed or construed to be a waiver or relinquishment of
any such rights or benefits under the "security interest exception."
ARTICLE 5
LEASING MATTERS
---------------
Section 5.1 Representations and Warranties on Leases. Borrower represents
----------------------------------------
and warrants to the Administrative Agent and the Lenders with respect to leases
of the Projects that the following are true, correct and complete in all
material respects: (1) to Borrower's knowledge, the rent rolls delivered to the
Administrative Agent are each true and correct, and the leases are valid and in
and full force and effect; (2) the leases (including amendments) are in writing,
and there are no oral agreements with respect thereto; (3) the copies of the
leases delivered to the Administrative Agent are true and complete; (4) to
Borrower's knowledge, neither the landlord nor any tenant is in default under
any of the leases; (5) Borrower has no knowledge of any notice of termination or
default with respect to any lease; (6) Borrower has not assigned or pledged any
of the leases, the rents or any interests therein except to the Administrative
Agent (on behalf of the Lenders); (7) no tenant or other party has an option to
purchase all or any portion of any Project; (8) no tenant has the right to
terminate its lease prior to expiration of the stated term of such lease; and
(9) no tenant has prepaid more than one month's rent in advance (except for bona
fide security deposits not in excess of an amount equal to two months rent).
Section 5.2 Standard Lease Form; Approval Rights.
------------------------------------
(1) All leases and other rental arrangements entered into by
Borrower with tenants of the Projects shall in all respects be approved by the
Administrative Agent and shall be on a standard lease form approved by the
Administrative Agent with no modifications (except for modifications made in the
usual and ordinary course of arm's length negotiations of leases in properties
similar to the Projects, recognizing the retail nature of each such Project, and
otherwise consistent with the requirements of this Section 5.2 and except as
-----------
approved by the Administrative Agent) or, in the case of a national retail
tenant, a non-standard form lease utilized by such national retail tenant,
provided such non-standard form lease generally provides the same material
benefits to the Borrower and the Administrative Agent as are afforded to the
Borrower and the Administrative Agent under the standard form lease approved by
the Administrative Agent. Such lease form (or such non-standard form lease, as
applicable) shall provide that the tenant shall attorn to the Administrative
Agent (on behalf of the Lenders), and that any cancellation, surrender, or
amendment of such lease without the prior written consent of the Administrative
Agent shall be voidable by the Administrative Agent. Borrower shall hold, in
trust, all tenant security deposits in a segregated account, and, to the extent
required by applicable law, shall not commingle any such funds with any other
funds of Borrower. Within ten (10) days after the Administrative Agent's
request, Borrower shall furnish to the Administrative Agent a statement of all
tenant security deposits, and copies of all leases not previously delivered to
the Administrative Agent, certified by Borrower as being true and correct.
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(2) Notwithstanding anything to the contrary contained in the Loan
Documents, the Administrative Agent's approval shall not be required for future
leases or lease extensions if the following conditions are satisfied: (1) there
exists no Potential Default, Event of Default or Borrowing Base Imbalance; (2)
the lease is on the standard lease form approved by the Administrative Agent
with no modifications (except for modifications made in the usual and ordinary
course of arm's length negotiations of leases in properties similar to the
Projects, recognizing the retail nature of each such Project, and otherwise
consistent with the requirements of this Section 5.2 and except as approved by
-----------
the Administrative Agent) or, in the case of a national retail tenant, is on a
non-standard form lease utilized by such national retail tenant, provided such
non-standard form lease generally provides the same material benefits to the
Borrower and the Administrative Agent as are afforded to the Borrower and the
Administrative Agent under the standard form lease approved by the
Administrative Agent; (3) the lease does not conflict with any restrictive
covenant affecting the applicable Project or any other lease for space in the
applicable Project; (4) the leased premises, when combined with all other space
in the Project leased to the same tenant or any affiliate thereof, are not
greater than 10,000 rentable square feet, and the lease term is at least 1
month; and (5) the effective rental rate is at least equal to the then
prevailing fair market rent in the market in which the applicable Project is
located.
(3) Notwithstanding anything to the contrary contained in the Loan
Documents, all leases of space of 10,000 or more rentable square feet (each a
"Major Lease" or a "Major Space") at any Project shall be entered into on a form
----------- -----------
previously approved by the Administrative Agent and its counsel without
substantive modification (other than modifications typically made in the usual
and ordinary course of arm's length negotiations of leases of Major Space in
improvements comparable to the improvements at any Project and otherwise
consistent with the requirements of this paragraph hereinafter set forth) unless
approved by the Administrative Agent and its counsel, which approval shall not
be unreasonably withheld. No rent abatement or partial rent abatement (or its
equivalent in tenant concessions) shall be granted under any Major Lease at any
Project without the consent of the Administrative Agent, which consent shall not
be unreasonably withheld. The Administrative Agent shall, upon request of the
Borrower, review and approve a standard form of lease, which approval shall not
be unreasonably withheld. Except as expressly consented to in writing by the
Administrative Agent or the Majority Lenders, all Major Leases of space at any
Project shall at the election of the Administrative Agent be subject and
subordinate to the Mortgage and to the lien thereof. The Administrative Agent
shall, upon request of the Borrower, enter into a Subordination and Attornment
Agreement with respect to any Major Lease.
Section 5.3 Covenants. Borrower (1) shall perform in all material
---------
respects the obligations which Borrower is required to perform under the leases
entered into by Borrower with tenants of the Projects; (2) shall enforce the
obligations to be performed by the tenants; (3) shall promptly furnish to the
Administrative Agent any notice of default or termination received by Borrower
from any tenant, and any notice of default or termination given by Borrower to
any tenant; (4) shall not collect any rents for more than thirty (30) days in
advance of the time when the same shall become due, except for bona fide
security deposits not in excess of an amount equal to two (2) months rent; (5)
shall not enter into as landlord any ground lease or master lease of any part of
any Project; (6) shall not further assign or encumber any lease; (7) subject to
clause (2) above, shall not, except with the Administrative Agent's prior
written consent, cancel or accept surrender or termination of any Major Lease;
and (8) shall not, except
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with the Administrative Agent's prior written consent (such consent not to be
unreasonably withheld or delayed), modify or amend any lease (except, in the
case of leases other than the Wal-Mart Lease, for minor modifications and
amendments entered into in the ordinary course of business, consistent with
prudent property management practices, not affecting the economic terms of the
lease), and any action in violation of clauses (5), (6) , (7), and (8) of this
----------- --- --- ---
Section 5.3 shall be void at the election of the Administrative Agent.
-----------
Section 5.4 Tenant Estoppels. At the Administrative Agent's request made
----------------
not more than one (1) time in any twelve (12) month period for each tenant or at
any time (and without limitation on the number of such requests) during the
continuation of an Event of Default, (1) Borrower shall request and use
commercially reasonable efforts to obtain and furnish to the Administrative
Agent (1) written estoppels in form and substance reasonably satisfactory to the
Administrative Agent, executed by tenants under leases at each Project and
confirming the term, rent, and other provisions and matters relating to the
leases and (2) written Subordination and Attornment Agreements, in form and
substance reasonably satisfactory to the Administrative Agent, executed by
tenants under leases at each Project, whereby, among other things, such tenants
subordinate their interest in the related Project to the Loan Documents and
agree to attorn to the Administrative Agent (on behalf of the Lenders) and its
successors and assigns upon foreclosure or other transfer of the related Project
after an Event of Default.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to the Administrative Agent and the
Lenders that:
Section 6.1 Organization and Power
----------------------
(1) Each of the Borrower, the Company and each of their Subsidiaries
is duly organized, validly existing and in good standing under the laws of the
state of its formation or existence, and is in compliance with legal
requirements applicable to doing business in each State where such compliance is
required. None of the Borrower, the Company or any of their Subsidiaries is a
"foreign person" within the meaning of (S) 1445(f)(3) of the Internal Revenue
Code.
(2) Schedule 6.1(2) contains a diagram indicating, as of the date
---------------
hereof, the ownership structure of Borrower, and any other Person in which
Borrower holds a direct or indirect partnership, joint venture or other equity
interest, indicating the nature of such interest with respect to each Person
included in such diagram and accurately sets forth (1) the correct legal name of
such Person, the jurisdiction of its incorporation or organization and the
jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of Securities of the Company. As of the date hereof,
none of such issued and outstanding Securities is subject to any vesting,
redemption, or repurchase agreement, and there are no warrants or options (other
than Permitted Securities Options) outstanding with respect to such Securities,
except as noted
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on such Schedule. The outstanding capital stock of the Company is duly
authorized, validly issued, fully paid and nonassessable.
(3) The Equity Infusion has been fully funded and LFSRI and
Prometheus and each of their respective Affiliates have performed all of their
obligations under the Lazard Agreements.
(4) The proceeds of the Unsecured Debt have been contributed by the
Company to the Borrower as a contribution of equity capital.
Section 6.2 Validity of Loan Documents. The execution, delivery and
--------------------------
performance by Borrower and each Borrower Party of the Loan Documents: (1) are
duly authorized and do not require the consent or approval of any other party or
governmental authority which has not been obtained; and (2) will not violate any
law or result in the imposition of any Lien upon the assets of any such party,
except as contemplated by the Loan Documents. The Loan Documents constitute the
legal, valid and binding obligations of Borrower and each Borrower Party,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, or similar laws generally affecting the enforcement of
creditors' rights.
Section 6.3 Liabilities; Litigation.
-----------------------
(1) The financial statements delivered by Borrower and each Borrower
Party for the fiscal year ended December 31, 1999 present fairly the financial
position and results of operations and cash flow of the Company, the Borrower
and its Subsidiaries as of such dates and for such periods in accordance with
GAAP. Except as disclosed in such financial statements, as of the date thereof,
there are no liabilities (fixed or contingent) affecting any of the Properties,
Borrower or any Borrower Party. Except as disclosed in such financial
statements, as of the date thereof, there is no litigation, administrative
proceeding, investigation or other legal action (including any proceeding under
any state or federal bankruptcy or insolvency law) pending or, to the knowledge
of Borrower, threatened, against any of the Properties, Borrower or any Borrower
Party which could reasonably be expected to have a Material Adverse Effect on
such party, any of the Properties or the Obligations.
(2) Except for sales of Properties in connection with payment of the
REIT Debt, neither Borrower nor any Borrower Party is contemplating either the
filing of a petition by it under state or federal bankruptcy or insolvency laws
or the liquidation of all or a major portion of its assets or property, and
neither Borrower nor any Borrower Party has knowledge of any Person
contemplating the filing of any such petition against it.
(3) Schedule 6.3(3) sets forth, as of the date hereof, all
---------------
Indebtedness of the Company, Borrower and Borrower's Subsidiaries and, as of the
date hereof, except as set forth on Schedule 6.3(3), there are no defaults in
---------------
the payment of principal or interest on any such Indebtedness and no payments
thereunder have been deferred or extended beyond their stated maturity and there
has been no material change in the type or amount of such Indebtedness (except
for the repayment of certain Indebtedness) since the date hereof.
(4) Neither the Company, Borrower nor any of its Subsidiaries is (a)
an "investment company" as defined in, or subject to regulation under, the
Investment Company
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Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
Section 6.4 Taxes and Assessments. Each Project is comprised of one or
---------------------
more parcels, each of which constitutes a separate tax lot and none of which
constitutes a portion of any other tax lot. There are no pending or, to
Borrower's best knowledge, proposed, special or other assessments for public
improvements or otherwise affecting any Project, nor are there any contemplated
improvements to any Project that may result in such special or other
assessments, which in any case could reasonably be expected to have a Material
Adverse Effect.
Section 6.5 Other Agreements; Defaults. Neither Borrower nor any Borrower
--------------------------
Party is a party to any agreement or instrument or subject to any court order,
injunction, permit, or restriction which might adversely affect any Project or
the business, operations, or condition (financial or otherwise) of Borrower or
any Borrower Party. Neither Borrower nor any Borrower Party is in violation of
any agreement which violation would have a materially adverse effect on any
Project, Borrower, or any Borrower Party or Borrower's or any Borrower Party's
business, properties, or assets, operations or condition, financial or
otherwise.
Section 6.6 Compliance with Law.
-------------------
(1) Borrower and each Borrower Party have all material requisite
licenses, permits, franchises, qualifications, certificates of occupancy or
other governmental authorizations to own, lease and operate each Project and
carry on its business, and each Project is in compliance with all applicable
legal requirements and is free of structural defects, and all building systems
contained therein are in good working order, subject to ordinary wear and tear
except in each case where such failure could not reasonably be expected to have
a Material Adverse Effect.
(2) As of the date hereof, no condemnation has been commenced or, to
Borrower's knowledge, is contemplated with respect to all or any portion of any
Project or for the relocation of roadways providing access to any Project.
Section 6.7 Location of Borrower. Borrower's principal place of business
--------------------
and chief executive offices are located at the address stated in Section 11.1.
------------
Section 6.8 ERISA. No ERISA Event has occurred or is reasonably expected
-----
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $250,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $250,000 the fair market value of
the assets of all such underfunded Plans.
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Section 6.9 Margin Stock. No part of proceeds of the Loans will be used
------------
for purchasing or acquiring any "margin stock" within the meaning of Regulations
T, U or X of the Board of Governors of the Federal Reserve System.
Section 6.10 Tax Filings. Borrower and each Borrower Party have filed or
-----------
caused to be filed (or have obtained or caused to be obtained effective
extensions for filing) all federal, state and local tax returns required to be
filed and have paid or made adequate provision for the payment of all federal,
state and local taxes, charges and assessments payable by Borrower and each
Borrower Party, respectively, except (a) federal, state or local taxes that are
being contested in good faith by appropriate proceedings and for which Borrower
or such Subsidiary, as applicable, has set aside on its books adequate reserves
or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
Section 6.11 Solvency. Giving effect to the Loans and the other
--------
Obligations, the fair saleable value of Borrower's assets exceeds and will,
immediately following the making of the Loans and/or the incurrence by Borrower
of such other Obligations, exceed Borrower's total liabilities, including,
without limitation, subordinated, unliquidated, disputed and contingent
liabilities. The fair saleable value of Borrower's assets is and will,
immediately following the making of the Loans and/or the incurrence by Borrower
of such other Obligations, be greater than Borrower's probable liabilities,
including the maximum amount of its contingent liabilities on its Indebtedness
as such Indebtedness becomes absolute and matured. Borrower's assets do not
and, immediately following the making of the Loans and/or the incurrence by
Borrower of such other Obligations will not, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted.
Borrower does not intend to, and does not believe that it will, incur
Indebtedness and liabilities (including contingent liabilities and other
commitments) beyond its ability to pay such Indebtedness as it matures (taking
into account the timing and amounts of cash to be received by Borrower and the
amounts to be payable on or in respect of obligations of Borrower).
Section 6.12 Full and Accurate Disclosure. None of the reports, financial
----------------------------
statements, certificates or other information furnished by or on behalf of
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
-------- ----
information, Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time. No
statement of fact made by or on behalf of Borrower or any Borrower Party in this
Agreement or in any of the other Loan Documents contains any untrue statement of
a material fact or omits to state any material fact necessary to make statements
contained herein or therein not misleading. There is no fact presently known to
Borrower or any Borrower Party which has not been disclosed to the
Administrative Agent which adversely affects, nor as far as Borrower can
foresee, could reasonably be expected to adversely affect, any Project or the
business, operations or condition (financial or otherwise) of Borrower or any
Borrower Party.
Section 6.13 Properties.
----------
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(1) Each of Borrower and its Subsidiaries owns good and marketable
fee simple absolute title to all of the real property purported to be owned by
it, which real property is at the date hereof described in Schedule 6.13(1), and
----------------
good and marketable title to, or valid leasehold interests in, all other
properties and assets purported to be leased by Borrower or any of its
Subsidiaries. Each of Borrower and its Subsidiaries has received all deeds,
assignments, waivers, consents, non-disturbance and recognition or similar
agreements, bills of sale and other documents, and has duly effected all
recordings, filings and other actions necessary to establish, protect and
perfect Borrower's and its Subsidiaries' right, title and interest in and to all
such property except for such documents or actions the failure to obtain or
accomplish which would not have a Material Adverse Effect.
(2) All material real property leased at the date hereof by Borrower
or any of its Subsidiaries is listed on Schedule 6.13(2). Each of such leases is
----------------
valid and enforceable in accordance with its terms and is in full force and
effect. Borrower has delivered to the Administrative Agent true and complete
copies of each of such leases and all documents affecting the rights or
obligations of Borrower or any of its Subsidiaries which is a party thereto,
including, without limitation, any non-disturbance and recognition agreements,
subordination agreements, attornment agreements and agreements regarding the
term or rental of any of the leases. Neither Borrower or any of its Subsidiaries
nor, to the knowledge of Borrower, any other party to any such lease is in
default of its obligations thereunder or has delivered or received any notice of
default under any such lease, nor has any event occurred which, with the giving
of notice, the passage of time or both, would constitute a default under any
such lease, except for defaults which in the aggregate have no Material Adverse
Effect.
(3) All components of all improvements included within the Properties
owned or leased, as lessee, by Borrower or any of its Subsidiaries
(collectively, "Improvements"), including, without limitation, the roofs and
------------
structural elements thereof and the heating, ventilation, air conditioning,
plumbing, electrical, mechanical, sewer, waste water, storm water, paving and
parking equipment, systems and facilities included therein, are in good working
order and repair, subject to such exceptions which are not reasonably likely to
have, in the aggregate, a Material Adverse Effect. All water, gas, electrical,
steam, compressed air, telecommunication, sanitary and storm sewage lines and
systems and other similar systems serving the Properties owned or leased by
Borrower or any of its Subsidiaries are installed and operating and are
sufficient to enable the real property owned or leased by Borrower and its
respective Subsidiaries to continue to be used and operated in the manner
currently being used and operated, and neither Borrower nor any of its
Subsidiaries has any knowledge of any factor or condition that reasonably could
be expected to result in the termination or material impairment of the
furnishing thereof. No Improvement or portion thereof is dependent for its
access, operation or utility on any land, building or other Improvement not
included in the real property owned or leased by Borrower or any of its
Subsidiaries other than for access provided pursuant to a recorded easement or
other right of way establishing the right of such access.
(4) All permits required to have been issued or appropriate to enable
all real property owned or leased by Borrower or any of its Subsidiaries to be
lawfully occupied and used for all of the purposes for which they are currently
occupied and used have been lawfully issued and are in full force and effect,
other than those which in the aggregate have no Material Adverse Effect.
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(5) Neither Borrower nor any of its Subsidiaries has received any
notice, or has any knowledge, of any pending, threatened or contemplated
condemnation proceeding affecting any real property owned or leased by Borrower
or any of its Subsidiaries or any part thereof, or any proposed termination or
impairment of any parking at any such owned or leased real property or of any
sale or other disposition of any real property owned or leased by Borrower or
any of its Subsidiaries or any part thereof in lieu of condemnation, which in
the aggregate, are reasonably likely to have a Material Adverse Effect.
(6) Except for events or conditions not reasonably likely to have, in
the aggregate, a Material Adverse Effect, (i) no portion of any real property
owned or leased by Borrower or any of its Subsidiaries has suffered any material
damage by fire or other casualty loss which has not heretofore been completely
repaired and restored or is in the process of being repaired and restored to its
condition prior to such casualty, and (ii) no portion of any real property owned
or leased by Borrower or any of its Subsidiaries is located in a special flood
hazard area as designated by any federal governmental authorities.
(7) Each of Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(8) Borrower has completed the seismic remediation work relating to
the Media City Center Project more particularly described in a separate written
agreement between Borrower and the Administrative Agent dated as of March 31,
2000.
Section 6.14 Management Agreement. The Management Agreements identified
--------------------
in Schedule 6.14 together with any management agreements entered into after the
-------------
date hereof in accordance with the terms of Section 8.3 of this Agreement are
-----------
the only management agreements in existence with respect to the operation or
management of the Projects. The copies of the Management Agreements delivered
to the Administrative Agent are each a true and correct copy, and each such
agreement has not been amended or modified. Neither party to such agreement is
in default under any material provisions of such agreement and none of the
Managers has any defense, offset right or other right to withhold performance
under or terminate such agreement.
Section 6.15 REIT Status. The Company is organized in conformity with the
-----------
requirements for qualification as an equity-oriented REIT under the Code. The
Company has met all of the requirements for qualification as an equity-oriented
REIT under the Code for its fiscal year ended December 31, 1999. The Company is
in a position to qualify for its current fiscal year as a REIT under the Code
and its proposed methods of operation will enable it to so qualify.
Section 6.16 Ownership of Projects and Property. Except with respect to
----------------------------------
encumbered Properties owned by special purpose entities created for purposes of
securitizing the mortgage loans encumbering the same, ownership of all wholly
owned Properties and other property of the Consolidated Business is held by
Borrower and its direct or indirect wholly-owned Subsidiaries and is not held
directly by the Company.
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Section 6.17 REIT Debt. Borrower and the Company represent, warrant and
---------
covenant that, as of the Closing Date, none of (i) the Borrower, any Borrower
Party, Lazard Freres Real Estate Investors, LLC, LFSRI, or Prometheus, (ii) any
Person controlled by the Borrower, any Borrower Party, Lazard Freres Real Estate
Investors, LLC, LFSRI, or Prometheus or (iii) any officers or directors of the
Borrower or any Borrower Party are holders (either directly or indirectly) of
any of the REIT Debt. The Exchangeable Debt has been paid in full and Borrower
has no obligations or liabilities with respect thereto. As of the Closing Date,
the outstanding principal amount of the Unsecured Debt is $128,548,000 and all
interest and other amounts due and payable in respect of the Unsecured Debt has
been paid in full. No default exists on the part of the Company in the payment,
performance or observance of its obligations under or in connection with the
Unsecured Debt and no event or circumstance currently exists which, with the
passage of time or the giving of notice, or both, would constitute default on
the part of the Company in the payment, performance or observance of its
obligations under or in connection with the Unsecured Debt.
ARTICLE 7
FINANCIAL REPORTING AND NOTIFICATION REQUIREMENTS
-------------------------------------------------
Section 7.1 Financial Statements. The Borrower will furnish to the
--------------------
Administrative Agent:
(1) Quarterly Reports.
-----------------
(a) Company Quarterly Financial Reports. As soon as practicable, and
-----------------------------------
in any event within forty-five (45) days after the end of each fiscal
quarter in each fiscal year of the Company (other than the last fiscal
quarter in each fiscal year), the Financial Statements of the Company and
its Subsidiaries on Form 10-Q as at the end of such period and a report
setting forth in comparative form the corresponding figures for the
corresponding period of the previous fiscal year, certified by a Financial
Officer as fairly presenting the consolidated financial position of the
Company and its subsidiaries as at the date indicated and the results of
their operations and cash flow for the period indicated in accordance with
GAAP, subject to normal adjustments.
(b) Quarterly Compliance Certificates. Together with each delivery of
---------------------------------
any quarterly report pursuant to paragraph (1)(a) of this Section 7.1,
-----------
Borrower shall deliver (i) a Borrowing Base Certificate as of the end of
such fiscal quarter, executed by a Responsible Officer, together with (to
the extent not previously delivered) copies of the Eligible Project
Documents in respect of each of the Eligible Projects shown listed thereon,
and (ii) a Compliance Certificate as of the end of such fiscal quarter,
executed by a Financial Officer.
(c) Quarterly Financial Statements With Respect to the Projects. As
-----------------------------------------------------------
soon as practicable and in any event within forty-five (45) days after the
end of each fiscal quarter in each fiscal year (other than the last fiscal
quarter in each fiscal year), a rent roll for each of the Projects
certified by a Financial Officer, together with a statement of gross
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revenues (adjusted to eliminate the effects of straight-lining of rents),
direct operating expenses, net operating income, capital expenditures,
tenant improvements and leasing commissions for each of the Projects as at
the end of such quarter or for such quarter, as applicable, and for the
four (4) fiscal quarter period ending as of the end of such quarter, each
of which statements shall (i) set forth in comparative form, the figures
for the corresponding periods during the previous fiscal year, (ii) be
prepared in reasonable detail, and (iii) be certified by a Financial
Officer that they are complete and correct and that they fairly present the
gross revenues (adjusted to eliminate the effects of straight-lining of
rents), direct operating expenses and net operating income of each Project
as at the end of such fiscal quarter and for the four (4) fiscal quarter
period ending as of the end of such quarter, in accordance with GAAP
(subject to normal, year-end audit adjustments).
(2) Annual Reports.
--------------
(a) Company Financial Statements. As soon as practicable, and in any
----------------------------
event within ninety (90) days after the end of each fiscal year, (i) the
financial statements of the Company and its subsidiaries on Form 10-K as at
the end of such fiscal year and a report setting forth in comparative form
the corresponding figures from the consolidated financial statements of the
Company and its subsidiaries for the prior fiscal year accompanied by (ii)
a report thereon of Deloitte & Touche or other independent certified public
accountants reasonably acceptable to the Administrative Agent, which report
shall be unqualified as to scope of audit and shall state that such
financial statements fairly present the consolidated financial position of
the Company and its subsidiaries as at the dates indicated and the results
of their operations and cash flow for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except for
changes with which Deloitte & Touche or any such other independent
certified public accountants, if applicable, shall concur and which shall
have been disclosed in the notes to the financial statements)(which report
shall be subject to the confidentiality limitations set forth herein); and
(iii) in the event that the report referred to in clause (ii) above is
qualified, a copy of the management letter or any similar report delivered
to the Company or to any officer or employee thereof by such independent
certified public accountants in connection with such financial statements.
The Administrative Agent and each Lender (through the Administrative Agent)
may, with the consent of the Company (which consent shall not be
unreasonably withheld), communicate directly with such accountants, with
any such communication to occur together with a representative of the
Company, at the expense of the Administrative Agent (or the Lender
requesting such communication), upon reasonable notice and at reasonable
times during normal business hours.
(b) Annual Compliance Certificates. Together with each delivery of any
------------------------------
annual report pursuant to clause (a) of this Section 7.1(2), Borrower shall
--------------
deliver a Compliance Certificate as of the end of such fiscal year,
executed by a Financial Officer.
(c) Annual Financial Statements With Respect to the Projects. As soon
--------------------------------------------------------
as practicable, and in any event within ninety (90) days after the end of
each fiscal year, a rent roll for each of the Projects, together with a
statement of gross revenues (separately
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setting forth the effects of straight-lining of rents), direct operating
expenses, net operating income, capital expenditures, tenant improvements
and leasing commissions for each of the Projects as at the end of such
fiscal year or for such fiscal year, as applicable, in each case certified
by a Financial Officer, together with an audited statement of gross
revenues (separately setting forth the effects of straight-lining of rents)
and direct operating expenses for each of the Projects for such fiscal
year, each of which audited statements shall (i) set forth in comparative
form, the figures for gross revenues (separately setting forth the effects
of straight-lining of rents) and direct operating expenses for the previous
fiscal year; provided that a comparative form shall not be required for
-------- ----
Projects which have been Projects for less than one (1) full fiscal year,
(ii) be prepared in reasonable detail, (iii) be accompanied by a report
thereon of Deloitte & Touche or other independent public accountants of
comparable recognized national standing reasonably acceptable to the
Administrative Agent, (iv) be unqualified as to scope of audit, and (v)
state that such consolidated statement presents fairly the gross revenues
and direct operating expenses as at the end of such fiscal year of each
such statement in accordance with GAAP.
(d) Budgets. Commencing with the budget for the calendar year 2001,
-------
and for each calendar year thereafter, Borrower shall submit to the
Administrative Agent an annual budget for each of the Projects not later
than January 15th of the calendar year in question, in form and substance
satisfactory to the Administrative Agent and setting forth in reasonable
detail budgeted monthly operating revenues and expenses for each Project
(3) Compliance Certificate. Concurrently with any delivery of
----------------------
financial statements under subsections (1) or (2) above, a certificate of a
Financial Officer (i) certifying as to whether a Potential Default has occurred
and is continuing and, if a Potential Default has occurred and is continuing,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 12.1(a) and 12.1(b), as applicable, and
----------------------------
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section 6.3 and, if any such change has occurred, specifying the effect of such
-----------
change on the financial statements accompanying such certificate.
(4) Other Information. Promptly following any request therefor, such
-----------------
other information regarding the operations, business affairs and financial
condition of Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
Section 7.2 Notices of Material Events.
--------------------------
(1) Borrower will furnish to the Administrative Agent prompt written
notice of the following:
(a) the occurrence of any Potential Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or governmental authority against or affecting
Borrower or any Affiliate
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thereof that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;
(d) during the Net Proceeds Remittance Period, the entering into by
Borrower or any of its Subsidiaries of any letter of intent, commitment
letter, contract, purchase and sale agreement, loan agreement, note,
mortgage, or other agreement providing for, or the occurrence of, any sale,
taking, financing, refinancing, transfer (as defined in Section 8.1) or
-----------
other disposition of any of the Properties, together with a copy, certified
by a Responsible Officer as being true, correct and complete, of all such
agreements and all material notices and correspondence relating thereto
promptly (and in any event within five (5) Business Days) after the
execution and delivery thereof to (or, in the case of any such notice and
correspondence, receipt thereof by) Borrower or any of its Subsidiaries;
and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
(2) After the expiration of the Net Proceeds Remittance Period,
Borrower shall deliver to the Administrative Agent and the Lenders written
notice of each of the following: (a) a sale, transfer or other disposition of
assets, in a single transaction or series of related transactions, not less than
five (5) Business Days after the occurrence thereof if for consideration in
excess of $10,000,000, (b) an acquisition of assets, in a single transaction or
series of related transactions, not less than five (5) Business Days after the
occurrence thereof if for consideration in excess of $20,000,000, and (c) the
grant of a Lien with respect to assets, in a single transaction or series of
related transactions, not less than five (5) Business Days after the occurrence
thereof if in connection with Indebtedness aggregating an amount in excess of
$20,000,000. Simultaneously with delivery of any such notice, Borrower shall be
deemed to have represented and warranted to the Administrative Agent that
Borrower is in compliance with this Agreement and the other Loan Documents both
on a historical basis and on a pro forma basis, exclusive of the property sold,
transferred and/or encumbered and inclusive of the property to be acquired or
the indebtedness to be incurred. To the extent such proposed transaction would
result in a failure to comply with the financial covenants set forth herein,
proceeds of such transaction (together with such additional amounts as may be
required), in an amount, as determined by the Administrative Agent, equal to
that which would be required to reduce the Obligations so that Borrower will be
in compliance with the covenants set forth herein upon the consummation of the
contemplated transaction, shall be applied to prepay the Obligations.
(3) Borrower shall promptly notify the Administrative Agent and the
Lenders upon obtaining knowledge of the bankruptcy or cessation of substantially
all of the operations of any tenant to which greater than two percent (2.0%) of
the annualized minimum rent of the Projects is attributable.
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(4) Promptly and in any event within ten (10) days of Borrower or any
Subsidiary learning of any of the following, written notice to the
Administrative Agent of any of the following:
(a) the Release of any Hazardous Material on or from any property
owned or leased by Borrower or any of its Subsidiaries and any written
order, notice, permit, application or other written communication or report
received by Borrower or any of its Subsidiaries in connection with or
relating to any such Release, unless such Release is not reasonably likely
to subject Borrower or any of its Subsidiaries to Environmental Liabilities
and Costs which would have a Material Adverse Effect;
(b) any notice or claim to the effect that Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Hazardous Material into the environment, which
liability would have a Material Adverse Effect;
(c) receipt by Borrower or any of its Subsidiaries or any Manager of
notification that any real or personal property of Borrower or any of its
Subsidiaries is subject to an Environmental Lien;
(d) any Remedial Action taken by Borrower or any of its Subsidiaries
or any other Person on their behalf in response to any Hazardous Material
on, under or about any real property owned or leased by Borrower or any of
its Subsidiaries, unless such Remedial Action is not reasonably likely to
subject Borrower or any of its Subsidiaries to Environmental Liabilities
and Costs which would have a Material Adverse Effect;
(e) receipt by Borrower or any of its Subsidiaries of any notice of
violation of, or knowledge by Borrower or any of its Subsidiaries that
there exists a condition which may result in a violation by Borrower or any
of its Subsidiaries of, any Environmental Law, unless such violation is not
reasonably likely to subject Borrower or any of its Subsidiaries to
Environmental Liabilities and Costs which would have a Material Adverse
Effect;
(f) any proposed Capital Expenditure by Borrower or any of its
Subsidiaries intended or designed to implement any existing or additional
Remedial Action, unless such expenditures are not reasonably likely to have
a Material Adverse Effect;
(g) the commencement of any judicial or administrative proceeding or
investigation alleging a violation of any Environmental Law; or
(h) any proposed acquisition of stock, assets or real property, or
any proposed leasing of property by Borrower, or any of its Subsidiaries,
unless such action is not reasonably likely to subject Borrower and its
Subsidiaries to Environmental Liabilities and Costs to Borrower which would
have a Material Adverse Effect.
(5) Promptly, such additional financial and other information
respecting the financial or other condition of Borrower or any of its
Subsidiaries or the status or condition of any real property owned or leased by
Borrower or its Subsidiaries, or the operation thereof which
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Borrower is entitled to or can otherwise reasonably obtain, as the
Administrative Agent from time to time reasonably requests.
(6) Upon written request by any Lender through the Administrative
Agent, a report providing an update of the status of any Environmental Claim,
Remedial Action or any other issue identified in any notice or report required
pursuant to this Section 7.3.
-----------
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto and copies of any underlying notices, documents, agreements
or instruments relating thereto, including without limitation, copies of any
relevant letters of intent, commitment letters and purchase and sale agreements,
each certified by such Financial Officer as being true, correct and complete.
Section 7.3 Audits. At any time while a Potential Default or Event of
------
Default exists (including, without limitation, due to any failure on the part of
the Borrower to comply with Sections 7.1(1)(c) or 7.1(2)(c)), the Administrative
------------------ ---------
Agent shall have the right to choose and appoint a certified public accountant
to perform financial audits as it deems necessary, at Borrower's expense.
Borrower shall permit the Administrative Agent to examine such records, books
and papers of Borrower which reflect upon its financial condition and the income
and expenses relative to the Properties.
ARTICLE 8
COVENANTS
---------
Borrower covenants and agrees with the Administrative Agent and the Lenders
as follows:
Section 8.1 Cash Sales. Without the prior written consent of the
----------
Administrative Agent, neither Borrower nor any of its Subsidiaries shall (a)
directly or indirectly sell, transfer, convey, mortgage, pledge, or assign any
interest in any Property or any part thereof (including any partnership,
membership or any other ownership interest in Borrower or the Subsidiary owning
any Property) or any of the Agency Notes or (b) further encumber, alienate,
grant a Lien or grant any other interest in any Property or any part thereof
(including any partnership, membership or other ownership interest in Borrower
or the Subsidiary owning any Property or any of the Agency Notes), whether
voluntarily or involuntarily, unless the purchase price or other consideration
payable to Borrower or such Subsidiary consists entirely of cash and Borrower or
such Subsidiary complies with Section 2.7(2).
--------------
As used in this Section 8.1 and in Section 2.7(2) and 2.8(2) and in the
----------- -------------- ------
definition of "Net Proceeds", "transfer" shall include the sale, transfer,
conveyance, mortgage, pledge, or assignment of the legal or beneficial ownership
of or the granting of any participation in (a) any Property, (b) any partnership
interest in any general partner in Borrower or any Subsidiary that is a
partnership, (c) any membership interest in any member in Borrower or any
Subsidiary that is a limited liability company, (d) any voting stock in any
general partner in Borrower or any Subsidiary that is a corporation and (e) any
Agency Note; "transfer" shall not include (i) the
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leasing of any space within the Properties so long as Borrower and/or the
Subsidiary, as applicable, complies with the provisions of the Loan Documents
relating to such leasing activity; (ii) transfers of limited partnership
interests in Borrower, subject to Section 9.13; and (iii) transfers of Stock of
-----------
the Company, subject to Section 9.13 and 12.8.
---------------------
Section 8.2 Taxes; Charges. Borrower shall not suffer or permit the joint
--------------
assessment of any Project with any other real property constituting a separate
tax lot or with any other real or personal property. Borrower shall pay when
due all claims and demands of mechanics, materialmen, laborers and others which,
if unpaid, might result in a Lien on any Project; provided, however, that
-------- -------
Borrower may contest the validity of such claims and demands so long as Borrower
complies with the requirements of Section 8.11.
------------
Section 8.3 Project Management. Borrower shall not terminate, replace or
------------------
appoint any manager or terminate (except upon a default by the Manager
thereunder and in accordance with the applicable Management Agreement) or amend
the Management Agreement for any Project without the Administrative Agent's
prior written approval, such approval not to be unreasonably withheld or
delayed. If at any time the Administrative Agent consents to the appointment of
a new manager, such new manager and Borrower shall, as a condition of the
Administrative Agent's consent, execute a Manager's Consent and Subordination of
Management Agreement in a form reasonably acceptable to the Administrative
Agent. Each manager shall hold and maintain all necessary licenses,
certifications and permits required by law. Borrower shall fully perform all of
its covenants, agreements and obligations under each Management Agreement.
Section 8.4 Operation; Maintenance; Inspection. Borrower shall observe
----------------------------------
and comply with all legal requirements applicable to the ownership, use and
operation of the Projects, except where such failure to comply could not
reasonably be expected to have a Material Adverse Effect. Borrower shall
maintain each Project in good condition and promptly repair any damage or
casualty.
Section 8.5 Taxes on Security. Borrower shall pay all taxes, charges,
-----------------
filing, registration and recording fees, excises and levies payable with respect
to the Notes or the Liens created or secured by the Loan Documents, other than
income, franchise and doing business taxes imposed on the Administrative Agent
or any Lender. If there shall be enacted any law (1) deducting the Loans from
the value of any Project for the purpose of taxation, (2) affecting any Lien on
any Project, or (3) changing existing laws of taxation of mortgages, deeds of
trust, security deeds, or debts secured by real property, or changing the manner
of collecting any such taxes, Borrower shall promptly pay to the Administrative
Agent, on demand, all taxes, costs and charges for which the Administrative
Agent or any Lender is or may be liable as a result thereof; provided, however,
-------- -------
that if such payment would be prohibited by law or would render the Loans
usurious, then instead of collecting such payment, the Administrative Agent may
(and on the request of the Majority Lenders shall) declare all amounts owing
under the Loan Documents to be immediately due and payable.
Section 8.6 Legal Existence; Name, Etc.
---------------------------
(1) Borrower shall, and shall cause each of its Subsidiaries and the
Company to, preserve and keep in full force and effect its existence, entity
status, franchises, rights and
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privileges under the laws of the state of its formation, and all qualifications,
licenses and permits material to the ownership, use and operation of its
property. Except as permitted pursuant to Section 12.3, neither Borrower nor any
------------
of its Subsidiaries nor the Company shall wind up, liquidate, dissolve,
reorganize, merge, or consolidate with or into, or convey, sell, assign,
transfer, lease, or otherwise dispose of all or substantially all of its assets.
Borrower and the Company shall conduct business only in its own name and shall
not change its name, identity, or organizational structure, or the location of
its chief executive office or principal place of business unless Borrower (a)
shall have provided prior written notice to the Administrative Agent of such
change, and (b) shall have taken all actions necessary or reasonably requested
by the Administrative Agent to assure perfection and continuation of perfection
of security interests under the Loan Documents. Borrower (and each general
partner in Borrower, if any), shall maintain its separateness as an entity,
including maintaining separate books, records, and accounts and observing
corporate and partnership formalities independent of any other entity, shall pay
its obligations with its own funds and shall not commingle funds or assets with
those of any other entity.
(2) The Company shall at all times (1) remain a publicly traded
company listed on the New York Stock Exchange or the American Stock Exchange;
(2) retain direct or indirect management and control of Borrower, and (3)
operate its business at all times so as to satisfy all requirements necessary to
qualify as an equity-oriented REIT under the Code. The Company will maintain
adequate records so as to comply with all record-keeping requirements relating
to the qualification of the Company as an equity-oriented REIT as required by
the Code and applicable regulations of the Department of the Treasury
promulgated thereunder and will properly prepare and timely file with the
Internal Revenue Service all returns and reports required thereby. The Company
will request from its shareholders all shareholder information required by the
Code and applicable regulations of the Department of Treasury promulgated
thereunder.
Section 8.7 Reserved.
--------
Section 8.8 Books and Records; Inspection Rights. Borrower will, and will
------------------------------------
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. Borrower will, and will cause each
of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, at the expense of any such Lender, unless an
Event of Default, Potential Default or Borrowing Base Imbalance has occurred and
is continuing (in which case at the Borrower's expense), upon reasonable prior
notice and during normal business hours, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountant,
all at such reasonable times and as often as reasonably requested.
Section 8.9 Further Assurances. Borrower shall promptly (1) cure any
------------------
defects in the execution and delivery of the Loan Documents, and (2) execute and
deliver, or cause to be executed and delivered, all such other documents,
agreements and instruments as the Administrative Agent may reasonably request to
further evidence and more fully describe the collateral for the Loans, to
correct any omissions in the Loan Documents, to perfect, protect or
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preserve any liens created under any of the Loan Documents, or to make any
recordings, file any notices, or obtain any consents, as may be necessary or
appropriate in connection therewith.
Section 8.10 Outstanding REIT Debt. To the extent the documentation
---------------------
governing the REIT Debt requires the holder thereof to provide a REIT Debt
Statement, Borrower shall obtain and provide to the Administrative Agent, not
later than January 5, 2001, a written statement (a "REIT Debt Statement")
-------------------
reasonably satisfactory to the Administrative Agent from the holders of the REIT
Debt (or any trustee, servicer or like representative acting on their behalf)
setting forth, as of a date no earlier than January 1, 2001, the amount due
under the REIT Debt. To the extent that the Borrower is unable to obtain a REIT
Debt Statement, or the documentation governing the REIT Debt does not require
the holder thereof to provide a REIT Debt Statement, then, not later than
January 5, 2001, Borrower shall provide to the Administrative Agent a written
certification signed by a Responsible Officer and otherwise in form and
substance reasonably satisfactory to the Administrative Agent setting forth, as
of a date no earlier than January 1, 2001, the amount due under the REIT Debt.
Section 8.11 Payment of Obligations. Borrower will, and will cause each
----------------------
of its Subsidiaries to, pay its obligations, including, without limitation, all
present or future taxes levies, imposts, duties, deductions, charges or
withholdings imposed by any governmental authority , that, if not paid, could
result in a Material Adverse Effect before the same shall become delinquent or
in default, except where (a) the validity or amount thereof is being contested
in good faith by appropriate proceedings, (b) Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
Section 8.12 Indemnification. Borrower shall indemnify the Administrative
---------------
Agent, the Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
----------
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related reasonable expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, actually incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder, the Borrowing of Loans, the use of the
proceeds thereof, the issuance of Letters of Credit or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any misrepresentation or breach of warranty under Article 4 or
any Environmental Claim or any Environmental Lien or any Remedial Action arising
out of or based upon anything relating to real property owned or leased by
Borrower or any of its Subsidiaries; or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing or to
any of the Properties, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
-------- ----
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or willful misconduct of such Indemnitee.
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Section 8.13 Compliance with Laws. Borrower will, and will cause each of
---------------------
its subsidiaries to, comply with all laws, rules, regulations and orders of any
governmental authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 8.14 Use of Proceeds and Letters of Credit. No part of the
-------------------------------------
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board of
Governors of the Federal Reserve System, including Regulations U and X. Letters
of Credit will be issued only to support performance obligations or escrow
deposits or as additional support for other operating purposes and partial
credit enhancements for Indebtedness. The proceeds of the Loans, will be used
only for the purposes of:
(a) acquisition of retail properties similar to the Initial Projects
located in the following states: Washington, California, Oregon, Arizona,
Nevada, Utah or Idaho; and
(b) refinancing of existing Indebtedness for borrowed money secured by
Properties;
(c) redevelopment of Properties;
(d) general corporate purposes of Borrower and its Subsidiaries;
provided that the maximum aggregate amount outstanding for such purpose at
any time shall not exceed an amount equal to 10% of the lesser of the
Commitments and the Borrowing Base from time to time; and
(e) subject to the terms and conditions hereof, repaying or acquiring
the Unsecured Debt.
Section 8.15 Ownership of Projects and Properties. The ownership of
------------------------------------
substantially all wholly owned Properties and other property of the Consolidated
Businesses shall be held by Borrower and its Subsidiaries and shall not be held
directly by the Company.
ARTICLE 9
EVENTS OF DEFAULT
-----------------
Each of the following shall constitute an Event of Default:
Section 9.1 Payments. Borrower's failure to pay any regularly scheduled
--------
installment of principal, interest or other amount due under the Loan Documents
or any reimbursement obligation in respect of any LC Disbursement within five
(5) days of (and including) the date when due, or Borrower's failure to pay any
amounts due under the Loan Documents which are not regularly scheduled payments
within five (5) days after written notice or Borrower's failure to pay the Loans
and all reimbursement obligations in respect of LC Disbursements at the Maturity
Date, whether by acceleration or otherwise.
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Section 9.2 Reserved.
--------
Section 9.3 Financial Covenants. If Borrower or the Company breaches any
-------------------
of its respective covenants under Article 12.
Section 9.4 Reserved.
--------
Section 9.5 Sale, Encumbrance, Etc. The sale, transfer, conveyance,
----------------------
pledge, mortgage or assignment of any part or all of any Property or any Agency
Note, or any interest in any Property or any Agency Note, or of any interest in
Borrower, in violation of Section 8.1 of this Agreement.
-----------
Section 9.6 Representations and Warranties. Any representation or
------------------------------
warranty made in any Loan Document or in any report, certificate, financial
statement or other document furnished pursuant to this Agreement or any other
Loan Document proves to be untrue in any material respect when made or deemed
made.
Section 9.7 Reserved.
--------
Section 9.8 Involuntary Bankruptcy or Other Proceeding. Commencement of
------------------------------------------
an involuntary case or other proceeding against Borrower or any Borrower Party
(each, a "Bankruptcy Party") which seeks liquidation, reorganization or other
----------------
relief with respect to it or its debts or other liabilities under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeks
the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any of its property, and such involuntary case or other
proceeding shall remain undismissed or unstayed for a period of 60 days; or an
order for relief against a Bankruptcy Party shall be entered in any such case
under the Federal Bankruptcy Code.
Section 9.9 Voluntary Petitions, Etc. Commencement by a Bankruptcy Party
------------------------
of a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its Indebtedness under any bankruptcy,
insolvency or other similar law or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official for it or any of its
property, or consent by a Bankruptcy Party to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or the making by a Bankruptcy Party of
a general assignment for the benefit of creditors, or the failure by a
Bankruptcy Party, or the admission by a Bankruptcy Party in writing of its
inability, to pay its debts generally as they become due, or any action by a
Bankruptcy Party to authorize or effect any of the foregoing.
Section 9.10 Default under Material Indebtedness. If (a) Borrower or any
-----------------------------------
Subsidiary shall fail to make any payment (whether of principal or interest and
regardless of amount) and such failure shall continue beyond any applicable
grace period in respect of any Material Indebtedness, when and as the same shall
become due and payable; or (b) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that clause (b) of this
-------- ----
Section 9.10 shall not apply to Secured Indebtedness that
------------
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becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness unless prohibited by this Agreement.
Section 9.11 Judgments. If one or more judgments for the payment of money
---------
in an aggregate amount in excess of $10,000,000 shall be rendered against
Borrower, any Subsidiary or any combination thereof and, except to the extent
payment of the same shall be covered by insurance, the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of Borrower or any Subsidiary to
enforce any such judgment.
Section 9.12 ERISA Event. If an ERISA Event shall have occurred that, in
-----------
the opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect.
Section 9.13 Change in Control. If a Change in Control shall occur.
-----------------
Section 9.14 Material Adverse Event. If an event shall occur which has a
----------------------
Material Adverse Effect.
Section 9.15 REIT Status. If the Company shall fail to (i) maintain its
-----------
status as a REIT for federal income tax purposes, (ii) continue as a general
partner of Borrower, (iii) comply with all legal requirements applicable to it
and its businesses and Properties, in each case where the failure to so comply
individually or in the aggregate will have or is reasonably likely to have a
Material Adverse Effect, (iv) remain listed on the New York Stock Exchange or
the American Stock Exchange, or (v) file all tax returns and reports required to
be filed by it with any governmental authority as and when required to be filed
or to pay any taxes, assessments, fees or other governmental charges upon it or
its property, assets, receipts, sales, use, payroll, employment, licenses,
income, or franchises which are shown in such returns, reports or similar
statements to be due and payable as and when due and payable, except for taxes,
assessments, fees and other governmental charges (A) that are being contested by
the Company in good faith by an appropriate proceeding diligently pursued, (B)
for which adequate reserves have been made on its books and records, and (C) the
amounts the non-payment of which would not, individually or in the aggregate,
result in a Material Adverse Effect and such failure under this clause (v), to
the extent curable, shall remain uncured for a period of thirty (30) days after
notice thereof from the Administrative Agent to Borrower.
Section 9.16 Merger. If the Company shall merge or liquidate with or into
------
any other Person and, as a result thereof and after giving effect thereto, (i)
the Company is not the surviving Person or (ii) such merger or liquidation would
effect an acquisition of or investment in any Person not otherwise permitted
under the terms of this Agreement.
Section 9.17 Environmental Event. If Borrower or any of its Subsidiaries
-------------------
shall have entered into any consent or settlement decree or agreement or similar
arrangement with a governmental authority or any judgment, order, decree or
similar action shall have been entered against Borrower or any of its
Subsidiaries, in each case based on or arising from the violation of or pursuant
to any Environmental Law, or the generation, storage, transportation, treatment,
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disposal or Release of any Hazardous Material and, in connection with all the
foregoing, Borrower and its Subsidiaries are likely to incur Environmental
Liabilities and Costs which would have a Material Adverse Effect.
Section 9.18 Sinking Fund Deficiency. If, on January 12, 2001, the
-----------------------
aggregate of the amount of the Blocked Availability and the sums deposited into
and available for disbursement from the Sinking Fund on such date are not
sufficient to fully satisfy the REIT Debt, unless, prior to January 12, 2001,
the Borrower and the Company have restructured the REIT Debt in a manner
satisfactory to Administrative Agent in its sole discretion and the
Administrative Agent has acknowledged the satisfactory nature of such
restructuring in writing.
Section 9.19 Covenants. Borrower's failure to perform or observe any of
---------
the agreements and covenants contained in this Agreement or in any of the other
Loan Documents and not specified above, and the continuance of such failure for
thirty (30) days after notice by the Administrative Agent to Borrower.
ARTICLE 10
REMEDIES
--------
Section 10.1 Remedies - Insolvency Events. Upon the occurrence of any
----------------------------
Event of Default described in Section 9.8 or 9.9, the obligations of the Lenders
----------- ---
to advance amounts hereunder and of the Issuing Bank to issue, amend, renew and
extend Letters of Credit shall immediately terminate, and all amounts due under
the Loan Documents immediately shall become due and payable, all without written
notice and without presentment, demand, protest, notice of protest or dishonor,
notice of intent to accelerate the maturity thereof, notice of acceleration of
the maturity thereof, or any other notice of default of any kind, all of which
are hereby expressly waived by Borrower; however, if the Bankruptcy Party under
Section 9.8 or 9.9 is other than Borrower, then all amounts due under the Loan
----------- ---
Documents shall become immediately due and payable at the Administrative Agent's
election, in the Administrative Agent's sole discretion.
Section 10.2 Remedies - Other Events. Except as set forth in Section 10.1
----------------------- ------------
above, while any Event of Default exists, the Administrative Agent may (1) by
written notice to Borrower, declare the entire amount of the Loans and all other
Obligations to be immediately due and payable without presentment, demand,
protest, notice of protest or dishonor, notice of intent to accelerate the
maturity thereof, notice of acceleration of the maturity thereof, or other
notice of default of any kind, all of which are hereby expressly waived by
Borrower, (2) terminate the obligation, if any, of the Lenders to advance
amounts hereunder and of the Issuing Bank to issue, amend, renew and extend
Letters of Credit, and (3) exercise all rights and remedies therefor under the
Loan Documents and at law or in equity.
Section 10.3 Lender's Right to Perform the Obligations. If Borrower shall
-----------------------------------------
fail, refuse or neglect to make any payment or perform any act required by the
Loan Documents, then while any Event of Default exists, and without notice to or
demand upon Borrower and without waiving or releasing any other right, remedy or
recourse the Administrative Agent or any Lender
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may have because of such Event of Default, the Administrative Agent may (but
shall not be obligated to) make such payment or perform such act for the account
of and at the expense of Borrower, and shall have the right to enter upon any
Project for such purpose and to take all such action thereon and with respect to
such Project as it may deem necessary or appropriate. If the Administrative
Agent shall elect to pay any sum due with reference to a Project, the
Administrative Agent may do so in reliance on any bill, statement or assessment
procured from the appropriate governmental authority or other issuer thereof
without inquiring into the accuracy or validity thereof. Similarly, in making
any payments to protect the security intended to be created by the Loan
Documents, the Administrative Agent shall not be bound to inquire into the
validity of any apparent or threatened adverse title, lien, encumbrance, claim
or charge before making an advance for the purpose of preventing or removing the
same. Additionally, if any Hazardous Materials affect or threaten to affect any
Project, the Administrative Agent may (but shall not be obligated to) give such
notices and take such actions as it deems necessary or advisable in order to
abate the discharge of any Hazardous Materials or remove the Hazardous
Materials. Borrower shall indemnify, defend and hold the Administrative Agent
and the Lenders harmless from and against any and all losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements of any kind or nature whatsoever, including reasonable
attorneys' fees, incurred or accruing by reason of any acts performed by the
Administrative Agent or any Lender pursuant to the provisions of this Section
-------
10.3, including those arising from the joint, concurrent, or comparative
----
negligence of the Administrative Agent and any Lender, except as a result of the
Administrative Agent's or any Lender's gross negligence or willful misconduct.
All sums paid by the Administrative Agent pursuant to this Section 10.3, and all
------------
other sums expended by the Administrative Agent or any Lender to which it shall
be entitled to be indemnified, together with interest thereon at the Default
Rate from the date of such payment or expenditure until paid, shall constitute
additions to the Loans, shall be secured by the Loan Documents and shall be paid
by Borrower to the Administrative Agent upon demand.
ARTICLE 11
MISCELLANEOUS
-------------
Section 11.1 Notices. Any notice required or permitted to be given under
-------
this Agreement shall be in writing and either shall be mailed by certified mail,
postage prepaid, return receipt requested, or sent by overnight air courier
service, or personally delivered to a representative of the receiving party, or
sent by telecopy (provided an identical notice is also sent simultaneously by
mail, overnight courier, or personal delivery as otherwise provided in this
Section 11.1) to the intended recipient at the "Address for Notices" specified
------------
below its name on the signature pages hereof. Any communication so addressed
and mailed shall be deemed to be given on the earliest of (1) when actually
delivered, (2) on the first Business Day after deposit with an overnight air
courier service, or (3) on the third Business Day after deposit in the United
States mail, postage prepaid, in each case to the address of the intended
addressee, and any communication so delivered in person shall be deemed to be
given when receipted for by, or actually received by the Administrative Agent, a
Lender or Borrower, as the case may be. If given by telecopy, a notice shall be
deemed given and received when the telecopy is transmitted to the party's
telecopy number specified above, and confirmation of complete receipt is
received
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by the transmitting party during normal business hours or on the next Business
Day if not confirmed during normal business hours, and an identical notice is
also sent simultaneously by mail, overnight courier, or personal delivery as
otherwise provided in this Section 11.1. Any party may designate a change of
------------
address by written notice to each other party by giving at least ten (10) days
prior written notice of such change of address.
Section 11.2 Amendments, Waivers, Etc.
------------------------
(1) Subject to any consents required pursuant to this Section 11.2 and
------------
any other provisions of this Agreement and any other Loan Document which
expressly require the consent, approval or authorization of the Majority
Lenders, this Agreement and any other Loan Document may be modified or
supplemented only by an instrument in writing signed by the Borrower and the
Administrative Agent; provided that, the Administrative Agent may (without any
--------
Lender's consent) give or withhold its agreement to any amendments of the Loan
Documents or any waivers or consents in respect thereof or exercise or refrain
from exercising any other rights or remedies which the Administrative Agent may
have under the Loan Documents or otherwise provided that such actions do not, in
the Administrative Agent's judgment reasonably exercised, materially adversely
affect the value of any collateral, taken as a whole, or represent a departure
from Administrative Agent's standard of care described in Section 13.5 (and the
------------
assignment or granting of a participation by GECC shall not limit or otherwise
affect its discretion in respect of any of the foregoing), except that the
Administrative Agent will not, without the consent of each Lender, agree to the
following (provided that no Lender's consent shall be required for any of the
following which are otherwise required under the Loan Documents): (a) reduce
the principal amount of the Loans or reduce the interest rate thereon (except
that Administrative Agent may, without the Lenders' consent; waive the
requirement that interest be paid at the Default Rate); (b) extend any stated
payment date for principal of or interest on the Loans payable to such Lender;
(c) release the Borrower, any Guarantor or any other party from liability under
the Loan Documents; (d) release or subordinate in whole or in part any material
portion of the collateral given as security for the Loans other than in
accordance with Section 2.9; (e) modify any of the provisions of this Section,
-----------
the definition of "Majority Lenders" or any other provision in the Loan
Documents specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder; or (f) consent to (i) the sale, transfer or encumbrance of
any portion of a Project (or any interest therein) or any direct or indirect
ownership interest therein and (ii) the incurrence by Borrower of any additional
indebtedness secured by a Project, in each case to the extent (and subject to
any standard of reasonability) such consent is required under the Loan
Documents.
(2) Notwithstanding anything to contrary contained in this Agreement,
any modification or supplement of Article 13, or of any of the rights or duties
----------
of the Administrative Agent hereunder, shall require the consent of the
Administrative Agent.
Section 11.3 Limitation on Interest. It is the intention of the parties
----------------------
hereto to conform strictly to applicable usury laws. Accordingly, all
agreements between Borrower, the Administrative Agent and the Lenders with
respect to the Loans are hereby expressly limited so that in no event, whether
by reason of acceleration of maturity or otherwise, shall the amount paid or
agreed to be paid to the Administrative Agent or any Lender or charged by any
Lender
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for the use, forbearance or detention of the money to be lent hereunder or
otherwise, exceed the maximum amount allowed by law. If the Loans would be
usurious under applicable law (including the laws of the State of New York and
the laws of the United States of America), then, notwithstanding anything to the
contrary in the Loan Documents: (1) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received under the Loan Documents shall under no
circumstances exceed the maximum amount of interest allowed by applicable law,
and any excess shall be credited on the Notes by the holders thereof (or, if the
Notes have been paid in full, refunded to Borrower); and (2) if maturity is
accelerated by reason of an election by the Administrative Agent in accordance
with the terms hereof, or in the event of any prepayment, then any consideration
which constitutes interest may never include more than the maximum amount
allowed by applicable law. In such case, excess interest, if any, provided for
in the Loan Documents or otherwise, to the extent permitted by applicable law,
shall be amortized, prorated, allocated and spread from the date of advance
until payment in full so that the actual rate of interest is uniform through the
term hereof. If such amortization, proration, allocation and spreading is not
permitted under applicable law, then such excess interest shall be cancelled
automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited on the Notes (or, if the Notes have been
paid in full, refunded to Borrower). The terms and provisions of this Section
-------
11.3 shall control and supersede every other provision of the Loan Documents.
----
The Loan Documents are contracts made under and shall be construed in accordance
with and governed by the laws of the State of New York, except that if at any
time the laws of the United States of America permit the Lenders to contract
for, take, reserve, charge or receive a higher rate of interest than is allowed
by the laws of the State of New York (whether such federal laws directly so
provide or refer to the law of any state), then such federal laws shall to such
extent govern as to the rate of interest which the Lenders may contract for,
take, reserve, charge or receive under the Loan Documents.
Section 11.4 Invalid Provisions. If any provision of any Loan Document is
------------------
held to be illegal, invalid or unenforceable, such provision shall be fully
severable; the Loan Documents shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof;
the remaining provisions thereof shall remain in full effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom; and in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as a part of such Loan Document a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible to be legal, valid and enforceable.
Section 11.5 Reimbursement of Expenses. Borrower shall pay (i) all
-------------------------
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank
or, if an Event of Default has occurred and is continuing, any Lender, including
the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the
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Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such reasonable out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.
Section 11.6 Approvals; Third Parties; Conditions. All approval rights
------------------------------------
retained or exercised by the Administrative Agent and the Lenders with respect
to leases, contracts, plans, studies and other matters are solely to facilitate
the Lenders' credit underwriting, and shall not be deemed or construed as a
determination that the Lenders have passed on the adequacy thereof for any other
purpose and may not be relied upon by Borrower or any other Person. This
Agreement is for the sole and exclusive use of the Administrative Agent, the
Lenders, the Issuing Bank and Borrower and may not be enforced, nor relied upon,
by any Person other than the Administrative Agent, the Lenders, the Issuing Bank
and Borrower. All conditions of the obligations of the Administrative Agent,
the Lenders and the Issuing Bank hereunder, including the obligation to make
advances and issue Letters of Credit, are imposed solely and exclusively for the
benefit of the Administrative Agent, the Lenders, the Issuing Bank and their
successors and assigns, and no other Person shall have standing to require
satisfaction of such conditions or be entitled to assume that the Lenders will
refuse to make advances or that the Issuing Bank will refuse to issue Letters of
Credit in the absence of strict compliance with any or all of such conditions,
and no other Person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any and all of which may be freely waived in
whole or in part by the Administrative Agent, the Lenders and the Issuing Bank
at any time in their sole discretion.
Section 11.7 Lenders, Issuing Bank and Administrative Agent Not in
------------------------------------------------------
Control; No Partnership. None of the covenants or other provisions contained in
-----------------------
this Agreement shall, or shall be deemed to, give the Administrative Agent, the
Issuing Bank or any Lender the right or power to exercise control over the
affairs or management of Borrower, the power of the Administrative Agent, the
Issuing Bank and the Lenders being limited to the rights to exercise the
remedies referred to in the Loan Documents. The relationship between Borrower
and the Lenders and the Issuing Bank is, and at all times shall remain, solely
that of debtor and creditor. No covenant or provision of the Loan Documents is
intended, nor shall it be deemed or construed, to create a partnership, joint
venture, agency or common interest in profits or income between the
Administrative Agent, the Lenders, the Issuing Bank and Borrower or to create an
equity in any Property in the Administrative Agent or any Lender. The
Administrative Agent, the Issuing Bank and the Lenders neither undertake nor
assume any responsibility or duty to Borrower or to any other person with
respect to any Property or the Loans or the Letters of Credit, except as
expressly provided in the Loan Documents; and notwithstanding any other
provision of the Loan Documents: (1) none of the Administrative Agent, the
Issuing Bank and the Lenders is, or shall be construed as, a partner, joint
venturer, alter ego, manager, controlling person or other business associate or
participant of any kind of Borrower or its stockholders, members, or partners
and none of the Administrative Agent, the Issuing Bank and the Lenders intends
to ever assume such status; (2) none of the Lenders, the Issuing Bank and the
Administrative Agent shall in any event be liable for any Indebtedness, expenses
or losses incurred or sustained by Borrower; and (3) none of the Lenders, the
Issuing Bank and the Administrative Agent shall be deemed responsible for or a
participant in any acts, omissions or decisions of Borrower or its stockholders,
members, or partners. The Administrative Agent, the
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Issuing Bank, the Lenders and Borrower disclaim any intention to create any
partnership, joint venture, agency or common interest in profits or income
between the Administrative Agent, the Issuing Bank, the Lenders and Borrower, or
to create an equity in any Property in the Administrative Agent, the Issuing
Bank or any Lender, or any sharing of liabilities, losses, costs or expenses.
Section 11.8 Time of the Essence. Time is of the essence with respect to
-------------------
this Agreement.
Section 11.9 Successors and Assigns; Secondary Market Transactions.
-----------------------------------------------------
(1) This Agreement shall be binding upon and inure to the benefit of
the Administrative Agent, the Issuing Bank, the Lenders, Borrower and the
Company (to the extent herein provided) and the respective successors and
permitted assigns, provided that neither Borrower nor any other Borrower Party
shall, without the prior written consent of the Administrative Agent, the
Issuing Bank and all of the Lenders, assign any rights, duties or obligations
hereunder.
(2) Subject to Section 11.24, Borrower shall reasonably cooperate with
-------------
the Administrative Agent and each Lender in effecting any (a) sale of this
Agreement, the Mortgages, the Notes, the other Loan Documents, and any and all
servicing rights thereto, or any portions thereof, to one or more investors, (b)
participation and/or syndication of the Loans to one or more investors, (c)
deposit of this Agreement, the Notes and the other Loan Documents, or any
portions thereof, with a trust, which trust may sell certificates to investors
evidencing an ownership interest in the trust assets, or (d) otherwise sale,
transfer or assignment the Loans or interests therein in one or more
transactions to investors (the transactions referred to in clauses (a) through
-----------
(d) are hereinafter each referred to as a "Secondary Market Transaction") and
--- ----------------------------
shall reasonably cooperate and use all reasonable efforts to satisfy the market
standards to which the Administrative Agent and each Lender customarily adheres
or which may be reasonably required by any participant, investor, purchaser or
any rating agency involved in any Secondary Market Transaction (including,
without limitation, delivery of opinions of counsel reasonably required in
connection therewith). Borrower shall provide such information and documents
relating to the Borrower and the Properties as the Administrative Agent and each
Lender may reasonably request in connection with such Secondary Market
Transaction. In addition, Borrower shall make available to the Administrative
Agent and the Lenders all information concerning the Properties, its business
and operations that the Administrative Agent and the Lenders may reasonably
request. The Administrative Agent and the Lenders shall be permitted to share
all information with the participants, investors, purchasers, investment banking
firms, rating agencies, accounting firms, law firms and third-party advisory
firms involved with the Loans and Loan Documents or the applicable Secondary
Market Transaction, provided such Persons agree to hold such information
confidential in accordance with Section 11.17(2). The Administrative Agent and
----------------
the Lenders and all of the aforesaid participants, investors, purchasers,
advisors, rating agencies and professional firms shall be entitled to rely on
the information supplied by or on behalf of Borrower. Borrower also agrees to
execute any amendment of or supplement to this Agreement and the other Loan
Documents as the Administrative Agent and the Lenders may reasonably request in
connection with any Secondary Market Transaction, provided that such
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amendment or supplement does not change the economic terms of the Loan or any
Loan Document.
(3) The Notes may hereafter be split, severed and subdivided, by in
substitution for promissory notes of lesser denominations or otherwise, and, in
such event, Borrower shall promptly execute additional or replacement Notes.
Section 11.10 Renewal, Extension or Rearrangement. All provisions of the
-----------------------------------
Loan Documents shall apply with equal effect to each and all promissory notes
and amendments thereof hereinafter executed which in whole or in part represent
a renewal, extension, increase or rearrangement of the Loans. For portfolio
management purposes, the Lenders may elect to divide the Loans into two or more
separate loans evidenced by separate promissory notes so long as the payment and
other obligations of Borrower are not effectively increased or otherwise
modified. Borrower agrees to cooperate with the Administrative Agent and the
Lenders and to execute such documents as the Administrative Agent reasonably may
request to effect such division of the Loans.
Section 11.11 Waivers. No course of dealing on the part of the
-------
Administrative Agent, the Issuing Bank or any Lender, their officers, employees,
consultants or agents, nor any failure or delay by the Administrative Agent, the
Issuing Bank or any Lender with respect to exercising any right, power or
privilege of the Administrative Agent, the Issuing Bank or any Lender under any
of the Loan Documents, shall operate as a waiver thereof.
Section 11.12 Cumulative Rights. Rights and remedies of the
-----------------
Administrative Agent and the Lenders under the Loan Documents shall be
cumulative, and the exercise or partial exercise of any such right or remedy
shall not preclude the exercise of any other right or remedy.
Section 11.13 Singular and Plural. Words used in this Agreement and the
-------------------
other Loan Documents in the singular, where the context so permits, shall be
deemed to include the plural and vice versa. The definitions of words in the
singular in this Agreement and the other Loan Documents shall apply to such
words when used in the plural where the context so permits and vice versa.
Section 11.14 Phrases. When used in this Agreement and the other Loan
-------
Documents, unless a contrary intent is clearly indicated, the phrase "including"
shall mean "including, but not limited to," the phrases "satisfactory to any
Lender" or "satisfactory to the Administrative Agent" shall mean in form and
substance reasonably satisfactory to such Lender or the Administrative Agent, as
the case may be, in all respects, the phrases "with Lender's consent", "with
Lender's approval", "with the Administrative Agent's consent" or "with the
Administrative Agent's approval" shall mean such consent or approval at Lender's
or the Administrative Agent's, as the case may be, reasonable discretion, and
the phrases "acceptable to Lender" or "acceptable to the Administrative Agent"
shall mean acceptable to Lender or the Administrative Agent, as the case may be,
at such party's reasonable discretion."
Section 11.15 Exhibits and Schedules. The exhibits and schedules attached
----------------------
to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein.
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Section 11.16 Titles of Articles, Sections and Subsections. All titles or
--------------------------------------------
headings to articles, sections, subsections or other divisions of this Agreement
and the other Loan Documents or the exhibits hereto and thereto are only for the
convenience of the parties and shall not be construed to have any effect or
meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
Section 11.17 Promotional Material; Confidentiality.
-------------------------------------
(1) Borrower authorizes the Administrative Agent, the Issuing Bank and
each Lender to issue press releases, advertisements and other promotional
materials in connection with the Administrative Agent's, the Issuing Bank's or
such Lender's own promotional and marketing activities, and describing the Loans
and the Letters of Credit in general terms or in detail and the Administrative
Agent's, the Issuing Bank's or such Lender's participation in the Loans and the
Letters of Credit. All references to the Administrative Agent, the Issuing Bank
or any Lender contained in any press release, advertisement or promotional
material issued by Borrower shall be approved in writing by the Administrative
Agent, the Issuing Bank and such Lender in advance of issuance. All references
to the Borrower or the Company contained in any press release, advertisement or
promotional material issued by the Administrative Agent, the Issuing Bank or any
Lender shall be approved in writing by the Borrower in advance of issuance, such
approval not to be unreasonably withheld or delayed.
(2) Each of the Administrative Agent, the Issuing Bank and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement, (g) with the written consent of
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis from a source other than Borrower. For the purposes of this Section,
"Information" means all information received from Borrower relating to Borrower
-----------
or its business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
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Section 11.18 Survival. All of the representations, warranties,
--------
covenants, and indemnities of Borrower hereunder (including environmental
matters under Article 4, the obligations under Sections 2.11(1), 2.11(5) and
--------- ---------------- -------
2.11(6)), and under the indemnification provisions of the other Loan Documents
-------
shall survive (a) the repayment in full of the Loans and the other Obligations
and the release of the Liens evidencing or securing the Loans and the other
Obligations, (b) the transfer (by sale, foreclosure, conveyance in lieu of
foreclosure or otherwise) of any or all right, title and interest in and to any
Project to any party, whether or not an Affiliate of Borrower and (c) in the
case of any Lender that may assign any interest in its Commitment or Loans
hereunder in accordance with the terms of this Agreement, the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder.
Section 11.19 Waiver of Jury Trial. BORROWER, THE ADMINISTRATIVE AGENT,
--------------------
THE ISSUING BANK AND EACH LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL
OR WRITTEN) OR ACTION OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR
RESPECTIVE RIGHTS UNDER THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOANS,
THE LETTERS OF CREDIT OR THE PROJECTS (INCLUDING, WITHOUT LIMITATION, ANY ACTION
TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT
THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE ISSUING BANK
AND EACH LENDER TO ENTER THIS AGREEMENT.
Section 11.20 Waiver of Punitive or Consequential Damages. None of the
-------------------------------------------
Administrative Agent, the Lenders, the Issuing Bank or Borrower shall be
responsible or liable to the other or to any other Person for any punitive,
exemplary or consequential damages which may be alleged as a result of the
Loans, the Letters of Credit or the transaction contemplated hereby, including
any breach or other default by any party hereto.
Section 11.21 Governing Law.
-------------
(1) THIS AGREEMENT WAS MADE AND ACCEPTED BY THE ADMINISTRATIVE AGENT,
THE ISSUING BANK, LENDERS AND BORROWER IN THE STATE OF NEW YORK, AND THE
PROCEEDS OF THE NOTES DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF
NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL
TIMES THE PROVISIONS FOR THE CREATION, PERFECTION,
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AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT HERETO AND
PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE IN WHICH THE RELEVANT PROJECT IS LOCATED, IT
BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH
STATES, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY
AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING
HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK AND LENDERS HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION
GOVERNS THIS AGREEMENT AND THE NOTES AND THE LETTERS OF CREDIT, AND THIS
AGREEMENT AND THE NOTES AND THE LETTERS OF CREDIT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(2) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE ADMINISTRATIVE
AGENT, ANY LENDER, THE ISSUING BANK OR BORROWER ARISING OUT OF OR RELATING TO
THE LOAN DOCUMENTS MAY AT THE ADMINISTRATIVE AGENT'S OPTION (WHICH DECISION
SHALL BE MADE BY THE MAJORITY LENDERS) BE INSTITUTED IN ANY FEDERAL OR STATE
COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT
MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES
HEREBY AGREE THAT SERVICE OF PROCESS UPON BORROWER MAY BE MAILED OR DELIVERED TO
BORROWER IN THE MANNER HEREIN PROVIDED FOR NOTICES TO BORROWER AND SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE PERSONAL SERVICE OF PROCESS UPON BORROWER IN
ANY SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN THE STATE OF NEW
YORK. BORROWER SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS FOR
BORROWER HEREUNDER.
Section 11.22 Entire Agreement. This Agreement and the other Loan
----------------
Documents embody the entire agreement and understanding between the
Administrative Agent, the Lenders, the Issuing Bank and Borrower and supersede
all prior agreements and understandings between such parties relating to the
subject matter hereof and thereof. Accordingly, the Loan Documents may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties.
Section 11.23 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
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Section 11.24 Assignments and Participations.
------------------------------
(1) Reserved.
--------
(2) Assignments by the Lenders. Each Lender may assign any of its
--------------------------
Loans, its Note, its Commitment and its participations in Letters of Credit (but
only with the consent of the Administrative Agent and, prior to the occurrence
of an Event of Default, the consent of Borrower); provided that:
--------
(a) no such consent by the Administrative Agent shall be required in
the case of any assignment to another Lender or an affiliate of a Lender;
(b) except to the extent the Administrative Agent shall otherwise
consent, any such partial assignment (other than to another Lender or an
affiliate of a Lender) shall be in an amount at least equal to $10,000,000;
(c) each such assignment (including an assignment to another Lender
or an affiliate of a Lender) by a Lender of its Loans or Commitment shall
be made in such manner so that the same portion of its Loans and Commitment
is assigned to the respective assignee;
(d) subject to the applicable Lender's compliance with the provisions
of clauses (b) and (c) above, the Administrative Agent's consent to an
----------- ----
assignment shall not be unreasonably withheld, delayed or conditioned if
(i) in the reasonable judgment of the Administrative Agent, such assignment
is made to a reputable institutional investor with substantial experience
in real estate lending and originating mortgage loans similar to the Loans,
and a financial net worth of at least $100,000,000, (ii) such assignment is
first offered to the Administrative Agent in accordance with the terms and
conditions a separate agency agreement among the Administrative Agent and
the Lenders, and (iii) the provisions of clause (e) have been satisfied;
----------
and
(e) upon execution and delivery by the assignee (even if already a
Lender) to Borrower and the Administrative Agent of an Assignment and
Acceptance pursuant to which such assignee agrees to become a "Lender"
hereunder (if not already a Lender) having the Commitment and Loans
specified in such instrument, and upon consent thereto by the
Administrative Agent and Borrower to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise
consented to by the Administrative Agent), the obligations, rights and
benefits of a Lender hereunder holding the Commitment and Loans (or
portions thereof) assigned to it (in addition to the Commitment and Loans,
if any, theretofore held by such assignee) and the assigning Lender shall,
to the extent of such assignment, be released from the Commitment (or
portion thereof) so assigned. Upon each such assignment the assigning
Lender shall pay the Administrative Agent a processing and recording fee of
$3,500 and the reasonable fees and disbursements of the Administrative
Agent's counsel incurred in connection therewith.
(3) Participations. A Lender may sell or agree to sell to one or more
--------------
other Persons (each a "Participant") a participation in all or any part of any
-----------
Loans held by it, or in its
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Commitment or in its participation in any Letter of Credit, provided that such
--------
Participant shall not have any rights or obligations under this Agreement or any
Note or any other Loan Document (the Participant's rights against such Lender in
respect of such participation to be those set forth in the agreements executed
by such Lender in favor of the Participant). All amounts payable by Borrower to
any Lender under Section 2.11 in respect of Loans held by it, its Commitment and
------------
interests in any Letter of Credit shall be determined as if such Lender had not
sold or agreed to sell any participations in such Loans, Commitment and
interests in any Letter of Credit and as if such Lender were funding each of
such Loans and Commitment or participation in any Letter of Credit in the same
way that it is funding the portion of such Loans and Commitment or participation
in any Letter of Credit in which no participations have been sold. In no event
shall a Lender that sells a participation agree with the Participant to take or
refrain from taking any action hereunder or under any other Loan Document except
that such Lender may agree with the Participant that it will not, without the
consent of the Participant, agree to (i) increase or extend the term of such
Lender's Commitment, (ii) extend the date fixed for the payment of principal of
or interest on the related Loan or Loans or any portion of any fee hereunder
payable to the Participant, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee (except that such Lender
may, without such Participant's consent, waive the requirement that interest be
paid at the Default Rate) or (v) consent to any modification, supplement or
waiver hereof or of any of the other Loan Documents to the extent that the same,
under Section 11.2, requires the consent of each Lender.
------------
(4) Certain Pledges. In addition to the assignments and
---------------
participations permitted under the foregoing provisions of this Section 11.24
-------------
(but without being subject thereto), any Lender may (without notice to Borrower,
the Administrative Agent or any other Lender and without payment of any fee)
assign and pledge all or any portion of its Loans and its Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any operating
circular issued by such Federal Reserve Bank, and such Loans and Note shall be
fully transferable as provided therein. No such assignment shall release the
assigning Lender from its obligations hereunder.
(5) Provision of Information to Assignees and Participants. A Lender
------------------------------------------------------
may furnish any information concerning Borrower or any of its Affiliates in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants), provided that such assignees
-------- ----
and participants (including prospective assignees and participants) agree to
keep such information confidential in accordance with Section 11.17(2).
----------------
(6) No Assignments to Borrower or Affiliates. Anything in this
----------------------------------------
Section 11.24 to the contrary notwithstanding, no Lender may assign or
-------------
participate any interest in any Loan held by it hereunder to Borrower or any of
its Affiliates without the prior consent of each Lender.
Section 11.25 Release. Each of Borrower and Guarantor releases, acquits
-------
and forever discharges the Administrative Agent and each Lender and all
subsidiaries, affiliates, officers, directors, shareholders, agents, employees,
servants, attorneys and representatives of the Administrative Agent and the
Lender, as well as their respective successors and assigns (hereinafter
collectively being referred to as the "Released Parties") of and from any and
----------------
all
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<PAGE>
claims, demands, debts, losses, costs, expenses, proceedings, judgments,
damages, actions, causes of action, suits, contracts, agreements, obligations,
accounts, defenses, offsets and liabilities of any kind or character whatsoever,
known or unknown, suspected or unsuspected, in contract or in tort, at law or in
equity, including, without limitation, such claims and defenses as fraud,
mistake, duress and usury, which the Borrower and/or the Guarantor ever had, now
have or might hereafter have against the Released Parties, or any of them,
jointly or severally, for or by reason of any matter, cause or thing whatsoever,
which relates to, is based on, or arises out of, by reason of or in connection
with, in whole or in part, directly or indirectly, any act, omission, fact,
circumstance or condition existing on or prior to the Closing Date in connection
with the origination, servicing, administration and/or collection of the Loans.
ARTICLE 12
NEGATIVE COVENANTS
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, Borrower covenants and agrees with the Lenders that:
Section 12.1 Indebtedness and Other Financial Covenants.
------------------------------------------
(1) Financial Covenants. For the period from and after the date
-------------------
hereof:
(a) Limitations on Indebtedness. The Consolidate Business shall not
---------------------------
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except
Indebtedness which would not exceed, at any time, seventy-five percent
(75%) of Total Value ("Total Outstanding Indebtedness Limitation"). In
-----------------------------------------
addition, the Company shall not incur, directly or indirectly, any
Indebtedness other than the Guaranty and the Unsecured Debt.
(b) Minimum Fixed Charge Coverage Ratio. Borrower shall not at any
-----------------------------------
time permit the ratio of (A) Total Adjusted EBITDA to (B) Fixed Charges for
the trailing four (4) calendar quarters to be less than: (i) 1.4 to 1 at
any time the Loan-to-Value Ratio is 75% or more; (ii) 1.45 to 1 at any time
the Loan-to-Value Ratio is more than 70%, but less than 75%; and (iii) 1.5
to 1 at any time the Loan-to-Value Ratio is 70% or less.
(c) Restrictions on Stock Buyback. The Company shall not, without the
-----------------------------
prior written consent of the Required Lenders, make any payment on account
of the purchase, redemption, retirement or acquisition of (1) any shares of
the Company's capital stock, or (2) any option, warrant or other right to
acquire shares of the Company's capital stock; provided, however, that (x)
-------- -------
provided no Event of Default or Borrowing Base Imbalance Exists, payments
may be made in respect of the purchase or acquisition from departing
management level employees of the Company of restricted securities of the
Company held by such employee, but not more than $1,000,000 in the
aggregate, and (y) after the satisfaction in full of the REIT Debt and
provided no Event of Default or Borrowing Base Imbalance exists, payments
may be made in respect of the purchase, redemption,
94
<PAGE>
retirement or acquisition of any of the securities described in the
foregoing clauses (1) or (2) without the prior written consent of the
Required Lenders if such payments are (A) made to management leaving the
Company and (B) not in excess of $20,000,000 in the aggregate in any
calendar year.
(d) Maximum Loan-to-Value Ratio. At no time will the Borrower permit
---------------------------
the Loan-to-Value Ratio to exceed (a) 75% at any time from and after June
30, 2001 and (b) 70% at any time from and after December 31, 2001.
(2) Negative Pledge. From and after the date hereof, neither Borrower
---------------
nor the Company will, and will not permit any Subsidiary to, enter into any
agreement containing any provision prohibiting the creation or assumption of any
Lien upon any Eligible Projects, or restricting the ability of Borrower to amend
or modify this Agreement or any other Loan Document.
(3) Compliance. Borrower shall comply with the financial ratios set
----------
forth in this Section 12.1 as of the date of (and giving effect to) each
------------
Borrowing.
Section 12.2 Liens. Borrower will not, and will not permit any Subsidiary
-----
to, create, incur, assume or permit to exist any Lien on any property or asset
now owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) Liens with respect to capital leases of equipment entered into in
the ordinary course of business of Borrower pursuant to which the aggregate
Indebtedness under such capital leases does not exceed $5,000,000 for any
Property; and
(c) Liens securing Secured Indebtedness, to the extent permitted
under Section 12.1(1)(a).
------------------
Section 12.3 Fundamental Changes.
-------------------
(1) Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
its assets (in each case, whether now owned or hereafter acquired), or liquidate
or dissolve, except (subject to Section 9.13):
------------
(i) in connection with the issuance, transfer, conversion or
repurchase of limited partnership interests in Borrower, and
(ii) if, at the time thereof and immediately after giving effect
thereto, no Potential Default, Event of Default or Borrowing Base Imbalance
shall have occurred and be continuing: (a) any Person may merge into
Borrower in a transaction in which Borrower is the surviving corporation
and (b) any Person may merge into any Subsidiary in a transaction in which
the surviving corporation is a Subsidiary.
95
<PAGE>
(2) Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
Section 12.4 Investments, Loans, Advances, Guarantees and Acquisitions.
---------------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) Investments in real property; provided that (i) the aggregate
-------- ----
Investments by Borrower and its consolidated Subsidiaries in unimproved
real property and properties under construction shall not exceed 10% of
Total Value, and (ii) Properties that are not located in the States of
Washington, California, Oregon, Arizona, Nevada, Utah or Idaho, shall not
exceed 10% of Total Value;
(c) Investments (including loans) in Borrower's Subsidiaries;
(d) Investments in notes secured by mortgages on any real property of
any Person; provided that the aggregate investments of the type set forth
-------------
in this clause (d) shall not exceed 10% of Total Value; and
(e) additional Investments in an amount outstanding at any time not
to exceed $10,000,000.
Section 12.5 Hedging Agreements. Borrower will not, and will not permit
------------------
any of its Subsidiaries to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
Section 12.6 Transactions with Affiliates. Neither Borrower nor any of
----------------------------
its Subsidiaries shall directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of
Borrower, or with any Affiliate of Borrower which is not its Subsidiary, on
terms less favorable to Borrower or any of its Subsidiaries, as applicable, than
those that might be obtained in an arm's length transaction at the time from
Persons who are not such a holder or Affiliate. Nothing contained in this
Section 12.6 shall prohibit (a) increases in compensation and benefits for
------------
officers and employees of Borrower or any of its Subsidiaries which are
customary in the industry or consistent with the past business practice of
Borrower or such Subsidiary, provided that no Event of Default or Default has
-------- ----
occurred and is continuing; (b) payment of customary partners' indemnities; or
(c) performance of any obligations arising under the Loan Documents;
96
<PAGE>
or (d) the performance by the Company and Borrower of their obligations under
the Lazard Agreements.
Section 12.7 Margin Regulations; Securities Laws. Neither Borrower nor
-----------------------------------
any of its Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry "margin stock" within
the meaning of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
Section 12.8. Negative Covenants of the Company.
---------------------------------
(a) The Company will not acquire any assets of any nature whatsoever,
other than additional units in Borrower and, to the extent permitted hereunder,
REIT Debt.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (x) in its capacity
as the general partner of Borrower in connection with transactions entered into
in the ordinary course of business, (y) Indebtedness, the net proceeds of which
are contributed to Borrower simultaneously with the incurrence thereof by the
Company and (z) a refinancing of the REIT Debt.
(c) From and after the date hereof, the Company will not retain any
Net Offering Proceeds, and the same will be contributed by the Company to
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in Borrower. Notwithstanding the foregoing, but subject to Section 9.13, the
------------
Company shall be permitted to merge with another Person so long as the Company
is the surviving Person following such merger.
ARTICLE 13
THE ADMINISTRATIVE AGENT
------------------------
Section 13.1 Appointment, Powers and Immunities. Each Lender hereby
----------------------------------
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 13.5 and the first sentence of Section 13.6 shall
------------ ------------
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Loan Documents, and shall not
by reason of this Agreement or any other Loan Document be a trustee for any
Lender;
97
<PAGE>
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Loan Document, or in any certificate or other document referred
to or provided for in, or received by any of them under, this Agreement or
any other Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note or
any other Loan Document or any other document referred to or provided for
herein or therein or for any failure by Borrower or any other Person to
perform any of its obligations hereunder or thereunder; and
(c) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Loan Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except to the extent any such action
taken or omitted violates the Administrative Agent's standard of care set
forth in the first sentence of Section 13.5.
------------
The Administrative Agent may employ agents and attorneys-in-fact, and may
delegate all or any part of its obligations hereunder, to third parties and
shall not be responsible for the negligence or misconduct of any such agents,
attorneys-in-fact or third parties selected by it in good faith. The
Administrative Agent may deem and treat the payee of a Note as the holder
thereof for all purposes hereof unless and until a notice of the assignment or
transfer thereof shall have been filed with the Administrative Agent.
Section 13.2 Reliance by Administrative Agent. The Administrative Agent
--------------------------------
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders, and such instructions of the Majority Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
Section 13.3 Defaults. The Administrative Agent shall not be deemed to
--------
have knowledge or notice of the occurrence of a Potential Default or Event of
Default unless the Administrative Agent has received notice from a Lender or
Borrower specifying such Potential Default or Event of Default and stating that
such notice is a "Notice of Default". In the event that the Administrative
Agent receives such a notice of the occurrence of a Potential Default or Event
of Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section 13.7) take such
------------
action with respect to such Potential Default or Event of Default and other
matters relating to the Loans as shall be directed by the Lenders in accordance
with a separate agreement entered into by the Administrative Agent and the
Lenders.
Section 13.4 Rights as a Lender. With respect to GECC's Commitment and
------------------
the Loans made by it, GECC (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may
98
<PAGE>
exercise the same as though it were not acting as the Administrative Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. GECC (and any
successor acting as Administrative Agent) and its affiliates (including CMF
Capital Company, LLC) may (without having to account therefor to any Lender)
lend money to, make investments in and generally engage in any kind of lending,
trust or other business with Borrower (and any of its Affiliates and any Persons
acquiring Properties from Borrower and any of its Affiliates) as if it were not
acting as the Administrative Agent, and GECC and its affiliates (including CMF
Capital Company, LLC) may accept fees and other consideration from Borrower for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
Section 13.5 Standard of Care; Indemnification. In performing its duties
---------------------------------
under the Loan Documents, the Administrative Agent will exercise the same degree
of care as GECC normally exercises in connection with real estate loans in which
no syndication or participations are involved, but the Administrative Agent
shall have no further responsibility to any Lender except as expressly provided
herein and except for its own gross negligence or willful misconduct which
resulted in actual loss to such Lender, and, except to such extent, the
Administrative Agent shall have no responsibility to any Lender for the failure
by the Administrative Agent to comply with any of the Administrative Agent's
obligations to Borrower under the Loan Documents or otherwise. The Lenders
agree to indemnify the Administrative Agent (to the extent not reimbursed under
Section 11.5, but without limiting the obligations of Borrower under Section
------------ -------
11.5) ratably in accordance with the aggregate principal amount of the Loans
----
held by the Lenders (or, if no Loans are at the time outstanding, ratably in
accordance with their respective Commitments), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including by any
Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses that Borrower is obligated to pay under Section 11.5, but
------------
excluding, unless a Event of Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
--------
foregoing to the extent they arise from the Administrative Agent's breach of its
standard of care set forth in the first sentence of this Section.
Section 13.6 Non-Reliance on Administrative Agent and Other Lenders. Each
------------------------------------------------------
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
Borrower and its Affiliates and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or under any other Loan
Document. Subject to the provisions of the first sentence of Section 13.5, the
------------
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by Borrower of this Agreement or any of the other Loan
Documents
99
<PAGE>
or any other document referred to or provided for herein or therein or to
inspect the Project or the books of Borrower or any of its Affiliates. Except
for notices, reports and other documents and information expressly required to
be furnished to the Lenders by the Administrative Agent hereunder or as
otherwise agreed by the Administrative Agent and the Lenders, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of Borrower or any of its Affiliates that may come into the possession
of the Administrative Agent or any of its affiliates.
Section 13.7 Failure to Act. Except for action expressly required of the
--------------
Administrative Agent hereunder, and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 13.5 against any and all liability and expense that
------------
may be incurred by it by reason of taking or continuing to take any such action.
Section 13.8 Resignation of Administrative Agent. The Administrative
-----------------------------------
Agent may resign at any time by giving notice thereof to the Lenders and
Borrower. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent which shall be a financial
institution that has (a) an office in New York, New York with a combined capital
and surplus of at least $500,000,000, (b) knowledge and experience comparable to
the resigning Administrative Agent's knowledge and experience in the servicing
of loans similar to the Loans hereunder and (c) unless the successor
Administrative Agent is a Lender or an Event of Default exits and is continuing,
been reasonably approved of by the Borrower (such approval not to be
unreasonably withheld or delayed). If no successor Administrative Agent shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation of the retiring Administrative Agent, then the retiring
Administrative Agent's resignation shall nonetheless become effective and (i)
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and (ii) the Majority Lenders shall perform the duties of
the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Majority Lenders appoint a
successor agent as provided for above in this Section 13.8. Upon the acceptance
------------
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this Section
-------
13.8). The fees payable by Borrower to a successor Administrative Agent shall
----
be the same as those payable to its predecessor unless otherwise agreed between
Borrower and such successor. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article 13
----------
and Section 11.5 shall continue in effect for its benefit in respect of any
------------
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
Section 13.9 Limitation on Liability of the Administrative Agent's, the
----------------------------------------------------------
Issuing Bank's and the Lenders' Officers, Employees, etc. Any obligation or
--------------------------------------------------------
liability whatsoever of the
100
<PAGE>
Administrative Agent, the Issuing Bank or any Lender which may arise at any time
under this Agreement or any other Loan Document shall be satisfied, if at all,
out of the Administrative Agent's, the Issuing Bank's or such Lender's
respective assets only. No such obligation or liability shall be personally
binding upon, nor shall resort for the enforcement thereof be had to, the
property of any of the Administrative Agent's, the Issuing Bank's or any
Lender's shareholders, directors, officers, employees or agents, regardless of
whether such obligation or liability is in the nature of contract, tort or
otherwise.
[Signature Pages Follow]
<PAGE>
EXECUTED as of the date first written above.
LENDER: GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation
By:____________________________________
Name:
Title:
Address for Notices:
125 Park Avenue
New York, New York 10017
Attention: Asset Manager - Center Trust
Telecopier No.: (212) 573-9733
Lending Office for Eurodollar and
Alternate Base Rate Loans:
125 Park Avenue
New York, New York 10017
Attention: Asset Manager - Center Trust
Telecopier No.: (212) 573-9733
<PAGE>
BORROWER: CT OPERATING PARTNERSHIP, L.P.,
a California limited partnership
By: Center Trust, Inc., a Maryland corporation,
its general partner
By:______________________________________________
Name:
Title:
Address for Notices:
3500 Sepulveda Boulevard
Manhattan Beach, California 90266
Attention: Steven M. Jaffe, Esq.
Telecopier No.: 310-546-3396
With a copy to:
--------------
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, California 90071
Attention: Glen B. Collyer, Esq.
Telecopier No.: 213-891-8763
<PAGE>
ADMINISTRATIVE AGENT: GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, as Administrative Agent
By_________________________
Name:
Title:
Address for Notices to the
Administrative Agent:
125 Park Avenue
New York, New York 10017
Attention: Asset Manager - Center Trust
Telecopier No.: (212) 573-9733
<PAGE>
EXHIBIT A
---------
[Form of Note]
PROMISSORY NOTE
$_______________ _________ __, 2000
New York, New York
FOR VALUE RECEIVED, CT OPERATING PARTNERSHIP, L.P., a California
limited partnership (the "Borrower"), hereby promises to pay to the order of
--------
__________________ (the "Lender"), for account of its respective Applicable
------
Lending Offices provided for by the Agreement referred to below, at the
principal office of General Electric Capital Corporation at 125 Park Avenue, New
York, New York 10017, the principal sum of _______________ Dollars (or such
lesser amount as shall equal the aggregate unpaid principal amount of the Loans
made by the Lender to the Borrower under the Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Agreement, and to pay interest on the
unpaid principal amount of each such Loan, at such office, in like money and
funds, for the period commencing on the date of such Loan until such Loan shall
be paid in full, at the rates per annum and on the dates provided in the
Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
--------
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Agreement or hereunder in respect of the Loans made by
the Lender.
This Note is one of the Notes referred to in the Amended and Restated
Loan Agreement dated as of December __, 2000 (as modified and supplemented and
in effect from time to time, the "Agreement") between the Borrower, the lenders
---------
party thereto (including the Lender) and General Electric Capital Corporation,
as Administrative Agent, and evidences Loans made by the Lender thereunder.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Agreement.
The Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Sections 11.9 and 11.24 of the Agreement, this
Note may not be assigned by the Lender to any other Person.
C-1
<PAGE>
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
CT OPERATING PARTNERSHIP, L.P.,
a California limited partnership
By: Center Trust, Inc., a Maryland
corporation, its general partner
By:___________________________________
Name:
Title:
A-2
<PAGE>
SCHEDULE OF LOANS
This Note evidences Loans made, Continued or Converted under the
within-described Agreement to the Borrower, on the dates, in the principal
amounts, of the Types, bearing interest at the rates and having Interest Periods
(if applicable) of the durations set forth below, subject to the payments,
Continuations, Conversions and prepayments of principal set forth below:
Amount
Date Prin- Paid,
Made, cipal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prin-
or of of Interest Interest or cipal Notation
Converted Loan Loan Rate Period Converted Amount Made by
----------- ---- ------ -------- -------- --------- -------- -------
A-3
<PAGE>
EXHIBIT B
---------
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to (a) the Amended and Restated Loan Agreement dated
as of _________ __, 2000 (as amended and in effect on the date hereof, the
"Agreement"), between CT OPERATING PARTNERSHIP, L.P., the Lenders named therein
---------
and GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent for the
Lenders and (b) the Agency Agreement dated as of _______ __, 2000 (the "Agency
------
Agreement") among the Administrative Agent and each Lender, which is the
---------
agreement referenced in the last sentence of Section 13.3 of the Agreement.
Terms defined in the Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse,
to the Assignee named below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
-----------------
Assignor's rights and obligations under the Agreement, including, without
limitation, the interests set forth below in the Commitment of the Assignor on
the Assignment Date and Loans owing to the Assignor which are outstanding on the
Assignment Date, together with (a) interest on the assigned Loans from and after
the Assignment Date and (b) the amount, if any, set forth below of the fees
accrued to the Assignment Date for the account of the Assignor. The Assignee
hereby acknowledges receipt of a copy of the Agreement and the Agency Agreement.
From and after the Assignment Date (i) the Assignee shall be a party to and be
bound by the provisions of (x) the Agreement and (y) the Agency Agreement and,
in each case, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Agreement and the Agency Agreement as of the Assignment Date.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with, if the Assignee is not already a Lender
under the Agreement, an administrative questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The [Assignee/Assignor]
shall pay the fee payable to the Administrative Agent pursuant to Section
11.24(2)(e) of the Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of _______.
The Assignor represents and warrants to the Assignee that the Assignor
is the legal and beneficial owner of the Assigned Interest and has not created
any adverse interest therein. The Assignor and the Assignee represent and
warrant to each other that they are, respectively, authorized to execute and
deliver this Assignment and Acceptance.
B-1
<PAGE>
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date")/1/:
---------------
Percentage Assigned of
Facility/Commitment
(set forth, to at
least 4 decimals, as a
percentage of the
Facility and the
aggregate Commitments
Principal Amount of all Lenders
Assigned thereunder
-------- ----------
[Commitment Assigned: $ %]
Loans: $ %
[Fees Assigned (if any):]
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
------------------------
By:_________________________
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
------------------------
By:_________________________
Name:
Title:
The undersigned hereby consent to the within assignment:/2/
________________
/1/ Must be at least five Business Days after execution hereof by all
required parties.
B-2
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By:_________________________
Name:
Title:
CT OPERATING PARTNERSHIP, L.P.,
a California limited partnership
By: Center Trust, Inc., a Maryland corporation,
its general partner
By:_______________________________________
Name:
Title:
___________
/2/ Consent to be included to the extent required by Section 11.24(2) of
the Agreement.
B-3
<PAGE>
EXHIBIT C
FORM OF
BORROWING BASE CERTIFICATE
TO: General Electric Capital Corporation, as Administrative Agent
FROM: CT Operating Partnership, L.P.
DATE: __________, 200_
Pursuant to the provisions of the Amended and Restated Loan Agreement dated as
of December ____, 2000, among CT Operating Partnership, L.P. (the "Borrower"),
the financial institutions party thereto, and General Electric Capital
Corporation as administrative agent for said financial institutions (as the same
may be amended or otherwise modified from time to time, the "Loan Agreement";
and the initially capitalized terms used herein without definition and which are
defined in the Loan Agreement shall have the meanings given to such terms in the
Loan Agreement), the undersigned hereby certifies that the following information
is true, complete and accurate in all material respects as of the close of
business on __________, 200_.
1. Schedule 1 attached hereto accurately and completely sets forth,
as of the date hereof, (i) all Projects owned or leased by the Borrower, (ii)
for each Project, the Underwritten Value thereof, (iii) the Cash on Cash Return,
(iv) the Debt Service Coverage calculated as of the first day of the current
fiscal quarter for the trailing four-quarter period, (v) the Borrowing Base,
(vi) the Blocked Availability, and (viii) the Available Credit.
2. Borrower represents and warrants to the Lenders that each of the
Projects is Unencumbered and otherwise meets the requirements for Eligible
Projects set forth in the Loan Agreement (except to the extent such requirements
have been waived by the Administrative Agent and the Majority Lenders in
accordance with the Loan Agreement). Submitted herewith, with respect to each
such Eligible Project (to the extent not previously delivered) are copies of the
Eligible Project Documents for each such Eligible Project. Each such Eligible
Project is a Project in respect of which Mortgage Documents have been delivered
to the Administrative Agent prior to the date hereof or concurrently herewith.
3. The representations and warranties of the Borrower and the Company
contained in the Loan Agreement and in each of the other Loan Documents are true
and correct in all material respects as though made on and as of the date hereof
(it being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
C-1
<PAGE>
4. No Potential Default, Event of Default or Borrowing Base Imbalance
has occurred and is continuing.
Authorized Signature: ________________________ Date: _____________
Title: Chief Financial Officer
C-2
<PAGE>
EXHIBIT D
FORM OF
COMPLIANCE CERTIFICATE
This COMPLIANCE CERTIFICATE is delivered pursuant to that certain
Amended and Restated Loan Agreement, dated as of December ___, 2000 (the "Loan
Agreement") among CT Operating Partnership, L.P. (the "Borrower"), the financial
--------
institutions party thereto (collectively, the "Lenders"), and General Electric
-------
Capital Corporation, as administrative agent for said financial institutions
(the "Administrative Agent"). Capitalized terms not defined herein shall have
--------------------
the same meanings ascribed thereto in the Loan Agreement. The undersigned
hereby certifies that the following information is true, correct and complete in
all material respects as of the date hereof.
The Company is the sole general partner of Borrower.
The individual executing this Certificate is the duly qualified Chief Financial
Officer of the Company and is executing this Certificate on behalf of the
Borrower.
The undersigned has reviewed the terms of the Loan Documents and has made a
review in reasonable detail of the transactions and consolidated financial
condition and other affairs of the Company and/or the Borrower and each of its
Subsidiaries and Unconsolidated Entities as of, and during the fiscal quarter
ending _______, 200_, and the undersigned has no knowledge of the existence, as
of the date hereof, of any condition or event which (i) renders untrue or
incorrect in any material respect, any of the representations and warranties of
the Borrower and/or the Company contained in the Loan Agreement and/or the other
Loan Documents (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date), or
(ii) constitutes a Potential Default or Event of Default or mandatory prepayment
event under Section 2.7 of the Loan Agreement [or, if any such condition or
event existed or exists, specifying the nature and period of existence thereof
and what action the Company and/or the Borrower or any of its Subsidiaries has
taken, is taking and proposes to take with respect thereto.]
Schedule I attached hereto accurately and completely sets forth the financial
data, computations and other matters required to establish compliance with the
following parts of Section 12.1 of the Loan Agreement:
(a) Limitations on Indebtedness;
D-1
<PAGE>
(b) Minimum Fixed Charge Coverage Ratio; and
(c) Maximum Loan-to-Value Ratio.
The aggregate outstanding principal amount of the Loans and the LC Exposure as
of the date hereof is equal to or less than the lower of (i) the effective
Commitments of the Lenders, and (ii) the applicable Borrowing Base, in each
case, as of the date hereof.
The Lenders, the Administrative Agent and the Issuing Bank and their
respective successors and assigns may rely on the truth and accuracy of the
foregoing in connection with the extensions of credit to the Borrower pursuant
to the Loan Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
D-2
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Compliance
Certificate to be duly executed by its duly authorized Chief Financial Officer
this ___ day of ____________, 200_
CT OPERATING PARTNERSHIP, L.P.
By: Center Trust, Inc., general partner
By:______________________________
Name: Chief Financial Officer
D-3
<PAGE>
SCHEDULE 1
----------
COMMITMENTS
-----------
LENDER COMMITMENT
------ ----------
General Electric Capital Corporation $193,000,000
<PAGE>
SCHEDULE 2.1
------------
ADVANCE CONDITIONS
------------------
Part A - Initial Advance
Part B - General Conditions
PART A. CONDITIONS TO INITIAL ADVANCE.
---------------------------------------
The initial advance of the Loans and/or issuance of Letters of Credit shall
be subject to the Administrative Agent's and each Lender's receipt, review,
approval and/or confirmation of the following, at Borrower's cost and expense,
each in form and content satisfactory to the Administrative Agent and each
Lender in their sole discretion:
1. The Loan Documents, executed by Borrower and, as applicable, each
Borrower Party.
2. [RESERVED]
3. An ALTA (or equivalent) mortgagee policy of title insurance in the
maximum amount of the Loans, with reinsurance and endorsements as the
Administrative Agent may require, containing no exceptions to title (printed or
otherwise) which are unacceptable to the Administrative Agent, and insuring that
the Mortgage is a first-priority Lien on the Project and related collateral.
Without limitation, such policy shall (a) be in the 1970 ALTA (as amended 84)
form or, if not available, ALTA 1992 form (deleting arbitration and creditors'
rights, if permissible) or, if not available, the form commonly used in the
state where the property is located, insuring the Administrative Agent (on
behalf of the Lenders) or any and its successors and assigns; and (b) include
the following endorsements and/or affirmative coverages: (1) ALTA 9
Comprehensive, (2) Survey, (3) ALTA 3.1 Zoning (with additional coverage for
number and type of parking spaces), (4) Usury, (5) Doing Business, (6) Access,
(7) Separate Tax Lot, (8) Environmental Protection Lien, (9) Subdivision, (10)
Contiguity, (11) Tax Deed (as applicable), (12) Mortgage Recording Tax (as
applicable), (13) First Loss, (14) GAP Coverage, (15) Lost Dollar, (16) Legal
Same as Survey, (17) Tie-In, (18) Variable Rate, (19) Revolving Credit and (20)
Waiver of Arbitration.
4. All documents evidencing the formation, organization, valid existence,
good standing, and due authorization of and for Borrower and each Borrower Party
for the execution, delivery, and performance of the Loan Documents by Borrower
and each Borrower Party.
5. Legal opinions issued by counsel for Borrower and each Borrower Party,
opining as to the due organization, valid existence and good standing of
Borrower and each Borrower Party, and the due authorization, execution,
delivery, enforceability and validity of the Loan Documents with respect to,
Borrower and each Borrower Party; that the Loans, as reflected in the Loan
Documents, are not usurious; to the extent that the Administrative Agent is not
otherwise satisfied, that each Project and its use is in full compliance with
all legal requirements; and as to such other matters as the Administrative Agent
and the Administrative Agent's counsel reasonably may specify.
Schedule 2.1 - 1
<PAGE>
6. Current Uniform Commercial Code searches, and litigation, bankruptcy
and judgment reports as requested by the Administrative Agent, with respect to
Borrower and the Borrower Parties.
7. Evidence of insurance as required by this Agreement, and conforming in
all respects to the requirements of the Administrative Agent.
8. A current "as-built" survey of each Project, dated or updated to a
date not earlier than thirty (30) days prior to the date hereof, certified to
the Administrative Agent (on behalf of the Lenders) and the issuer of the title
insurance, prepared by a licensed surveyor acceptable to the Administrative
Agent and the issuer of the title insurance, and conforming to the
Administrative Agent's current standard survey requirements, which may include
certification to additional participants, co-lenders and/or investors in a
Secondary Market Transaction. Without limitation, the minimum requirements for
the survey shall be as set forth in the 1997 Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys, "Urban Survey" classification,
with the following additional items from Table A, "Optional Survey
Responsibilities and Specifications": "2" (vicinity map showing nearby highway
or major intersection), "3" (flood zone designation), "4" (land area), "6"
(setbacks, height and bulk restrictions), "8" (other visible improvements), "9"
(parking areas), "10" (access to public way, driveway and curb cuts), "11"
(utilities), and "13" (other significant observations).
9. A current engineering report or architect's certificate with respect
to the Project, covering, among other matters, inspection of heating and cooling
systems, roof and structural details, showing no failure of compliance with
building plans and specifications, applicable legal requirements (including
requirements of the Americans with Disabilities Act) and fire, safety and health
standards and reviewing and approving, among other matters, soil tests, plans
and specifications (including heating, ventilation and cooling systems, roof and
structural details, mechanical and electrical systems), and compliance with
local, state or federal laws, regulations, codes, etc., and containing a
----
declaration satisfactory to the Administrative Agent that there will be no
asbestos in the Project. The engineer/architect preparing such report or
certificate must be satisfied that the Project is in compliance with fire,
safety and health standards which such engineer/architect deems reasonable, in
addition to standards imposed by law, regulation or codes. As requested by the
Administrative Agent, such report shall also include an assessment of the
Project's tolerance for earthquake and seismic activity.
10. A current Site Assessment.
11. All appraisals, environmental reports, building condition reports and
Site Assessments delivered to Lender prior to the execution of this Agreement
shall be certified to the Administrative Agent (on behalf of the Lenders and
their successors and assigns) without modification or change thereto in the form
reasonably requested by the Administrative Agent which may include certification
to additional participants, co-lenders and/or investors in a Secondary Market
Transaction.
12. A current rent roll of each Project, certified by Borrower. Such rent
roll shall include the following information: (a) tenant names; (b) unit/suite
numbers; (c) area of each demised premises and total area of the Project (stated
in net rentable square feet); (d) rental rate
Schedule 2.1 - 2
<PAGE>
(including escalations) (stated in gross amount and in amount per net rentable
square foot per year); (e) lease term (commencement, expiration and renewal
options); and (f) security deposit. In addition, Borrower shall provide the
Administrative Agent with a copy of the standard lease form to be used by
Borrower in leasing space in the Project, and, at the Administrative Agent's
request, true and correct copies of all leases of the Project.
13. A copy of the management agreement for each Project, certified by
Borrower as being true, correct and complete.
14. Evidence that (a) the Project and the operation thereof comply with
all legal requirements, including that all requisite certificates of occupancy,
building permits, and other licenses, certificates, approvals or consents
required by any governmental authority have been issued without variance or
condition, (b) following any casualty, the improvements which form a part of the
Project may be reconstructed and the current use thereof restored, and (c) that
there is no litigation, action, citation, injunctive proceedings, or like matter
pending or threatened with respect to the validity of such matters. At the
Administrative Agent's request, Borrower shall furnish the Administrative Agent
with a zoning endorsement to the Administrative Agent's title insurance policy,
zoning letters from applicable municipal agencies, and utility letters from
applicable service providers.
15. No change shall have occurred in the financial condition of Borrower
or any Borrower Party or in the Net Operating Income of the Borrower, or in the
financial condition of any major or anchor tenant, which would have, in the
Administrative Agent's or any Lender's judgment, a material adverse effect on
the Projects taken as a whole or on Borrower's or any Borrower Party's ability
to repay the Loans or otherwise perform its obligations under the Loan
Documents. Further, there shall not exist any material default by Borrower or
any principal in Borrower (or any entity owned or controlled by any of them)
under any loan, financing or similar arrangement with any Lender.
16. No condemnation or adverse zoning or usage change proceeding shall
have occurred or shall have been threatened against the Project; the Project
shall not have suffered any significant damage by fire or other casualty which
has not been repaired; no structural change to the Project shall have occurred
or to any of the Improvements thereon; no law, regulation, ordinance,
moratorium, injunctive proceeding, restriction, litigation, action, citation or
similar proceeding or matter shall have been enacted, adopted, or threatened by
any third party or governmental authority, which would have, in the
Administrative Agent's or any Lender's judgment, a material adverse effect on
Borrower, any Borrower Party or the Projects taken as a whole.
17. [RESERVED]
18. [RESERVED]
19 [RESERVED]
20. The Administrative Agent shall have received (i) a Borrowing Base
Certificate, dated the date hereof and signed by a Responsible Officer, together
with copies of the Eligible Project Documents in respect of each of the Eligible
Projects shown listed thereon to the extent
Schedule 2.1 - 3
<PAGE>
not previously delivered, and (ii) a Compliance Certificate, dated the Closing
Date and signed by a Responsible Officer, in each case reasonably satisfactory
to the Administrative Agent.
21. The Administrative Agent shall have received Mortgage Documents in
respect of each of the Projects including, without limitation, the payments
specified in clause (g) of the definition of Mortgaged Documents.
22. All fees and commissions, if any, payable to real estate brokers,
mortgage brokers, or any other brokers or agents in connection with the Loans or
the acquisition of the Projects have been paid, such evidence to be accompanied
by any waivers or indemnifications deemed necessary by the Administrative Agent.
23. Payment of the Administrative Agent's reasonable costs and expenses in
underwriting, documenting, and closing the transaction, including reasonable
fees and expenses of the Administrative Agent's inspecting engineers,
consultants, and outside counsel.
24. Estoppel certificates and Subordination and Attornment Agreements from
tenants, as requested by the Administrative Agent.
25. As requested by Administrative Agent, service contracts, warranties,
licenses and permits, applicable to the operation or use of each Project.
26. [RESERVED]
27. Such other documents or items as the Administrative Agent or its
counsel reasonably may require.
28. The representations and warranties contained in this Loan Agreement
and in all other Loan Documents are true and correct in all material respects.
29. No Potential Default or Event of Default shall have occurred or exist.
PART B. GENERAL CONDITIONS
---------------------------
Each advance of the Loans and each issuance, amendment, renewal or
extension of a Letter of Credit following the initial advance and/or issuance
shall be subject to the Administrative Agent's receipt, review, approval and/or
confirmation of the following, each in form and content satisfactory to the
Administrative Agent in its sole discretion:
1. There shall exist no Potential Default or Event of Default (currently
and after giving effect to the requested advance) on and as of the date of the
Borrowing or the date of the issuance, amendment, renewal or extension of a
Letter of Credit, as applicable.
2. The representations and warranties contained in this Loan Agreement
and in all other Loan Documents are true and correct in all material respects on
and as of the date of the Borrowing or the date of the issuance, amendment,
renewal or extension of a Letter of Credit, as applicable.
Schedule 2.1 - 4
<PAGE>
3. Borrower has not received written notice from the Majority Lenders
that an event has occurred since the date of this Agreement which has had, and
continues to have, or is reasonable likely to have, a Material Adverse Effect.
4. The making of such Loan or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, on such date does not violate
any requirement of law and is not enjoined, temporarily, preliminary or
permanently.
5. The Administrative Agent shall have received a Borrowing Base
Certificate, dated as of the date of the proposed Borrowing and signed by
Responsible Officer, reasonably satisfactory to the Administrative Agent,
together with (to the extent not previously delivered) copies of the Eligible
Project Documents in respect of each Eligible Project listed thereon.
6. In the event that such Loan is to be made or such Letter of Credit is
to be issued, amended, renewed or extended, the Administrative Agent shall have
received Mortgage Documents in respect of each of the Projects included for
purposes of the Borrowing Base, including, without limitation, the payments
specified in clause (g) of the definition of Mortgaged Documents.
7. Such advance and/or the reimbursement obligation with respect to any
LC Disbursement, as applicable, shall be secured by the Loan Documents, subject
only to those exceptions to title reasonably approved by the Administrative
Agent at the time of initial closing, as evidenced by title insurance
endorsements reasonably satisfactory to the Administrative Agent.
8. Borrower shall have paid the Administrative Agent's reasonable costs
and expenses then due and payable in connection with such advance and/or
issuance, amendment, renewal or extension (including title charges, and
reasonable costs and expenses of the Administrative Agent's inspecting engineer
and attorneys).
9. No Project shall have suffered any damage by fire or other casualty
which has not been repaired or is not being restored in accordance with this
Agreement; no law, regulation, ordinance, moratorium, injunctive proceeding,
restriction, litigation, action, citation or similar proceeding or matter shall
have been enacted, adopted, or threatened by any governmental authority, which
would have, in the Administrative Agent's judgment, a material adverse effect on
the Projects as a whole or Borrower's or any Borrower Party's ability to perform
its obligations under the Loan Documents.
11. No default shall exist on the part of the Borrower or the Company
under any of the Lazard Agreements.
Schedule 2.1 - 5
<PAGE>
SCHEDULE 2.12
-------------
Initial Projects
----------------------------------------------------------------------------
No. Project Address
----------------------------------------------------------------------------
01 Smitty's Tucson/Sunrise 7151-7219 East Speedway
Place Boulevard
Tucson, AZ 85710
----------------------------------------------------------------------------
Cleveland Avenue & Hwy 99
02 Madera Marketplace Madera, CA
----------------------------------------------------------------------------
03 Marshall's Plaza 3440 McHenry Avenue
Modesto, CA 95355
----------------------------------------------------------------------------
04 Media City Center 201 East Magnolia Boulevard
Burbank, CA 91501
----------------------------------------------------------------------------
05 Montebello Town Square 1401 Montebello Boulevard
Montebello, CA 90640
----------------------------------------------------------------------------
06 Rheem Valley Shopping 370-388 Park Street
Center 400 Center to 580 Rheem Blvd.
Moraga, CA 94556
----------------------------------------------------------------------------
07 Medford Center 639 Medford Center
Medford, OR 97504
----------------------------------------------------------------------------
08 Ross Center 11211 S.E. 82nd Avenue
Portland, OR 97266
----------------------------------------------------------------------------
09 Frontier Village 511-906 Highway A
Shopping Center Lake Stevens, WA 98258
----------------------------------------------------------------------------
10 Ross Plaza (Silverdale) 10404-10408 Silverdale Way
Silverdale, WA 98383
----------------------------------------------------------------------------
11 Vancouver Park Place 8101 N.E. Parkway Drive
Vancouver, WA 98662
----------------------------------------------------------------------------
NWC Southern Avenue &
12 Southern Palms Center McClintock
Tempe, Arizona 85282
----------------------------------------------------------------------------
2556-2765 Calloway Drive
13 Rosedale Village Bakersfield, CA 93312
----------------------------------------------------------------------------
Schedule 2.12 - 1
<PAGE>
SCHEDULE 6.14
-------------
Property Managers
1. Management Agreement dated June 29, 1998, by and between LK Management,
Ltd., an Arizona corporation, and Borrower. (Sunrise Place, Arizona)
2.
Schedule 6.14 - 1
<PAGE>
LIST OF DEFINED TERMS
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
"Fixed Charges"............................................................................................... 13
-------------
"Hedging Agreement"........................................................................................... 14
-----------------
"Lazard Agreements"........................................................................................... 15
-----------------
"Mortgage Documents".......................................................................................... 17
------------------
"Net Income (Loss)"........................................................................................... 19
-----------------
"Net Offering Proceeds"....................................................................................... 19
---------------------
"PBGC"........................................................................................................ 20
----
"Permitted Securities Options"................................................................................ 22
----------------------------
"Plan"........................................................................................................ 22
----
"Prepayment Date"............................................................................................. 22
"Project Release"............................................................................................. 23
---------------
"Property".................................................................................................... 23
--------
"REIT Debt Statement"......................................................................................... 23
-------------------
"Related Parties"............................................................................................. 23
---------------
"Released Project"............................................................................................ 24
----------------
"Secured Indebtedness"........................................................................................ 24
--------------------
"Securities".................................................................................................. 24
----------
"Subordination and Attornment Agreements"..................................................................... 25
---------------------------------------
"Total Adjusted EBITDA"....................................................................................... 25
---------------------
"Total Interest Expense"...................................................................................... 26
----------------------
"Total Outstanding Indebtedness".............................................................................. 26
------------------------------
"Total Value"................................................................................................. 26
-----------
"Unconsolidated Entity"....................................................................................... 26
---------------------
"Underwritten Value".......................................................................................... 26
------------------
"Unencumbered"................................................................................................ 26
------------
"Withdrawal Liability"........................................................................................ 27
--------------------
ABR Limitation................................................................................................ 2
--------------
Additional Costs.............................................................................................. 2
----------------
Adjusted Libor Rate........................................................................................... 2
-------------------
Adjusted Net Operating Income................................................................................. 2
-----------------------------
Administrative Agent.......................................................................................... 1
--------------------
Advance Date.................................................................................................. 2
------------
Affiliate..................................................................................................... 2
---------
Agency........................................................................................................ 2
------
Agency Notes.................................................................................................. 2
------------
Agreement..................................................................................................... 1, 3
---------
Alternate Base Rate........................................................................................... 3
-------------------
Alternate Base Rate Loans..................................................................................... 3
-------------------------
Applicable Lending Office..................................................................................... 3
-------------------------
Applicable Margin............................................................................................. 3
-----------------
Applicable Percentage......................................................................................... 3
---------------------
Appraisal..................................................................................................... 3
---------
Appraisal Value............................................................................................... 3
---------------
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
Assignment and Acceptance..................................................................................... 3
-------------------------
Assignment of Rents and Leases................................................................................ 4
------------------------------
Availability Credit........................................................................................... 4
-------------------
Availability Period........................................................................................... 4
-------------------
Bankruptcy Party.............................................................................................. 77
----------------
Basle Accord.................................................................................................. 4
------------
Borrower...................................................................................................... 1
--------
Borrower Account.............................................................................................. 56
----------------
Borrower Party................................................................................................ 4
--------------
Borrower's Investment"........................................................................................ 4
---------------------
Borrowing..................................................................................................... 5
Borrowing Base................................................................................................ 5
--------------
Borrowing Base Certificate.................................................................................... 5
--------------------------
Borrowing Base Imbalance...................................................................................... 5
------------------------
Borrowing Request............................................................................................. 5
-----------------
Business Day.................................................................................................. 5
------------
Capital Expenditure Reserve Amount............................................................................ 6
----------------------------------
Capital Expenditures.......................................................................................... 6
--------------------
Cash and Cash Equivalents..................................................................................... 6
-------------------------
Cash Collateral Account Agreement............................................................................. 6
---------------------------------
Cash Management Account....................................................................................... 56
-----------------------
Cash on Cash Return........................................................................................... 6
-------------------
Change in Control............................................................................................. 6
-----------------
Closing Date.................................................................................................. 7
------------
Closing Date Loan-to-Value Ratio.............................................................................. 7
--------------------------------
Code.......................................................................................................... 7
----
Commitment.................................................................................................... 7
----------
Company....................................................................................................... 7
-------
Compliance Certificate........................................................................................ 7
----------------------
Consolidated Businesses....................................................................................... 7
-----------------------
Continue...................................................................................................... 8
--------
Contract Rate................................................................................................. 8
-------------
Convert....................................................................................................... 8
-------
Credit Exposure............................................................................................... 8
Debt Service.................................................................................................. 8
------------
Debt Service Coverage......................................................................................... 9
---------------------
Default Rate.................................................................................................. 9
------------
Dollars....................................................................................................... 9
-------
EBITDA........................................................................................................ 9
------
Eligible Project Documents.................................................................................... 9
Eligible Projects............................................................................................. 10
-----------------
Environmental Claim........................................................................................... 10
-------------------
Environmental Indemnity....................................................................................... 11
-----------------------
Environmental Laws............................................................................................ 11
------------------
Environmental Liabilities and Costs........................................................................... 11
-----------------------------------
Environmental Lien............................................................................................ 11
------------------
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Equity Infusion............................................................................................. 11
---------------
ERISA....................................................................................................... 11
ERISA Affiliate............................................................................................. 11
---------------
ERISA Event................................................................................................. 11
-----
Eurodollar Loans............................................................................................ 12
----------------
Event of Default............................................................................................ 12
----------------
Extension Conditions........................................................................................ 12
--------------------
Extension Notice............................................................................................ 12
Federal Funds Rate.......................................................................................... 13
------------------
Financial Officer........................................................................................... 13
-----------------
GAAP........................................................................................................ 13
----
GECC........................................................................................................ 13
----
Guarantee................................................................................................... 13
---------
Guarantors.................................................................................................. 14
----------
Guaranty.................................................................................................... 14
--------
Hazardous Materials......................................................................................... 14
-------------------
Indebtedness................................................................................................ 14
--------
Initial Projects............................................................................................ 14
----------------
Interest Election Request................................................................................... 14
-------------------------
Interest Period............................................................................................. 14
---------------
Investment Grade Rating..................................................................................... 15
-----------------------
Issuing Bank................................................................................................ 15
------------
LC Disbursement............................................................................................. 15
---------------
LC Exposure................................................................................................. 15
-----------
Lender...................................................................................................... 1
------
Lenders..................................................................................................... 1
-------
Letter of Credit............................................................................................ 15
----------------
LFSRI....................................................................................................... 16
-----
Libor Base Rate............................................................................................. 16
---------------
Lien........................................................................................................ 16
----
Loan Documents.............................................................................................. 16
--------------
Loans....................................................................................................... 16
-----
Lockbox Account............................................................................................. 56
---------------
Lockbox Agreement........................................................................................... 16, 56
-----------------
Lockbox Bank................................................................................................ 56
------------
Majority Lenders............................................................................................ 16
----------------
Management Agreements....................................................................................... 16
---------------------
Managers.................................................................................................... 17
--------
Material Adverse Effect..................................................................................... 17
-----------------------
Material Indebtedness....................................................................................... 17
---------------------
Maturity Date............................................................................................... 17
-------------
Mortgage.................................................................................................... 17
--------
Multiemployer Plan.......................................................................................... 19
------------------
Net Operating Income........................................................................................ 19
--------------------
Net Proceeds................................................................................................ 19
------------
Newly Added Projects........................................................................................ 20
--------------------
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
Note Pledge Agreement....................................................................................... 20
---------------------
Notes....................................................................................................... 20
-----
Obligations................................................................................................. 20
-----------
Participant................................................................................................. 20
-----------
Payor....................................................................................................... 20
-----
Permitted Encumbrances...................................................................................... 21
----------------------
Permitted Investments....................................................................................... 21
---------------------
Person...................................................................................................... 22
------
PML......................................................................................................... 22
---
Potential Default........................................................................................... 22
-----------------
Prime Rate.................................................................................................. 22
----------
Project..................................................................................................... 23
-------
Prometheus.................................................................................................. 23
----------
Proposed Lender............................................................................................. 23
---------------
Registration Rights Agreement............................................................................... 23
-----------------------------
Regulation D................................................................................................ 23
------------
Regulatory Change........................................................................................... 23
-----------------
REIT........................................................................................................ 23
----
REIT Debt................................................................................................... 23
---------
REIT Debt Requirements...................................................................................... 23
----------------------
Release..................................................................................................... 23
-------
Remedial Action............................................................................................. 24
---------------
Requesting Lender........................................................................................... 24
-----------------
Required Payment............................................................................................ 24
----------------
Reserve Requirement......................................................................................... 24
-------------------
Responsible Officer......................................................................................... 24
-------------------
S&P......................................................................................................... 24
---
Seismic Remediation Work.................................................................................... 73
Sinking Fund................................................................................................ 39
------------
Site Assessment............................................................................................. 25
---------------
State....................................................................................................... 25
-----
Stock....................................................................................................... 25
-----
Stock Equivalents........................................................................................... 25
-----------------
Stock Purchase Agreement.................................................................................... 25
------------------------
Stockholders Agreement...................................................................................... 25
----------------------
Subordination of Management Agreements...................................................................... 25
--------------------------------------
Type........................................................................................................ 26
----
</TABLE>
4
