BUILDING LOAN AGREEMENT
dated as of June 21, 2000
among
WILLOW BEND ASSOCIATES LIMITED PARTNERSHIP,
as Borrower,
PNC BANK, NATIONAL ASSOCIATION,
as Lender, Co-Lead Agent
and Lead Bookrunner
FLEET NATIONAL BANK,
as Lender, Co-Lead Agent, Joint Bookrunner
and Syndication Agent
COMMERZBANK AG, NEW YORK BRANCH,
as Lender, Managing Agent and Co-Documentation Agent
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH,
as Lender, Managing Agent and Co-Documentation Agent
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
LOCATION OF PREMISES:
Northwest corner of the Dallas North Tollway and
Park Boulevard in Plano, Collin County, Texas
BUILDING LOAN AGREEMENT ("this Agreement") dated as of June 21st, 2000
by and among WILLOW BEND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership ("Borrower"), PNC BANK, NATIONAL ASSOCIATION (in its individual
capacity and not as Administrative Agent, "PNC"), FLEET NATIONAL BANK ("Fleet"),
COMMERZBANK AG, NEW YORK BRANCH ("Commerzbank") and BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK BRANCH ("HypoVereinsbank"; PNC, Fleet, Commerzbank,
HypoVereinsbank and each other lender who may become a Lender pursuant to
Section 3.04, Section 7.20 or Section 9.13, each, a "Lender" and collectively,
"Lenders") and PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent for
Lenders (together with its successors in such capacity, "Administrative Agent").
Borrower desires that Lenders extend credit as provided herein, and
Lenders are prepared to extend such credit on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, Borrower, Administrative Agent and Lenders hereby agree as
follows:
Article I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. The following terms, as used herein, shall have
the following meanings:
"Additional Costs" -- Any costs, losses or expenses actually incurred by any
Lender which it determines are attributable to its making or
maintaining its Pro Rata Share of the Loan, or its obligation to make
any Loan advances, or any reduction in any amount receivable by any
Lender under the Loan or its Note.
Administrative Agent's Office" -- Administrative Agent's Office as set forth on
its signature page of this Agreement, or such other address in the
United States as Administrative Agent may designate by notice to
Borrower and Lenders.
"Affected Lender" -- Has the meaning specified in Section 3.04.
"Affiliate" --With respect to any Person (the "first Person"), any other Person
(i) which directly or indirectly controls, or is controlled by, or is
under common control with the first Person or (ii) 10% or more of the
beneficial interest in which is directly or indirectly owned or held by
the first Person. The term "control" means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of
the management and policies of a Person, whether through the ownership
of voting securities, by contract, or otherwise.
"Aggregate Change Order Amount" -- $3,000,000.
"Anchors" -- Collectively, May (Lord & Taylor and Foley's), Neiman Marcus,
Dillard and Saks.
"Anchor Stores" -- Collectively, (i) the approximately 150,000-square foot
Neiman Marcus department store to be constructed and operated by Neiman
Marcus pursuant to the REA on a parcel of land owned by it which is
contiguous to portions of the Premises, (ii) the approximately
140,000-square foot Lord & Taylor department store to be constructed
and operated by May pursuant to the REA on a parcel of land owned by it
which is contiguous to portions of the Premises, (iii) the
approximately 240,000-square foot Foley's department store to be
constructed and operated by May pursuant to the REA on a parcel of land
owned by it which is contiguous to portions of the Premises, (iv) the
approximately 250,000-square foot Dillard department store, to be
constructed and operated by Mercantile pursuant to the REA on a parcel
of land to be owned by it which is contiguous to portions of the
Premises and (v) the approximately 120,000-square foot Saks Fifth
Avenue department store to be constructed and operated by Saks Texas
pursuant to the REA on a portion of the Premises ground leased by
Borrower to Saks.
"Applicable Lending Office" -- For each Lender and for the portions of the
outstanding principal balance under its Note bearing interest at the
Prime Based Rate or the LIBO Based Rate, as applicable, the lending
office of such Lender (or of an Affiliate of such Lender) designated as
such on the signature page hereof or in the applicable Assignment and
Assumption Agreement, or such other office of such Lender (or of an
Affiliate of such Lender) as such Lender may from time to time specify
to Administrative Agent and Borrower as the office by which the
portions of the outstanding principal balance under its Note bearing
interest at the Prime Based Rate or the LIBO Based Rate, as applicable,
are to be made and maintained.
"Applicable Margin" -- With respect to the Prime Based Rate, .35% per annum, and
with respect to the LIBO Based Rate, 1.85% per annum, as the same may
be reduced in accordance with Section 2.20.
"Assignee" -- Has the meaning specified in Section 9.13.
"Assignment and Assumption Agreement" -- An Assignment and Assumption Agreement,
substantially in the form of EXHIBIT E, pursuant to which a Lender
assigns and an Assignee assumes rights and obligations in accordance
with Section 9.13.
"Authorization Letter" -- A letter from Borrower to Administrative Agent in the
form of EXHIBIT H setting forth, among other things, the name of each
individual authorized to execute Requisitions hereunder on Borrower's
behalf.
"Borrower's Accountants" -- Deloitte & Touche, or such other accounting firm(s)
selected by Borrower and reasonably acceptable to Administrative Agent.
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"Borrower's Architects" --JPRA Architects, the architects and/or engineers
responsible for preparing the Plans and supervising construction of the
Improvements.
"Building Loan Trust Account" -- A separate bank account with the Depositary
Bank which (i) shall not be drawn upon except to pay Direct and
Indirect Costs approved by Administrative Agent, (ii) be the depository
for all advances made to Borrower hereunder and (iii) be established so
that Administrative Agent receives, or is entitled to receive upon
request, from the Depositary Bank, duplicate copies of regular monthly
statements of all deposits and withdrawals.
"Business Day" -- Any day on which commercial banks are not authorized or
required to close in Pittsburgh and New York; and, whenever such day
relates to a LIBOR Amount, an Interest Period with respect to a LIBOR
Amount, or notice with respect to a LIBOR Amount, any such day in which
dealings in Dollar deposits are also carried out in the London
interbank market and banks are open for business in London.
"Capital Lease" -- Any lease which has been or should be capitalized on the
books of the lessee in accordance with GAAP.
"Change Orders" -- Any amendments or modifications to the Plans, General
Contract or Major Subcontracts.
"Change Order Amount" -- $250,000.
"City" -- The City of Plano, a Texas municipal corporation of Collin County,
Texas.
"Code" -- The Internal Revenue Code of 1986.
"Commitment Amount" -- At any time, the sum of the Principal Amount plus the
remaining amount, if any, of the Loan Amount available to be disbursed
hereunder.
"Completion Costs Guaranty" -- The Completion Costs Guaranty in respect of the
Loan, dated the date hereof, from Guarantor to Lenders.
"Completion Date" --August 17, 2001, as the same may be extended for reasons of
Force Majeure.
"Construction Consultant" --Merritt & Harris, Inc., or other firm designated by
Administrative Agent.
"Debt" -- Without duplication, any and all of (i) indebtedness or liability
for borrowed money, or for the deferred purchase price of property or
services (including trade obligations), (ii) obligations as lessee
under Capital Leases, (iii) current liabilities in respect of unfunded
vested benefits under any Pension Plan, (iv) obligations under letters
of credit issued for the account of any Person, (v) all obligations
arising under bankers' or trade acceptance facilities, (vi) all
guarantees,
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endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase
any of the items included in this definition, to provide funds
for payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss, (vii) all obligations secured by any
lien on property owned by the Person whose Debt is being measured,
whether or not the obligations have been assumed and (viii) all
obligations under any agreement providing for contingent participation
or other hedging mechanisms with respect to interest payable on any of
the items described above in this definition.
"Debt Service Coverage" -- As of any date of determination, the quotient of
(i) Net Operating Income as of the end of the most recently ended
calendar month, divided by (ii) Hypothetical Annual Debt Service as of
the date of determination.
"Default"-- Any event or circumstance which, with the giving of notice or the
passage of time, or both, would become an Event of Default.
"Default Rate" -- A rate equal to (i) with respect to those portions of the
Principal Amount bearing interest at the Prime Based Rate, the Prime
Based Default Rate; and (ii) with respect to LIBOR Amounts, a fixed
rate of 4% per annum in excess of the LIBO Based Rate in effect thereon
at the current Interest Period therefor and, thereafter, the Prime
Based Default Rate.
"Delinquency Amount"; "Delinquency Notice"; "Delinquent Lender" -- Have the
respective meanings specified in Section 7.16.
"Depositary Bank" -- Comerica Bank or a replacement bank reasonably acceptable
to Administrative Agent.
"Dillard" -- Dillard's, Inc., a Delaware corporation, the guarantor of
Mercantile's obligations under the REA.
"Direct Costs" -- The aggregate costs of all labor, materials, equipment,
fixtures and furnishings necessary for completion of the Improvements.
"Direct Costs Loan"; "Indirect Costs Loan" -- That portion of the Loan Amount
applicable and equal to the sum of the Loan Budget Amounts for Direct
Costs and Indirect Costs, respectively, shown on the Project Cost
Statement.
"Direct Cost Statement" -- A statement, in the form of SCHEDULE I or other form
approved by Administrative Agent, of Direct Costs incurred and to be
incurred, trade by trade, to be prepared by the General Contractor (or
Borrower's supervisor of construction if there is no General
Contractor) and submitted to Administrative Agent as part of each
Requisition.
"Disposition" -- A sale (whether by assignment, transfer or Capital Lease) of an
asset.
"Dollars" and "$" -- Lawful money of the United States.
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"Electing Lender"; "Election Notice"; "Election Period" -- Have the respective
meanings specified in Section 7.16.
"Employee Benefit Plan" -- Any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower or
Guarantor.
"Environmental Discharge" -- Any discharge or release of any Hazardous Materials
in violation of any applicable Environmental Law.
"Environmental Law" -- Any Law relating to pollution or the environment,
including Laws relating to noise or to emissions, discharges, releases
or threatened releases of Hazardous Materials into the work place, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials.
"Environmental Notice" -- Any written complaint, order, citation, letter,
inquiry, notice or other written communication from any Person (i)
affecting or relating to Borrower's compliance with any Environmental
Law in connection with any activity or operations at any time conducted
by Borrower, (ii) relating to the occurrence or presence of or exposure
to or possible or threatened or alleged occurrence or presence of or
exposure to Environmental Discharges or Hazardous Materials at the
Premises, including, without limitation (a) the existence of any
contamination or possible or threatened contamination at the Premises
and (b) remediation of any Environmental Discharge or Hazardous
Materials at the Premises or any part thereof and (iii) relating to any
violation or alleged violation of any relevant Environmental Law.
"ERISA" -- The Employee Retirement Income Security Act of 1974, including the
rules and regulations promulgated thereunder.
"ERISA Affiliate" -- Any corporation which is a member of the same controlled
group of corporations (within the meaning of Section 414(b) of the
Code) as Borrower and/or Guarantor, or any trade or business which is
under common control (within the meaning of Section 414(c) of the Code)
with Borrower and/or Guarantor, or any organization which is required
to be treated as a single employer with Borrower and/or Guarantor under
Section 414(m) or 414(o) of the Code.
"Event of Default" -- Has the meaning given to such term in the Mortgage.
"Exchange Agreement" -- That certain Agreement for Real Estate Exchange dated as
of May __, 1999 by and among Guarantor, the City and Dallas North
Tollway Partnership, as amended by Amendment to Agreement for Real
Estate Exchange dated October 12, 1999, as Guarantor's interests
thereunder have been assigned to and assumed by Borrower by instrument
dated June 19, 2000.
"Federal Funds Rate" -- For any day, the rate per annum (based on a year of 360
days) announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on
overnight Federal funds
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transactions arranged by Federal funds brokers on the previous trading
day, as computed and announced by such Federal Reserve Bank (or any
successor) in substantially the same manner as such Federal
Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, however, that if such Federal Reserve Bank
(or its successor) does not announce such rate on any day, the "Federal
Funds Rate" for such day shall be the Federal Funds Effective Rate for
the last day on which such rate was announced.
"Fee Letter" -- That certain letter agreement, dated the date hereof,
between PNC and Borrower, providing for Borrower's payment to
Administrative Agent, on the date hereof and from time to time
hereafter, of certain fees in connection with the Loan, such fees to be
for the respective accounts of the parties specified therein.
"Force Majeure" -- Acts of God, fire, earthquake, floods, explosion, actions
of the elements, war, riots, mob violence, inability to procure or a
general shortage of labor, equipment, facilities, materials or supplies
in the open market, failure of transportation, strikes, lockouts,
actions of labor unions, condemnation, court orders, laws, regulations
or orders of governmental or military authorities or any other cause,
whether similar or dissimilar to the foregoing (other than lack of or
inability to procure funds or financing to fulfill Borrower's
commitments and obligations under the Loan Documents or otherwise in
respect of the Premises and Improvements) so long as, in any such case
(i) such cause or event is not within the reasonable control of
Borrower, (ii) Borrower shall have given notice of such cause or event
to Administrative Agent within fifteen (15) Business Days of the
occurrence thereof and (iii) Administrative Agent shall have
determined, in its judgment to be reasonably exercised, that such cause
or event constitutes Force Majeure.
"GAAP" -- Generally accepted accounting principles in the United States of
America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred
to in Section 5.03 (except for changes concurred in by Borrower's
Accountants).
"General Contract" -- Any contract (together with all riders, addenda and other
instruments referred to therein as "contract documents") between
Borrower and the General Contractor or any other Person which requires
the General Contractor or such other Person to provide, or supervise or
manage the procurement of, substantially all labor and materials needed
for completion of the Improvements.
"General Contractor"-- Sordoni Skanska Construction Co., a Delaware corporation.
"Good Faith Contest" -- The contest of an item if (i) the item is diligently
contested in good faith, and, if appropriate, by proceedings timely
instituted, (ii) adequate reserves are established with respect to the
contested item, (iii) during the period of such contest, the
enforcement of any contested item is effectively stayed and (iv) the
failure to pay or comply with the contested item during the period of
the
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contest is not likely to (x) to have an adverse effect on the
Mortgaged Property or any part thereof or on Lender's interest therein
or (y) result in a Material Adverse Change.
"Governmental Authorities" -- The United States, the State of Texas and any
political subdivision, agency, department, commission, board, bureau or
instrumentality of either of them, including any local authorities,
which exercises jurisdiction over Borrower, Guarantor, the Premises or
the Improvements.
"Guarantor" -- The Taubman Realty Group Limited Partnership, a Delaware limited
partnership of which Borrower is, as of the date hereof, a wholly owned
and controlled subsidiary.
"Guaranty" -- Collectively, the Completion Costs Guaranty and the Payment
Guaranty.
"Hazardous Materials" -- Any pollutants, effluents, emissions, contaminants,
toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant
Environmental Law, including asbestos fibers and friable asbestos,
polychlorinated biphenyls, and any petroleum or hydrocarbon-based
products or derivatives.
"Hypothetical Annual Debt Service" -- For any date of determination, an amount
equal to the greatest of (i) the constant annual payment of principal
plus interest required to fully amortize, over a term of twenty-five
(25) years, a hypothetical loan in an amount equal to the Commitment
Amount as of such date of determination, assuming such loan were to
bear interest at a rate equal to 2% per annum in excess of the
percentage yield to maturity of the then "on-the-run" ten (10)-year
United States Treasury Note, (ii) 9.25% of the Commitment Amount as of
the date of determination or (iii) the sum of the annualized interest
(based on the weighted average actual interest rate under the Notes) on
a hypothetical loan in an amount equal to the Commitment Amount as of
such date of determination plus scheduled principal actually payable on
the Loan for the succeeding twelve (12)-month period as of such date of
determination; provided, however, that for purposes of determining Debt
Service Coverage under clause (i) of Section 2.20 hereof or under
paragraph 2 of the Payment Guaranty, the term Commitment Amount as used
in clauses (i), (ii) and (iii) above shall mean the Commitment Amount
less the "Residual Land Guaranty Amount" (as such quoted term is
defined in the Payment Guaranty) as of the date of determination.
"Improvements" --An enclosed, two (2)-level first class shopping mall containing
approximately 561,000 of SFGLA of mall stores, together with three (3)
parking decks for a minimum of 2,750 automobiles, in the aggregate, and
surface parking for a minimum of an additional 4,130 automobiles.
"Indemnity" -- An agreement from Borrower and Guarantor whereby, among other
things, Administrative Agent and Lenders are indemnified regarding
Hazardous Materials.
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"Indirect Costs" -- All costs of acquisition of the Premises and completion of
the Improvements other than Direct Costs, including but not limited to,
architects' and attorneys' fees, ground rents, interest, real estate
taxes, survey costs and insurance premiums.
"Indirect Cost Statement" -- A statement, in the form of SCHEDULE II or other
form approved by Administrative Agent, of Indirect Costs incurred and
to be incurred, to be prepared by Borrower and submitted to
Administrative Agent as part of each Requisition.
"Individual Loan Commitment" -- With respect to each Lender, the amount set
forth below opposite the name of such Lender (subject to change in
accordance with the terms of this Agreement):
Lender Individual Loan Commitment
------ --------------------------
PNC $70,000,000
Fleet $70,000,000
Commerzbank $40,000,000
Hypo Vereinsbank $40,000,000
"Initial Advance" -- The first advance of Loan proceeds to be made hereunder.
"Interest Period" -- The period during which interest at the LIBO Based Rate,
determined as provided in this Agreement, shall be applicable to the
LIBO Rate Request Amount in question, provided, however, that each such
period shall be either one (1), two (2), three (3) (or, if available,
four (4) or six (6)) months, which shall be measured from the date
specified by Borrower in each LIBO Rate Request for the commencement of
the computation of interest at the LIBO Based Rate, to the numerically
corresponding day in the calendar month in which such period terminates
(or, if there be no numerical correspondent in such month, or if the
date selected by Borrower for such commencement is the last Business
Day of a calendar month, then the last Business Day of the calendar
month in which such period terminates, or if the numerically
corresponding day is not a Business Day then the next succeeding
Business Day, unless such next succeeding Business Day enters a new
calendar month, in which case such period shall end on the next
preceding Business Day) and in no event shall any such period extend
beyond the Maturity Date.
"Law" -- Any federal, state or local law, statute, rule, regulation,
ordinance, order, decree, directive, requirement, code, notice of
violation or rule of common law, now or hereafter in effect, and in
each case as amended, and any judicial or administrative interpretation
thereof by a Governmental Authority or otherwise, including any
judicial or administrative order, determination, consent decree or
judgment.
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"Lender Reply Period" -- Has the meaning specified in Section 9.12.
"LIBO Based Rate" -- With respect to any LIBOR Amount, the rate per annum
(expressed as a percentage) determined by Administrative Agent to be
equal to the sum of (i) the quotient of the LIBO Rate for the LIBOR
Amount and Interest Period in question divided by [1 minus the Reserve
Requirement] (at Administrative Agent's option, rounded up, if
necessary, to the nearest 1/100 of 1%) and (ii) the Applicable Margin.
"LIBO Rate" -- With respect to any Interest Period, the rate per annum for
the first day of the Interest Period ("the Reset Date") for deposits in
Dollars for a period of the number of months contained in the Interest
Period which appears on Dow Jones Page 3750 (or such other display page
on the Dow Jones System or otherwise as may replace such Page 3750) as
of 11:00 a.m. (London time) on the day that is two (2) Business Days
prior to that Reset Date for a period, and in an amount, comparable to
such Interest Period and LIBOR Amount in question outstanding during
such Interest Period. If such rate does not appear on Dow Jones Page
3750 (or such replacement page), the rate for a Reset Date will be
determined by Administrative Agent acting reasonably.
"LIBO Rate Request" -- Borrower's telephonic notice (to be promptly confirmed
in writing), to be received by Administrative Agent by 10:00 a.m.
(Pittsburgh time) three (3) Business Days prior to the date specified
in the LIBO Rate Request for the commencement of the Interest Period
(which specified date must be a Business Day), of (a) its intention to
have (i) all or any portion of the Principal Amount which is not then
the subject of an Interest Period (other than an Interest Period which
is terminating on the Business Day specified in the notice) and/or (ii)
all or any portion of any advance of proceeds of the Loan evidenced by
the Notes which is to be made on the Business Day specified in the
notice, bear interest at the LIBO Based Rate and (b) the Interest
Period desired by Borrower in respect of the amount specified.
"LIBO Rate Request Amount" -- The amount, to be specified by Borrower in each
LIBO Rate Request, which Borrower desires bear interest at the LIBO
Based Rate and which shall in no event be less than $1,000,000.
"LIBOR Amount" -- Each portion of the Principal Amount bearing interest at the
LIBO Based Rate pursuant to a particular LIBO Rate Request.
"Loan" -- The Direct Costs Loan and Indirect Costs Loan, collectively, and in
an amount initially equal to the Loan Amount.
"Loan Amount" -- $220,000,000.
"Loan Budget Amounts" -- The portion of the Loan Amount set forth in Column D
on the Project Cost Statement to be advanced for each category of
Direct and Indirect Costs.
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"Loan Documents" -- This Agreement, the Notes, the Mortgage, the Guaranty,
the Indemnity, the Authorization Letter, Uniform Commercial Code
financing statements in respect of the Mortgaged Property and any other
collateral given as security for the Loan, and any other documents
which evidence or secure the Loan.
"Major Lease" -- The Parking Lease and any lease for space in the Improvements
containing 10,000 SFGLA or more.
"Major Subcontractor"; "Major Subcontract" -- Any subcontractor or supplier
engaged by the General Contractor and any contractor or supplier
engaged by Borrower, under one or more contracts or work orders
aggregating $2,000,000 or more; any such contract or work order.
"Master Agreement" -- The Master Agreement between Guarantor and the City,
dated October 25, 1999 and authorized by City Council Resolution No.
99-8-14 (R) dated August 9, 1999, providing, among other things, for
certain payments aggregating up to $22,800,000, plus interest, to
Guarantor from tax revenues paid to the City in respect of the TIF
District, as Guarantor's interests thereunder have been assigned to and
assumed by Borrower (with the City's consent) by instruments dated
November 8, 1999.
"Material Adverse Change" -- Either (i) a material adverse change in the status
of the business, results of operations, financial condition, property
or prospects of Borrower or Guarantor or (ii) any event or occurrence
of whatever nature which is likely to (x) have a material adverse
effect on the ability of Borrower or Guarantor to perform their
respective obligations under the Loan Documents or (y) create, in the
sole and absolute judgment (reasonably exercised) of Administrative
Agent, a material risk of sale or forfeiture of any of the Mortgaged
Property (other than an immaterial portion thereof) or otherwise
materially impair the Mortgaged Property or Lenders' rights therein.
"Maturity Date" --July 1, 2003, subject to extension in accordance with Section
2.18.
"May" -- The May Department Stores Company, a New York corporation.
"Mercantile -- Collectively, Mercantile Properties, Inc., a Delaware corporation
(as to an undivided 75% interest), Mercantile Real Estate Co., Inc., a
Delaware corporation (as to an undivided 11% interest) and Mercantile
Kansas City, Inc., a Delaware corporation (as to an undivided 14%
interest).
"Mortgage" -- The deed of trust, assignment of leases and rents and security
agreement made to or for the benefit of Administrative Agent, as agent
for Lenders, to secure the payment and performance of Borrower's
obligations hereunder, under the Notes and otherwise in respect of the
Loan, including any sums in addition to the Loan Amount advanced by
Lenders for completion of the Improvements.
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"Mortgaged Property" -- The Premises and other property constituting the
"Mortgaged Property", as said quoted term is defined in the Mortgage.
"Multiemployer Plan" -- Any plan defined as such in Section 3(37) of ERISA.
"Neiman Marcus" -- The Neiman Marcus Group, Inc., a Delaware corporation.
"Net Operating Income" --As of any date of determination, an amount (as
determined by Administrative Agent in its sole but reasonable judgment)
equal to:
(i) the sum, determined in accordance with GAAP (but
adjusted for non-cash revenues attributable to straight-lining of
rents), of (a) annualized rental income and common area and other
expense reimbursements under executed and, if required hereby, approved
by Administrative Agent (or deemed approved as provided in Section
6.20) leases of the Improvements, as of such date of determination,
plus (b) annualized other income from operating the Premises (excluding
income from sales of property), as of such date of determination, plus
(c) the actual amounts received by Borrower from the City in
reimbursement of "Project Costs" under the Master Agreement during the
twelve (12)-month period immediately prior to such date of
determination;
less
(ii) the sum, determined in accordance with GAAP, of
(a) in the case of any date of determination falling (x) prior to the
opening of the Improvements for business to the public, pro forma
operating expenses of the Premises, (y) during the first twelve (12)
months following the opening of the Improvements for business to the
public, the sum of (A) actual operating expenses of the Premises
(including a management fee reasonably acceptable to Administrative
Agent), real estate taxes and bad debt expense during the period of
operation plus (B) pro forma operating expenses of the Premises for the
balance of said twelve (12)-month period or (z) after the first twelve
(12) months of operation of the Improvements, actual operating expenses
of the Premises (including a management fee reasonably acceptable to
Administrative Agent), real estate taxes and bad debt expense for the
twelve (12)-month period ending with such date of determination plus
(b) a reserve for tenant improvements and capital expenses in a deemed
aggregate amount equal to $220,000.
"Non-Delinquent Lender" -- Each Lender other than the Delinquent Lender(s).
"Note"; "Notes" -- Have the respective meanings specified in Section 2.10.
"Obligations" -- Has the meaning given to such term in the Mortgage.
"Option Parcel" -- The approximately 56.767 acre parcel south of the Premises
(across Park Boulevard) described more particularly in that certain
Option to Purchase Contract [South Tract] dated March 19, 1997, by and
between Guarantor, as
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Purchaser, and Kemp Investment Partnership , Ltd., Randall C. Kemp,
Judith Marie Kemp, Elizabeth C. Kemp and Kemp Grandchildren's Trust,
collectively, as Seller, as amended by First Amendment to Option to
Purchase Contract [South Tract], dated March 17, 2000.
"Parking Lease" -- The Parking Lease between Guarantor (as Landlord) and the
City (as Tenant) dated October 25, 1999 and authorized by City Council
Resolution No. 99-8-15 (R) dated August 9, 1999, as the Landlord's
interests thereunder have been assigned to and assumed by Borrower
(with the City's consent) by instruments dated November 8, 1999.
"Participant"; "Participation" -- Have the respective meanings specified in
Section 9.13.
"Payment Guaranty" -- The Guaranty of Payment in respect of the Loan, dated the
date hereof, from Guarantor to Lenders.
"PBGC" -- The Pension Benefit Guaranty Corporation and any entity succeeding
to any or all of its functions under ERISA.
"Pension Plan" -- Any employee pension benefit plan within the meaning of
Section 3(2) of ERISA with respect to which Borrower, Guarantor or any
ERISA Affiliate at any relevant time has liability or an obligation to
contribute.
"Person" -- An individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association,
joint venture or other entity of whatever nature.
"Plans" -- All final drawings, plans and specifications prepared by Borrower,
Borrower's Architects, the General Contractor or Major Subcontractors,
and approved by Administrative Agent and the Construction Consultant,
which describe and show the labor, materials, equipment, fixtures and
furnishings necessary for the construction of the Improvements,
including all amendments and modifications thereof made by Change
Orders implemented in accordance with Section 6.13 (and also showing
minimum grade of finishes and furnishings for all common areas).
"Premises" -- The real property described on Schedule A to the Mortgage and
located as indicated on the cover hereof, upon all or part of which the
Improvements are to be constructed.
"Premises Documents" -- Has the meaning given to such term in the Mortgage.
"Prime Based Default Rate" -- The rate per annum equal to 4% in excess of the
Prime Based Rate.
"Prime Based Rate" -- The Applicable Margin plus the greater of (i) the
Federal Funds Rate plus 1/2 of 1% per annum or (ii) the prime
commercial lending rate as
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announced from time to time by PNC at its principal office (currently
located at One PNC Plaza, 249 Fifth Avenue, Pittsburgh, Pennsylvania
15222) as its then prime rate (which rate may not be the lowest rate
then being charged to commercial borrowers by PNC); each change in
said rates to be effective as of the date of such change.
"Principal Amount" -- At any time, the aggregate outstanding principal amount of
the Notes.
"Pro Rata Share" -- With respect to each Lender, the ratio of such Lender's
Individual Loan Commitment to the Loan Amount. As of the date hereof,
the Lenders' respective Pro Rata Shares are as follows:
Lender Pro Rata Share
------ --------------
PNC 31.8182%
Fleet 31.8182%
Commerzbank 18.1818%
Hypo Vereinsbank 18.1818%
"Project Cost Statement" -- A statement in the form of EXHIBIT A setting forth,
by category, the Direct and Indirect Costs of completion of the
Improvements and the Loan Budget Amounts in respect of the Direct Costs
Loan and Indirect Costs Loan.
"REA" -- That certain Construction, Operation and Reciprocal Easement
Agreement, dated as of February 29, 2000, by and among Borrower, May
(as to the Lord & Taylor and Foley's stores), Neiman Marcus, Mercantile
and Saks Texas (the obligations of Mercantile thereunder being
guaranteed by Dillard and the obligations of Saks Texas thereunder
being guaranteed by Saks), which was recorded in the land records of
Collin County, Texas on April 17, 2000 in Book 4648, at page 173
(together with any and all leases or other agreements incidental or
supplemental thereto) pursuant to which the Improvements (by Borrower)
and the Anchor Stores (by the respective Anchors) are to be constructed
and operated as an integrated regional shopping center known as The
Shops at Willow Bend.
"Regulation D" -- Regulation D of the Board of Governors of the Federal Reserve
System.
"Regulatory Change" -- With respect to any Lender and the charging and
collecting of interest at the LIBO Based Rate, any change after the
date hereof in federal, state or foreign laws or regulations (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks
including such Lender under any federal, state or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof,
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excluding any change the effect of which is reflected in a change in
the LIBO Based Rate.
"Replacement Lender" -- Has the meaning specified in Section 7.20.
"Required Lenders" -- At any time, those Non-Delinquent Lenders holding at least
66-2/3% of that portion of the aggregate outstanding principal amount
of those of the Notes held by the Non-Delinquent Lenders.
"Requisition" -- A statement by or on behalf of Borrower in the form of EXHIBIT
B or other form approved by Administrative Agent setting forth the
amount of the Loan advance requested in each instance and including:
(i) the Direct and Indirect Cost Statements;
(ii) the "Contractor's Cost Certification" in the form of EXHIBIT
B-1 or other form approved by Administrative Agent;
(iii) "Payment Receipts/Lien Releases" in respect of the
immediately preceding Requisition from all contractors, subcontractors
or suppliers in the form of EXHIBIT B-2 or other form approved by
Administrative Agent; and
(iv) proof of payment of all Indirect Costs covered by a previous
Requisition.
"Reserve Requirement" -- The rate at which reserves (including any marginal,
supplemental or emergency reserves) are actually required to be
maintained by any Lender under Regulation D against "Euro-Currency
Liabilities", as such quoted term is used in Regulation D. Without
limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves actually required to be maintained by any
Lender by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO
Based Rate is to be determined as provided in this Agreement or (ii)
any category of extensions of credit or other assets which includes
loans the interest rate on which is determined on the basis of rates
used in determining the LIBO Rate.
"Saks" -- Saks Fifth Avenue, Inc., a New York corporation.
"Saks Texas" -- Saks Fifth Avenue Texas, L.P., a Texas limited partnership.
"SFGLA" -- Square feet of gross leasable area.
"Solvent"-- Means, when used with respect to any Person, that (i) the fair
value of the property of such Person, on a going concern basis, is
greater than the total amount of liabilities (including, without
limitation, contingent liabilities) of such Person, (ii) the present
fair saleable value of the assets of such Person, on a going concern
basis, is not less than the amount that will be required to pay the
probable liabilities of such Person on its debts as they become
absolute and matured, (iii)
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such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature, (iv) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged
and (v) such Person has sufficient resources, provided that such
resources are prudently utilized, to satisfy all of such Person's
obligations. Contingent liabilities will be computed at the amount
that, in light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Stored Materials Statement" -- A statement in the form of SCHEDULE I-A or
other form approved by Administrative Agent which, if advances are to
be made for stored materials pursuant to Section 2.05, shall be
submitted with, and made a part of, the Direct Cost Statement.
"Substitute Lender" and "Substitution Notice" -- Have the respective meanings
specified in Section 3.04.
"TCI"-- Taubman Centers, Inc., a Michigan corporation, Guarantor's managing
general partner.
"TIF District" -- The Tax Increment Financing Reinvestment Zone No. One of the
City of Plano, Texas, established by City Ordinance No. 98-11-38 on
November 23, 1998, as amended by Ordinance No. 99-1-16 on January 25,
1999, pursuant to Chapter 311 of the Texas Tax Code.
"Title Insurer" -- The issuer(s), approved by Administrative Agent, of the
title insurance policy or policies insuring the Mortgage.
"TRG Consolidated Financial Statements" -- The consolidated balance sheet
and related consolidated statement of operations, accumulated
deficiency in assets and cash flows, and, at year-end only, footnotes
thereto, of Guarantor, prepared in accordance with GAAP.
"TRG Credit Facility" -- That certain Secured Revolving Credit Agreement,
dated as of June 24, 1999, among Guarantor (as borrower), the banks
signatory thereto and UBS AG, Stamford Branch (as administrative
agent).
"United States" and "U.S." -- The United States of America.
Section 1.02. Rules of Construction. Except as expressly provided
otherwise, when used in this Agreement (i) "or" is not exclusive, (ii)
"hereunder", "herein", "hereof" and the like refer to this Agreement as a whole,
(iii) "Article", "Section", "Schedule" and "Exhibit" refer to Articles,
Sections, Schedules and Exhibits of this Agreement, (iv) terms defined in the
singular shall have a correlative meaning when used in the plural and vice
versa, (v) a reference to a Law includes any amendment,
15
modification or supplement to, or replacement of, such Law and (vi) a reference
to a document shall mean such document as the same may be amended, modified or
supplemented from time to time in accordance with its terms. The cover page and
the Exhibits and Schedules annexed hereto are incorporated as a part of this
Agreement with the same effect as if set forth in the body hereof. Any table of
contents and all captions and headings herein are for convenience only and shall
not affect the interpretation or construction hereof.
Section 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
Section 1.04. Computation of Time Periods. Except as otherwise provided
herein, in the computation of periods of time in this Agreement from a specified
date to a later specified date, the word "from" means "from and including" and
words "to" and "until" each means "to but excluding".
Article II
LOAN; ADVANCES
Section 2.01. Advances Generally. Subject to the provisions of this
Agreement, each Lender will advance its Pro Rata Share of, and Borrower will
accept, the Loan Amount in installments as follows:
The Initial Advance will be made upon the satisfaction of the
applicable conditions set forth in Section 4.01, and all subsequent
advances shall be made monthly thereafter, upon the satisfaction of the
applicable conditions set forth in Section 4.02, in amounts which shall
be equal to the aggregate of the Direct and Indirect Costs incurred by
Borrower through the end of the period covered by the Requisition less:
(a) the greater of (x) 10% (or 5%, in the case of the
subcontracts with TJ Lambrect and The Trane Company, and 0% in
the case of "General Conditions" and "Contractor's Fee" under the
General Contract) of such Direct Costs or (y) the actual
"Retained Amounts" specified on the Direct Cost Statement;
(b) the total of the Loan advances theretofore made; and
(c) Borrower's equity investment, as required by paragraph
(23) of Section 4.01;
and, at the election of Administrative Agent, less any combination of
the following further amounts:
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(d) all or a portion of the amount by which any Direct or
Indirect Costs are or are estimated by Administrative Agent to be
greater than the respective Loan Budget Amounts (as the same may
have been adjusted in accordance with Sections 2.06 or 2.07) for
such costs; and/or
(e) any costs covered by the Requisition not approved,
certified or verified as provided in Section 2.02, any Indirect
Costs covered by a previous Requisition for which proof of
payment (and, where applicable, Payment Receipts/Lien Releases)
has not been received by Administrative Agent, and/or any Direct
Costs covered by a previous Requisition for which Payment
Receipts/Lien Releases have not been received by Administrative
Agent and the Construction Consultant.
At Administrative Agent's option, the amount of each advance shall be a minimum
of $1,000,000.
Section 2.02. Certification and Verification of Costs. Direct Costs are
to be certified by the General Contractor or Borrower's supervisor of
construction if there is no General Contractor. Verification of the monthly
progress and Direct Costs which have been incurred by Borrower from time to
time, and the estimated total Direct Costs, shall be conclusively determined by
the Construction Consultant in its reasonable discretion, except that both
Direct and Indirect Costs are also subject to the reasonable approval of and
verification by Administrative Agent from time to time.
Section 2.03. Procedures for Advances. All advances to Borrower are
to be made at Administrative Agent's Office. Borrower shall submit Requisitions
to Administrative Agent no later than 10:00 a.m. (Pittsburgh time) on the date
which is seven (7) Business Days prior to the date the advance is to be made.
Administrative Agent, no later than three (3) Business Days prior to the date a
requested advance is to be made, shall (i) notify each Lender either by
telephone or by facsimile of the amount requested by Borrower, the amount
approved by Administrative Agent, the portion of such advance to be funded by
such Lender and the proposed date of such advance and (ii) send to each Lender
by facsimile the summary pages of Borrower's Requisition (without attachments
except for the Direct and Indirect Cost Statements). Not later than 10:00 a.m.
(Pittsburgh time) on the date of each advance, each Lender shall, through its
Applicable Lending Office and subject to the conditions of this Agreement, make
the amount to be advanced by it on such day available to Administrative Agent,
at Administrative Agent's Office and in immediately available funds. The amount
so received by Administrative Agent shall, subject to the conditions of this
Agreement, be made available to Borrower, by Administrative Agent's wiring said
amount to the Building Loan Trust Account.
Section 2.04. Held-Back Amounts; Termination of Advances. Amounts
not advanced pursuant to paragraph (a) of Section 2.01 during the course of
construction of the Improvements shall be advanced upon the satisfactory
completion of the work to be performed by the contractor, subcontractor or
supplier in question, as reasonably determined by Administrative Agent, and
Administrative Agent's receipt of a final
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Payment Receipt/Lien Release from such contractor, subcontractor or supplier,
but in no event shall such advance be made sooner than as specified in the
contract in question. Notwithstanding anything to the contrary contained herein,
(a) no proceeds of the Loan shall be advanced to Borrower subsequent to the
third anniversary of the date hereof, other than in respect of the Loan Budget
Amounts for "Tenant Improvements" and "Tenant Allowances" and in respect of that
portion of the Loan Budget Amount for "Major/Anchor Allowances" attributable to
Saks, and (b) no proceeds of the Loan shall be advanced to Borrower subsequent
to the fourth anniversary of the date hereof, other than in respect of that
portion of the Loan Budget Amount for "Major/Anchor Allowances" attributable to
Saks.
Section 2.05. Stored Materials. (a) Lenders shall not make advances of
proceeds of the Loan for building materials or furnishings not yet affixed to or
incorporated into the Improvements, except for major building materials,
equipment and furnishings approved by Administrative Agent which are stored on
the Premises and intended to be incorporated into the Improvements pursuant to
the Plans, and not until Administrative Agent shall have received (a) invoices
or other documentation evidencing the cost of such materials, Borrower's
ownership thereof and the release of any right, title or lien in respect thereof
by any vendor, (b) evidence that such materials are covered by the insurance
policies required by this Agreement and are identified and protected against
loss, theft and damage in a manner acceptable to the Construction Consultant and
(c) evidence that advances made by Lenders for any such materials stored on the
Premises pursuant to this paragraph do not, at any one time, exceed, in the
aggregate, $6,000,000, inclusive of the amount requested.
(b) Lenders shall from time to time make Loan advances, in accordance
with the terms of this Agreement, for major building materials, equipment and
furnishings approved by Administrative Agent, which are stored at locations off
the Premises acceptable to Administrative Agent prior to their incorporation
into the Improvements pursuant to the Plans, provided that, in the case of each
such advance, Administrative Agent shall have received (i) such security
agreements, financing statements and other documents as it may require
sufficient to create, perfect and protect a first lien on said materials, (ii)
evidence that said materials are covered by the insurance policies required by
this Agreement, (iii) a written statement from the storer of said materials to
the effect that the Construction Consultant may inspect said materials at all
reasonable times and (iv) evidence that advances made by Lenders for any such
materials stored off the Premises pursuant to this paragraph do not, at any one
time, exceed, in the aggregate, $4,000,000, inclusive of the amount requested.
Each request for an advance of Loan proceeds for materials to be stored off the
Premises shall constitute Borrower's representation to Administrative Agent and
Lenders that said materials are (1) stored in a designated and secure area, and
that said materials will not be moved from the storage site except in connection
with their delivery to the Premises and (2) reasonably anticipated to be
incorporated into the Improvements within one hundred twenty (120) days of the
date of the advance therefor. Borrower covenants to deliver to Administrative
Agent within thirty (30) days of any such advance (x) paid bills and original
warehouse receipts or other documents of title which correspond to the materials
so purchased and stored off-site and (y) a certificate of Borrower to the effect
that said materials are owned by Borrower outright, free and clear of all liens
other than the lien held by Administrative Agent and that all of the terms of
this paragraph have been complied with.
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(c) Notwithstanding the foregoing provisions of this Section, Lenders
shall from time to time make advances of Loan proceeds to pay the deposit on
account of the purchase price for materials to be stored on or off the Premises
pursuant to paragraphs (a) and (b) above, provided, however, that the maximum
amount of such advances that may be outstanding at any one time shall not exceed
$2,000,000.
Section 2.06. Owner Contingency Advances. There shall be no advances of
the Loan Budget Amounts for "Owner's Contingency" unless mutually agreed by
Borrower and Administrative Agent, acting reasonably; provided, however, that
(a) Borrower shall be entitled to advances of the (i) Direct Costs Loan Budget
Amount for "Owner's Contingency" up to a maximum of $2,000,000 and (ii) Indirect
Costs Loan Budget Amount for "Owner's Contingency" up to a maximum amount of
$2,000,000 without Administrative Agent's approval, provided that amounts so
advanced are used by Borrower for the payment of Direct or Indirect Costs, as
the case may be, the Loan Budget Amounts for which are, in Borrower's reasonable
judgment, insufficient and (b) following such time as the Improvements have been
satisfactorily completed, lien-free, Borrower shall be entitled to advances of
said Loan Budget Amounts to the extent it has actually incurred and paid Costs
in respect of completion of the Improvements from its own funds and in excess of
amounts advanced hereunder and has provided appropriate evidence of such payment
to Administrative Agent.
Section 2.07. Reallocation of Amounts on Project Cost Statement. If at
any time the undisbursed balance of the Loan Budget Amount for any category of
cost shown on the Project Cost Statement is, in Administrative Agent's
reasonable judgment, excessive, the excess shall, at Borrower's request, be
reallocated to any other Loan Budget Amount balance which Administrative Agent
reasonably deems to be insufficient or to the Direct Costs Loan Budget Amount
for "Owner's Contingency".
Section 2.08. Certain Limitations on Advances. Notwithstanding
anything to the contrary contained herein, Lenders shall have no obligation to
advance any portion of the Loan Budget Amount for (a) "Tenant Allowances" unless
Administrative Agent shall have received copies, certified to be true and
complete, of the leases for space in the Improvements providing for the payment
requested and, in the case of all leases which Administrative Agent has the
right to approve hereunder or under the Mortgage, Administration Agent shall
have approved (or, if applicable, deemed to have approved, at any time) such
leases and (b) "Interest on Loan" (i) if, when and to the extent that
Administrative Agent, in its sole judgment, reasonably exercised, determines, at
any time subsequent to ninety (90) days following the opening of the
Improvements for business to the public, that the Improvements are generating,
on a cash basis, positive cash flow in excess of Borrower's other usual,
reasonable and customary expenses regarding the Premises and/or Improvements or
(ii) if and to the extent that Borrower shall have previously paid any interest
under the Notes from sources other than advances hereunder or agreements
supplemental hereto. In addition, notwithstanding anything to the contrary
contained herein, Lenders shall have no obligation to advance all or any portion
of the Loan Budget Amount for "Land Acquisition: Residual Land - Option Parcel"
other than in connection with Borrower's acquisition of the Option Parcel and
unless
19
Administrative Agent shall have first received and approved the following
with respect to the Option Parcel: (i) an agreement, executed by Borrower and in
proper form for recording, spreading the lien of the Mortgage to encumber the
Option Parcel, together with related UCC financing statements executed by
Borrower and in proper form for filing, (ii) an endorsement to the title policy
insuring the Mortgage adding the Option Parcel to the insured premises
thereunder with no additional title exceptions other than those approved by
Administrative Agent, (iii) a current survey of the Option Parcel conforming to
the requirements of paragraph (8) of Section 4.01 (d) with respect thereto, (iv)
an appraisal and an environmental site assessment report and reliance letter
regarding the Option Parcel, in each case of the types required by paragraphs
(4) and (6), respectively, of Section 4.01 (d) and (v) such other documents,
opinions and assurances as Administrative Agent may reasonably request. In
connection with the appraisal and environmental site assessment report and
reliance letter required by clause (iv) above, Administrative Agent will accept,
(x) in lieu of a new or separate appraisal, the appraisal delivered pursuant to
paragraph (4) of Section 4.01 so long as the Option Parcel is acquired by
Borrower within twelve (12) months of the date of said appraisal and (y) in lieu
of a new or separate environmental site assessment report and reliance letter,
the environmental site assessment report and reliance letter delivered pursuant
to paragraph (6) of Section 4.01 so long as the Option Parcel is acquired by
Borrower on or before September 29, 2000.
Section 2.09. Nature of Lenders' Obligations; Borrower's Rights and
Obligations in Event a Lender Fails to Make an Advance. The obligations of
Lenders under this Agreement are several, and no Lender shall be responsible for
the failure of any other Lender to fund the portion required to be funded by
such other Lender of an advance of the Loan. In cases where a Delinquent Lender
fails to fund the portion required to be funded by it of an advance and (x) none
of the other Lenders elects to be an Electing Lender pursuant to Section 7.16
and to fund the Delinquent Lender's share of the advance and (y) Borrower is
unable to procure a Replacement Lender in accordance with Section 7.20, the
obligation of the Non-Delinquent Lenders to fund their respective portions of
such advance and each subsequent advance shall be conditioned on (i) Borrower's
committing in writing to Lenders, prior to any such advance, that it will fund
the entire Delinquency Amount and (ii) Borrower's submitting satisfactory
evidence to Administrative Agent, at the time of each advance, that Borrower
and/or Guarantor have paid, from their own funds, a portion of the Direct and
Indirect Costs that are the subject of such advance in an amount equal to the
Delinquent Lender's portion of such advance.
Section 2.10. Notes. The Loan shall be evidenced by notes of Borrower
in the form of EXHIBIT G, duly completed and executed by Borrower (one for each
Lender in an amount equal to such Lender's Individual Loan Commitment, payable
for the account of such Lender's Applicable Lending Office), in an aggregate
principal amount equal to the Loan Amount (such notes, as the same may hereafter
be amended, modified, extended, severed, assigned, substituted, renewed or
restated from time to time (including, without limitation, any substitute notes
pursuant to Section 3.04, 7.16, 7.20 or 9.13), each, a "Note" and collectively,
the "Notes"). The Notes shall mature, and all outstanding principal and other
sums thereunder shall be paid in full, on the Maturity Date, as the same may be
accelerated or extended.
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In case of any loss, theft, destruction or mutilation of any Lender's
Note, Borrower shall, upon its receipt of an affidavit of an officer of such
Lender as to such loss, theft, destruction or mutilation and an appropriate
indemnification, execute and deliver a replacement Note to such Lender in the
same principal amount and otherwise of like tenor as the lost, stolen, destroyed
or mutilated Note.
Section 2.11. Payments and Distributions; Certain Consequences of
Delinquent Lender Status. Borrower shall make each payment under this Agreement
and under the Notes not later than 11:00 a.m. (Pittsburgh time) on the date when
due in Dollars to Administrative Agent at Administrative Agent's Office in
immediately available funds. Administrative Agent will thereafter, by 4:00 p.m.
on the day of its receipt of each such payment (assuming receipt by 11:00 a.m.),
cause to be distributed to each Lender such Lender's appropriate share (based
upon the respective outstanding principal amounts of the Notes and the
respective rates of interest thereunder) of the payments of principal and
interest, and its appropriate share of the payments of other sums, in like funds
for the account of such Lender's Applicable Lending Office.
Except to the extent otherwise provided in this Agreement, whenever any
payment to be made under this Agreement or under the Notes is due on any day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such first extension of time shall in such case be included in
the computation of the payment of interest and, if applicable, fees, as the case
may be.
Notwithstanding the foregoing provisions of this Section, (i)
Administrative Agent shall make no payment to a Delinquent Lender until the
Non-Delinquent Lenders have been paid in full all outstanding principal, accrued
and unpaid interest and any other sums owing to them under the Loan Documents,
it being understood that payments of interest on account of the outstanding
principal amount of the Note held by the Delinquent Lender shall be held by
Administrative Agent in a non-interest bearing account and not distributed to
the Delinquent Lender until such time as all principal, interest and other sums
due to the Non-Delinquent Lenders have been paid in full, (ii) any payments
(other than interest, as provided in clause (i) above) which would otherwise be
due a Delinquent Lender shall be distributed to the Non-Delinquent Lenders until
such time as all principal, interest and other sums due to the Non-Delinquent
Lenders have been paid in full (except that any such amounts otherwise due a
Delinquent Lender received by Administrative Agent during an Election Period
shall be retained by Administrative Agent until the expiration of the Election
Period and either paid to the Delinquent Lender, if the delinquency is cured, or
paid to the Non-Delinquent Lenders, if the delinquency is not cured) and (iii)
Administrative Agent shall deduct, from amounts due (or, in the case of a
Delinquent Lender, amounts that would otherwise be payable to such Delinquent
Lender being held by Administrative Agent pursuant to clause (i) above) a Lender
in default under its obligations under Section 7.05, the amount owing by such
Lender pursuant to said Section 7.05 and pay the amount so deducted to itself,
the other Lenders, or such other party as is entitled to such amount, as
applicable.
Notwithstanding anything to the contrary contained in this Agreement or
the Delinquent Lender's Note, to the extent a Delinquent Lender is obligated
under this
21
Agreement to advance Loan proceeds in respect of interest on the Notes, and
fails to do so, and such amount is not funded by a Replacement Lender or
Electing Lender, such portion of the interest on the Delinquent Lender's Note
(i.e., the interest on the Delinquent Lender's Note that, absent the Delinquent
Lender's delinquency, would have been paid by advances from the Loan Budget
Amount for "Interest on Loan", until the same was fully disbursed) shall accrue
and payment thereof shall be deferred until the Maturity Date (whether as stated
or by acceleration or otherwise), it being understood that the maximum amount of
interest that may be so deferred shall be the undisbursed portion of the
Delinquent Lender's portion of the Loan Budget Amount for "Interest on Loan".
If, following such time as all amounts owing under the Loan to the
Non-Delinquent Lenders and Administrative Agent have been paid in full,
Administrative Agent is holding funds in respect of amounts payable to the
Delinquent Lender as provided in the third paragraph of this Section,
Administrative Agent shall file an interpleader action in any appropriate court
of general jurisdiction located in New York or Pennsylvania and shall deposit
the funds so held (less a sum equal to Administrative Agent's reasonable fees
and expenses in connection with said interpleader action and deposit) with said
court and Administrative Agent shall thereupon be relieved of responsibility to
any party with respect to the funds deposited. Each Delinquent Lender hereby
jointly and severally agrees to reimburse Administrative Agent for all costs and
expenses that Administrative Agent may incur in connection with the foregoing
interpleader action. Nothing in this Section is intended to limit Borrower's
rights and claims against a Delinquent Lender.
Except as provided above in this Section and in Section 7.16, each
Lender's interest in the Loan shall be of equal priority with the interest of
each other Lender.
Section 2.12. Interest. Borrower shall have the option, subject to the terms and
conditions set forth in this Agreement, of paying interest on the Principal
Amount or portions thereof at the Prime Based Rate or the LIBO Based Rate. If
Borrower desires the application of the LIBO Based Rate, it shall submit a LIBO
Rate Request to Administrative Agent, which LIBO Rate Request shall be
irrevocable, subject to Borrower's right to convert the rate of interest payable
under the Notes with respect to any LIBOR Amount from the LIBO Based Rate to the
Prime Based Rate as provided in Section 2.14. Administrative Agent shall, on the
day of its receipt of the LIBO Rate Request from Borrower, notify each Lender by
either telephone or by facsimile of the specified LIBOR Amount and the amount of
the Lender's portion thereof, the Interest Period and date of commencement
thereof, and the interest rate applicable to such LIBOR Amount. Each LIBO Rate
Request shall be applicable to the Notes in accordance with the Lenders'
respective Pro Rata Shares, so that, barring a conversion or suspension of the
LIBO Based Rate by one or more, but not all, Lenders, pursuant to Article III,
the outstanding principal amounts of each of the Notes shall contain segments
bearing interest at the Prime Based Rate and/or LIBO Based Rate(s) under
particular Interest Period(s), each of which segments shall correspond to a
proportional segment of the outstanding principal amount of every other Note.
Notwithstanding the foregoing, if a Lender shall fail to fund the portion it is
required to fund of any advance of the Loan and
22
an Electing Lender shall commit to fund the Delinquency Amount pursuant to
Section 7.16, then from and after the time of the first disbursement of the
Delinquency Amount by the Electing Lender, (i) in the case of a LIBO Rate
Request with respect to an advance, such LIBO Rate Request shall be applicable
to the Notes in accordance with the respective portions of such advance made by
the Lenders; (ii) in the case of a LIBO Rate Request with respect to a portion
of the Principal Amount bearing interest at the Prime Based Rate to be converted
to the LIBO Based Rate, such LIBO Rate Request shall be applicable to the Notes
ratably in accordance with the portions of the outstanding principal balances
under the respective Notes bearing interest at the Prime Based Rate; and (iii)
in the case of a LIBO Rate Request with respect to an existing LIBOR Amount that
is to be the subject of a new Interest Period, such LIBO Rate Request shall be
applicable to the Notes ratably in accordance with the respective portions of
such existing LIBOR Amount allocable to the respective Notes. In the event that
Borrower fails to submit a LIBO Rate Request with respect to a LIBOR Amount not
later than 10:00 a.m. (Pittsburgh time) three (3) Business Days prior to the
last day of the relevant Interest Period, the LIBOR Amount in question shall
bear interest, commencing at the end of such Interest Period, at the Prime Based
Rate.
Interest shall be computed on an actual/360-day basis (i.e., interest
for each day during which any portion of the Principal Amount is bearing
interest at a particular interest rate per annum shall be computed at such rate
divided by 360).
Borrower shall pay interest on the Principal Amount to Administrative
Agent for the account of Lenders. Interest on the Principal Amount shall be
payable, in arrears, monthly on the first day of the first month following the
Initial Advance and on the first day of each month thereafter until the Notes
are repaid in full.
Section 2.13. Limitation on Number of Interest Periods. Borrower shall
not have the right to have more than five (5) Interest Periods, in the
aggregate, in respect of the Loan in effect at any one time, whether or not any
portion of the Principal Amount is then bearing interest at the Prime Based
Rate.
Section 2.14. Conversions of Interest Rate. Provided there exists no
Event of Default, Borrower shall have the right to convert, from time to time,
the rate of interest payable under the Notes with respect to any portion of the
Principal Amount to the LIBO Based Rate or the Prime Based Rate, subject to the
terms of this Agreement (including, without limitation, the payment of all
amounts due in connection with any such conversion from the LIBO Based Rate on a
date other than the last day of an applicable Interest Period) and provided
that, in the case of a conversion from the LIBO Based Rate, the entire LIBOR
Amount is the subject of the conversion. Conversions shall be accomplished (i)
in the case of a conversion from the Prime Based Rate to the LIBO Based Rate, by
Borrower's submission of a LIBO Rate Request in accordance with Section 2.12 or
(ii) in the case of a conversion from the LIBO Based Rate to the Prime Based
Rate, by Borrower's request to Administrative Agent by telephone (to be promptly
confirmed in writing), to be received by Administrative Agent at least three (3)
Business Days prior to the date specified for such conversion, specifying the
LIBOR Amount with respect to which the interest rate is to be converted and the
date of the conversion. On
23
the date of its receipt of such request, Administrative Agent shall notify each
Lender thereof either by telephone or by facsimile.
Section 2.15. Inapplicability of LIBO Based Rate. Any portion of
the Principal Amount to which the LIBO Based Rate is not or cannot pursuant to
the terms of this Agreement be applicable shall bear interest at the Prime Based
Rate. Upon the occurrence of an Event of Default, the entire Principal Amount
shall, at the option of Administrative Agent, immediately and without notice to
Borrower, bear interest at the Prime Based Rate. In addition, during the
existence of an Event of Default, Borrower shall have no right to submit a LIBO
Rate Request with respect to any LIBOR Amount for which the current Interest
Period is expiring. The foregoing provisions shall not be construed as a waiver
by Lenders of their right to pursue any other remedies available to them under
the Mortgage or any other Loan Document nor shall they be construed to limit in
any way the application of the Default Rate as provided in the Mortgage.
Section 2.16. Late Payment Premium. Borrower shall, at Administrative
Agent's option, pay to Administrative Agent for the account of Lenders a late
payment premium in the amount of 4% of any payments of principal (other than
principal at maturity) or interest under the Loan made more than fifteen (15)
days after the due date thereof, which late payment premium shall be due with
any such late payment. Such late charge (i) represents the reasonable estimate
of Borrower and Lenders of a fair average compensation for the loss that may be
sustained by Lenders due to the failure of Borrower to make timely payments and
(ii) shall be paid without prejudice to the right of Lenders to collect any
other amounts provided herein or in the other Loan Documents to be paid or to
exercise any other remedies under the Loan Documents.
Section 2.17. Voluntary Prepayments. Borrower may, upon at least ten
(10) Business Days' notice to Administrative Agent, prepay the Principal Amount,
in whole or part, without premium or penalty; provided, however, that (i) any
partial prepayment under this Section shall be in a principal amount of not less
than $1,000,000 and an integral multiple of $100,000, (ii) prepayment of a LIBOR
Amount other than on the last day of the applicable Interest Period shall be
subject to the provisions of Section 3.03 and (iii) each prepayment under this
Section shall include all interest accrued on the amount of principal prepaid
(and all late charges and other sums that may be payable) through the date of
prepayment. Amounts prepaid may not be reborrowed. In connection with the
foregoing, Administrative Agent shall notify (by telephone or by fax) Lenders on
the next Business Day following its receipt of a notice of prepayment from
Borrower.
Section 2.18. Extension(s) of Maturity Date. Provided there exists no
Default or Event of Default, Borrower shall have the option, exercisable twice,
to extend the Maturity Date for a period of one (1) year, subject in each case
(unless otherwise indicated), to (i) Administrative Agent's receipt of (w)
evidence that the operating covenants of the Anchors under the REA remain in
full force and effect, (x) a written request from Borrower for such extension
between thirty (30) and ninety (90) days prior to the Maturity Date to be
extended, (y) no later than one day prior to the Maturity Date to be extended,
an extension fee, for the account of Lenders, in the amount of .20% (in the case
of the first extension) and .25% (in the case of the second extension) of the
Commitment Amount as of the Maturity Date to be extended and (z) such note
extension agreement(s) as Administrative Agent may reasonably require and (ii)
Administrative
24
Agent's determination (which shall be conclusive so long as made on a reasonable
basis) that, as of the Maturity Date to be extended, (1) Guarantor is in
compliance with the covenants set forth in paragraphs 9 and 10 of the Payment
Guaranty, (2) the Improvements and the Anchor Stores (other than unleased tenant
space in the Improvements, the Saks' Anchor Store and minor "punch-list" items)
have been satisfactorily completed (and, in the case of the Improvements, are
lien-free) in accordance with this Agreement (3) at least 70% (in the case of
the first extension) and 80% (in the case of the second extension) of the total
SFGLA in the Improvements is covered by executed leases pursuant to which the
tenants thereunder are in occupancy and which have an unexpired term of one (1)
year or more, (4) for the first extension only, the Commitment Amount does not
exceed 65% of the "as-is" value of the Premises (as reflected in an update to
the appraisal delivered pursuant to Section 4.01(4), which updated appraisal
shall be commissioned by Administrative Agent at Borrower's expense) and (5)
Debt Service Coverage is at least 1.25 (in the case of the first extension) and
1.40 (in the case of the second extension), as of the date immediately prior to
the Maturity Date to be extended; provided, however, that the foregoing
loan-to-value and Debt Service Coverage conditions set forth in clauses (4) and
(5) above shall be deemed satisfied if Borrower makes a partial prepayment of
the Principal Amount on or before the Maturity Date to be extended in an amount
such that the requisite loan-to-value or Debt Service Coverage, each recomputed
based on the reduced Commitment Amount, is attained.
Section 2.19. Required Amortization During Extension Term(s). If the
original Maturity Date is extended by Borrower for one (1) year pursuant to the
first exercise of its option to extend in accordance with the provisions of
Section 2.18, then, commencing on the first day of the second month following
such first extension, and on the first day of each month thereafter until the
extended Maturity Date, Borrower shall, and hereby covenants and promises to,
make monthly payments in reduction of the Principal Amount. The amount of such
principal payments shall be computed in accordance with a twenty-five (25)-year
fully amortizing, constant payment mortgage schedule based on the Commitment
Amount at the time of the first such payment date and an assumed per annum
interest rate of 2% in excess of the percentage yield to maturity of the then
"on-the-run" ten (10)-year United States Treasury Note. If the Maturity Date is
further extended by Borrower for another year pursuant to the second exercise of
its option to extend in accordance with the provisions of Section 2.18, then,
commencing on the first day of the second month following such second extension,
and on the first day of each month thereafter until the further extended
Maturity Date, Borrower shall, and hereby covenants and promises to, make
adjusted monthly payments in reduction of the Principal Amount. The amount of
such adjusted monthly payments shall be computed in accordance with a
twenty-four (24)-year, fully-amortizing, constant payment mortgage schedule
based on the Commitment Amount at the time of the first such payment date and an
assumed per annum interest rate of 2% in excess of the percentage yield to
maturity of the then "on-the-run" ten (10)-year United States Treasury Note.
Section 2.20. Interest Rate Reduction. Provided there exists no Default
or Event of Default, the Applicable Margin with respect to the Prime Based Rate
and the
25
LIBO Based Rate shall be reduced to (i) .20% per annum and 1.70% per annum,
respectively, upon Administrative Agent's determination (which shall be
conclusive so long as made on a reasonable basis) that Debt Service Coverage is
at least 1.25 and (ii) .00% per annum and 1.55% per annum, respectively, upon
(x) Administrative Agent's receipt of evidence that the operating covenants of
the Anchors under the REA remain in full force and effect and (y) Administrative
Agent's determination (which shall be conclusive so long as made on a reasonable
basis) that (1) Guarantor is in compliance with the covenants set forth in
paragraphs 9 and 10 of the Payment Guaranty, (2) the Improvements and the Anchor
Stores (other than unleased tenant space in the Improvements, the Saks' Anchor
Store and minor "punch-list" items) have been satisfactorily completed (and, in
the case of the Improvements, are lien-free) in accordance with this Agreement,
(3) at least 80% of the total SFGLA in the Improvements is covered by executed
leases pursuant to which the tenants thereunder are in occupancy and which have
an unexpired term of one (1) year or more and (4) Debt Service Coverage is at
least 1.40. Administrative Agent's determination of Debt Service Coverage and
Guarantor's financial covenant compliance and of the satisfaction of the other
conditions, all as set forth above, shall be made within thirty (30) Business
Days of Administrative Agent's receipt from Borrower of sufficiently detailed
financial data and calculations. Interest rate reductions for which Borrower
qualifies pursuant to this Section shall be retroactive to the date on which
Administrative Agent shall have received the financial data and calculations as
aforesaid.
Article III
YIELD MAINTENANCE ETC.
Section 3.01. Additional Costs and Other Effects of Regulatory
Changes. Borrower shall pay directly to a Lender, promptly upon demand, such
amounts as are necessary to compensate such Lender for Additional Costs
resulting from any Regulatory Change which (i) subjects such Lender to any tax,
duty or other charge with respect to the Loan or its Note, or changes the basis
of taxation of any amounts payable to such Lender under the Loan or its Note
(other than taxes imposed on the overall net income of such Lender or of its
Applicable Lending Office by the jurisdiction in which such Lender's principal
office or such Applicable Lending Office is located), (ii) imposes, modifies or
deems applicable any reserve (other than to the extent the Reserve Requirement
is taken into account in determining the LIBO Based Rate at the commencement of
the applicable Interest Period), special deposit or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender, (iii) imposes on such Lender or, in the case
of LIBOR Amounts, on the London interbank market, any other condition affecting
the Loan or its Note, or any of such extensions of credit or liabilities or (iv)
imposes any capital adequacy requirements on such Lender by virtue of the Loan
or the Notes. Such Lender will notify Borrower (with a copy to Administrative
Agent) of any event occurring after the date hereof which would entitle it to
compensation pursuant to this paragraph as promptly as practicable after it
obtains
26
knowledge thereof and determines to request such compensation, and will
designate a different Applicable Lending Office for those portions of the Loan
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in such Lender's sole opinion, be
disadvantageous to it, provided that such Lender shall have no obligation to so
designate an Applicable Lending Office located in the United States.
Without limiting the effect of the immediately preceding paragraph, in
the event that, by reason of any Regulatory Change, (i) a Lender incurs
Additional Costs based on or measured by the excess above a specified level of
the amount of (1) a category of deposits or other liabilities of such Lender
which includes deposits by reference to which the LIBO Rate is determined as
provided in this Agreement and/or (2) a category of extensions of credit or
other assets of such Lender which includes loans the interest on which is
determined on the basis of rates referred to in the definition of "LIBO Rate" in
Section 1.01, (ii) a Lender becomes subject to restrictions on the amount of
such a category of liabilities or assets which it may hold or (iii) it shall be
unlawful or impossible for a Lender to make or maintain its Pro Rata Share of
the Loan (or any portion thereof) at the LIBO Based Rate, then such Lender's
obligation to make or maintain its Pro Rata Share of the Loan (or portions
thereof) at the LIBO Based Rate (and Borrower's right to request the same) shall
be suspended and such Lender shall give notice thereof to Borrower (with a copy
to Administrative Agent) and, upon the giving of such notice, interest payable
on the affected Note shall be converted to the Prime Based Rate, unless such
Lender may lawfully continue to maintain its Pro Rata Share of the Loan (or any
portion thereof) then bearing interest at the LIBO Based Rate to the end of the
current Interest Period(s), at which time the interest rate on the affected Note
shall convert to the Prime Based Rate. If subsequent to any conversion to the
Prime Based Rate as provided above such Lender determines that such Regulatory
Change has ceased to be in effect, such Lender will so notify Borrower (with a
copy to Administrative Agent), and Borrower may convert the rate of interest
payable under the affected Note with respect to those portions of the Principal
Amount bearing interest at the Prime Based Rate to the LIBO Based Rate by
submitting a LIBO Rate Request in respect thereof and otherwise complying with
the provisions of this Agreement with respect thereto.
No Lender shall be entitled to any compensation pursuant to this
Section relating to any period more than ninety (90) days prior to the date
notice thereof is given to Borrower by such Lender.
Determinations by each Lender of the existence or effect of any
Regulatory Change on its costs of making or maintaining its Pro Rata Share of
the Loan, or portions thereof, at the LIBO Based Rate, or on amounts receivable
by it in respect thereof, and of the additional amounts required to compensate
such Lender in respect of Additional Costs, shall be conclusive so long as made
on a reasonable basis.
Section 3.02. Limitations on Availability of LIBO Based Rate. Anything
herein to the contrary notwithstanding, if, at the time of or prior to the
determination of the LIBO Based Rate in respect of any LIBO Rate Request Amount
as provided in this Agreement, (i) Administrative Agent determines (which
determination shall be
27
conclusive so long as made on a reasonable basis) that by reason of
circumstances affecting the London interbank market generally, adequate and fair
means do not or will not exist for determining the LIBO Based Rate applicable to
an Interest Period or (ii) a Lender determines (which determination shall be
conclusive so long as made on a reasonable basis) that the LIBO Rate will not
accurately reflect the cost to such Lender of making or maintaining its Pro Rata
Share of the Loan (or any portion thereof) at the LIBO Based Rate, then
Administrative Agent, in the case of the circumstances described in clause (i)
above, or such Lender, in the case of the circumstances described in clause (ii)
above, shall give Borrower prompt notice thereof (with a copy to Administrative
Agent in the case of the notice from such Lender), and the LIBO Rate Request
Amount in question, in the case of the circumstances described in clause (i)
above, or such Lender's portion thereof, in the case of the circumstances
described in clause (ii) above, shall bear interest, or continue to bear
interest, as the case may be, at the Prime Based Rate. If at any time subsequent
to Administrative Agent's or such Lender's giving of such notice, Administrative
Agent or such Lender, as the case may be, determines that because of a change in
circumstances the LIBO Based Rate is again available to Borrower, Administrative
Agent or such Lender, as the case may be, shall so notify Borrower (with a copy
to Administrative Agent, in the case of the notice from such Lender) and
Borrower may convert the rate of interest payable under the Notes or such
Lender's Note, as the case may be, from the Prime Based Rate to the LIBO Based
Rate by submitting a LIBO Rate Request in respect thereof and otherwise
complying with the provisions of this Agreement with respect thereto.
Section 3.03. Certain Compensation. Borrower shall pay directly to a
Lender, immediately upon request and notwithstanding contrary provisions
contained in the Mortgage or other Loan Documents, such amounts as shall, in the
judgment of such Lender (which shall be conclusive so long as made on a
reasonable basis), compensate it for any loss, cost or expense incurred by it as
a result of (i) any payment or prepayment (under any circumstances whatsoever,
whether voluntary or involuntary) of any portion of the Principal Amount bearing
interest at the LIBO Based Rate on a date other than the last day of an
applicable Interest Period, (ii) the conversion (for any reason whatsoever,
whether voluntary or involuntary) of the rate of interest payable under such
Lender's Note from the LIBO Based Rate to the Prime Based Rate with respect to
any portion of the Principal Amount then bearing interest at the LIBO Based Rate
on a date other than the last day of an applicable Interest Period, (iii) the
failure of all or a portion of an advance of the Loan which was to have borne
interest at the LIBO Based Rate pursuant to a LIBO Rate Request to be made or
(iv) the failure of Borrower to borrow, continue or convert in accordance with a
LIBO Rate Request submitted by it, which amounts shall include, without
limitation, an amount equal to the present value (using as a discount rate the
rate at which interest is computed pursuant to clause (y) below) of the excess,
if any, of (x) the amount of interest that would have accrued at the LIBO Based
Rate on the amount so prepaid, converted, not advanced or not borrowed,
continued or converted, as the case may be, for the period from the date of
occurrence to the last day of the applicable Interest Period over (y) the amount
of interest (as determined in good faith by such Lender) that such Lender would
have paid to Borrower (and other customers) on a Euro-Dollar deposit placed by
such Lender with leading banks in the London interbank market for an amount
comparable to the amount so prepaid, converted, not advanced or not
28
borrowed, continued or converted, as the case may be, for the period from the
date of occurrence to the last day of the applicable Interest Period.
Section 3.04. Substitution of Lenders. If any Lender (an "Affected
Lender") (i) makes demand upon Borrower for (or if Borrower is otherwise
required to pay) Additional Costs pursuant to Section 3.01 or (ii) gives notice
to Borrower that such Lender is unable to make or maintain its Pro Rata Share of
the Loan at the LIBO Based Rate as a result of a condition described in clause
(ii) of Section 3.02 or in the second paragraph of Section 3.01, Borrower may,
within ninety (90) days of receipt of such demand or notice, as the case may be,
give notice (a "Substitution Notice") to Administrative Agent and to each Lender
of its intention to replace such Affected Lender with another financial
institution (the "Substitute Lender") designated in such Substitution Notice.
If, within thirty (30) days of Administrative Agent's receipt of such
Substitution Notice, (x) Administrative Agent shall notify Borrower and each
Lender in writing that the Substitute Lender is reasonably satisfactory to the
Required Lenders and (y) the Affected Lender shall not agree to waive the
payment of the Additional Costs in question or the effect of the circumstances
described in clause (ii) of Section 3.02 or in the second paragraph of Section
3.01, then the Affected Lender shall, so long as no Default shall exist, assign
its Note and all of its rights and obligations under this Agreement to the
Substitute Lender, and the Substitute Lender shall assume all of the Affected
Lender's rights and obligations, pursuant to an agreement, substantially in the
form of an Assignment and Assumption Agreement, executed by the Affected Lender
and the Substitute Lender. In connection with such assignment and assumption,
the Substitute Lender shall pay to the Affected Lender an amount equal to the
outstanding principal amount under the Affected Lender's Note plus all interest
accrued thereon, plus all other amounts, if any (other than the Additional Costs
in question), then due and payable to the Affected Lender with respect to the
Loan; provided, however, that prior to or simultaneously with any such
assignment and assumption, Borrower shall have paid to such Affected Lender all
amounts properly demanded and unreimbursed under this Article III. Upon the
effective date of such assignment and assumption and the payment by the
Substitute Lender to Administrative Agent of a fee, for Administrative Agent's
own account, in the amount of $3,500, the Substitute Lender shall become a party
to this Agreement and shall have all the rights and obligations of a Lender as
set forth in such Assignment and Assumption Agreement, and the Affected Lender
shall be released from its obligations hereunder, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this Section, a note shall be issued to the Substitute Lender by
Borrower, in substitution for the Affected Lender's Note, and the Affected
Lender shall return its Note to Borrower. Such substitute note shall constitute
a "Note", and the obligations evidenced by such substitute note shall be secured
by the Mortgage. In connection with Borrower's execution of such substitute note
as aforesaid, Borrower shall deliver to Administrative Agent such evidence of
the due authorization, execution and delivery of the substitute note and any
related documents as Administrative Agent may reasonably request. If the
Substitute Lender is not incorporated under the Laws of the United States or a
state thereof, it shall, prior to the first date on which interest or fees are
payable hereunder for its account, deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 7.13.
29
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the
substitution of Lenders in accordance with the foregoing provisions of this
Section.
Article IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Initial Advance. Lenders shall
not be obligated to make the Initial Advance until the following conditions
shall have been satisfied:
(a) There shall exist no Default or Event of Default;
(b) The representations and warranties made to Administrative
Agent or Lenders herein, in the other Loan Documents and in any other
document, certificate or statement executed or delivered to
Administrative Agent or Lenders in connection with the Loan shall be
true and correct on and as of the date of the Initial Advance with the
same effect as if made on such date;
(c) The Improvements, if any, shall not have been materially
injured or damaged by fire or other casualty unless Administrative
Agent shall have received, for the account of Lenders, insurance
proceeds sufficient in the judgment of the Construction Consultant to
effect the satisfactory restoration of the Improvements and to permit
completion of the Improvements prior to the Completion Date;
(d) Administrative Agent shall have received and approved each of
the following:
(1) Fees and Expenses. (i) Those fees required by the Fee
Letter to be paid by Borrower/Guarantor on or before the date
hereof and (ii) all fees and expenses incurred by Administrative
Agent (including, without limitation, the reasonable fees and
expenses of counsel, the Construction Consultant, environmental
and insurance consultants, and the preparer of the appraisal
required by paragraph (4) below);
(2) Loan Documents and Fee Letter. This Agreement, each of
the other Loan Documents and the Fee Letter, duly executed by the
parties thereto, and, where applicable, duly acknowledged and in
proper form for recording or filing, as the case may be, and all
necessary or desirable recordings and filings shall have been
duly made;
(3) Financial Statements. Current unaudited financial
statements of Borrower, certified by an appropriate financial
officer, and audited TRG Consolidated Financial Statements (each
as of and for the
30
year ended December 31, 1999) and such other financial data
(including, without limitation, current financial statements of
the General Contractor) as Administrative Agent shall require;
(4) Appraisal. A written appraisal of the Premises and
Improvements, and also covering the Option Parcel, prepared by an
independent appraiser engaged by Administrative Agent on behalf
of Lenders at Borrower's sole cost and expense, prepared in
compliance with all applicable regulatory requirements and being
also subject to Administrative Agent's customary independent
appraisal requirements;
(5) Insurance Policies. The policies/certificates of
insurance required by the Mortgage, together with evidence of the
payment of the premiums therefor;
(6) Hazardous Materials Report/Reliance Letter. A detailed
environmental site assessment report regarding each of the
Premises and the Option Parcel (with accompanying "reliance
letter") by a properly qualified engineer;
(7) Title Policy. A paid title insurance policy (or
policies), dated the date of the Initial Advance, in the amount
of the Mortgage, in the standard form promulgated by the Texas
Department of Insurance and approved by Administrative Agent,
issued by the Title Insurer, which shall insure the Mortgage to
be a valid lien on Borrower's interests in the Premises free and
clear of all defects and encumbrances except those previously
received and approved by Administrative Agent, and shall contain,
to the extent available in Texas:
(i) full coverage against mechanics' liens (filed and
inchoate),
(ii) a reference to the survey (with the standard Texas
survey exception), but no other survey exceptions except
those theretofore approved by Administrative Agent,
(iii) such affirmative insurance and endorsements which
are available in Texas as Administrative Agent may
reasonably require, and
(iv) a pending disbursements clause in the form
prescribed by the Texas Department of Insurance, and an
undertaking by the Title Insurer to provide periodic updates
of the state of title to the Premises as requested by
Administrative Agent;
and shall be accompanied by such reinsurance agreements between
the Title Insurer and title companies approved by Administrative
Agent, in the
31
facultative reinsurance form promulgated by the Texas Department
of Insurance, as Administrative Agent may require;
(8) Survey. A current ALTA/ACSM survey of the Premises,
certified to Administrative Agent and the Title Insurer, showing:
(i) the location of the perimeter of the Premises by
courses and distances,
(ii) all easements, rights-of-way, and utility lines
referred to in the title policy required by this Agreement
or which actually service or cross the Premises (with
instrument, book and page number indicated),
(iii) the lines of the streets abutting the Premises
and the width thereof, and any established building and
setback lines,
(iv) encroachments and the extent thereof upon the
Premises,
(v) locations of all portions (with the acreage thereof
also identified) of the Premises, if any, which are located
in an area designated as a "flood prone area", as defined by
the U.S. Department of Housing and Urban Development
pursuant to the Flood Disaster Protection Act of 1973,
(vi) the Improvements to the extent constructed, and
the relationship of the Improvements by distances to the
perimeter of the Premises, established building, setback and
street lines, and
(vii) if the Premises are described as being on a filed
map, a legend relating the survey to said map;
(9) Leases and Premises Documents. Certified copies of the
Parking Lease and all other executed leases in respect of the
Premises, accompanied by (i) executed notice-of-assignment
letters in the form of EXHIBIT F in respect thereof and (ii)
estoppel certificates and subordination and attornment agreements
(on a "best efforts" basis), in form acceptable to Administrative
Agent, in respect of such leases as Administrative Agent may
require; a certified copy of the standard form of lease Borrower
will use in connection with the leasing of space in the
Improvements; and certified copies of the REA, the Master
Agreement and all other Premises Documents, together with
estoppel certificates from the Anchors, the City and all other
parties to any thereof;
(10) Counsel Opinions. Favorable opinions of Borrower's
counsel and local counsel as to such matters as may be reasonably
requested by Administrative Agent;
32
(11) Partnership Documents. For each of Borrower and
Guarantor:
(i) certified copies of its certificate and agreement
of limited partnership, with all amendments thereto, and
certificates of the Secretary of State of Texas and of
Delaware as to its good standing in such jurisdictions,
(ii) certified copies of all documents evidencing
partnership action taken by it authorizing the execution,
delivery and performance of the Loan Documents and each
other document to be delivered by it or on its behalf
pursuant to this Agreement, and
(iii) a certificate of the secretary of TCI certifying
the names, offices and true signatures of each individual
authorized to sign on behalf of Borrower and Guarantor;
(12) Requisition. A Requisition for the Initial Advance,
together with proof of payment of, or unpaid invoices for, any
Indirect Costs included therein;
(13) Permits and Approvals. Copies of any and all
authorizations (including plot plan and subdivision approvals,
zoning variances, water, sewer, building and other permits)
required by Governmental Authorities or otherwise necessary for
the construction, use, occupancy and operation of the Premises
and/or Improvements for the purposes contemplated by the Plans in
accordance with all applicable Laws;
(14) Management and Leasing Contract. A copy, certified to
be true and complete, of its agreement with The Taubman Company
Limited Partnership providing for the management, maintenance,
operation and leasing of the Premises and Improvements, together
with such collateral assignment or "will-serve" letter in respect
thereof as Administrative Agent may require;
(15) Chattel Searches. UCC searches against Borrower and
advice from the Title Insurer to the effect that searches of
proper public records disclose no leases of personalty or
financing statements filed or recorded against the Premises or
Borrower;
(16) Interest Rate Protection and Assignment. A fully
executed counterpart of an interest rate protection agreement
between Borrower and a financial institution acceptable to
Administrative Agent, at a rate, for a term and otherwise on
terms and conditions reasonably satisfactory to Administrative
Agent, in an accreting notional amount (increasing as advances of
Loan proceeds are made hereunder) up to $147,000,000,
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together with an assignment of Borrower's rights thereunder to
Administrative Agent as security for the Loan, which assignment
shall be acknowledged and consented to by said financial
institution;
(17) Plans, Etc. A complete set of the Plans and copies of a
soil-engineer's report, a site plan (showing all necessary
approvals, utility connections and site improvements) and all
inspection and test records and reports made by or for Borrower
or Borrower's Architects;
(18) Consultant's Report. A report from the Construction
Consultant to the effects that (i) it has received and approved
the items required by paragraph (e) below, (ii) the Plans have
been approved by all applicable Governmental Authorities, (iii)
the Improvements as shown by the Plans will comply with
applicable zoning and other Laws and with all applicable Premises
Documents, (iv) a General Contract and/or Major Subcontracts are
in effect which satisfactorily provide for the construction of
the Improvements, (v) all roads and utilities necessary for the
full utilization of the Improvements for their intended purposes
have been completed, or the presently installed and proposed
roads and utilities will be sufficient for the full utilization
of the Improvements for their intended purpose and will be
available to and servicing the Premises upon completion of the
Improvements, (vi) the construction of the Improvements
theretofore performed, if any, was performed in accordance with
the Plans and (vii) construction of the Improvements, along with
all necessary roads and utilities, will be finished on or before
the Completion Date; and to such other effects as Administrative
Agent may reasonably request;
(19) Construction Contracts and Will-Serve Letters. Copies
of the General Contract, all executed Major Subcontracts and
Borrower's agreement with Borrower's Architects, in each case
certified by Borrower to be true and complete, together with
letters from Borrower's Architects and the General Contractor in
the forms of EXHIBITS C and D, respectively;
(20) Bonds. Performance bonds (naming Administrative Agent
as co-obligee) and labor and materials payment bonds, each in
form and issued by a surety acceptable to Administrative Agent,
in respect of all subcontracts as may be specified by
Administrative Agent;
(21) Progress Schedule. A progress schedule or chart showing
the interval of time over which each item of Direct Cost is
projected to be incurred or paid;
(22) Project Cost Statement. The Project Cost Statement;
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(23) Equity Investment. A certificate from Borrower
demonstrating that it has invested equity in the Premises (i.e.,
its payment of Direct or Indirect Costs) in an amount equal to at
least $73,192,321.75, which certificate shall be accompanied
by such evidence of such investment as Administrative Agent may
reasonably request;
(24) Covenant Compliance Certificate. A certificate of the
sort required by paragraph (3) of Section 6.19; and
(25) Additional Documentation. Such other approvals,
opinions or documents as Administrative Agent may reasonably
request; and
(e) The Construction Consultant shall have received and approved
each of the following:
(1) Related Documents. Copies of the items required by
paragraphs (6), (8), (13), (17), (19), (20), (21) and (22) of
Section 4.01(d), together with copies of any Major Leases or
Premises Documents which contain any requirements or
specifications in respect of construction of the Improvements;
(2) Title Documents. Copies of any documents listed as
exceptions to title in the title policy required hereby which are
relevant to the construction or use of the Improvements; and
(3) Requisition. If the Initial Advance consists in whole or
in part of advances for Direct Costs, a copy of the Requisition
therefor.
Section 4.02.Conditions to Advances After the Initial Advance. Lenders'
obligation to make advances of proceeds of the Loan after the Initial Advance
shall be subject to the satisfaction of the following conditions:
(a) All conditions of Section 4.01 shall have been and remain
satisfied as of the date of such advances, it being understood that in
the case of 4.01(c) (i.e., material injury or damage to the
Improvements by fire or other casualty), subsequent advances shall be
conditioned on Borrower's satisfaction of the provisions of Section
1.09 of the Mortgage;
(b) There shall exist no Default or Event of Default;
(c) The representations and warranties made to Administrative
Agent and/or Lenders herein, in the other Loan Documents and in any
other document, certificate or statement executed or delivered to
Administrative Agent and/or Lenders in connection with the Loan shall
be true and correct on and as of the date of the advance with the same
effect as if made on such date;
(d) Administrative Agent shall have received a written
continuation report of or endorsement to the title policy insuring the
Mortgage to the date of
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such advance, in the form prescribed by the Texas Department of
Insurance and approved by Administrative Agent, and setting forth no
additional exceptions (including survey exceptions) except those
approved by Administrative Agent;
(e) If required by Administrative Agent, but no more frequently
than once during any twelve (12)-month period unless a current survey
is required by the Title Insurer or Administrative Agent has reason to
believe a survey encroachment exists, Administrative Agent shall have
received a survey of the Premises, certified to it and the Title
Insurer, updated, with respect to all relevant requirements and
information, to within ten (10) days of the advance;
(f) Administrative Agent and the Construction Consultant shall
have received a Requisition for the advance, together with such other
documentation and information as either of them may reasonably
require; and
(g) Administrative Agent and the Construction Consultant shall
have received from Borrower's Architects, the General Contractor,
Major Subcontractors and other contractors or subcontractors required
by Administrative Agent, lien waivers filed in the real property
records of Collin County, Texas and Payment Receipts for all payments
due on or before the date of the immediately prior Requisition under
contracts or other arrangements with such Persons, the performance of
which could give rise to a Lien on the Mortgaged Property.
Section 4.03. Conditions to Last Direct Costs Advance. In addition to
the requirements of Section 4.02, in the case of the last Direct Costs Loan
advance as provided in Section 2.04, Administrative Agent shall also have
received and approved:
(a) A report from the Construction Consultant to the effect that
construction of the Improvements has been completed (other than for
unleased tenant space and minor "punch-list" items), and any necessary
utilities and roads have been finished and made available for use, in
accordance with the Plans and that it has received satisfactory
evidence of the approval by all Governmental Authorities of the
Improvements (exclusive of tenant space) for permanent occupancy, and
of the contemplated uses thereof, to the extent any such approval is a
condition of the lawful use and occupancy thereof;
(b) A current final survey of the Premises, certified to
Administrative Agent and the Title Insurer, showing the completed
Improvements;
(c) Evidence that Borrower has filed the notice or affidavit, in
accordance with Section 53.106 of the Texas Property Code, of
completion of the Improvements necessary to establish commencement of
the shortest statutory period for the filing of mechanics' and
materialmen's liens, and that at least thirty (30) days have lapsed
since the date of completion specified therein;
(d) At Administrative Agent's option, a certificate from the City
to the effect that the Improvements have been satisfactorily completed
for all purposes of the Parking Lease and the Master Agreement and, to
the extent any tenants
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under any other Major Leases or any parties to the other Premises
Documents have rights of approval with respect to construction of the
Improvements, certificates by such tenants or parties (or other
satisfactory evidence), to the effect that, for purposes of such Major
Leases and Premises Documents, respectively, the Improvements have
been satisfactorily completed; and
(e) Such endorsements to the title policy(ies) insuring the
Mortgage as Administrative Agent may reasonable request.
Article V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders
that:
Section 5.01. Due Formation, Power and Authority. If it, the mortgagor
or grantor under the Mortgage (if different from Borrower), Guarantor or any
general partner or member of any of them is a corporation, partnership, venture,
limited liability company or trust, each such entity is duly organized, validly
existing and in good standing under the Laws of the jurisdiction of its
formation, is qualified to do business (if required) and is in good standing in
the jurisdiction in which the Premises are located, and has full power and
authority to consummate the transactions contemplated hereby and to execute,
deliver and perform this Agreement and any other Loan Document to which it is a
party.
Section 5.02. Legally Enforceable Agreements. The Fee Letter and each
Loan Document to which Borrower or Guarantor is a party is a legal, valid and
binding obligation of such party, enforceable against Borrower or Guarantor, as
the case may be, in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar Laws affecting creditors' rights generally.
Section 5.03. Financial Statements. Borrower's financial statements and
the TRG Consolidated Financial Statements most recently delivered pursuant to
the terms of this Agreement are in all material respects complete and correct
and fairly present the financial condition of the subjects thereof as of the
dates of and for the periods covered by such statements, all in accordance with
GAAP except as otherwise expressly noted; there has been no Material Adverse
Change since the date of such most recently delivered Borrower's financial
statements and TRG Consolidated Financial Statements, and no borrowings (other
than those expressly permitted hereby or by the Mortgage) which might give rise
to a lien or claim against the Mortgaged Property or against the proceeds of the
Loan have been made by Borrower or others since the dates of such most recently
delivered Borrower's financial statements and TRG Consolidated Financial
Statements.
Section 5.04. Compliance With Laws; Payment of Taxes. Borrower and
Guarantor are in compliance with, and the transactions contemplated hereby and
by the other Loan Documents do not and will not violate any provision of, or
require any filing,
37
registration, consent or approval under, any Law presently in effect having
applicability to Borrower or Guarantor where the failure to be in compliance
would cause a Material Adverse Change; each of Borrower and Guarantor has filed
(or duly obtained an extension of the time to file) all tax returns (federal,
state and local) required to be filed and has paid all taxes, assessments and
governmental charges and levies due and payable (including those in respect of
the Premises), including interest and penalties, except to the extent they are
the subject of a Good Faith Contest.
Section 5.05. Litigation. There are no actions, suits or proceedings
pending or, to Borrower's knowledge, threatened against or affecting it,
Guarantor, the Premises, the validity or enforceability of the Mortgage or the
priority of the lien thereof at law, in equity or before or by any Governmental
Authorities except actions, suits or proceedings which have been disclosed to
Administrative Agent and Lenders in writing and which are fully covered by
insurance or would, if adversely determined, not substantially impair the
ability of Borrower or Guarantor to pay when due any amounts which may become
payable under the Notes or Guaranty or to otherwise pay and perform their
respective Obligations; to Borrower's knowledge, neither it nor Guarantor is in
default with respect to any order, writ, injunction, decree or demand of any
court or Governmental Authorities.
Section 5.06. No Conflicts or Defaults. The consummation of the
transactions contemplated hereby and the performance hereof and of the other
Loan Documents have not resulted and will not result in any breach of, or
constitute a default under, any mortgage, deed of trust, lease, bank loan or
credit agreement, corporate charter, by-laws, partnership agreement or other
instrument to which Borrower or Guarantor is a party or by which either of them
may be bound or affected. Each of Borrower and Guarantor has satisfied all
judgments which are not being appealed and is not in default with respect to any
judgment, order, writ, injunction, decree, rule or regulation binding on it of
any court, arbitrator or federal, state, municipal or other Governmental
Authority, commission, board, bureau, agency or instrumentality, domestic or
foreign.
Section 5.07. Solvency. Borrower and Guarantor are, and upon
consummation of the transactions contemplated by this Agreement, the other Loan
Documents and any other related documents, will be, Solvent.
Section 5.08. Governmental Regulation. Neither Borrower nor Guarantor
is subject to regulation under the Investment Company Act of 1940 or any other
Law limiting its ability to incur indebtedness for money borrowed as
contemplated hereby.
Section 5.09. Insurance. Borrower has in force, and has paid the
premiums in respect of, all of the insurance required by the Mortgage. Borrower
and Guarantor have in force paid insurance with financially sound and reputable
insurance companies or associations in such amounts and covering such risks as
are usually carried by companies engaged in the same or a similar business and
similarly situated.
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Section 5.10. ERISA. Neither Borrower nor Guarantor nor any other
Person, including any fiduciary, has engaged in any prohibited transaction (as
defined in Section 4975 of the Code or Section 406 of ERISA) which could subject
Borrower or Guarantor or any Person whom they have an obligation to indemnify to
any tax or penalty imposed under Section 4975 of the Code or Section 502 of
ERISA; neither Borrower nor Guarantor nor any ERISA Affiliate maintains,
contributes to or has any liability with respect to a Multiemployer Plan or any
other plan subject to Title IV of ERISA; each Employee Benefit Plan is
administered in all material respects in accordance with its terms and in
compliance with all applicable Laws, including any reporting requirements; each
Pension Plan intending to qualify under Section 401(a) or 401(k) of the Code
does so qualify; there is no lien outstanding or security interest given in
connection with a Pension Plan; neither Borrower nor Guarantor nor any ERISA
Affiliate has any liability with respect to an accumulated funding deficiency
(whether or not waived) under Section 412 of the Code or Section 302 of ERISA;
and neither Borrower nor Guarantor has any liability for retiree medical or
death benefits (contingent or otherwise) other than as required by Section 4980B
of the Code.
Section 5.11. Other Documents. The Major Leases and Premises Documents
are unmodified and in full force and effect (except as permitted hereby); to the
best of Borrower's knowledge, there are no defaults (or events which with notice
or the passage of time, or both, would constitute such a default) under any
thereof except as disclosed to Administrative Agent in writing, and all
conditions to the effectiveness and continuing effectiveness thereof required to
be satisfied as of the date hereof have been satisfied.
Section 5.12. No Default. There exists no Default or Event of Default.
Section 5.13. Accuracy of Information; Full Disclosure. To the best of
Borrower's knowledge, neither this Agreement, nor any other Loan Document, nor
any documents, financial statements, reports, notices, schedules, certificates,
statements or other writings furnished by or on behalf of Borrower or Guarantor
to Administrative Agent or Lenders in connection with the negotiation of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby, or required herein or by or in the other Loan Documents to
be furnished by or on behalf of Borrower or Guarantor, contains any untrue or
misleading statement of a material fact or omits a material fact necessary to
make the statements herein or therein not misleading; to the best of Borrower's
knowledge, there is no fact which Borrower or Guarantor has not disclosed to
Administrative Agent and Lenders in writing which materially affects adversely
or, so far as Borrower can now foresee, will materially affect adversely any of
the Mortgaged Property or the business affairs or financial condition of
Borrower or Guarantor, or the ability of Borrower or Guarantor to perform this
Agreement and the other Loan Documents.
Section 5.14. Separate Tax and Zoning Lot. The Premises constitute a
distinct parcel or parcels for purposes of zoning and of taxes, assessments and
impositions (public or private) and are not otherwise considered as part of a
larger single lot for purposes of zoning or of taxes, assessments or impositions
(public or private).
39
Section 5.15. Requisition as Reaffirmation. Each Requisition submitted
to Administrative Agent, and the receipt of the funds requested thereby, shall
constitute an affirmation that the representations and warranties contained
herein and in the other Loan Documents remain true and correct as of the
respective dates of such Requisitions.
Section 5.16. Plans and Improvements. The approved Plans are scheduled
by sheet number, title, date and revised date in the letter from Borrower's
Architects in the form of EXHIBIT C, which schedule is hereby certified by
Borrower to be true and correct, and are substantially the same as the filed
plans referred to in the building permits for the Improvements; the Plans are
satisfactory to it, have been reviewed and approved by Guarantor, the General
Contractor, the tenants under any Major Leases and the parties to any Premises
Documents which require approval of the Plans, Borrower's Architects and, to the
extent required by applicable Law or any restrictive covenant, by all
Governmental Authorities and the beneficiary of any such covenant; all
construction, if any, already performed on the Improvements has been performed
on the Premises in accordance with the Plans approved by the Persons named above
and with any restrictive covenants applicable thereto; there are no structural
defects in the Improvements or violations of any requirement of any Governmental
Authorities with respect thereto; the Improvements and the planned use thereof
comply with all applicable zoning and other Laws and all restrictions and
covenants affecting the Premises; and all requirements for such use have been
satisfied.
Section 5.17. Utility Services; Roads. All utility services necessary
for the construction of the Improvements and the operation thereof for their
intended purposes are available at the boundaries of the Premises, including
water supply, storm and sanitary sewer, gas, electric power and telephone
facilities. All roads necessary for the full utilization of the Improvements for
their intended purposes have either been completed or the land necessary
therefor is owned by Borrower or will be acquired by Borrower pursuant to
legally enforceable agreements which are in full force and effect (which land,
upon completion of the roads, is intended to be dedicated to and accepted by the
appropriate Governmental Authorities for public use, and all necessary steps
have been taken by Borrower and said Governmental Authorities to assure the
complete construction and installation thereof no later than the Completion Date
or any earlier date required by any Law, Premises Document or Major Lease.
Section 5.18. Creation of Liens. It has entered into no contract or
arrangement of any kind the performance of which by the other party thereto
would give rise to a lien on the Mortgaged Property prior to the Mortgage except
for its arrangements with Borrower's Architects, the General Contractor, Major
Subcontractors and contractors or subcontractors who have filed lien waivers or
signed Payment Receipts/Lien Releases in the form of EXHIBIT B-2 for all
payments due under said arrangements as of the end of the period covered by the
last Requisition.
Section 5.19. Construction Prior to Closing. It advised the Title
Insurer writing prior to the issuance of the title policy insuring the Mortgage
whether any survey, soils-testing, site-development, excavation or other work
related to construction of the Improvements was begun or done before the
Mortgage was recorded.
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Section 5.20. Environmental Protection. To the best of Borrower's
knowledge, none of Borrower's or Guarantor's properties (including the Premises)
contains any Hazardous Materials that, under any Environmental Law currently in
effect (x) would impose liability on Borrower or Guarantor that is likely to
result in a Material Adverse Change or (y) is likely to result in the imposition
of a lien on any assets (including the Premises) of Borrower, in each case if
not properly handled in accordance with applicable Law. To the best of
Borrower's knowledge, neither it nor any portion of the Premises or
Improvements, is in violation of, or subject to any existing, pending or
threatened investigation or proceeding by any Governmental Authority under, any
Environmental Law. Except as may be disclosed in the environmental site
assessment report delivered pursuant to paragraph (6) of Section 4.01, Borrower
is not aware of any matter, claim, condition or circumstance which would
reasonably cause a Person to make further inquiry with respect to such matters
in order to ascertain whether any Hazardous Materials or their effects have been
disposed of or released on or to any portion of the Premises or Improvements or
any surrounding areas; to the best of Borrower's knowledge, it is not required
by any Environmental Law to obtain any permits or license to construct or use
any improvements, fixtures, or equipment with respect to the Premises or
Improvements, or if such permit or license is required it has been obtained;
and, to Borrower's actual knowledge, except as may be disclosed in the
aforementioned environmental site assessment report, the prior use of the
Premises and Improvements has not resulted in the disposal or release of any
Hazardous Materials on or to any portion of the Premises or any surrounding
areas in violation of applicable Law.
Article VI
COVENANTS OF BORROWER
Borrower covenants and agrees that it shall:
Section 6.01. Compliance with Laws; Payment of Taxes. Comply with all
Laws applicable to it or to any of its property (including the Mortgaged
Property) or any part thereof, such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments and governmental
charges imposed on it or any such property, or any part thereof, except to the
extent they are the subject of a Good Faith Contest.
Section 6.02. Maintenance of Records. Keep adequate records and books
of account, in which complete entries will be made in accordance with GAAP,
reflecting all of its financial transactions.
Section 6.03. Intentionally Omitted.
Section 6.04. Covenants, Restrictions and Easements. Comply in all
material respects with all restrictions, covenants and easements affecting the
Premises or the Improvements and cause the satisfaction of all conditions
hereof.
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Section 6.05. Inspection and Cooperation. (a) At any reasonable time
and from time to time upon reasonable notice, permit Administrative Agent or any
Lender or any agent or representative thereof (provided that a representative of
any Lender must, at Borrower's request, be accompanied by a representative of
Borrower), to examine and make copies and abstracts from the records and books
of account of, and visit the properties (including the Premises) of, Borrower
and to discuss the affairs, finances and accounts of Borrower with the chief
financial officers or treasurers thereof and with Borrower's Accountants.
Each Lender and Administrative Agent agree that it shall
maintain confidentiality with respect to the materials referred to above in this
paragraph (a), provided that Lenders and Administrative Agent shall not be
precluded from making disclosure regarding such information: (i) to any Lender's
or Administrative Agent's respective counsel, accountants and other professional
advisors (who are, in each case, subject to this confidentiality agreement),
(ii) to officers, directors, employees, agents and partners of each Lender and
Administrative Agent who need to know such information (who are, in each case,
subject to this confidentiality agreement), (iii) in response to a subpoena or
order of a court or Governmental Authority, (iv) to any Assignee or Participant
or prospective Assignee or Participant, provided that any such entity shall be
subject to this paragraph; it being understood, however, that Lenders and
Administrative Agent shall have no duty to monitor any Assignee or Participant
or prospective Assignee or Participant and shall have no liability in the event
that any Assignee or Participant or prospective Assignee or Participant violates
this paragraph or (v) as required by Law or by GAAP.
(b) Permit Administrative Agent, its representatives and the
Construction Consultant to enter upon the Premises, inspect the Improvements and
all materials to be used in the construction thereof and examine all detailed
plans and shop drawings which are or may be kept at the construction site;
provided that the foregoing rights shall not be exercised in a manner so as to
interfere unduly with the conduct of business and operations of Borrower;
cooperate and cause the General Contractor and Major Subcontractors to cooperate
with the Construction Consultant to enable it to perform its functions
hereunder; at the time of each inspection by the Construction Consultant, make
available to said consultant, on demand, daily log sheets covering the period
since the immediately preceding inspection showing the date, weather,
subcontractors on the job, number of workers and status of construction.
Section 6.06. Payment of Costs. Pay all Direct and Indirect Costs and
expenses required for completion of the Improvements and the satisfaction of the
conditions hereof, including, without limitation:
(a) all document and stamp taxes, recording and filing expenses
and fees and commissions lawfully due to brokers (other than brokers
engaged solely by Administrative Agent or Lenders) in connection with
the transactions contemplated hereby,
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(b) any taxes, insurance premiums, liens, security interests or
other claims or charges against the Premises or Improvements, other
than those which are the subject of a Good Faith Contest as may be
permitted hereby or by the Mortgage, and
(c) all costs of completion of the work to be performed by
Borrower in space to be occupied in the Improvements (including public
space) to permit the lawful occupancy thereof for the purposes
contemplated by actual or prospective lessees of such space as set
forth in the individual leases thereof or in detailed work letters or
other agreements or letters of intent with respect thereto, or, in
cases where there are no such leases, work letters or other documents
as aforesaid, as set forth in Borrower's standard work letter or the
standard form of lease required by paragraph (9) of Section 4.01(d),
or, in cases where none of the foregoing exists, to the level of
building standard in accordance with industry practices, as
conclusively determined by the Construction Consultant.
Section 6.07. Brokers. Indemnify Administrative Agent and Lenders
against claims of brokers (other than brokers engaged solely by Administrative
Agent or Lenders) arising by reason of the execution hereof or the consummation
of the transactions contemplated hereby.
Section 6.08. Construction of Improvements. Commence construction of
the Improvements no later than thirty (30) days from the date hereof; submit a
Requisition for the Initial Advance within thirty (30) days after the date
hereof and subsequent advances on a monthly basis thereafter; cause construction
thus begun to be prosecuted with diligence and continuity in a good and
workmanlike manner in accordance with the Plans except during the existence of
delays (for not more than sixty (60) days or such longer period as
Administrative Agent may reasonably permit) caused by events beyond its
reasonable control; use only materials, fixtures, furnishings and equipment in
connection with construction of the Improvements that are not used or obsolete;
and complete construction of the Improvements (other than unleased tenant space
and minor "punch-list" items), and the installation of all necessary roads and
utilities, in accordance with the Plans and with all applicable Laws, leases and
Premises Documents, on or before the Completion Date free and clear of defects
and liens or claims for liens for material supplied or labor or services
performed in connection with the construction of the Improvements; time being of
the essence as to this Section.
Section 6.09. Project Sign. Following the execution hereof, place a
sign, at its own expense, on the Premises at a location reasonably satisfactory
to Administrative Agent regarding the financing for construction of the
Improvements, in form and substance reasonably acceptable to Administrative
Agent.
Section 6.10. Building Loan Trust Account. Receive and deposit in the
Building Loan Trust Account all advances made hereunder; and hold the same and
the right to receive the same as a trust fund for the purpose of paying only
Direct and Indirect Costs.
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Section 6.11. Certain Materials to be Submitted. Deliver to
Administrative Agent and the Construction Consultant copies of all contracts,
bills of sale, statements, receipted vouchers or agreements under which Borrower
claims title to any materials, fixtures or articles incorporated in the
Improvements or subject to the lien of the Mortgage, or under which it has
incurred costs for which it is entitled to an advance of proceeds of the Loan,
and deliver to Administrative Agent such other data or documents in connection
with the Improvements as Administrative Agent may from time to time reasonably
request.
Section 6.12. Correction of Defects and Departures from Plans. Upon
demand of Administrative Agent or the Construction Consultant, correct any
defects (including structural) in the Improvements or any departures (other than
de minimus departures) from the Plans not approved by Administrative Agent.
Section 6.13. Change Orders. Not permit the performance of any work
pursuant to any General Contract, Major Subcontract, Change Order or Plans until
Administrative Agent and the Construction Consultant (i) in the case of any
General Contract, Major Subcontract or Plans, shall have received copies thereof
and (ii) in the case of Plans or Change Orders which will result in (A) a change
in the aggregate of the contract prices for the construction of the Improvements
in excess of the Change Order Amount or which, together with the aggregate of
Change Orders theretofore executed by Borrower (excluding those approved by
Administrative Agent pursuant to this Section) will result in a change in such
prices in excess of the Aggregate Change Order Amount or (B) a change in the
character of the Improvements, shall have given specific written approval
thereof (it being understood that approval of any Plans or Change Order will not
obligate Lenders to increase or advance any Loan Budget Amount on account of any
such Plans or Change Order); deliver copies of all Change Orders to
Administrative Agent and the Construction Consultant either prior to or promptly
following the implementation thereof; notwithstanding the existence of Change
Order and Aggregate Change Order Amounts, Borrower shall not suffer or permit
the performance of any work pursuant to any Change Order until it shall have
procured the approval thereof (if such approval is required) by the Anchors and
the City and, if requested by Administrative Agent, submitted evidence of such
approval to Administrative Agent.
Section 6.14. Regarding Construction Contracts. Deliver, or cause to be
delivered, to Administrative Agent or the Construction Consultant copies of all
Major Subcontracts, Change Orders and any other contract, purchase order or
subcontract covering labor, materials, equipment or furnishings to or for the
Improvements, and the names of all Persons with whom the General Contractor has
contracted or intends to contract for the construction of the Improvements or
for the furnishing of labor or materials therefor.
Section 6.15. Security of Site. Employ suitable means to protect from
theft or vandalism all portions of the Improvements and all tools and building
materials stored on the Premises.
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Section 6.16. Management, Leasing and Service Contracts. (i) Keep in
full force and effect and not materially modify the management and leasing
agreement approved pursuant to paragraph (14) of Section 4.01(d) without
Administrative Agent's prior written consent, such consent not to be
unreasonably withheld and (ii) as and when requested, deliver to Administrative
Agent certified copies of all other service contracts entered into with respect
to the Premises or Improvements and use its best efforts to cause each service
contract to contain a provision allowing for the as-of-right cancellation
thereof on thirty (30) days' notice from either Borrower or its successors as
owners of the Premises.
Section 6.17. Maintenance of Insurance. At all times, (i) maintain and
keep in force the insurance required by the Mortgage and (ii) maintain and keep
in force insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibility from coverage thereof.
Section 6.18. Fees Required by Fee Letter. Pay to Administrative Agent,
for the accounts of the parties specified therein, the fees provided for, on the
dates specified, in the Fee Letter.
Section 6.19. Reporting Requirements. Furnish directly to each Lender:
(1) Annual Financial Statements. As soon as available and in any
event within ninety (90) days after the end of the respective fiscal
years of Borrower and Guarantor (in the case of Borrower, however,
commencing with the fiscal year in which the Improvements are opened
for business to the public), Borrower's financial statements and the
TRG Consolidated Financial Statements, in each case as of the end of
and for such fiscal year, in reasonable detail and stating in
comparative form the respective figures for the corresponding date and
period in the prior fiscal year and audited by Borrower's Accountants;
and accompanied by a detailed explanation in the event any such
audited annual Borrower's financial statements or TRG Consolidated
Financial Statements are qualified;
(2) Quarterly Financial Statements. As soon as available and in
any event within forty-five (45) days after the end of each calendar
quarter (other than the last quarter of the fiscal year), unaudited
Borrower's financial statements and unaudited TRG Consolidated
Financial Statements, in each case as of the end of and for such
calendar quarter, in reasonable detail and stating in comparative form
the respective figures for the corresponding date and period in the
prior fiscal year and certified by an appropriate financial officer;
(3) Certificates of No Default and Guarantor Financial
Compliance. Within forty-five (45) days after the end of each of the
first three quarters of each fiscal year and within ninety (90) days
after the end of each fiscal year, (a) a certificate of an appropriate
financial officer of Borrower stating that, to the best
45
of his or her knowledge, no Default or Event of Default has occurred
and is continuing, or if a Default or Event of Default has occurred
and is continuing, specifying the nature thereof and the action which
is proposed to be taken with respect thereto and (b) a certificate of
an appropriate financial officer of Guarantor (x) stating that the
covenants contained in paragraphs 9 and 10 of the Payment Guaranty
have been complied with (or specifying those that have not been
complied with) and including computations demonstrating such
compliance (or non-compliance) and (y) setting forth the details of
all items comprising "Total Outstanding Indebtedness" (including
amount, maturity, interest rate and amortization requirements), as of
the end of such quarter, and "Combined EBITDA", "Interest Expense" and
"Fixed Charges", each for the twelve (12)-month period ending with
such quarter (as all of such quoted terms are defined in the Payment
Guaranty);
(4) Certificate of Borrower's Accountants. Simultaneously with
the delivery of the annual financial statements required by paragraph
(1) of this Section, so long as there exists a similar reporting
requirement under the TRG Credit Facility or any refinancing or
replacement thereof, a statement of Borrower's Accountants who audited
such financial statements comparing the computations set forth in the
financial compliance certificate required by paragraph (3) of this
Section to the audited financial statements required by paragraph (1)
of this Section (where such information appears in such financial
statements);
(5) Dispositions or Acquisitions of Assets by Guarantor. Within
thirty (30) days after the occurrence thereof, written notice of any
Disposition or acquisition of assets (other than acquisitions or
Dispositions of investments such as certificates of deposit, Treasury
securities and money market deposits in the ordinary course of
Guarantor's cash management) in excess of $25,000,000, together with,
in the case of any acquisition of such an asset, (a) a certificate, of
the sort required by paragraph (3)(b) of this Section, containing
covenant compliance calculations that include the pro-forma
adjustments set forth in paragraph 11 of the Payment Guaranty, which
calculations shall demonstrate Guarantor's compliance, on a pro-forma
basis, as of the end of the most recently ended calendar quarter for
which financial results are required hereunder to have been reported
by Guarantor, with all covenants enumerated in said paragraph (3)(b)
and (b) such other information relating to the acquisition as
Administrative Agent may reasonably request, including, without
limitation, (x) copies of the agreements governing the acquisition and
(y) historical balance sheets (to the extent available) and statements
of income and cash flows with respect to the property acquired for at
least the preceding three (3) years (to the extent available) and
Guarantor's revenue and expense projections for the property acquired
for at least the next five (5) years (all of the foregoing to be in
form and detail reasonably satisfactory to Administrative Agent);
(6) Notice of Litigation. Promptly after the commencement and
knowledge thereof, notice of all actions, suits, and proceedings
before any
46
Governmental Authority, court or arbitrator, affecting Borrower,
Guarantor or all or any portion of the Mortgaged Property which, if
determined adversely, is likely to result in a Material Adverse
Change;
(7) Notices of Defaults and Events of Default. As soon as
possible and in any event within ten (10) days after Borrower becomes
aware of the occurrence of a material Default or any Event of Default,
a written notice setting forth the details of such Default or Event of
Default and the action which is proposed to be taken with respect
thereto;
(8) Material Adverse Change. As soon as is practicable and in any
event within five (5) days after knowledge of the occurrence of any
event or circumstance which is likely to result in or has resulted in
a Material Adverse Change, written notice thereof;
(9) Bankruptcy of Tenants. Promptly after becoming aware of the
same, written notice of the bankruptcy, insolvency or cessation of
operations of (a) any of the Anchors, (b) any tenant in the
Improvements to which 5% or more of the aggregate minimum rent from
the Improvements is attributable or (c) except to the extent such
information is (or will be) disclosed in the TRG Consolidated
Financial Statements delivered pursuant to paragraphs (1) and (2)
above, any tenant in any property of Guarantor or in which Guarantor
has an interest to which 5% or more of the aggregate minimum rent
payable, directly or indirectly, to Guarantor is attributable;
(10) Offices. Thirty (30) days' prior written notice of any
change in the chief executive office or principal place of business of
Borrower or Guarantor;
(11) Environmental and Other Notices. As soon as possible and in
any event within five (5) days after receipt, copies of (a) all
Environmental Notices received by Borrower or Guarantor which are not
received in the ordinary course of business and which relate to the
Premises or to a situation which is likely to result in a Material
Adverse Change and (b) all reports of any official searches made by
any Governmental Authority having jurisdiction over the Premises or
the Improvements, and of any claims of violations thereof;
(12) Insurance Coverage. Promptly, such information concerning
Borrower's or Guarantor's insurance coverage as Administrative Agent
may reasonably request;
(13) SEC Filings, Etc. As soon as possible and in any event
within ten (10) days of the sending or filing thereof, copies of all
annual reports on Form 10-K (without exhibits) and quarterly reports
on Form 10-Q (without exhibits); and as soon as possible following
Administrative Agent's request therefor, copies of all proxy
statements, financial statements, registration statements and reports
which TCI sends to its shareholders or files with the Securities and
Exchange Commission or any Governmental Authority which may be
substituted therefor;
47
(14) Leasing Reports and Operating Statements As soon as
available and in any event within fifteen (15) days after the end of
each calendar month (except January) (a) prior to the opening of the
Improvements for business to the public, a leasing status report
regarding the Improvements and (b) subsequent to the opening of the
Improvements for business to the public, operating and cash statements
(including a rent roll), in each case certified by Borrower to be true
and complete;
(15) Tenant Sales Reports. As soon as available and in any event
within thirty (30) days after the end of each calendar month
subsequent to the opening of the Improvements for business to the
public, a tenant sales report for such month regarding the
Improvements;
(16) Operating Budgets As soon as available and in any event
within ninety (90) days after the end of each fiscal year, an
operating budget for the Premises for the next fiscal year; and
(17) General Information. Promptly, such other information
respecting the condition or operations, financial or otherwise, of
Borrower, Guarantor or the Premises as Administrative Agent or any
Lender may from time to time reasonably request.
Section 6.20. Leases and Premises Documents. Deliver to Administrative
Agent, promptly following the execution thereof, certified copies of all leases
(together with abstracts of such leases, as available) in respect of the
Premises and all Premises Documents and all amendments or supplements to any
thereof (in any case, whether executed before or after the date hereof) together
with (i) if requested by Administrative Agent, estoppel certificates (on a best
efforts basis) from the tenants thereunder or parties thereto, as the case may
be, and (ii) in the case of all Major Leases, a notice-of-assignment letter in
the form of EXHIBIT F; not enter into any Major Lease or any lease for space in
the Improvements which contains a unilateral "kickout clause" on the part of the
tenant, or modify (other than de minimus modifications) any Major Lease or the
REA, without, in any such case, the prior written approval of Administrative
Agent, such approval not to be reasonably withheld or delayed; and keep all
Premises Documents and, except as may be permitted by the Mortgage, all leases
in full force and effect.
Provided there exists no Event of Default, in any case where
Administrative Agent's prior written approval is required pursuant to this
Section, Administrative Agent shall be deemed to have approved Borrower's
written request for approval if Administrative Agent fails to respond, either by
reasonably requesting additional documentation or information or by disapproving
the request, within ten (10) Business Days after Administrative Agent's receipt
of such written request for approval from Borrower, provided such request shall
make specific reference to the provisions of this Section and shall expressly
state, in solid capital letters on the first page thereof: "YOU ARE HEREBY
REMINDED THAT YOUR FAILURE TO PROVIDE NOTIFICATION OF APPROVAL OR DISAPPROVAL,
OR TO REASONABLY REQUEST ADDITIONAL DOCUMENTATION OR INFORMATION, NOT LATER
48
THAN TEN (10) BUSINESS DAYS AFTER YOUR RECEIPT OF THIS REQUEST SHALL BE DEEMED
TO CONSTITUTE YOUR APPROVAL THEREOF."
Section 6.21. Environmental Laws. Comply in all material respects with
all Environmental Laws applicable to Borrower, the Premises or the Improvements
and immediately pay or cause to be paid all costs and expenses incurred in
connection with such compliance, except to the extent there is a Good Faith
Contest; and at its sole cost and expense, promptly remove, or cause removal of,
any and all Hazardous Materials or the effects thereof at any time identified as
being on, in, under or affecting the Premises or the Improvements in violation
of applicable Environmental Law.
Section 6.22. Maintenance of Properties. Do all things reasonably
necessary to maintain, preserve, protect and keep in good repair, working order
and condition the Premises and Improvements.
Section 6.23. Proceeds from Sale of Certain Personalty. Pay over to
Administrative Agent, promptly upon its receipt thereof, an amount equal to 75%
of (x) the proceeds Borrower receives from the sale or leasing of any mall
artworks, equipment or furnishings if and to the extent that proceeds of the
Loan were used to purchase said items and (y) any "tenant recoveries" received
by Borrower in respect of leases of space in the Improvements, said amounts to
be applied by Administrative Agent in reduction of the Principal Amount and to
the payment of accrued and unpaid interest on the portion of the Principal
Amount so repaid.
Article VII
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 7.01. Appointment, Powers and Immunities of Administrative
Agent. Each Lender hereby irrevocably appoints and authorizes Administrative
Agent to act as its agent hereunder and under any other Loan Document with such
powers as are specifically delegated to Administrative Agent by the terms of
this Agreement and any other Loan Document, together with such other powers as
are reasonably incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any
other Loan Document or required by Law, and shall not by reason of this
Agreement be a fiduciary or trustee for any Lender except to the extent that
Administrative Agent acts as an agent with respect to the receipt or payment of
funds, nor shall Administrative Agent have any fiduciary duty to Borrower nor
shall any Lender have any fiduciary duty to Borrower or any other Lender. No
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against Administrative Agent.
Neither Administrative Agent nor any of its directors, officers, employees,
agents, attorneys-in-fact or Affiliates shall be responsible to Lenders for any
recitals, statements, representations or warranties made by Borrower or
Guarantor or any officer, partner or official of Borrower or Guarantor or any
other Person contained in this Agreement or any other Loan Document, or in any
certificate or other document or instrument referred to or provided for in, or
received by any of them under, this Agreement or any other Loan Document, or for
the
49
value, legality, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or any other document
or instrument referred to or provided for herein or therein, for the perfection
or priority of any lien securing the Obligations or for any failure by Borrower
or Guarantor to perform any of its Obligations. Administrative Agent may employ
agents and attorneys-in-fact and shall not be responsible, except as to money or
securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither Administrative Agent nor any of its directors,
officers, employees, agents, attorneys-in-fact or Affiliates shall be liable or
responsible for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith, except
for its or their own gross negligence or willful misconduct.
Section 7.02. Reliance by Administrative Agent. Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Lender as the holder of its Note
and interest in the Loan for all purposes hereof and shall not be required to
deal with any Person who has acquired a Participation in the Loan from a Lender.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, in accordance with instructions signed by the
Required Lenders, and such instructions of the Required Lenders and any action
taken or failure to act pursuant thereto shall be binding on all Lenders and any
other holder of all or any portion of the Loan or Participation therein.
Section 7.03. Defaults. Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or of an Event of Default unless
Administrative Agent has received notice from a Lender or Borrower specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent shall give
prompt notice thereof to Lenders. Administrative Agent shall promptly send to
each Lender a copy of any notice of a Default or Event of Default that
Administrative Agent sends to Borrower or Guarantor. Administrative Agent,
following consultation with Lenders, shall (subject to Section 7.07) take such
action with respect to such Default or Event of Default which is continuing,
including with respect to the exercise of remedies or the realization on, or
operation or disposition of, any or all of the Mortgaged Property or any other
collateral for the Loan, as shall be directed by the Required Lenders; provided,
however, that, unless and until Administrative Agent shall have received such
directions, Administrative Agent may take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
to be in the best interest of Lenders; and provided, further, that
Administrative Agent shall not send a notice of acceleration to Borrower without
the approval of the Required Lenders. In no event shall Administrative Agent be
required to take any such action which it determines to be contrary to the Loan
50
Documents or to Law. Each of Lenders acknowledges and agrees that no individual
Lender may separately enforce or exercise any of the provisions of any of the
Loan Documents (including, without limitation, the Notes) other than through
Administrative Agent.
Section 7.04. Rights of Administrative Agent as Lender. With respect to
its Note and interest in the Loan, Administrative Agent in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as Administrative
Agent, and the terms "Lender" and "Lenders" shall include Administrative Agent
in its capacity as a Lender. Administrative Agent and its Affiliates may
(without having to account therefor to any Lender) accept deposits from, lend
money to (on a secured or unsecured basis), and generally engage in any kind of
banking, trust or other business with Borrower or Guarantor (and any Affiliates
of either of them) as if it were not acting as Administrative Agent.
Section 7.05. Sharing of Costs by Lenders; Indemnification of
Administrative Agent. Each Lender agrees to pay its ratable share, based on the
respective outstanding principal balances under its Note and the other Notes, of
any expenses incurred (and not paid or reimbursed by Borrower after demand for
payment is made by Administrative Agent) by or on behalf of Lenders in
connection with any Default or Event of Default, including, without limitation,
costs of enforcement of the Loan Documents and any advances to pay taxes or
insurance premiums, to complete the Improvements or otherwise to preserve the
lien of the Mortgage or to preserve or protect the Mortgaged Property. In the
event a Lender fails to pay its share of expenses as aforesaid, and all or a
portion of such unpaid amount is paid by Administrative Agent and/or one or more
of the other Lenders, then the defaulting Lender shall reimburse Administrative
Agent and/or the other Lender(s) for the portion of such unpaid amount paid by
it or them, as the case may be, together with interest thereon at the Prime
Based Rate from the date of payment by Administrative Agent and/or the other
Lender(s). In addition, each Lender agrees to reimburse and indemnify
Administrative Agent (to the extent it is not paid by on or behalf of Borrower,
after demand for payment is made by Administrative Agent, under Section 9.19 or
under the applicable provisions of any other Loan Document, but without limiting
the obligation of Borrower under said Section 9.19 or such provisions), for such
Lender's ratable share, based upon the respective outstanding principal balances
under its Note and the other Notes, of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against Administrative Agent in any way relating to or
arising out of this Agreement, any other Loan Document or any other documents
contemplated by or referred to herein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses which Borrower is
obligated to pay under Section 9.19 or under the applicable provisions of any
other Loan Document) or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided, however, that no Lender
shall be liable for (i) any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified, (ii) any
loss of principal or interest with respect to Administrative Agent's Note or
51
interest in the Loan or (iii) any loss suffered by Administrative Agent in
connection with a "swap" or other interest rate hedging arrangement entered into
by Administrative Agent with Borrower.
Section 7.06. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
collateral for the Loan and of the credit of Borrower and Guarantor, and its own
decision to enter into this Agreement, and that it will, independently and
without reliance upon 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 any other Loan Document. Administrative Agent shall not
be required to keep itself informed as to the performance or observance by
Borrower of this Agreement or any other Loan Document or any other document
referred to or provided for herein or therein or to inspect the properties
(including, without limitation, the Premises) or books of Borrower. Except for
notices, reports and other documents and information expressly required to be
furnished to Lenders by Administrative Agent hereunder, 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 Guarantor (or any Affiliate of either of them) which may come into
the possession of Administrative Agent or any of its Affiliates. Administrative
Agent shall not be required to file this Agreement, any other Loan Document or
any document or instrument referred to herein or therein, for record or give
notice of this Agreement, any other Loan Document or any document or instrument
referred to herein or therein, to anyone.
Section 7.07. Failure of Administrative Agent to Act. Except for
action expressly required of Administrative Agent hereunder, Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall have received further assurances (which may include
cash collateral) of the indemnification obligations of Lenders under Section
7.05 in respect of any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative Agent
may call for an additional indemnity and cease, or not commence, the action
indemnified against until such additional indemnity is furnished.
Section 7.08. Resignation or Removal of Administrative Agent.
Provided there exists no Event of Default, Administrative Agent hereby agrees
not to resign unilaterally except in the event it becomes an Affected Lender and
is replaced as a Lender pursuant to Section 3.04. Administrative Agent may be
removed at any time by the Required Lenders for gross negligence or willful
misconduct, provided that Borrower and the other Lenders shall be promptly
notified thereof. Upon any such resignation or removal of Administrative Agent,
the Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor Administrative Agent shall (provided there exists no
Event of Default) be subject to Borrower's approval, such approval not to be
unreasonably withheld or delayed. If no successor Administrative Agent shall
have
52
been so appointed by the Required Lenders, and shall have accepted such
appointment (and, if required, been approved by Borrower), within twenty (20)
days after the resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
Lenders, appoint a successor Administrative Agent, which shall be one of
Lenders, within ten (10) days. The Required Lenders or the retiring
Administrative Agent, as the case may be, shall upon the appointment of a
successor Administrative Agent promptly so notify Borrower and the other
Lenders. 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 Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article VII 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 Administrative Agent.
Section 7.09. Amendments Concerning Agency Function. Notwithstanding
anything to the contrary contained in this Agreement, Administrative Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its duties, rights, and/or
functions hereunder or thereunder unless it shall have given its prior written
consent thereto.
Section 7.10. Liability of Administrative Agent. Administrative Agent
shall not have any liabilities or responsibilities to Borrower or Guarantor on
account of the failure of any Lender to perform its obligations hereunder or to
any Lender on account of the failure of Borrower or Guarantor to perform the
Obligations to be performed by them.
Section 7.11. Transfer of Agency Function. Without the consent of
Borrower or any Lender, Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices wherever located in the United States, provided that Administrative
Agent shall promptly notify Borrower and Lenders thereof.
Section 7.12. Non-Receipt of Funds by Administrative Agent;
Adjustments. (a) Unless Administrative Agent shall have received notice from a
Lender or Borrower (either one as appropriate being the "Payor") prior to the
date on which such Lender is to make payment hereunder to Administrative Agent
of Loan proceeds or Borrower is to make payment to Administrative Agent, as the
case may be (either such payment being a "Required Payment"), which notice shall
be effective upon receipt, that the Payor will not make the Required Payment in
full to Administrative Agent, Administrative Agent may assume that the Required
Payment has been made in full to Administrative Agent on such date, and
Administrative Agent in its sole discretion may, but shall not be obligated to,
in reliance upon such assumption, make the amount thereof available to the
intended recipient on such date. If and to the extent the Payor shall not have
in fact so made the Required Payment in full to Administrative Agent, the
recipient of such payment shall repay to Administrative Agent forthwith on
demand such amount made available to it together with interest thereon, for each
day from the date such amount was so made
53
available by Administrative Agent until the date Administrative Agent recovers
such amount, at the Federal Funds Rate.
(b) If, after Administrative Agent has paid each Lender's share of any
payment received or applied by Administrative Agent in respect of the Loan, that
payment is rescinded or must otherwise be returned or paid over by
Administrative Agent, whether pursuant to any bankruptcy or insolvency Law,
sharing of payments clause of any loan agreement or otherwise, such Lender
shall, at Administrative Agent's request, promptly return its share of such
payment or application to Administrative Agent, together with such Lender's
proportionate share of any interest or other amount required to be paid by
Administrative Agent with respect to such payment or application. In addition,
if a court of competent jurisdiction shall adjudge that any amount received and
distributed by Administrative Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to Administrative
Agent its share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
Section 7.13. Withholding Taxes. Each Lender represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to Administrative Agent such forms,
certifications, statements and other documents as Administrative Agent may
reasonably request from time to time to evidence such Lender's exemption from
the withholding of any tax imposed by any jurisdiction or to enable
Administrative Agent to comply with any applicable Laws relating thereto.
Without limiting the effect of the foregoing, if any Lender is not created or
organized under the Laws of the United States or any state thereof, such Lender
will furnish to Administrative Agent Form W-8ECI or Form W-8BEN of the U.S.
Internal Revenue Service, or such other forms, certifications, statements or
documents, duly executed and completed by such Lender, as evidence of such
Lender's complete exemption from the withholding of United States tax with
respect thereto. Administrative Agent shall not be obligated to make any
payments hereunder to such Lender in respect of the Loan until such Lender shall
have furnished to Administrative Agent the requested form, certification,
statement or document.
Section 7.14. Sharing of Payments among Lenders. If a Lender shall
obtain payment of any principal of its Note or of interest thereon through the
exercise of any right of setoff, banker's lien, counterclaim, or by any other
means (including direct payment), and such payment results in such Lender
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to Lenders, then
such Lender shall promptly purchase for cash from the other Lenders
Participations in the Loan in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all Lenders shall share
ratably the benefit of such payment. To such end 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. Borrower agrees that
any Lender so purchasing a Participation in the Loan from other Lenders may
exercise all rights of setoff, banker's lien, counterclaim or similar rights
with respect to such Participation. Nothing contained herein shall require any
Lender to exercise any such right or shall
54
affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness of Borrower.
Section 7.15. Possession of Documents. Each Lender shall maintain
possession of its own Note. Administrative Agent shall hold all other Loan
Documents and related documents in its possession and maintain separate records
and accounts with respect to the Loan, reflecting the interests of Lenders in
the Loan, and shall permit Lenders and their representatives access at all
reasonable times to inspect such Loan Documents, related documents, records and
accounts.
Section 7.16. Effect of a Lender's Failure to Make an Advance. In the
event any Lender fails for any reason to fund the portion it is required to fund
of any advance of Loan proceeds by 3:00 p.m. (Eastern time) on the second
Business Day after the date established by Administrative Agent as the date such
advance is to be made, such Lender shall be a "Delinquent Lender" for all
purposes hereunder until and unless such delinquency is cured in accordance with
the terms of and by the time permitted under Section 7.17, and the following
provisions shall apply:
(a) Administrative Agent shall notify (such notice being referred
to as the "Delinquency Notice") each Lender and Borrower of any
Lender's failure to fund. Each Non-Delinquent Lender shall have the
right, but in no event or under any circumstance the obligation, to
fund such Delinquent Lender's portion of such advance, provided that,
within twenty (20) days of the date of the Delinquency Notice (the
"Election Period"), such Non-Delinquent Lender or Lenders (each such
Lender, an "Electing Lender") irrevocably commit(s) by notice in
writing (an "Election Notice") to Administrative Agent, the other
Lenders and Borrower to fund the Delinquent Lender's portion of the
advance that is the subject of the delinquency and to assume the
Delinquent Lender's obligations with respect to the advancing of the
entire undisbursed portion of the Delinquent Lender's Individual Loan
Commitment (such entire undisbursed portion of the Delinquent Lender's
Individual Loan Commitment, including its portion of the advance that
is the subject of the delinquency, the "Delinquency Amount"). If
Administrative Agent receives more than one Election Notice within the
Election Period, then the Electing Lenders sending such notices shall
be deemed to have committed to fund ratable shares of the Delinquency
Amount based upon the amounts of their respective Individual Loan
Commitments. If there are one or more Electing Lenders and the
Delinquent Lender fails to cure during the Election Period as provided
in Section 7.17, then upon the expiration of the Election Period, each
Electing Lender's Individual Loan Commitment shall be automatically
increased by the Delinquency Amount (if there is only one Electing
Lender) or such Electing Lender's ratable share, determined as
aforesaid, of the Delinquency Amount (if there are two or more
Electing Lenders), and the Delinquent Lender's Individual Loan
Commitment shall automatically be reduced by the Delinquency Amount.
Administrative Agent shall thereupon notify Borrower and each Lender
of (i) the adjusted amounts of the Individual Loan Commitments and
(ii) if the advance that was the subject of the delinquency was not
made pursuant to Section 7.12 or was refunded by Borrower pursuant to
paragraph (e) of this Section, the
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rescheduled date of such advance (which shall be no sooner than three
(3) Business Days after such notice). In the event Administrative
Agent shall have funded, pursuant to Section 7.12, the entire advance
that was the subject of the delinquency (including the Delinquent
Lender's portion), and Borrower shall not have refunded such advance
pursuant to paragraph (e) of this Section, the Electing Lender(s)
shall remit to Administrative Agent the Delinquent Lender's portion of
the advance, or their ratable shares thereof, as the case may be,
within three (3) Business Days of the notice provided for in the
immediately preceding sentence, and Administrative Agent shall
reimburse itself from such funds for making the Delinquent Lender's
portion of the advance. Notwithstanding anything to the contrary
contained herein, if Administrative Agent advances its own funds in
respect of a Delinquent Lender's portion of an advance, Administrative
Agent shall be entitled to the interest on the portion of the
Principal Amount represented thereby, from the date Administrative
Agent makes such advance until the date it is reimbursed therefor.
(b) In connection with the adjustment of the amounts of the
Individual Loan Commitments of the Delinquent Lender and Electing
Lender(s) upon the expiration of the Election Period as aforesaid,
Borrower covenants that it shall, promptly following the request of
the Electing Lender(s), execute and deliver to each Electing Lender
and the Delinquent Lender substitute notes substantially in the form
of EXHIBIT H and stating: "This Note is a substitute note as
contemplated by Section 7.16 of the Loan Agreement; it replaces and is
in lieu of that certain note made by Maker dated [date of Note] to the
order of [Lender] in the principal sum of [Lender's original
Individual Loan Commitment]." Such substitute notes shall be in
amounts equal to such Lenders' respective Individual Loan Commitments,
as adjusted. All such substitute notes shall constitute "Notes" and
the obligations evidenced by such substitute notes shall be secured by
the Mortgage. In connection with Borrower's execution of substitute
notes as aforesaid, Borrower shall deliver to Administrative Agent
such evidence of the due authorization, execution and delivery of the
substitute notes and any related documents as Administrative Agent may
reasonably request. The execution and delivery of substitute notes as
required above shall be a condition precedent to any further advances
of Loan proceeds. Upon receipt of its substitute note, the Electing
Lender and the Delinquent Lender will return to Borrower their notes
that were replaced, provided that the delivery of a substitute note to
the Delinquent Lender pursuant to this Section 7.16 shall operate to
void and replace the note(s) previously held by the Delinquent Lender
regardless of whether or not the Delinquent Lender returns same as
required hereby. Borrower, Administrative Agent and Lenders shall
execute such modifications to the Loan Documents as shall, in the
reasonable judgment of Administrative Agent, be necessary or desirable
in connection with the adjustment of the amounts of Individual Loan
Commitments in accordance with the foregoing provisions of this
Section.
(c) In the event that no Lender elects to commit to fund the
Delinquency Amount within the Election Period as provided in paragraph
(a) of
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this Section, Administrative Agent shall, upon the expiration of the
Election Period, so notify Borrower and each Lender and the provisions
of Section 2.09 shall apply.
(d) Subject to a Delinquent Lender's right to cure as provided in
Section 7.17, but notwithstanding anything else to the contrary
contained in this Agreement, the Delinquent Lender's interest in, and
any and all amounts due to a Delinquent Lender under, the Loan
Documents (including, without limitation, all principal, interest,
fees and expenses) shall be subordinate in lien priority and to the
repayment of all amounts (including, without limitation, interest)
then or thereafter due or to become due to the Non-Delinquent Lenders
under the Loan Documents (including future advances), and the
Delinquent Lender thereafter shall have no right to participate in any
discussions among and/or decisions by Lenders hereunder and/or under
the other Loan Documents. Further, subject to Section 7.17, any
Delinquent Lender shall be bound by any amendment to, or waiver of,
any provision of, or any action taken or omitted to be taken by
Administrative Agent and/or the Non-Delinquent Lenders under, any Loan
Document which is made subsequent to the Delinquent Lender's becoming
a Delinquent Lender.
(e) If, pursuant to the operation of Section 7.12, an advance of
Loan proceeds is made without Administrative Agent's receipt of a
Delinquent Lender's portion thereof, in addition to Borrower's
obligations under Section 7.12, Borrower shall, upon demand of
Administrative Agent, refund the entire such advance to Administrative
Agent. Borrower's failure to do so within ten (10) days of such demand
shall, notwithstanding anything to the contrary contained herein or in
the Mortgage, constitute an Event of Default under the Mortgage. Upon
its receipt of such funds from Borrower, Administrative Agent shall
promptly remit to each Non-Delinquent Lender its appropriate share
thereof.
Section 7.17. Cure by Delinquent Lender. A Delinquent Lender may cure a
delinquency arising out of its failure to fund its required portion of any
advance if, within the Election Period, it remits to Administrative Agent its
required portion of such advance (together with interest thereon at the Default
Rate from the date such advance was to have been made if such advance was made
by Administrative Agent and not refunded by Borrower pursuant to either Section
7.12 or paragraph (e) of Section 7.16), in which event Administrative Agent
shall so notify Borrower and the Non-Delinquent Lenders (i) of its receipt of
such funds and (ii)(A) if the advance that was the subject of the delinquency
shall not have been made (or shall have been refunded by Borrower pursuant to
paragraph (e) of Section 7.16), of the rescheduled date of the advance (which
shall be no sooner then three (3) Business Days after such notice) or (B) if
Administrative Agent shall have funded the entire advance that was the subject
of the delinquency (including the Delinquent Lender's portion) and Borrower
shall not have refunded such advance pursuant to paragraph (e) of Section 7.16,
of its intention to reimburse itself from funds received from the Delinquent
Lender (which reimbursement is hereby authorized) for funding the Delinquent
Lender's required portion of the advance. In the event any Delinquent Lender
cures a delinquency prior to the expiration of the Election Period (or
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thereafter with the consent of all of the Non-Delinquent Lenders), such
Delinquent Lender nonetheless shall be bound by any amendment to or waiver of
any provision of, or any action taken or omitted to be taken by Administrative
Agent and/or the Non-Delinquent Lenders under, any Loan Document which is made
subsequent to that Lender's becoming a Delinquent Lender and prior to its curing
the delinquency as provided in this Section, provided that such amendment or
waiver of action was taken in accordance with the provisions of this Agreement.
A Delinquent Lender shall have absolutely no right to cure any delinquency after
the expiration of the Election Period unless all Non-Delinquent Lenders, in
their sole discretion, elect to permit such cure.
Section 7.18. Delinquent Lender Not Excused. Nothing contained in
Sections 7.16 or 7.17 shall release or in any way limit a Delinquent Lender's
obligations as a Lender hereunder and/or under any other of the Loan Documents.
Further, a Delinquent Lender shall indemnify and hold harmless Administrative
Agent and each of the Non-Delinquent Lenders from any claim, loss, or costs
incurred by Administrative Agent and/or the Non-Delinquent Lenders as a result
of a Delinquent Lender's failure to comply with the requirements of this
Agreement, including, without limitation, any and all additional losses,
damages, costs and expenses (including, without limitation, attorneys' fees)
incurred by Administrative Agent and any Lender as a result of and/or in
connection with (i) a Non-Delinquent Lender's acting as an Electing Lender, (ii)
any enforcement action brought by Administrative Agent against a Delinquent
Lender and (iii) any action brought against Administrative Agent and/or Lenders.
The indemnification provided above shall survive any termination of this
Agreement.
Section 7.19. Notices Regarding Delinquent Lender. Notices by
Administrative Agent or Lenders pursuant to Sections 7.16 or 7.17 may be by
telephone (to be promptly confirmed in writing).
Section 7.20. Replacement Lender. In the event any Lender becomes a
Delinquent Lender and none of the other Lenders elects to be an Electing Lender
pursuant to Section 7.16, Borrower shall have the right, at any time prior to
the third anniversary of the Initial Advance, provided there exists no Default
or Event of Default, to cause another financial institution reasonably
acceptable to the Required Lenders to assume the Delinquent Lender's obligations
with respect to the Delinquency Amount on the then-existing terms and conditions
of the Loan Documents (such replacement institution, a "Replacement Lender").
Such assumption shall be pursuant to a written instrument reasonably
satisfactory to the Required Lenders. Upon such assumption and the payment by
the Replacement Lender to Administrative Agent of a fee, for Administrative
Agent's own account, in the amount of $3,500, the Replacement Lender shall
become a "Lender" for all purposes hereunder, with an Individual Loan Commitment
in an amount equal to the Delinquency Amount, and the Delinquent Lender's
Individual Loan Commitment shall automatically be reduced by the Delinquency
Amount. In connection with the foregoing, Borrower shall execute and deliver to
the Replacement Lender and the Delinquent Lender replacement notes substantially
in the form of EXHIBIT H and stating: "This Note is a replacement note as
contemplated by Section 7.20 of the Loan Agreement; it replaces and is in lieu
of that certain note made by Maker dated [date of Note] to the order of
[Delinquent Lender] in
58
the principal sum of [Delinquent Lender's original Individual Loan Commitment]."
Such replacement notes shall be in amounts equal to, in the case of the
Replacement Lender's note, the Delinquency Amount and, in the case of the
Delinquent Lender's note, its Individual Loan Commitment, as reduced as
aforesaid. Such replacement notes shall constitute "Notes" and the obligations
evidenced thereby shall be secured by the Mortgage. In connection with
Borrower's execution of replacement notes as aforesaid, Borrower shall deliver
to Administrative Agent such evidence of the due authorization, execution and
delivery of the replacement notes and any related documents as Administrative
Agent may reasonably request. If the Replacement Lender is not incorporated
under the Laws of the United States or a state thereof, it shall, prior to the
first date on which interest or fees are payable hereunder for its account,
deliver to Borrower and Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 7.13. The execution and delivery of replacement notes as required
above shall be a condition precedent to any further advances of Loan proceeds.
Upon receipt of its replacement note, the Delinquent Lender will return to
Borrower its note(s) that was replaced, provided that the delivery of a
replacement note to the Delinquent Lender pursuant to this Section 7.20 shall
operate to void and replace the note(s) previously held by the Delinquent Lender
regardless of whether or not the Delinquent Lender returns the same as required
hereby.
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the
substitution of Lenders in accordance with the foregoing provisions of this
Section.
Lenders shall reasonably cooperate with Borrower's attempts to obtain a
Replacement Lender, but they shall not be obligated to modify the Loan Documents
in connection therewith, other than modifications pursuant to the immediately
preceding paragraph. As part of the first advance of Loan proceeds following the
admission of the Replacement Lender, the Replacement Lender shall advance to
Borrower, subject to the satisfaction of all conditions of this Agreement, an
amount equal to the Direct and Indirect Costs paid by Borrower pursuant to
clause (ii) of Section 2.09.
Article VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default. Any of the following events shall be
an "Event of Default":
(1) If Borrower shall fail to pay the principal of any Notes
(including, without limitation, any principal payments required by
Section 2.19) as and when due; or fail to pay interest accruing on any
Notes as and when due and such failure to pay shall continue
unremedied for five (5) days after the due date of such amount; or
fail to deliver any additional collateral for the Loan as and when
required by Section 9.27; or fail to pay any fee or any other amount
under this
59
Agreement or any other Loan Document or under the Fee Letter as and
when due and such failure to pay shall continue unremedied for two (2)
Business Days after notice by Administrative Agent of such failure to
pay; or
(2) If any representation or warranty made by Borrower or
Guarantor in this Agreement or in any other Loan Document or which is
contained in any certificate, document, opinion, financial or other
statement furnished at any time under or in connection with a Loan
Document shall prove to have been unknowingly incorrect in any
material respect on or as of the date made or remade and, if such
incorrect representation or warranty is susceptible to being made
correct through Borrower's or Guarantor's actions, such representation
or warranty remains incorrect for thirty (30) days after notice
thereof shall have been given to Borrower by Administrative Agent; or
(3) If Guarantor shall fail to perform or observe any term,
covenant or agreement contained in paragraphs 9 or 10 of the Payment
Guaranty; or
(4) If Borrower or Guarantor shall fail to perform or observe any
term, covenant or agreement contained in Article VI or otherwise
contained in this Agreement or any Loan Document (other than
obligations specifically referred to elsewhere in this Section) or any
other document executed by Borrower or Guarantor and delivered to
Administrative Agent and/or Lenders in connection with the
transactions contemplated hereby and such failure shall remain
unremedied for thirty (30) consecutive calendar days after notice of
the occurrence thereof from Administrative Agent (or such shorter cure
period as may be expressly prescribed in the applicable Loan
Document); provided, however, that if any such default cannot by its
nature be cured within such thirty (30) day, or shorter, as the case
may be, grace period and so long as Borrower shall have commenced cure
within such thirty (30) day, or shorter, as the case may be, grace
period and shall, at all times thereafter, diligently prosecute the
same to completion, Borrower shall have an additional period, not to
exceed sixty (60) days, to cure such default; in no event, however, is
the foregoing intended to effect an extension of the Maturity Date; or
(5) If Guarantor or TCI shall fail to pay any Debt (other than
the payment obligations described in paragraph (1) of this Section) in
an amount equal to or greater than $15,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise); or
(6) If Borrower, Guarantor or TCI shall: (a) generally not, or be
unable to, or shall admit in writing its inability to, pay its debts
as such debts become due; or (b) make an assignment for the benefit of
creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it, the Premises or a substantial
part of its other assets; or (c) commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether
now or
60
hereafter in effect; or (d) have had any such petition or application
filed or any such proceeding shall have been commenced, against it or
the Premises, in which an adjudication or appointment is made or order
for relief is entered, or which petition, application or proceeding
remains undismissed or unstayed for a period of ninety (90) days or
more; or (e) be the subject of any proceeding under which the Premises
or all or a substantial part of its other assets may be subject to
seizure, forfeiture or divestiture; or (f) by any act or omission
indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for the Premises or
all or any substantial part of its other property; or (g) suffer any
such custodianship, receivership or trusteeship for the Premises or
all or any substantial part of its other property, to continue
undischarged for a period of ninety (90) days or more; or
(7) If one or more judgments, decrees or orders for the payment
of money in excess of $10,000,000 in the aggregate shall be rendered
against Borrower, Guarantor or TCI, and any such judgments, decrees or
orders shall continue unsatisfied and in effect for a period of thirty
(30) consecutive days without being vacated, discharged, satisfied or
stayed or bonded pending appeal; or
(8) If any of the following events shall occur or exist with
respect to Borrower, Guarantor or any ERISA Affiliate: (a) any
non-exempt Prohibited Transaction involving any Pension Plan; (b) any
Reportable Event with respect to any Pension Plan (c) the filing under
Section 4041 of ERISA of a notice of intent to terminate any Pension
Plan or the termination of any Pension Plan; (d) any event or
circumstance which might constitute grounds entitling the PBGC to
institute proceedings under Section 4042 of ERISA for the termination
of, or for the appointment of a trustee to administer, any Pension
Plan, or the institution by the PBGC of any such proceedings; or (e)
complete or partial withdrawal under Section 4201 or 4204 of ERISA
from a Multiemployer Plan or the reorganization, insolvency, or
termination of any Multiemployer Plan; and in each case above, if such
event or conditions, if any, could in the opinion of any Lender
reasonably be expected to result in liability of Borrower, Guarantor
or any ERISA Affiliate for any tax, penalty, or other liability to or
in respect of a Pension Plan, Multiemployer Plan, the PBGC or
otherwise (or any combination thereof) which materially and adversely
affects the financial condition of (x) Borrower or Guarantor with
respect to clause (a) above or (y) Borrower, Guarantor or any ERISA
Affiliate with respect to clauses (b) through (e) above; or
(9) If at any time TCI is not a qualified real estate investment
trust under Sections 856 through 860 of the Code or is not listed on
the New York Stock Exchange or the American Stock Exchange; or
(10) If at any time any part of the funds to be used by Borrower
or Guarantor in satisfaction of their respective obligations under
this Agreement and the other Loan Documents, or any other assets of
Borrower or Guarantor,
61
constitute "plan assets" of any "employee benefit plan" within the
meaning of ERISA or of any "plan" within the meaning of Section
4975(e)(1) of the Code, as interpreted by the Internal Revenue Service
and the United States Department of Labor in rules, regulations,
releases or bulletins or as interpreted under applicable case law; or
(11) If the Mortgage shall at any time and for any reason cease
(a) to create a valid and perfected first priority lien in and to the
Mortgaged Property purported to be subject thereto or (b) to be in
full force and effect or shall be declared null and void; or the
validity or enforceability thereof, in whole, shall be contested by
any party thereto, or any party thereto shall deny any further
liability or obligation thereunder; or
(12) If an "Event of Default" shall occur under the Mortgage, as
such quoted term is defined therein; or
(13) If an "Event of Default" shall occur under the TRG Credit
Facility, (as such quoted term is defined therein) or if a default
shall occur and continue beyond any applicable grace or cure period
under any replacement or refinancing of the TRG Credit Facility, and,
in any such case, the same shall not be waived within fifteen (15)
days of the occurrence thereof; or
(14) If a default shall occur and continue beyond any applicable
grace or cure period under any credit facility of Guarantor in the
amount of $100,000,000 or more, and the same shall not be waived
within fifteen (15) days of the occurrence thereof.
Section 8.02. Remedies. If any Event of Default shall occur and be
continuing, Administrative Agent shall, upon request of the Required Lenders, by
notice to Borrower, (i) declare the outstanding Notes, all interest thereon, and
all other amounts payable under this Agreement and any other Loan Documents to
be forthwith due and payable, whereupon the Notes, all such interest, and all
such amounts due under this Agreement and under any other Loan Document shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by
Borrower; and/or (ii) exercise any remedies provided in any of the Loan
Documents or by Law.
Article IX
GENERAL CONDITIONS AND PROVISIONS
Section 9.01. Loan Balancing. If at any time Administrative Agent
notifies Borrower that, in Administrative Agent's sole judgment, reasonably
exercised, the undisbursed balance of the Loan is insufficient to pay the
remaining Direct and Indirect Costs, Borrower shall, at its option, either (i)
within ten (10) days of Administrative Agent's notification as aforesaid,
deposit with Administrative Agent an amount equal to
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such deficiency, which Administrative Agent shall from time to time apply, or
allow Borrower to apply, to such Costs or (ii) pay for such Costs, as incurred,
in the amount of such deficiency so that the amount of the Loan which remains to
be disbursed shall be sufficient to pay all remaining Direct and Indirect Costs,
and Borrower shall furnish Administrative Agent with such evidence thereof as
Administrative Agent shall require. Borrower hereby agrees that Administrative
Agent shall have a lien on and security interest in, for the benefit of Lenders,
any sums deposited pursuant to clause (i) above and that Borrower shall have no
right to withdraw any such sums except for the payment of the aforesaid Costs as
approved by Administrative Agent. Lenders shall have no obligation to make any
further advances of proceeds of the Loan until the sums required to be deposited
pursuant to clause (i) above have been exhausted or until Borrower has actually
paid such Direct and Indirect Costs pursuant to clause (ii) above, as the case
may be, and, in either such case, the Loan is back "in balance". Any such sums
not used as provided in said clause (i) shall be released to Borrower when and
to the extent that Administrative Agent determines that the amount thereof is
more than the excess, if any, of the total remaining Costs of completion of the
Improvements over the undisbursed balance of the Loan; provided, however, that
should an Event of Default occur, Administrative Agent shall, at the option of
the Required Lenders, apply such amounts either to the Costs of completion of
the Improvements or to the immediate reduction of outstanding principal and/or
interest under the Notes.
Section 9.02. Advance Not Waiver. Any advance of Loan proceeds
hereunder made prior to or without the fulfillment by Borrower of all of the
conditions precedent thereto, whether or not known to Administrative Agent or
Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the
requirement that all conditions, including the non-performed conditions, shall
be required with respect to all future advances.
Section 9.03. No Third-Party Beneficiaries. This Agreement is solely
for the benefit of Lenders, Administrative Agent and Borrower. All conditions of
the obligations of Lenders to make advances hereunder are imposed solely and
exclusively for the benefit of Lenders and may be freely waived or modified in
whole or in part by Lenders at any time if in their sole discretion they deem it
advisable to do so, and no Person other than Borrower (provided, however, that
all conditions have been satisfied) shall have standing to require Lenders to
make any Loan advances or to be a beneficiary of this Agreement or any advances
to be made hereunder.
Section 9.04. Authorization to Make Direct Advances. During the
existence of any Default or Event of Default, Borrower hereby irrevocably
authorizes Lenders to advance any undisbursed Loan proceeds directly to the
General Contractor, Major Subcontractors and other Persons to pay for completion
of the Improvements. All such direct advances shall satisfy pro tanto the
obligations of Lenders to Borrower hereunder regardless of the disposition
thereof by the General Contractor, any Major Subcontractor or other Person.
Section 9.05. Authorization to Advance for Interest. Borrower hereby
irrevocably authorizes Lenders to disburse proceeds of the Loan to pay interest
accrued
63
on the Notes as it comes due, or, upon five (5) Business Days' notice, to
satisfy any of the conditions hereof, including, without limitation, the payment
of attorneys' fees and expenses and the fees and expenses of the Construction
Consultant.
Section 9.06. Letters of Credit. (a) Borrower may request, in lieu of
advances of proceeds of the Loan, that Administrative Agent issue unconditional,
irrevocable standby letters of credit (each, a "Letter of Credit") for the
account of Borrower. Promptly upon Borrower's request for, and then upon
issuance of, a Letter of Credit, Administrative Agent shall notify each Lender.
(b) The amount of any Letter of Credit shall be limited to the lesser
of (i) $5,000,000 less the aggregate amount of all Letters of Credit theretofore
issued and outstanding or (ii) the amount of proceeds of the Loan available to
be advanced hereunder, it being understood that the amount of each Letter of
Credit issued and outstanding shall effect a reduction, by an equal amount, of
proceeds available to Borrower under the Loan and shall be allocated by
Administrative Agent to the Loan Budget Amount(s) to which the Letter of Credit
relates or, if there is no Loan Budget Amount to which it relates, to the Loan
Budget Amount(s) which Administrative Agent deems most appropriate in its sole
but reasonable discretion. Administrative Agent's issuance of each Letter of
Credit shall be subject to Administrative Agent's determination that Borrower
has satisfied all conditions precedent to its entitlement to an advance of Loan
proceeds. Each Letter of Credit shall expire no later than one (1) month prior
to the Maturity Date.
(c) In connection with, and as a further condition to the issuance of,
each Letter of Credit, Borrower shall execute and deliver to Administrative
Agent an application for the Letter of Credit on Administrative Agent's standard
form therefor, together with such other documents, opinions and assurances as
Administrative Agent shall reasonably require, and shall pay Administrative
Agent's customary issuance and processing fees in connection therewith. In the
event of any inconsistency between any such application or related documents and
this Agreement, this Agreement shall control.
(d) The parties hereto acknowledge and agree that, immediately upon
notice from Administrative Agent of any drawing under a Letter of Credit, each
Lender shall, notwithstanding the existence of a Default or Event of Default or
the non-satisfaction of any conditions precedent to the making of an advance of
the Loan, advance proceeds of the Loan, in an amount equal to its ratable share
(based upon the undisbursed amounts of the Lenders' respective Individual Loan
Commitments) of such drawing, which advance shall be made to Administrative
Agent to reimburse Administrative Agent, for its own account, for such drawing.
Borrower hereby irrevocably authorizes Lenders to make such advances. Each
Lender further acknowledges that its obligation to fund its share of drawings
under Letters of Credit as aforesaid shall survive the Lenders' termination of
this Agreement or enforcement of remedies hereunder or under the other Loan
Documents. In the event, however, that any advance of proceeds of the Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Code with respect to Borrower), then each Lender shall forthwith purchase (as of
the date such advance would
64
otherwise have occurred) from Administrative Agent participation interests in
the unreimbursed drawing in an amount equal to its Pro Rata Share thereof.
(e) Borrower agrees, upon the occurrence of an Event of Default and at
the written request of Administrative Agent, (i) to deposit with Administrative
Agent cash collateral in the amount of all the outstanding Letters of Credit,
which cash collateral shall be held by Administrative Agent as security for
Borrower's obligations in connection with the Letters of Credit and (ii) to
execute and deliver to Administrative Agent such documents as Administrative
Agent reasonably requests to confirm and perfect the assignment of such cash
collateral to Administrative Agent.
Section 9.07. Concerning Irrevocable Authorizations. Any and all
advances made at any time by Lenders pursuant to the irrevocable authorizations
granted by Sections 9.04, 9.05 and 9.06 shall require no further direction,
authorization or request for disbursement from Borrower and, except in the case
of advances under Section 9.04, may be made whether or not there exists a
Default or Event of Default. Any and all such disbursements shall be added to
the outstanding principal balance evidenced by the Notes and shall be secured by
the Mortgage. The aforesaid authorizations shall (i) not prevent Borrower from
paying the contractors and other Persons, from paying the interest, or from
satisfying the conditions and obligations referred to in said Sections, out of
its own funds, (ii) in no event be construed so as to relieve Borrower or others
from their obligations to pay such contractors or other Persons, to pay interest
as and when due under the Notes, or to satisfy such conditions and obligations
and (iii) except in the case of advances pursuant to Section 9.06, in no event
obligate Lenders to disburse proceeds of the Loan for any such purposes.
Section 9.08. Ratification of Requisition by Acceptance of Advance.
Borrower agrees that, by its acceptance of any advance of Loan proceeds
hereunder, it shall be bound in all respects by the Requisition submitted on its
behalf in connection therewith with the same force and effect as if Borrower had
itself executed and submitted the Requisition and whether or not the Requisition
is executed and/or submitted by an authorized Person.
Section 9.09. Documentation Etc. Satisfactory. All documentation and
proceedings deemed by Administrative Agent to be necessary or required in
connection herewith and the documents relating hereto shall be subject to the
prior approval of, and satisfactory to, Administrative Agent as to form and
substance. In addition, the Persons responsible for the execution and delivery
of, and signatories to, all of such documentation, shall be acceptable to, and
subject to the approval of, Administrative Agent. Administrative Agent shall
receive copies, certified if requested by it, of all documents which it may
require in connection with the transactions contemplated hereby.
Section 9.10. Intentionally Omitted.
Section 9.11. Notices. Except as expressly provided otherwise, all
notices, demands, consents, approvals and statements required or permitted
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes
65
when presented personally, three (3) days after mailing by registered or
certified mail, postage prepaid, or one (1) day after delivery to a nationally
recognized overnight courier service providing evidence of the date of delivery,
addressed to a party at its address on the signature page hereof or of the
applicable Assignment and Assumption Agreement, or at such other address of
which a party shall have notified the party giving such notice in writing in
accordance with the foregoing requirements.
Section 9.12. Amendments and Waivers. No amendment or material waiver
of any provision of this Agreement or any other Loan Document, nor consent to
any material departure by Borrower or any Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the party
against whom such amendment, waiver or consent is sought to be enforced (it
being understood, however, that the signatures of the Required Lenders and,
solely for purposes of its acknowledgement thereof, Administrative Agent, shall
be sufficient to bind Lenders to any such amendment, waiver or consent), and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all Lenders (subject,
however, to the provisions of Section 7.16(d)), do any of the following: (i)
other than as provided in this Agreement, reduce the principal of, or interest
on, the Notes or any fees due hereunder or any other amount due hereunder or
under any other Loan Document; (ii) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees due hereunder or under any
other Loan Document or waive any default in the payment of principal, interest
or any other amount due hereunder or under any other Loan Document; (iii) change
the definition of Required Lenders; (iv) release any material portion of the
Mortgaged Property or other collateral for the Loan other than in accordance
with the Loan Documents; (v) amend this Section or any other provision requiring
the consent of all Lenders or the Required Lenders; (vi) release Guarantor, in
whole or in part, other than in accordance with the Loan Documents; (vii)
increase the Loan Amount or the Individual Loan Commitment of any Lender; (viii)
waive any default under paragraph (6) of Section 8.01; or (ix) amend Section
7.14. Without limiting the foregoing, acceptance by Administrative Agent or
Lenders of any sum required to be paid pursuant hereto or to any other Loan
Document, after its due date, or in an amount less than the sum then due, shall
not constitute a waiver by Administrative Agent or Lenders of their right to
require prompt payment when due of all other such sums or to declare a default
or to exercise such other rights provided herein or in the other Loan Documents
for such late or reduced payment.
All communications from Administrative Agent to Lenders requesting
Lenders' determination, consent, approval or disapproval (i) shall be given in
the form of a written notice to each Lender, (ii) shall be accompanied by or
include a description or copy of the matter or thing as to which such
determination, approval, consent or disapproval is requested and (iii) shall
include Administrative Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within ten
(10) Business Days (or five (5) Business Days with respect to any decision to
accelerate or stop acceleration of the Loan) after receipt of the request
therefor by Administrative Agent (the "Lender Reply Period"). Unless a Lender
shall give written notice to Administrative Agent that it objects to the
recommendation or determination of
66
Administrative Agent (together with a written explanation of the reasons behind
such objection) within the Lender Reply Period, such Lender shall be deemed to
have approved or consented to such recommendation or determination.
Section 9.13. Assignment; Participation. Any Non-Delinquent Lender may
at any time, at no cost to Borrower, grant to one or more banks or other
institutions, including other Non-Delinquent Lenders (each a "Participant")
participating interests in its Pro Rata Share of the Loan (each a
"Participation") subject to Administrative Agent's consent, which consent shall
not be unreasonably withheld or delayed, and provided any such Participation
shall be in the minimum amount of $5,000,000 unless the Participant thereunder
is a Non-Delinquent Lender. In the event of any such grant by a Lender of a
Participation to a Participant, whether or not Borrower or Administrative Agent
was given notice thereof, such Lender shall remain responsible for the
performance of its obligations hereunder, and Borrower and Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations hereunder. Any agreement pursuant to which
any Lender may grant a Participation shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of Borrower
hereunder and under any other Loan Document, including, without limitation, the
right to approve any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document; provided, however, that such participation
agreement may provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clauses (i) through (ix) of
Section 9.12 without the consent of the Participant.
Each Lender agrees to provide Borrower with notice of all
Participations sold by such Lender. Borrower agrees to provide all assistance
reasonably requested by a Lender to enable such Lender to sell Participations as
aforesaid, or make assignments of its interest in the Loan as hereinafter
provided in this Section.
A Lender may at any time assign to any bank or other institution with
the consent of Administrative Agent and, provided there exists no Event of
Default, of Borrower, which consents shall not be unreasonably withheld or
delayed (such assignee, a "Consented Assignee"), or to one or more banks or
other institutions which are majority owned subsidiaries of a Lender or of the
parent of a Lender (each Consented Assignee or subsidiary bank or institution,
an "Assignee") all or a proportionate part of all of its rights and obligations
under this Agreement and its Note, and such Assignee shall assume rights and
obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and the assigning Lender, provided that, after giving effect to such
assignment, in each case, the Assignee's portion of the Loan and, in the case of
a partial assignment of a Lender's interest, the assigning Lender's portion of
the Loan will each be equal to or greater than $5,000,000. Upon (i) execution
and delivery of such instrument, (ii) payment by such Assignee to the assigning
Lender of an amount equal to the purchase price agreed between such Lender and
such Assignee and (iii) payment by such Assignee or by the assigning Lender to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $3,500, such Assignee shall be a party to this Agreement and shall
have all the rights and obligations of a Lender as set forth in such Assignment
and Assumption Agreement, and the assigning Lender shall be released from its
67
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this paragraph, substitute notes, in the form of EXHIBIT G, shall be
issued to the assigning Lender (in the case of a partial assignment) and
Assignee by Borrower, in exchange for the return of the assigning Lender's
original Note. All such substitute notes shall constitute "Notes" and the
obligations evidenced by such substitute notes shall constitute Obligations for
all purposes of this Agreement and the other Loan Documents. In connection with
Borrower's execution of substitute notes as aforesaid, Borrower shall deliver to
Administrative Agent such evidence of the due authorization, execution and
delivery of the substitute notes and any related documents as Administrative
Agent may reasonably request. If the Assignee is not incorporated under the Laws
of the United States or a state thereof, it shall, prior to the first date on
which interest or fees are payable hereunder for its account, deliver to
Borrower and Administrative Agent certification as to exemption from deduction
or withholding of any United States federal income taxes in accordance with
Section 7.13.
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with assignments
in accordance with the foregoing provisions of this Section, provided, however,
that no such modifications shall increase Borrower's liability or obligations,
or decrease its rights, in respect of the Loan.
Any Lender may at any time freely assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
Borrower recognizes that in connection with a Lender's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower,
Guarantor or the Loan may be exhibited to and retained by any such Participant
or Assignee or prospective Participant or Assignee. A Lender's delivery of any
financial statements and appraisals to any such Participant or Assignee or
prospective Participant or Assignee shall be accompanied by such Lender's
standard confidentiality statement indicating that the same are delivered on a
confidential basis.
Section 9.14. Setoff. Borrower agrees that, in addition to (and without
limitation of) any right of setoff, bankers' lien or counterclaim Administrative
Agent or any Lender may otherwise have, Administrative Agent and each Lender
shall be entitled to offset balances (general or special, time or demand,
provisional or final) held by it for the account of Borrower at any of
Administrative Agent's or such Lender's offices against any amount payable by
Borrower to Administrative Agent or such Lender hereunder or under any other
Loan Document which is not paid when due (regardless of whether such balances
are then due to Borrower), in which case it shall promptly notify Borrower and
(in the case of a Lender) Administrative Agent thereof; provided, however, that
Administrative Agent's or such Lender's failure to give such notice shall not
affect the validity thereof. Payments by Borrower hereunder or under the other
Loan Documents shall be made without setoff or counterclaim.
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Section 9.15. Successors and Assigns. Except as herein provided, this
Agreement shall be binding upon and inure to the benefit of Borrower,
Administrative Agent and Lenders and their respective heirs, personal
representatives, successors and assigns. Notwithstanding the foregoing, Borrower
may not assign, transfer or set over to another, in whole or in part, all or any
part of its benefits, rights, duties and obligations hereunder, including, but
not limited to, performance of and compliance with conditions hereof and the
right to receive the proceeds of current or future advances.
Section 9.16. Severability. The provisions hereof are intended to be
severable. Any provisions hereof, or the application thereof to any Person or
circumstance, which, for any reason, in whole or in part, is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof (or the remaining portions of such provision) or the
application thereof to any other Person or circumstance, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision (or portion thereof) or the application
thereof to any Person or circumstance in any other jurisdiction.
Section 9.17. Non-Waiver; Remedies Cumulative. No failure or delay on
Administrative Agent's or any Lender's part in exercising any right, remedy,
power or privilege hereunder or under any of the other Loan Documents or
provided by law (hereinafter in this Section, each a "Remedy") shall operate as
a waiver of any such Remedy or shall be deemed to constitute Administrative
Agent's or any Lender's acquiescence in any default by Borrower or Guarantor
under any of said documents. A waiver by Administrative Agent or any Lender of
any Remedy on any one occasion shall not be construed as a bar to any other or
future exercise thereof or of any other Remedy. The Remedies are cumulative, may
be exercised singly or concurrently and are not exclusive of any other Remedies.
Section 9.18. Certain Waivers. Borrower hereby irrevocably and
unconditionally waives (i) promptness and diligence, (ii) notice of any actions
taken by Administrative Agent or any Lender hereunder or under any other Loan
Document or any other agreement or instrument relating thereto except to the
extent otherwise provided herein, (iii) all other notices, demands and protests,
and all other formalities of every kind in connection with the enforcement of
the Obligations, the omission of or delay in which, but for the provisions of
this Section, might constitute grounds for relieving Borrower of any of its
Obligations, (iv) any requirement that Administrative Agent or any Lender
protect, secure, perfect or insure any lien on or against the Mortgaged
Property, or any part thereof, or on or against any other collateral for the
Loan or exhaust any right or take any action against Borrower, Guarantor or any
other Person or against any of the Mortgaged Property or any other collateral
for the Loan, (v) any right or claim of right to cause a marshalling of
Borrower's or Guarantor's assets and (vi) all rights of subrogation or
contribution, whether arising by contract or operation of law or otherwise by
reason of payment by Borrower pursuant hereto or to the other Loan Documents.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER WAIVE ANY RIGHT EACH SUCH PARTY
MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT
WITH RESPECT TO THIS AGREEMENT,
69
THE NOTES OR THE LOAN. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON
BEHALF OF ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE
TO (1) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COUNTERCLAIM THAT IF NOT
BROUGHT IN THE SUIT, ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR
LENDERS COULD NOT BE BROUGHT IN A SEPARATE SUIT, ACTION OR PROCEEDING OR WOULD
BE SUBJECT TO DISMISSAL OR SIMILAR DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED
IN SUCH SUIT, ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR LENDERS
AND (2) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR
PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL
PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
Section 9.19. Expenses; Indemnification. Borrower covenants and agrees
to pay all costs, expenses and charges (including, without limitation, all fees
and charges of attorneys, engineers, appraisers and consultants) incurred by
Administrative Agent or any Lender in connection with (i) the preparation for
and consummation of the transactions contemplated hereby or for the performance
hereof and of the other Loan Documents, and for any services which may be
required in addition to those normally and reasonably contemplated hereby and
(ii) the enforcement hereof or of any or all of the other Loan Documents;
provided, however, that Borrower shall not be responsible for (1) the fees and
expenses of legal counsel for Lenders (other than PNC) and (2) costs, expenses
and charges incurred by Administrative Agent and Lenders in connection with the
administration or syndication of the Loan (other than the fees required by the
Fee Letter and the reasonable fees and expenses of Administrative Agent's
counsel and of the Construction Consultant). In connection with the foregoing,
Lenders agree, to the extent practicable, to appoint a single counsel and local
counsel, selected by Administrative Agent, to act on behalf of all Lenders in
connection with the enforcement of the Loan Documents. If Borrower fails to pay
promptly any costs, charges or expense required to be paid by it as aforesaid,
and Administrative Agent or any Lender pays such costs, charges or expenses,
Borrower shall reimburse Administrative Agent or such Lender, as appropriate, on
demand for the amounts so paid, together with interest thereon at the Prime
Based Default Rate. Borrower further agrees to indemnify Administrative Agent
and each Lender and their respective directors, officers, employees and agents
from, and hold each of them harmless against, (x) any and all losses arising out
of or by reason of any investigation or litigation or other proceedings
(including any threatened investigation or litigation or other proceedings)
relating to any actual or proposed use by Borrower of the proceeds of the Loan,
including, without limitation, the fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceedings and (y)
any and all claims, actions, suits, proceedings, costs, expenses, losses,
damages and liabilities of any kind, including in tort, penalties and interest,
arising
70
out or by reason of any matter relating, directly or indirectly, to the Mortgage
or the ownership, condition, development, construction, sale, rental or
financing of the Premises or Improvements or any part thereof (but excluding any
such losses, liabilities, claims, damages or expenses incurred solely by reason
of the gross negligence or willful misconduct of the party to be indemnified).
The obligations of Borrower under this Section and under Sections 3.01, 3.03 and
6.07 shall survive the repayment of all amounts due under or in connection with
any of the Loan Documents and the termination of the Loan.
Section 9.20. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Agreement by signing any
such counterpart.
Section 9.21. Lenders' Right to Terminate. In the event Borrower shall
not have satisfied the conditions precedent to its entitlement to advances of
Loan proceeds hereunder within thirty (30) days of the date hereof, the Required
Lenders shall have the absolute right, at their option, to terminate Lenders'
obligations to Borrower under this Agreement and the loan commitment represented
hereby. In the event of such termination, the Required Lenders shall direct
Administrative Agent to send notice thereof to the other Lenders and Borrower.
Section 9.22. Governing Law; Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all respects be
governed by, and construed and enforced in accordance with, the Laws of the
State of New York (without giving effect to New York's principles of conflicts
of law). Borrower, Administrative Agent and each Lender hereby irrevocably
submit to the non-exclusive jurisdiction of any New York State or Federal court
sitting in The City of New York over any suit, action or proceeding arising out
of or relating to this Agreement, the Note or any other Loan Document and
Borrower hereby agrees and consents that, in addition to any methods of service
of process provided for under applicable Law, all service of process in any such
suit, action or proceeding in any New York State or Federal court sitting in The
City of New York may be made by certified or registered mail, return receipt
requested, directed to Borrower at the address indicated on its signature page
hereof, and service so made shall be complete five (5) days after the same shall
have been so mailed. Borrower, Administrative Agent and each Lender further
waive any objection to venue in the State of New York on the basis of forum non
conveniens. Borrower, Administrative Agent and each Lender agree that any action
or proceeding brought against Borrower, Administrative Agent or any Lender, as
the case may be, shall be brought only in a New York State or Federal court
sitting in The City of New York.
Nothing in this Section shall affect the right of Borrower,
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Law.
Section 9.23. Integration. The Loan Documents and the Fee Letter
constitute the entire agreement among Administrative Agent, Borrower and Lenders
relating to the transactions contemplated thereby (except with respect to
agreements, if
71
any, among Lenders or with Administrative Agent relating solely to compensation,
consideration and the syndication of the Loan) and supersede any prior oral or
written statements or agreements with respect to such transactions.
Section 9.24. Gross-Up For Taxes. All payments made by Borrower under
this Agreement and the Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding income taxes and franchise or other
taxes (imposed in lieu of income taxes) imposed on a Lender as a result of a
present or former connection between such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Lender's having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or its Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") is required to be withheld from any amounts
payable to such Lender hereunder or under its Note, the amounts so payable to
such Lender shall be increased to the extent necessary to yield to such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable with respect to the Loan at the rates or in the amounts specified in
this Agreement and its Note; provided, however, that Borrower shall not be
required to increase any such amounts payable to such Lender if such Lender is
not organized under the Laws of the United States or a state thereof and such
Lender fails to comply with the requirements of Section 7.13. Whenever any
Non-Excluded Taxes are payable by Borrower, as promptly as possible thereafter
Borrower shall send to Administrative Agent for the account of such Lender a
certified copy of an original official receipt received by Borrower showing
payment thereof. If Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to Administrative Agent the
required receipts or other required documentary evidence, Borrower shall
indemnify such Lender for any incremental taxes, interest or penalties that may
become payable by such Lender as a result of any such failure. The agreements in
this Section shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder.
Section 9.25. Single Purpose Entity. Borrower represents and warrants
that it is a specifically-formed single purpose entity and that it has not, and
covenants and agrees that it shall not:
(i) engage in any business or activity other than the ownership,
operation and maintenance of the Premises and Improvements and
activities incidental thereto;
(ii) acquire or own any material assets other than the Premises
and Improvements and such incidental personal property as may be
necessary for the operation thereof;
(iii) merge into or consolidate with any Person or dissolve,
terminate or liquidate in whole or in part, transfer or otherwise
dispose of all or substantially
72
all of its assets or change its legal structure from a partnership to
another type of business entity;
(iv) fail to preserve its existence as a partnership duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its formation, or amend or modify the provisions of
its partnership agreement in any way which would be contrary to or
conflict with the agreements made by Borrower in this Section;
(v) own any subsidiary or make any investment in any Person;
(vi) commingle its assets with the assets of any of its partners
or of any other Person;
(vii) create, incur or assume any Debt, secured or unsecured,
direct or contingent (including guaranteeing any obligation), other
than (x) the Loan or (y) Debt which (A) is incurred in the ordinary
course of its business of owning and operating its interest in the
Premises and the routine administration of Borrower, (B) in the case
of trade payables, is related to the operation of the Improvements and
is not more than sixty (60) days past the date due (unless Borrower is
in good faith contesting any such trade payable), (C) in the case of
the financing of fixtures, equipment or personal property at the
Premises, is in amounts not to exceed $5,000,000 in the aggregate and
is secured by, and only by, a pledge of such fixtures, equipment or
personal property and (D) if evidenced by a note, is paid on the date
payment is due under such note;
(viii) become insolvent or fail to pay its debts and liabilities
from its assets as the same shall become due;
(ix) fail to maintain its records, books of account and bank
accounts separate and apart from those of its partners and any other
Person;
(x) enter into any contract or agreement with any partner or
Affiliate, except upon commercially reasonable terms and conditions;
(xi) partition, or seek to partition, its interest in the
Premises, or seek the dissolution or winding up, in whole or in part,
of Borrower;
(xii) fail to correct any known misunderstandings regarding its
separate identity;
(xiii) hold itself out to be responsible for the Debts or
obligations of another Person;
(xiv) make any loans or advances to any third party, including
any partner or principal of Borrower or their Affiliates;
(xv) fail to file its own tax returns, if required, unless part
of the consolidated returns of another Person;
73
(xvi) agree to, enter into or consummate any transaction which
would render Borrower unable to make the representation contained in
Section 5.07;
(xvii) fail either to hold itself out to the public as a legal
entity separate and distinct from any other Person or to conduct its
business solely in its own name in order not (x) to mislead others as
to the identity with which such other party is transacting business or
(y) to suggest that Borrower is responsible for the Debts or
obligations of any third party (including any partner or principal of
Borrower or their Affiliates);
(xviii) share any common logo with or hold itself out as or be
designated as a department or division of any other Person;
(xix) without the unanimous consent of all of its general
partners, file or consent to the filing of a bankruptcy or insolvency
petition or otherwise institute insolvency proceedings with respect to
itself or to any other entity in which it has a direct or indirect
legal or beneficial ownership interest; or
(xx) dissolve, liquidate, consolidate, merge or sell all or
substantially all of its assets or the assets of any other entity in
which it has a direct or indirect legal or beneficial ownership
interest or engage in any other business activity.
Section 9.26. Partial Releases. (a) Provided there exists no Event of
Default, following the completion of construction of the Dillard Anchor Store
thereon, Administrative Agent shall release the lien of the Mortgage from that
8.1959-acre portion of the Premises identified as Tract 3 ("Dillard's Anchor
Parcel, Lot 1 Block 1") on Schedule A to the Mortgage in connection with the
conveyance thereof to, and acceptance thereof by, Mercantile for the operation
thereon by Mercantile of the Dillard Anchor Store. Such release shall be subject
to Administrative Agent's receipt of (A) evidence that the balance of the
Premises constitutes a separate tax and zoning lot, (B) an endorsement to the
title insurance policy for the Mortgage insuring that the lien of the Mortgage
will not be impaired by virtue of said release, (C) such other documents,
opinions and assurances as Administrative Agent may reasonably request (all of
the foregoing items (A), (B) and (C) to be received by Administrative Agent at
least seven (7) Business Days prior to the proposed release and be in form and
substance reasonably satisfactory to Administrative Agent) and (D) payment of
Administrative Agent's out-of-pocket expenses, including the fees and expenses
of counsel, in connection therewith.
(b) Administrative Agent shall release the lien of the Mortgage from
portions of the Premises outside of the "ring road" of the shopping center of
which the Improvements are a part (each such portion of the Premises, a "Release
Parcel") as follows:
(i) All such releases shall be subject, in each case, to
Administrative Agent's receipt of (A) evidence that the balance of the
Premises constitutes a separate tax and zoning lot and an endorsement
to the title insurance policy for the Mortgage insuring that the lien
of the Mortgage will not be impaired by virtue of
74
the release of the Release Parcel, (B) a copy, certified by
Borrower to be true and complete, of the executed contract of sale
for the Release Parcel, (C) a current survey of the Premises,
specifically delineating (by metes and bounds) the Release Parcel,
certified to Administrative Agent and the Title Insurer, (D) such
other documents, opinions and assurances as Administrative Agent
may reasonably request (all of the foregoing items (A) through (D) to
be received by Administrative Agent at least seven (7)
Business Days prior to the proposed release and be in form and
substance reasonably satisfactory to Administrative Agent), (E) the
appropriate release price, if any, required by subparagraph (vii)
below, to be applied by Administrative Agent to the repayment of the
Principal Amount and accrued and unpaid interest thereon and (F)
payment of Administrative Agent's out-of-pocket expenses, including the
fees and expenses of counsel, in connection with the foregoing
transactions.
(ii) Provided there exists no Event of Default, those portions
of the Premises identified as Tract 8 ("Adjacent Parcel D"), Tract 9
("Adjacent Parcel E"), Tract 10 ("Adjacent Parcel F"), Tract 6
("Residual Parcel B") and Tract 4 ("Lot 2, Block 2") on Schedule A to
the Mortgage shall be released as provided in subparagraph (i) above in
connection with Borrower's simultaneous conveyance thereof, in
commercially reasonable transactions, for the construction and
operation thereon by the transferee thereof of retail stores,
restaurants, entertainment facilities or other facilities compatible
with the shopping center.
(iii) Provided there exists no Event of Default, (x) those
portions of the Premises south of Park Boulevard identified as Tract 14
("Lot 5, Block A") and Tract 15 ("Lot 6, Block A") on Schedule A to the
Mortgage and (y) in the event the Option Parcel becomes part of the
Premises pursuant to Section 2.08, the Option Parcel, or portions
thereof, shall be released as provided in subparagraph (i) above in
connection with Borrower's simultaneous conveyance thereof in
commercially reasonable transactions to third parties.
(iv) Those portions of the Premises identified as (x) Tract 11
(the "Chapel Hill Boulevard Right-of-Way Parcel"), (y) Tract 12 (the
"Park Boulevard Right-of-Way Parcel") and (z) Tract 7 ("Residual Parcel
C") on Schedule A to the Mortgage shall be released in accordance with
subparagraph (i) above in connection with Borrower's simultaneous
dedication thereof as a public road, or a portion of a public road,
upon Administrative Agent's receipt of evidence of such dedication and
the acceptance thereof by the City, as well as of Borrower's
completion, and the City's acceptance, of the roadway improvements to
be done by Borrower pursuant to (A) Section 3C(2) of the Master
Agreement with respect to the Chapel Hill Boulevard Right-of-Way Parcel
and the Park Boulevard Right-of-Way Parcel and (B) Section 3(a) of the
Exchange Agreement with respect to Residual Parcel C.
(v) Provided there exists no Event of Default, that portion of
the Premises identified as Tract 5 ("Residual Parcel A") on Schedule A
to the Mortgage shall be released in accordance with subparagraph (i)
above in
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connection with Borrower's simultaneous conveyance thereof to
an adjoining property owner in exchange for that certain approximately
0.1085-acre parcel of land identified on Exhibit "B-10" to the Exchange
Agreement (the "Brown/Developer Parcel") upon Administrative Agent's
receipt (unless the Brown/Developer Parcel is conveyed directly to and
accepted by the City as part of the dedication thereof as a public road
or a portion of a public road) of (x) an agreement, executed by
Borrower and in proper form for recording, spreading the lien of the
Mortgage to encumber the Brown/Developer Parcel and (y) an endorsement
to the title policy insuring the Mortgage adding the Brown/Developer
Parcel to the insured premises thereunder with no additional title
exceptions.
(vi) In the event the Option Parcel becomes part of the
Premises pursuant to Section 2.08, an approximately 2-acre portion
thereof shall be released in accordance with subparagraph (i) above in
connection with Borrower's simultaneous dedication thereof for the
widening of Plano Parkway, a public road, upon Administrative Agent's
receipt of evidence of such dedication and the acceptance thereof by
the City.
(vii) As a condition to releases of Release Parcels pursuant
to subparagraphs (ii) and (iii) above, Borrower shall be required to
pay a release price in an amount equal to (x) $5.92 per square foot in
the case of releases pursuant to subparagraph (ii) above and (y) $4.68
per square foot in the case of releases pursuant to subparagraph (iii)
above. No release price shall be required for releases of Release
Parcels pursuant to subparagraphs (iv), (v) and (vi) above.
Section 9.27. Required Leasing Achievement Levels. (a) If on the first
Leasing Achievement Measurement Date indicated in the table below, Borrower
shall not have in place, as reasonably determined by Administrative Agent, fully
executed and, where required by this Agreement, approved by Administrative Agent
(or deemed approved as provided in Section 6.20) leases of mall stores in the
Improvements (and delivered certified copies of such leases to Administrative
Agent): (i) covering at least the percentage of the total SFGLA of the
Improvements, (ii) providing for a cumulative average minimum rent per square
foot and (iii) providing for a minimum aggregate annual rent, all as set forth
in said table for said first Leasing Achievement Measurement Date (the leasing
requirements set forth in clauses (i), (ii) and (iii), collectively, for each
Leasing Achievement Measurement Date, the "Leasing Requirement"), then Borrower
shall, within ten (10) Business Days of Administrative Agent's demand therefor,
deliver to Administrative Agent additional collateral for the Loan in form,
amount and otherwise as more particularly set forth below in this Section. If,
however, on the first leasing Achievement Measurement Date, Borrower shall have
in place leases which satisfy the Leasing Requirement for such date as set forth
above, then the provisions of this Section shall no longer be applicable.
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- --------------------------------------------------------------------------------
Leasing Required Leasing Average Required Required Aggregate
Achievement Percentage (%) Minimum Annual Minimum
Measurement Rent/Square Foot($) Rent ($)
Date
- --------------------------------------------------------------------------------
11/1/2000 50 35 9,829,680
- --------------------------------------------------------------------------------
2/1/2001 57 38 12,166,335
- --------------------------------------------------------------------------------
5/1/2001 63 41 14,508,608
- --------------------------------------------------------------------------------
8/1/2001 70 44 17,300,236
- --------------------------------------------------------------------------------
(b) Additional collateral for the Loan required by paragraph (a) above
in respect of the first Leasing Achievement Measurement Date shall be in the
form of either cash or a letter of credit, in either case in an amount equal to
the greater of (x) the quotient of (A) the product of (1) the excess of the
Required Leasing Percentage over the actual leasing percentage (based on the
executed and, where required by this Agreement, approved by Administrative Agent
(or deemed approved as provided in Section 6.20) leases then in place),
multiplied by (2) 561,696 SFGLA, multiplied by (3) the Required Minimum
Rent/Square Foot, divided by (B) .0875 or (y) the quotient of (A) the excess of
the Required Aggregate Annual Minimum Rent over the actual aggregate annual
minimum rent (based on the executed and, where required by this Agreement,
approved by Administrative Agent (or deemed approved as provided in Section
6.20) leases then in place), divided by (B) .0875.
(c) Cash collateral delivered by Borrower pursuant to this Section
shall be deposited into an interest-bearing "blocked" cash collateral account to
be established with and held in the name of Administrative Agent (the "Cash
Collateral Account"). All amounts deposited into the Cash Collateral Account
shall be invested by Administrative Agent in certificates of deposit or other
money market instruments (each such certificate of deposit or money market
instrument, a "MM Instrument") issued (and to be held) by Administrative Agent,
the amounts and terms of which shall be acceptable to Administrative Agent.
Borrower hereby assigns the Cash Collateral Account and all sums therein, and
all MM Instruments, including earnings thereon, to Administrative Agent, for the
benefit of Lenders, as security for the payment and performance of the
Obligations and acknowledges that Borrower shall have no right to such sums or
such MM Instruments except to the extent specifically provided for herein.
Borrower further acknowledges that Administrative Agent shall retain possession
of all documents evidencing the Cash Collateral Account and any MM Instrument to
perfect its security interests therein. Notwithstanding the foregoing, at any
time following the occurrence of an Event of Default, Administrative Agent may,
upon the direction of the Required Lenders, apply any and all sums in the Cash
Collateral Account and all sums invested in MM Instruments, including earnings
thereon, to the immediate reduction of the Principal Amount and/or accrued and
unpaid interest and/or other sums payable hereunder or under the Notes or other
Loan Documents, in such order and amounts as the Required Lenders shall elect.
Administrative Agent is hereby appointed Borrower's attorney-in-fact for the
purpose of withdrawing any and all sums from the Cash Collateral Account and all
sums
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invested in MM Instruments. Borrower agrees to execute such further documents
(including security agreements and UCC-1 financing statements) and do such
further acts as Administrative Agent may reasonably request to confirm or
perfect the assignment and security interests provided for in this Section.
(d) Letters of credit delivered by Borrower pursuant to this Section
shall (x) be unconditional and irrevocable, (y) be issued for the benefit of
Administrative Agent by a financial institution reasonably acceptable to it and
(z) have an expiration date no earlier than twelve (12) months after its
issuance, with an "evergreen" clause providing for automatic six (6) month or
longer extensions. At any time following the occurrence of an Event of Default,
Administrative Agent may, upon the direction of the Required Lenders, draw upon
any such letter of credit by sight draft. The proceeds of any such drawings
shall be applied by Administrative Agent to the immediate reduction of the
Principal Amount and/or accrued and unpaid interest and/or other sums payable
hereunder or under the Notes or other Loan Documents, in such order and amounts
as the Required Lenders may elect. In addition, if, any time prior to the
satisfaction of the conditions for the return of any such letter of credit set
forth in paragraph (e) of this Section, (I) either (x) Borrower shall fail to
deliver to Administrative Agent an extension thereof at least thirty (30) days
prior to its expiration date or (y) the credit rating of the issuer thereof
shall be lowered to below A by S&P or below A2 by Moody's and (II) Borrower
shall fail to deliver to Administrative Agent a substitute letter of credit
conforming to the requirements of this Section, then immediately upon the
happening of the event described in clause (x) above or within ten (10) days
after the happening of the event described in clause (y) above, then
Administrative Agent shall be permitted (irrespective of the existence or
non-existence of any Event of Default) to draw upon any such letter of credit
and deposit the proceeds of such drawing into the Cash Collateral Account.
(e) Within seven (7) Business Days following (x) the opening
of the Improvements and Anchor Stores (other than the Sak's Anchor Store) for
business to the public and Borrower's satisfaction of the requirements for and
conditions to its entitlement to the first extension of the Maturity Date as set
forth in Section 2.18 or (y) Borrower's satisfaction of the Leasing Requirement
on any Leasing Achievement Measurement Date subsequent to the first Leasing
Achievement Measurement Date, all sums then in the Cash Collateral Account (and
related MM Instruments) and all letters of credit then held by Administrative
Agent pursuant to this Section shall be returned to Borrower; provided, however,
that if on any subsequent Leasing Achievement Measurement Date the Leasing
Requirement is not yet satisfied but, based on the then actual leasing
achievement and the formula set forth in paragraph (b) above, the amount of
additional collateral that would be required is less than the additional
collateral then held by Administrative Agent, the excess shall be returned to
Borrower.
Section 9.28. Year 2000. Borrower represents, warrants and covenants
that each of Borrower and Guarantor has taken and shall continue to take all
action necessary to assure that its data processing (including internal
accounting and bookkeeping) systems, information technology systems and building
systems (including microprocessors for building systems) are capable of
effectively processing data and
78
information, including dates on and after January 1, 2000, and shall not cease
to perform, or provide, or cause any software and/or system which is material to
its operations or any interface therewith to provide, invalid or incorrect
results as a result of date functionality and/or data, or otherwise experience
any degradation of performance or functionality arising from, relating to or
including date functionality and/or data which represents or references
different centuries or more than one century or leap years, and that all such
systems shall effectively and accurately manage and manipulate data derived
from, involving or relating in any way to dates (including single century
formulas and multi-century or leap year formulas), and will not cause an
abnormally ending scenario within such systems or in any software and/or system
with which such systems interface, or generate incorrect values or invalid
results involving such dates. At the request of Administrative Agent, Borrower
shall provide Administrative Agent with reasonably acceptable assurance of
Borrower's and Guarantor's year 2000 capability.
Article X
NATURE OF OBLIGATIONS
Section 10.01. Absolute and Unconditional Obligations. Borrower
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of (1) any lack of validity or enforceability of any of the
Obligations, any Loan Documents, or any agreement or instrument relating
thereto, (2) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Obligations, or any other amendment
or waiver of or consent to any departure from any Loan Documents or any other
documents or instruments executed in connection with or related to the
Obligations, (3) any exchange or release of any collateral, or of any other
Person from all or any of the Obligations or (4) any other circumstances which
might otherwise constitute a defense available to, or a discharge of, Borrower
or any other Person in respect of the Obligations.
The obligations and liabilities of Borrower under this
Agreement and other Loan Documents shall not be conditioned or contingent upon
the pursuit by Administrative Agent, any Lender or any other Person at any time
of any right or remedy against Borrower or any other Person which may be or
become liable in respect of all or any part of the Obligations or against any
collateral or security or guarantee therefor or right of setoff with respect
thereto.
Section 10.02. Non-Recourse. (a) Notwithstanding anything to the
contrary contained in this Agreement, in any of the other Loan Documents (other
than the Indemnity and the Guaranty), or in any other instruments, certificates,
documents or agreements executed in connection with the Loan (all of the
foregoing, with the exception of the Indemnity and the Guaranty, for purposes of
this Section, hereinafter referred to, individually and collectively, as the
"Relevant Documents"), no recourse under or upon any Obligation, representation,
warranty, promise or other matter whatsoever under or in respect of the Relevant
Documents shall be had against Borrower or any of the constituent partners of
Borrower or their successors or assigns (said constituent partners
79
and their successors and assigns, for purposes of this Section, hereinafter
referred to, individually and collectively, as the "Borrower Partners") except
to the extent of realization upon the Mortgaged Property or any other collateral
now or hereafter given for the Loan, and each Lender expressly waives and
releases, on behalf of itself and its successors and assigns, all right to
assert any liability whatsoever under or with respect to the Relevant Documents
against, or to satisfy any claim or obligation arising thereunder against, any
of the Borrower Partners or out of any assets of the Borrower Partners,
provided, however, that nothing in this Section shall be deemed to (1)
constitute a waiver of any obligation evidenced or secured by, or contained in,
the Relevant Documents or affect in any way the validity or enforceability of
the Relevant Documents; or (2) limit the right of Administrative Agent and/or
Lenders to proceed against or realize upon all or part of the Mortgaged Property
or any other collateral now or hereafter given for the Loan or to name Borrower
(or, to the extent that the same are required by applicable Law or are
determined by a court to be necessary parties in connection with an action or
suit against Borrower or all or part of the Mortgaged Property or any other
collateral now or hereafter given for the Loan, any of the Borrower Partners) as
a party defendant in any action or suit for judicial foreclosure and sale under
the Mortgage or any other security document so long as no judgment or order in
the nature of a personal monetary judgment or order or deficiency judgment or
order shall be asked for or taken against Borrower or the Borrower Partners; or
(3) affect in any way the validity or enforceability of any guaranty (whether of
payment and/or performance) (including the Guaranty) or indemnity agreement
(including the Indemnity) now or hereafter given to or for the benefit of
Lenders in connection with the Loan; or (4) constitute a waiver by Lenders of
any rights to reimbursement for actual, out-of-pocket losses, costs or expenses,
or any other remedy at law or equity against Borrower or its constituent general
partner(s) by reason of (i) fraudulent actions or omissions or intentional
misrepresentations by Borrower or its constituent general partner(s), (ii)
willful misapplication of any insurance proceeds, condemnation awards or tenant
security deposits, or, during the existence of an Event of Default, of any
rental or other income, in any case which was expressly required by the Mortgage
or other Loan Documents (or leases in the case of tenant security deposits) to
be paid or applied in a specified manner, arising in any such case, with respect
to the Mortgaged Property or other collateral now or hereafter given for the
Loan or (iii) after the occurrence of an Event of Default, the reasonable
out-of-pocket legal and related expenses caused by the failure to deliver,
promptly upon demand, tenant and other project files and original executed
leases and other agreements relating to occupancy, construction or operation in
respect of the Premises in or under Borrower's or any of its Affiliate's
possession or control which have been reasonably requested by Administrative
Agent or any Lender.
(b) Notwithstanding anything to the contrary contained in the
Relevant Documents, the Indemnity or the Guaranty, no recourse under or upon any
Obligation, representation, warranty, promise or other matter whatsoever under
the Relevant Documents, the Indemnity or the Guaranty shall be had against any
of the constituent partners of Guarantor or their successors or assigns (said
constituent partners and their successors and assigns, for purposes of this
Section, hereinafter referred to, individually and collectively, as the "TRG
Partners") and Administrative Agent and each Lender
80
expressly waive and release, on behalf of themselves and their successors and
assigns, all right to assert any liability whatsoever under or with respect to
the Relevant Documents, the Indemnity or the Guaranty against, or to satisfy any
claim or obligation arising thereunder against, any of the TRG Partners or out
of any assets of the TRG Partners; provided, however, that nothing in this
Section shall be deemed to: (1) release Borrower or its constituent general
partner(s) from any personal liability pursuant to, or from any of its
obligations under, the Indemnity, or release Guarantor from any personal
liability pursuant to, or from any of its obligations under, the Indemnity or
the Guaranty; (2) release any TRG Partner from personal liability for its or his
own fraudulent actions or omissions or intentional misrepresentations; (3)
constitute a waiver of any obligation evidenced or secured by, or contained in,
the Relevant Documents, the Indemnity or the Guaranty, or affect in any way the
validity or enforceability of any of the Relevant Documents, the Indemnity or
the Guaranty; (4) limit the right of Administrative Agent and/or Lenders to
proceed against or realize upon the Mortgaged Property or any other collateral
now or hereafter given for the Loan or to name Guarantor or (to the extent that
the same are required by applicable Law or are determined by a court to be
necessary parties in connection with an action or suit against Borrower,
Guarantor or the Mortgaged Property or any other collateral now or hereafter
given for the Loan) any of the TRG Partners as a party defendant in, and to
enforce against the Mortgaged Property or any other collateral now or hereafter
given for the Loan any judgment obtained by Administrative Agent and/or Lenders
with respect to, any action or suit under the Relevant Documents so long as no
judgment shall be enforced or taken (except to the extent taking a judgment is
required by applicable Law or determined by a court to be necessary to preserve
Administrative Agent's and/or Lenders' rights against the Mortgaged Property or
any other collateral now or hereafter given for the Loan or Borrower or
Guarantor, but not otherwise) against the TRG Partners, their successors and
assigns, or their assets; or (5) limit the right of Administrative Agent and/or
Lenders to proceed against or realize upon any and all of the assets of Borrower
or Guarantor (notwithstanding the fact that the TRG Partners have an ownership
interest in Guarantor and, thereby, an interest in the assets of Guarantor) or
to name Borrower or Guarantor (or, to the extent that the same are required by
applicable Law or are determined by a court to be necessary parties in
connection with an action or suit against Borrower or Guarantor, any of the TRG
Partners) as a party defendant in, and to enforce against the assets of Borrower
or Guarantor any judgment obtained by Administrative Agent and/or Lenders with
respect to, any action or suit under the Indemnity or the Guaranty so long as no
judgment shall be enforced or taken (except to the extent taking a judgment is
required by applicable Law or determined by a court to be necessary to preserve
Administrative Agent's and/or Lenders' rights against Borrower or Guarantor, but
not otherwise) against the TRG Partners, their successors and assigns, or their
assets.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
WILLOW BEND ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Willow Bend Holdings 1 LLC,
a Delaware limited liability company,
its sole general partner
By: The Taubman Realty Group Limited
Partnership, a Delaware limited
partnership, its sole member
By /s/ Steven Eder
------------------------------
Name: Steven E. Eder
Title: Authorized Signatory
Address for notices:
Willow Bend Associates Limited Partnership
c/o The Taubman Company
200 East Long Lake Road, Suite 300
Bloomfield Hills, Michigan 48304
Attention: Mr. Steven E. Eder
Telephone: (248) 258-7258
Telecopy: (248) 258-7275
with a copy to:
Miro Weiner & Kramer
38500 Woodward Avenue
Suite 100
Bloomfield Hills, Michigan 48304
Attention: Martin L. Katz, Esq.
Telephone: (248) 258-1222
Telecopy: (248) 646-7887
and
with a copy of notices of default to:
82
City of Plano
1520 Avenue K
Plano, Texas 75074
Attention: City Manager
PNC BANK, NATIONAL ASSOCIATION
(as Lender and Administrative Agent)
By /s/ David C. Martens
----------------------------------------
Name: David C. Martens
Title: Vice President
Address for notices, Applicable Lending
Office and Administrative Agent's Office:
PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue
P1-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Mr. David Martens
Telephone: (412) 762-8597
Telecopy: (412) 762-6500
with a copy to:
PNC Bank, National Association
Loan Administration
One PNC Plaza
249 Fifth Avenue
P1-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Ms. Cheryl J. Wukich
Telephone: (412) 762-2891
Telecopy: (412) 768-5754
83
FLEET NATIONAL BANK
(as Lender)
By M. A. Mulcahy
-----------------------------------------
Name: Margaret A. Mulcahy
Title: Sr. Vice President
Address for Notices and Applicable Lending
Office:
Fleet National Bank
75 State Street
MA BOF 11-C
Boston, Massachusetts 02109
Attention: Ms. Margaret Mulcahy
Telephone: (617) 346-4291
Telecopy: (617) 346-3220
COMMERZBANK AG, NEW YORK BRANCH
(as Lender)
By /s/ E. Marcus Perry
-----------------------------------------
Name: E. Marcus Perry
Title: Assistant Vice President
By /s/ David Buettner
-----------------------------------------
Name: David Buettner
Title: Assistant Treasurer
Address for Notices and Applicable Lending
Office:
Commerzbank AG
New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: Mr. Douglas Traynor
Telephone: (212) 266-7569
Telecopy: (212) 266-7565
84
BAYERISCHE HYPO- UND VEREINSBANK
AG, NEW YORK BRANCH
(as Lender)
By /s/ S. Altman
-----------------------------------------
Name: Stephen E. Altman
Title: Managing Director
By /s./ Peter Hannigan
-----------------------------------------
Name: Peter T. Hannigan
Title: Managing Director
Address for Notices and Applicable Lending
Office:
150 East 42nd Street
New York, New York 10017-4679
Attention: Ms. Meggan W. Walsh
Telephone: (212) 672-5347
Telecopy: (212) 672-5527
85