CREDIT AND GUARANTY AGREEMENT

Exhibit 10.1

 

CREDIT AND GUARANTY AGREEMENT

dated as of February 16, 2007

among

THE MILLS LIMITED PARTNERSHIP,

as Borrower

THE MILLS CORPORATION,

as Parent

CERTAIN OF ITS SUBSIDIARIES,

as Guarantors

THE LENDERS PARTY HERETO, and

SIMON PROPERTY GROUP, L.P.

as Administrative Agent and Collateral Agent

 

Senior Secured Revolving and Term Loan Facility

 

 

TABLE OF CONTENTS

 

 

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CREDIT AND GUARANTY AGREEMENT

This CREDIT AND GUARANTY AGREEMENT , dated as of February 16, 2007, is entered into by and among THE MILLS LIMITED PARTNERSHIP , a Delaware limited partnership (“ Borrower ”), THE MILLS CORPORATION , a Delaware corporation (“ Parent ”), as Guarantor, CERTAIN SUBSIDIARIES OF PARENT , as Guarantors, and SIMON PROPERTY GROUP, L.P. (“ SPG ”) and the other Lenders party hereto from time to time, and SIMON PROPERTY GROUP L.P. , as Administrative Agent (together with its permitted successors in such capacity, “ Administrative Agent ”), as Collateral Agent (together with its permitted successor in such capacity, “ Collateral Agent ”) and, as Lead Arranger, Sole Book Runner, and as Syndication Agent (in such capacities, “ Syndication Agent ”).

RECITALS:

WHEREAS , capitalized terms used in these Recitals and not defined shall have the respective meanings set forth for such terms in Section 1.1 hereof;

WHEREAS , Lenders have agreed to extend (a) certain term loans in an aggregate amount not to exceed $1,187,688,187.82, to Borrower, the proceeds of which will be used (i) to prepay certain existing indebtedness, including payment in full of the outstanding obligations under the Existing Credit Agreement and cash-collateralizing certain outstanding letters of credit and (ii) to pay fees and expenses in connection with this Agreement and the transactions contemplated hereby and (b) certain revolving loans in an aggregate amount not to exceed $365,311,812.18, the proceeds of which will be used to provide for working capital requirements and general corporate purposes;

WHEREAS , Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a Lien on substantially all of its assets, including a pledge of Capital Stock of each of its Subsidiaries and Minority Holdings (to the extent such pledge of Capital Stock is permitted by the terms of any agreement, instrument or organizational document binding on any Group Member in effect on the date hereof, including any consent or waiver obtained from time to time with respect thereto); and

WHEREAS , Guarantors have agreed to guarantee the obligations of Borrower hereunder and to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on substantially all of their assets, including a pledge of all of the Capital Stock of each of their respective Subsidiaries and Minority Holdings (to the extent such pledge of Capital Stock is permitted by the terms of any agreement, instrument or organizational document binding on any Group Member in effect on the date hereof, including any consent or waiver obtained from time to time with respect thereto).

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. DEFINITIONS AND INTERPRETATION

1.1 Definitions . The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:

“ Account ” has the meaning given to such term in the UCC.

“ Act ” as defined in Section 4.28.

“ Additional Agent ” means any Lender or its Affiliate which may be designated by the Administrative Agent as an agent (including as documentation agent) with respect to this Agreement.

“ Adjusted Eurodollar Rate ” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding upward to the next whole multiple of 1/100 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%) equal to the offered rate which appears on the page of the Telerate Screen which displays an average British Bankers Association Interest Settlement Rate (such page currently being page number 3740 or 3750, as applicable) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the offered rate on such other page or other service which displays an average British Bankers Association Interest Settlement Rate for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to first class banks in the London interbank market for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan of Administrative Agent, in its capacity as a Lender, for which the Adjusted Eurodollar Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement.

“ Administrative Agent ” as defined in the preamble hereto.

“ Adverse Proceeding ” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of any Group Member) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of any Controlled Group Member, threatened against or adversely affecting any Group Member or property of any Group Member.

 

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“ Affected Lender ” as defined in Section 2.14(b).

“ Affected Loans ” as defined in Section 2.14(b).

“ Affiliate ” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for the election of directors (or equivalent governing body) of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise; provided , however , that Kan Am shall be deemed not to be an Affiliate of the Credit Parties.

“ Agent ” means each of Administrative Agent, Syndication Agent, the Collateral Agent and each Additional Agent, if any.

“ Aggregate Amounts Due ” as defined in Section 2.13.

“ Aggregate Exposures ” means, as of any date of determination, the Exposures of all Lenders as of such date.

“ Aggregate Loan Amount ” means the sum of (i) $1,187,688,187.82, being the aggregate amount of the Term Loan Commitments, plus (ii) $365,311,812.18, being the aggregate amount of the Revolving Commitments.

“ Aggregate Payments ” as defined in Section 7.2.

“ Agreement ” means this Credit and Guaranty Agreement, as it may be amended, supplemented or otherwise modified from time to time.

“ Allocable to Borrower ” means, with respect to any amount or liability with respect to any Group Member, the portion of such amount or liability corresponding to Borrower’s percentage interest therein consistent with the methodology used in calculating such percentage interests in Schedule I .

“ Annualized Interest Expense ” means, (a) the sum (without duplication), in each case determined with respect to the month most recently ended prior to such date of the total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of (i) Borrower and (ii) to the extent Allocable to Borrower, each other Group Member, in each case, paid or accrued in accordance with GAAP during such period with respect to Total Indebtedness, in each case, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Interest Rate Agreements, divided by (b) the number of days in such month and multiplied by 365 (or 366, if applicable).

 

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“ Applicable Margin ” means 2.70% per annum; provided , however , that on and after the occurrence of a Termination Event (other than a Termination Event pursuant to Section 7.1(c) of the Merger Agreement), the Applicable Margin shall be increased by 3.05% per annum to 5.75%.

“ Applicable Reserve Requirement ” means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “ Eurocurrency Liabilities ” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors of the Federal Reserve System or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted Eurodollar Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

“ Approved Budget ” means the budget separately agreed to and approved by Borrower and the Administrative Agent as of the date hereof setting forth the projected line items for income and expenditure (including any Restricted Payments) of Borrower and the other Group Members during the term of the Loans, as may be amended, supplemented, extended or otherwise modified from time to time, in each case (i) to the extent expressly permitted by this Agreement, (ii) to adjust the Approved Budget, in a manner mutually satisfactory to the Borrower and the Administrative Agent, for (x) the fees payable to Brookfield Asset Management, Inc. (“ BAMI ”) pursuant to Section 2.7 of the Existing Credit Agreement (including termination payments required pursuant to the Prior Agreement (as defined in the Merger Agreement) and (y) the Fees payable hereunder pursuant to Section 2.7, to the extent not otherwise reflected in the Approved Budget, or (iii) otherwise with the approval of the Administrative Agent, which shall not be unreasonably withheld or denied.

“ Approved Deposit Account ” means a Deposit Account subject to an effective Control Agreement that is maintained by a Credit Party with a Deposit Account Bank. “Approved Deposit Account” includes all monies on deposit in a Deposit Account and all certificates and instruments, if any, representing or evidencing such Deposit Account.

“ Approved Securities Intermediary ” means a financial institution selected or approved by Administrative Agent which is a securities intermediary pursuant to the UCC.

 

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“ Asset Sale ” means a sale, lease or sub-lease (as lessor or sublessor) (other than a Permitted Lease), sale and leaseback, assignment, conveyance, transfer or other disposition to, or any exchange of property with, any Person, in one transaction or a series of transactions, of all or any part of any Group Member’s businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired (including any Capital Stock owned by any Group Member), but excluding any casualty event, condemnation or taking by eminent domain.

“ Assignment Agreement ” means an Assignment and Assumption Agreement substantially in the form of Exhibit E , with such amendments or modifications as may be approved by Administrative Agent.

“ Assignment Effective Date ” as defined in Section 10.6(b).

“ Authorized Officer ” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, chief operating officer, one of its vice presidents (or the equivalent thereof), chief financial officer or treasurer.

“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“ Base Rate ” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus  ¹ / 2 of 1%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

“ Base Rate Loan ” means a Loan bearing interest at a rate determined by reference to the Base Rate.

“ Block 37 ” means that certain development site owned by a Limited Guarantor located at 108 North State Street, Chicago, Illinois on which an office, retail and residential development project is to be constructed in cooperation with the City of Chicago and the Chicago Transit Authority.

“ Board of Governors ” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.

“ Borrower ” as defined in the preamble hereto.

“ Business Day ” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate

 

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Loans, the term “ Business Day ” shall mean any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.

“ Capital Expenditures ” means expenditures not constituting Development Expenditures or Expansion and Redevelopment Expenditures of any Controlled Group Member that are capitalized in accordance with GAAP or similar items reflected in the consolidated statement of cash flows of such Group Member. For purposes of Section 5.20, (i) the amount of Capital Expenditures permitted pursuant to the Approved Budget (without giving effect to any permitted variances) shall be the aggregate amount of expenditures permitted under the categories of “100% Gross Capital Expenditures –Wholly Owned”, “100% Gross Capital Expenditures – KanAm JV” and “100% Gross Capital Expenditures – Non KanAm JV” and (ii) the aggregate amount of expenditures permitted pursuant to the Approved Budget under the category “Corporate CapEx” shall not constitute Capital Expenditures.

“ Capital Lease ” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.

“ Capitalization Rate ” means, with respect to any property or business of Parent and each other Group Member, the applicable capitalization rate set forth in Schedule I .

“ Capitalized Portion ” as defined in Section 2.5(d).

“ Cash ” means money, currency or a credit balance in any demand or Deposit Account.

“ Cash Controlled Minority Holding ” means any Minority Holding for which Parent or Borrower, directly or indirectly, controls or has the power to cause the proceeds from operations, dispositions, indebtedness, equity issuances or liquidations of such Minority Holding to be distributed to Borrower without violating any Contractual Obligation of such Minority Holding existing on the Closing Date.

“ Cash Equivalents ” means, as at any date of determination:

(i) Securities issued or directly or fully guaranteed or insured by the United States of America or any agency or instrumentality thereof ( provided , that the full faith and credit of the United States of America is pledged in support thereof);

 

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(ii) unrestricted domestic and LIBOR certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations), which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s (any such bank an “ Approved Bank ”), maturing within one year from the date of acquisition;

(iii) commercial paper issued by any Approved Bank or by the parent company of any Approved Bank and commercial paper issued by, or guaranteed by, any industrial or financial company with a short-term commercial paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or guaranteed by any industrial company with a long term unsecured debt rating of at least A or A2, or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing within one year after the date of acquisition;

(iv) marketable direct obligations issued by the District of Columbia or any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s; and

(v) investments in money market funds substantially all the assets of which are comprised of securities of the any type described in any one or more of clauses (i) through (iv) above, but without regard to the maturity date of the underlying assets of any such money market fund.

“ Certificate re Non-Bank Status ” means a certificate substantially in the form of Exhibit F .

“ Change of Control ” means, at any time, (i) Parent shall cease (a) to be the sole general partner of Borrower or (b) to beneficially own and control at least 85% on a fully diluted basis of the economic and voting interests in the Capital Stock of Borrower (excluding the economic interests in respect of Borrower’s Series D Preferred Units under the Existing Preferred Interests outstanding on the date hereof); provided , that such percentage shall be reduced to 51% to the extent necessary to permit the issuance of Capital Stock of Borrower to Kan Am as consideration for Capital Stock of any Minority Holding received by Borrower or its subsidiaries from Kan Am pursuant to the exercise by Kan Am of its put rights and other comparable rights pursuant to Contractual Obligations in effect on the date hereof; (ii) any Person (including a Person’s Affiliates and associates) or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than Parent (a) shall have acquired beneficial ownership of at least 40% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of Parent or Borrower, or (b) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Parent; (iii) the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of Parent cease to be occupied by Persons

 

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who either (a) were members of the board of directors of Parent on the date hereof or (b) were nominated for election by the board of directors of Parent, a majority of whom were directors on the date hereof or whose election or nomination for election was previously approved by a majority of such directors; or (iv) the closing of a M&A Transaction; provided , however , that in no event shall the execution, delivery or performance of the Merger Agreement constitute a Change of Control.

“ Chicago Redevelopment Agreement ” means the 108 North State Street Redevelopment Agreement, dated as of October 15, 2005, by and between the City of Chicago, an Illinois municipal corporation, and Block 37, L.L.C., a Delaware limited liability company.

“ Closing Date ” means the date on which the Term Loans are made.

“ Closing Date Certificate ” means a Closing Date Certificate substantially in the form of Exhibit G-2.

“ Closing Fee ” as defined in Section 2.7.

“ Closing Date Mortgaged Property ” as defined in Section 3.1(f).

“ Collateral ” means, collectively, all of the real, personal and mixed property (including Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.

“ Collateral Agent ” as defined in the preamble hereto.

“ Collateral Documents ” means the Pledge Agreement, each Mortgage, all Control Agreements and all other instruments, mortgages, control agreements, documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.

“ Commitment ” means any Revolving Commitment or Term Loan Commitment.

“ Commodity Account ” has the meaning given to such term in the UCC.

“ Company Deposit Account ” means each Deposit Account owned by a Credit Party, other than the Concentration Account.

“ Company Material Adverse Effect ” has the meaning given to such term in the Merger Agreement.

“ Completed Financial Statements ” means (a) the Consolidated balance sheets of Parent and its Subsidiaries as at the end of Fiscal Year 2006 and the related Consolidated statements of income, stockholders’ equity and cash flows of Parent and its

 

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Subsidiaries for such Fiscal Year together with a Financial Officer Certification and a Narrative Report with respect thereto and (b) with respect to such Consolidated financial statements, a report thereon of Ernst & Young LLP or other independent certified public accountants of recognized national standing selected by Parent and reasonably satisfactory to Administrative Agent (which report shall state that such Consolidated financial statements fairly present, in all material respects, the Consolidated financial position of Parent and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards).

“ Compliance Certificate ” means a Compliance Certificate substantially in the form of Exhibit C , including demonstrating compliance with the financial covenants in Section 6.8 for the relevant period and date.

“ Concentration Account ” means the Deposit Account No. 375-2260263 maintained by Borrower at Bank of America, N.A., or such replacement Deposit Account as may be required pursuant to this Agreement from time to time, for the purposes of holding proceeds from operations and other business activities of the Group Members, which in each case is in the name of Borrower and is subject to a Control Agreement.

“ Consolidated ” means consolidated in accordance with GAAP.

“ Constituent Documents ” means, with respect to any Person, (a) the articles of incorporation, certificate of incorporation, constitution or certificate of formation (or the equivalent organizational documents) of such Person, (b) the by-laws or operating agreement (or the equivalent governing documents) of such Person and (c) any document setting forth the manner of election or duties of the directors or managing members of such Person (if any) and the designation, amount or relative rights, limitations and preferences of any class or series of such Person’s Capital Stock.

“ Contingent Obligations ” means, as applied to any Person, (a) the Indebtedness of the type specified in clauses (vi), (vii), (viii) and (x) of the definition of “Indebtedness” and obligations (to the extent contingent) of the type specified in clause (ix) of such definition and (b) liabilities which are, or are required to be, recorded under Statement of Financial Accounting Standard No. 5 for loss contingencies.

“ Contractual Obligation ” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

“ Contributing Guarantors ” as defined in Section 7.2.

 

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“ Control Account ” means a Securities Account or Commodity Account that is the subject to an effective Control Agreement and that is maintained by any Credit Party with an Approved Securities Intermediary. “ Control Account ” includes all Financial Assets held in a Securities Account or a Commodity Account and all certificates and instruments, if any, representing or evidencing the Financial Assets contained therein.

“ Control Agreement ” means an agreement in form and substance satisfactory to Administrative Agent to perfect security interests in Deposit Accounts or Securities Accounts with a Deposit Account Bank or an Approved Securities Intermediary, as applicable.

“ Controlled Foreign Corporation ” as defined in the Pledge and Security Agreement.

“ Controlled Group Member ” means Borrower, Parent, Borrower’s Subsidiaries, each Cash Controlled Minority Holding and each Controlled Minority Holding.

“ Controlled Minority Holding ” means any Minority Holding for which Parent or any of its Subsidiaries is a general partner, managing member or otherwise generally controls the management and affairs of such Minority Holding.

“ Counterpart Agreement ” means a Counterpart Agreement substantially in the form of Exhibit H delivered by a Credit Party pursuant to Section 5.11.

“ Coverage Ratio ” means the ratio, as of the last day of any month, of (i) the sum of Net Operating Income and Management Fee Income less General & Administrative Expenditures to (ii) the sum of Annualized Interest Expense and Kan Am Preferred Payments, in each case (other than with respect to Annualized Interest Expense) for the trailing twelve-month period ending on such day.

“ Credit Date ” means the date of a Credit Extension.

“ Credit Document ” means any of this Agreement, the Notes, if any, the Collateral Documents and all other documents, instruments or agreements executed and delivered by a Credit Party for the benefit of any Agent or any Lender in connection with any of the foregoing; provided , however , that in no event shall the Merger Agreement or any agreement associated therewith constitute a Credit Document.

“ Credit Extension ” means the making of any Loan.

“ Credit Party ” means each Group Member from time to time party to a Credit Document.

“ Credit Rating ” means the publicly announced senior unsecured debt rating of a Person given by Moody’s or S&P.

 

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“ Currency Agreement ” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the foreign currency risk associated with any Controlled Group Member’s operations and not for speculative purposes.

“ CVS Portfolio Debt ” means all Indebtedness in connection with the single tenant net lease properties owned by the Subsidiaries of Borrower that are operated by third parties as CVS pharmacies as indicated on Schedule V .

“ Default ” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“ Del Amo ” means that certain parcel of land, and improvements thereon owned by Del Amo Fashion Center Operating Company, L.L.C., located in Torrance, California, which parcel and improvements are designated for additional improvements, and which are currently operated as Del Amo Fashion Center.

“ Deposit Account ” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

“ Deposit Account Bank ” means a bank or other financial institution selected or approved by Administrative Agent.

“ Development Assets ” means the development projects set forth on Schedule VI .

“ Development Expenditures ” means, for any period, the aggregate amount of expenses incurred during such period by Borrower and each other Group Member in connection with the development projects set forth under the heading “ Development Expenditures ” in the Approved Budget (determined consistent with past practice).

“ Dollars ” and the sign “$” mean the lawful money of the United States of America.

“ Eligible Assignee ” means (i) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans as one of its businesses; provided (a) no Affiliate of any Group Member (other than SPG) shall be an Eligible Assignee and (b) (other than with the consent of Borrower, in its sole discretion) no Excluded Lender shall be an Eligible Assignee, unless (in the case of this clause (b)) such assignment occurs following the occurrence and during the continuation of an Event of Default; provided , further , that each Eligible Assignee is required to make the representations and warranties set forth in Sections 10.6(e) and (i) as a condition to becoming a Lender.

 

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“ Employee Benefit Plan ” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, any Controlled Group Member or any of their respective ERISA Affiliates.

“ Enforcement Action ” means any action by any one or more of the Lenders or Agents to (a) demand, sue for, take or receive from or on behalf of any Credit Party, by set-off or in any other manner (including, without limitation, by blocking access to, or otherwise exercising any remedy with respect to, the funds on deposit in any Approved Deposit Account or Deposit Account) , the whole or any part of any moneys which may now or hereafter be owing by any Credit Party with respect to the Obligations, (b) exercise any remedy with respect to assets that is permitted under any Collateral Document only following the occurrence of any Default or Event of Default, (c) initiate or participate with others in any suit, action or proceeding against any Credit Party to (i) enforce payment of or to collect the whole or any part of the Obligations or (ii) commence judicial enforcement of any of the rights and remedies under the Credit Documents with respect to the Collateral, (d) accelerate the Obligations, or (e) commence a Reorganization with respect to any Credit Party, including, without limitation, by filing or joining with any others in filing, any (i) petition under or in respect of any Reorganization with respect to such Credit Party or (ii) application for or the appointment of any administrator or receiver in connection with any Reorganization with respect to any Credit Party.

“ Environmental Claim ” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order by any Governmental Authority or other third-Person or other governmental order or directive (conditional or otherwise), arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.

“ Environmental Laws ” means any and all current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other requirements of Governmental Authorities relating to (i) environmental matters, including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to any Group Member or any Facility.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

 

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“ ERISA Affiliate ” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of any Controlled Group Member shall continue to be considered an ERISA Affiliate of such Controlled Group Member within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Controlled Group Member and with respect to liabilities arising after such period for which such Controlled Group Member could be liable under the Internal Revenue Code or ERISA.

“ ERISA Event ” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 412(m) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by any Controlled Group Member or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to any Controlled Group Member or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on any Controlled Group Member or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of any Controlled Group Member or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by any Controlled Group Member or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on any Controlled Group Member or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any

 

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Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against any Controlled Group Member or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.

“ Eurodollar Rate Loan ” means a Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.

“ Event of Default ” means each of the conditions or events set forth in Section 8.1.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“ Excluded Lender ” means each Person set forth on a schedule agreed to by Borrower and Administrative Agent prior to the Closing Date and on file with Administrative Agent.

“ Exempt Subsidiary ” means any Subsidiary of Parent (other than Borrower) which directly or indirectly owns Capital Stock in any Group Member which owns a Material Real Estate Asset and the Capital Stock of such Group Member is pledged as Collateral to the Collateral Agents in accordance with the terms of and priorities set forth in the Credit Documents.

“ Existing Agreed Default ” means each breach or default under existing Indebtedness of any Controlled Group Member resulting from a failure to deliver required financial statements during Fiscal Year 2006 (and periods prior thereto) and set forth on Schedule IV so long as no such breach or default has resulted in acceleration of all or a portion of such Indebtedness.

“ Existing Credit Agreement ” means that certain Restated Credit and Guaranty Agreement, dated as of January 17, 2007, by and among the Borrower, Parent, certain Subsidiaries of Parent, Brookfield Asset Management Inc. (as successor by assignment to Goldman Sachs Mortgage Company) and the lenders party thereto, as amended, modified or otherwise supplemented from time to time.

“ Existing Indebtedness ” means Indebtedness and other obligations outstanding under the Existing Credit Agreement.

 

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“ Existing Preferred Interests ” means (i) each outstanding series of cumulative preferred stock of Parent and the underlying series of preferred operating partnership units of Borrower and (ii) the Trust Preferred Securities 2006-1 issued on February 1, 2006 by Mills Trust Preferred Securities 2006-1, a Delaware statutory trust formed as a wholly owned financing subsidiary of Borrower.

“ Expansion and Redevelopment Expenditures ” means, for any period, the aggregate amount of expenses incurred during such period by Borrower and each other Group Member in connection with the expansion, redevelopment and remodeling programs set forth under the heading “Expansion, Redevelopment and Remodel Programs” in the Approved Budget (determined consistent with past practice).

“ Exposure ” means, with respect to any Lender, as of any date of determination, such Lender’s Revolving Loan Exposure and Term Loan Exposure as of such date.

“ Extraordinary G&A Expenditures ” means, for any period, the aggregate amount of (i) non-recurring general and administrative expenditures of the type identified as “ Extraordinary G&A ” (including professional fees incurred in connection with the Restatement and Related Matters, the financing pursuant to this Agreement and the reduction in force compensation or severance compensation (determined consistent with past practice)), (ii) “ Corporate CapEx ” and (iii) Specified Stock Repurchase Payments.

“ Facility ” means any Real Estate Asset (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by any Controlled Group Member or any of their respective predecessors or Affiliates.

“ Fair Share ” as defined in Section 7.2.

“ Fair Share Contribution Amount ” as defined in Section 7.2.

“ Federal Funds Effective Rate ” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided , (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Administrative Agent, in its capacity as a Lender, on such day on such transactions as determined by Administrative Agent.

“ Fees ” as defined in Section 2.7.

“ Financial Assets ” as defined in the Pledge and Security Agreement.

 

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“ Financial Officer Certification ” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer, vice president –finance, or executive vice president – finance and accounting of Parent, on behalf of Parent and Borrower, that such financial statements fairly present, in all material respects, the financial condition of Parent and Borrower as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments.

“ First Priority ” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.

“ Fiscal Quarter ” means a fiscal quarter of any Fiscal Year.

“ Fiscal Year ” means the fiscal year of Parent and its Subsidiaries ending on December 31 of each calendar year.

“ Flood Hazard Property ” means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the Federal Emergency Management Agency or the Federal Insurance Administration as a “ 100 year flood plain ” or as having special flood hazards.

“ FoodBrand ” means, collectively, FoodBrand, L.L.C., a Delaware limited liability company, FoodBrand Franklin Mills, L.L.C., a Delaware limited liability company and FoodBrand Management Company, L.L.C., a Delaware limited liability company, and each of their respective Subsidiaries.

“ Funding Fee ” as defined in Section 2.7.

“ Funding Guarantor ” as defined in Section 7.2.

“ Funding Notice ” means a notice substantially in the form of Exhibit A .

“ GAAP ” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.

“ General & Administrative Expenditures ” means, for any period, the aggregate amount of expenses incurred during such period by Borrower and each other Controlled Group Member in connection with performing general and administrative activities in the ordinary course of business (determined consistent with past practice) including Extraordinary G&A Expenditures and expenditures not otherwise falling within the categories of expenditure described in Sections 5.20(c)(i)(B) through (G); provided , however , that for purposes of calculating the Coverage Ratio, “ General & Administrative Expenditures ” shall exclude Extraordinary G&A Expenditures.

“ General Intangible ” has the meaning given to such term in the UCC.

 

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“ Governmental Acts ” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.

“ Governmental Authority ” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.

“ Governmental Authorization ” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.

“ Grantor ” each Person identified as a “ Grantor ” in any Pledge Agreement.

“ Group Member ” means Parent, Borrower, each Subsidiary of Parent and each Minority Holding.

“ Guaranteed Obligations ” as defined in Section 7.1.

“ Guarantor ” means Parent, Borrower and each other Controlled Group Member party to this Agreement or that becomes party to this Agreement.

“ Guarantor Subsidiary ” means each Guarantor other than Parent.

“ Guaranty ” means the guaranty of each Guarantor set forth in Section 7.

“ Hazardous Materials ” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.

“ Hazardous Materials Activity ” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

“ Hedge Agreement ” means an Interest Rate Agreement or a Currency Agreement entered into with a Lender Counterparty entered into on or after the date hereof in order to satisfy the requirements of this Agreement or otherwise in the ordinary course of any of the Controlled Group Members’ businesses.

“ Highest Lawful Rate ” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under

 

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the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

“ Immaterial Subsidiary ” means each Subsidiary of Parent (other than Borrower) that has (i) annual revenues of less than $5,000,000 individually and less than $50,000,000 in the aggregate for all such Subsidiaries and (ii) total assets (including the Capital Stock of other Subsidiaries) of less than $5,000,000 individually and less than $50,000,000 in the aggregate for all such Subsidiaries.

“ Improvements ” means all buildings, fixtures, structures, parking areas, landscaping and all other improvements whether existing now or hereafter constructed, together with all machinery and mechanical, electrical, HVAC and plumbing systems presently or hereafter located thereon and used in the operation thereof, excluding (i) any such items owned by utility service providers, (ii) any such items owned by tenants or other third-parties and (iii) any items of personal property.

“ Increased-Cost Lender ” as defined in Section 2.18.

“ Indebtedness ” means, as applied to any Person, (without duplication):

(i) all indebtedness for borrowed money;

(ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP and the present value of future rental payments under all synthetic leases;

(iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money;

(iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA), which purchase price is (a) due more than six months from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar written instrument;

(v) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is non-recourse to the credit of such Person;

(vi) the face amount of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings;

 

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(vii) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another;

(viii) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid, performed or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof (including to purchase Property, securities or services primarily for the such purpose);

(ix) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to maintain the capital, solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is as described in clause (viii) above;

(x) any obligation of such Person to reimburse, indemnify or otherwise protect any other Person for any advance of funds, issuance of a letter of credit or undertaking of other obligations by such person for the benefit of the primary obligor;

(xi) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction (including any Interest Rate Agreement and Currency Agreement), whether entered into for hedging or speculative purposes; and

(xii) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Capital Stock of such Person (valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference).

“ Indemnified Liabilities ” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), reasonable out-of-pocket costs (including the reasonable out-of-pocket costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including the invoiced reasonable fees and disbursements of outside counsel for Indemnitees), in each case, in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any reasonable out-of-pocket fees or expenses incurred by Indemnitees in enforcing this indemnity, whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or

 

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equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or the disbursement of funds to vendors or other Persons as contemplated by Section 5.18) or (ii) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of any Controlled Group Member; provided , however , that “ Indemnified Liabilities ” shall not include any liabilities, obligations, losses, damages, penalties, claims, costs, expenses or disbursements of any kind or nature whatsoever in connection with (1) the Merger Agreement or the transactions contemplated thereby or (2) any action or omission required to be taken by Parent, Borrower or any of its Subsidiaries pursuant to the terms of the Merger Agreement, or pursuant to the express written request of SPG or any of its Affiliates made pursuant to the terms of the Merger Agreement.

“ Indemnitee ” as defined in Section 10.3.

“ Initial Lender ” means SPG.

“ Intercompany Note ” means a subordinated intercompany promissory note, in the form of Exhibit L or otherwise in form and substance (including with respect to subordination provisions) satisfactory to Administrative Agent.

“ Interest Payment Date ” means the first Business Day of each month, commencing on the first such date to occur after the Closing Date, and the Maturity Date (or such later date on which the Loans are paid in full).

“ Interest Period ” means, in connection with any specified Interest Payment Date, the period from and including the preceding Interest Payment Date to but excluding such specified Interest Payment Date.

“ Interest Rate Agreement ” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with the Controlled Group Members’ operations and not for speculative purposes.

“ Interest Rate Determination Date ” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.

“ Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.

 

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“ Investment ” means (i) any direct or indirect purchase or other acquisition by any Controlled Group Member of, or of a beneficial interest in, any of the Securities of any other Person; (ii) any direct or indirect redemption, retirement, purchase or other acquisition for value, by any Controlled Group Member from any Person of any Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than (i) advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures and (ii) tenant allowances and inducements, in each case, in the ordinary course of business) or capital contributions by any Controlled Group Member to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

“ Involuntary Event of Default ” means an Event of Default (other than an Event of Default specified in Section 8.1(f) or 8.1(g)) which did not occur as a result of a willful and intentional breach by any Credit Party.

“ Kan Am ” means Kan Am US, INC. and all of its Subsidiaries and Affiliates.

“ Kan Am Preferred Payments ” means, for any period, the aggregate payments made by Kan Am and guaranteed by Parent or any of its Subsidiaries during such period as a “ Construction Period Preference ”, as such term is defined in each of (i) the Amended and Restated Agreement of Pittsburgh Mills Limited Partnership, (ii) the Amended and Restated Limited Partnership Agreement of Sugarloaf Mills Mezzanine Limited Partnership, or (iii) the Amended and Restated Limited Partnership Agreement of St. Louis Mills Limited Partnership.

“ Landlord Consent and Estoppel ” means, with respect to any Leasehold Property, a letter, certificate or other instrument in writing from the lessor under the related lease, pursuant to which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance acceptable to Collateral Agent in its reasonable discretion, but in any event sufficient for Collateral Agent to obtain a Title Policy with respect to such Mortgage.

“ Lead Arranger ” as defined in the preamble hereto.

“ Leasehold Property ” means any leasehold interest of any Credit Party as lessee under any lease of real property constituting a Material Real Estate Asset.

“ Lender ” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement or a joinder agreement.

 

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“ Lender Counterparty ” means each Lender or any Affiliate of a Lender counterparty to a Hedge Agreement (including any Person who is a Lender (and any Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a Hedge Agreement, ceases to be a Lender) including, without limitation, each such Affiliate that enters into a joinder agreement with Collateral Agent.

“ Lien ” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities; provided , that restrictions on the sale of Capital Stock of the Group Members that may be imposed by federal and state securities laws shall not in and of themselves constitute a Lien for purposes of this Agreement.

“ Limited Guarantor ” means each of Block 37 Office, L.L.C., a Delaware limited liability company, 108 North State Street II, L.L.C., a Delaware limited liability company, Block 37 Residual LLC, a Delaware limited liability company and Block 37, L.L.C., a Delaware limited liability company.

“ Loans ” means the Term Loans and the Revolving Loans.

“ LTV Ratio ” means, at any time, the ratio, expressed as a percentage, of Total Indebtedness to Total Asset Value at such time.

“ M&A Transaction ” means an Asset Sale or other disposition of all or substantially all of Parent’s, Borrower’s and its Subsidiaries’ Capital Stock and/or their respective assets.

“ Management Fee Income ” means, for any period, all gross revenues, income, fees and other amounts earned and paid to a service provider during such period (without regard to any General & Administrative Expenditures or other expenses) pursuant to any management agreements, sponsor agreements, service agreements or similar arrangements relating to any Property and to which a Group Member is party, in each case to the extent Allocable to Borrower.

“ Margin Stock ” as defined in Regulation U of the Board of Governors as in effect from time to time.

“ Material Adverse Change ” means:

(a) prior to the occurrence of a Termination Event, any change, event, development or effect that has a material adverse effect on (A) the legality, validity, binding effect or enforceability against any Credit Party (other than an Immaterial Subsidiary) of a material Credit Document to which it is a party; or the material legal rights and remedies, available to, or conferred upon, any Agent and any Lender or any

 

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Secured Party under any Credit Document or (B) the business, assets, continuing results of operations or financial condition of Parent and its Subsidiaries, taken as a whole; provided , however , that no change or effect resulting from any of the following shall constitute, or be taken into account in determining whether there is or has been, a Material Adverse Change:

(i) changes in conditions affecting the real estate industry generally, the United States of America or the global economy;

(ii) general political, economic or business conditions or changes therein (including the commencement, continuation or escalation of a war, material armed hostilities or other material international or national calamity or acts of terrorism or earthquakes, hurricanes, other natural disasters or acts of God);

(iii) general financial or capital market conditions, including interest rates, or changes therein;

(iv) any changes in applicable Law (as defined in the Merger Agreement), rules, regulations, or GAAP or other accounting standards, or authoritative interpretations thereof, after the date of this Agreement;

(v) the negotiation, execution, announcement or performance of this Agreement or the Merger Agreement or the performance or consummation of the transactions contemplated by this Agreement or the Merger Agreement, including a decline in the share price of the Company Common Shares (as defined in the Merger Agreement) resulting therefrom, any litigation resulting therefrom, or the impact thereof on relationships, contractual or otherwise, with tenants, suppliers, lenders, investors, joint venture partners or employees;

(vi) any action or omission required pursuant to the terms of this Agreement, the Merger Agreement, or pursuant to the express written request of SPG or any of its Affiliates, or any action otherwise taken by SPG or any of its Affiliates;

(vii) a decrease in the market price of the Company Common Shares (as defined in the Merger Agreement); provided that the exception in this clause (vii) shall not prevent or otherwise affect a determination that any change or effect underlying such a decrease in market price has resulted in, or contributed to, a Material Adverse Change;

(viii) any matter set forth in the Company Disclosure Letter (as defined in the Merger Agreement), including the Restatement and Related Matters (as defined in the Merger Agreement); or

(ix) the payment of (x) amounts required by Section 7.2 of the Prior Agreement (as defined in the Merger Agreement), (y) amounts required by Section 2.7 of the Existing Credit Agreement or (z) any amount in respect of the increased interest rate under the Existing Credit Agreement associated with the Termination Event (as defined in the Existing Credit Agreement) ;

 

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which, in the case of each of clause (i), (ii), (iii) and (iv) do not affect the business, assets, continuing results of operations or financial condition of Parent and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other participants in the real estate industry; and

(b) on an after the occurrence of a Termination Event, a material adverse effect on and/or material adverse development with respect to:

(i) the financial condition of Parent, Borrower and their Subsidiaries, when taken as a whole, has been, or (as determined following reasonable consultation with the Borrower) could reasonably be expected to be, materially impaired as a result thereof;

(ii) the ability of Borrower and Guarantors, taken as a whole, fully and timely to perform their respective payment and/or guarantee obligations (as applicable) under the Credit Documents; or

(iii) the legality, validity, binding effect or enforceability against a Credit Party of a Credit Document to which it is a party; or the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.

“ Material Contract ” means any contract or other arrangement to which any Controlled Group Member is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to result in a Material Adverse Change.

“ Material Real Estate Asset ” means (a) upon the acquisition thereof by Borrower or one of its Subsidiaries, the Riverside Property, (b) any fee-owned Real Estate Asset having a fair market value in excess of $10,000,000 as of the date of the acquisition thereof and (c) all leasehold estates (other than Borrower’s leasehold interest in its headquarters located in Arlington, VA and any subsequent location (to the extent leased) to which such corporate headquarters may be relocated) having a fair market value in excess of $10,000,000.

“ Maturity Date ” means the earlier of (i) the date that is the later of February 16, 2008 and the Termination Date (as defined in the Merger Agreement), and (ii) the date that all Loans shall otherwise become due and payable in full hereunder, whether by acceleration or otherwise.

“ Merger Agreement ” means that certain Agreement and Plan of Merger, dated as of February 16, 2007 by and among Parent, Borrower, SPG-FCM Ventures, LLC, a Delaware limited liability company, SPG-FCM Acquisition, Inc., a Delaware corporation, and SPG-FCM Acquisition, L.P., a Delaware limited partnership, as such agreement may be amended, supplemented, or otherwise modified from time to time.

 

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“ Minority Holdings ” means any partnership, joint venture, corporation, limited liability company or other business association, Capital Stock of which is held or owned (directly or indirectly) by, but is not a Subsidiary of, any of Borrower, Parent or its Subsidiaries.

“ Moody’s ” means Moody’s Investor Services, Inc.

“ Mortgage ” means a Mortgage substantially in the form of Exhibit K , as it may be amended, supplemented or otherwise modified from time to time.

“ Multiemployer Plan ” means any Employee Benefit Plan which is a “ multiemployer plan ” as defined in Section 3(37) of ERISA.

“ NAIC ” means the National Association of Insurance Commissioners, and any successor thereto.

“ Narrative Report ” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of Parent, Borrower and their Subsidiaries in the form prepared for presentation to senior management thereof for the applicable month, Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate.

“ Net Asset Sale Proceeds ” means, with respect to any Asset Sale, an amount equal to: (i) Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by any Group Member from such Asset Sale, minus (ii) any (a) real estate transfer taxes, (b) direct transaction costs (including fees and expenses of brokers, attorneys and consultants) paid or payable as a result of such Asset Sale, and (c) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the Capital Stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale.

“ Net Insurance/Condemnation Proceeds ” means an amount equal to: (i) any Cash payments or proceeds received any Group Member (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of any Group Member by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) any actual and reasonable costs incurred and paid or payable by any Group Member in connection with (a) the adjustment or settlement of any claims of any Group Member in respect thereof, (b) restoration work to the extent required by any casualty insurance policy or as a result of a condemnation and (c) any amounts paid or required to be paid to the holders of any Indebtedness secured by the assets subject to any such casualty or condemnation event.

 

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“ Net Operating Income ” means, for any period for any property, the amount (excluding Management Fee Income) equal to:

(i) the total of all revenues, fees and other income in connection with the operation, maintenance and management of the businesses of the Group Members, computed in accordance with the methodology used in preparing Schedule I , received or recorded by Borrower, or to the extent Allocable to Borrower, each other Group Member; minus

(ii) the total of all expenditures in connection with the operation, maintenance and management of the businesses of the Group Members, computed in accordance with the methodology used in preparing Schedule I , incurred or recorded by Borrower, or to the extent Allocable to Borrower, each other Group Member;

provided , that for purposes of this Agreement, “ Net Operating Income ” is accrual based, but is a non-GAAP measure that does not include straight-line rents or FAS 141 adjustments, other Specified Rent Adjustments and foreign income, withholding or value added tax relating to the acquisition, development or construction of a related project.

“ Net Worth ” means the amount, on any date of determination, equal to Total Asset Value less Total Indebtedness.

“ Non-Consenting Lender ” as defined in Section 2.18.

“ Non-Foreclosable Pledge Agreement ” means each non-foreclosable pledge agreement, executed by Borrower and certain Guarantors party thereto substantially in the form of Exhibit I-2 , as it may be amended, supplemented or otherwise modified from time to time.

“ Non-US Lender ” as defined in Section 2.16(c).

“ Nonpublic Information ” means information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD.

“ Nonpublic Side Lender ” means each Lender that is not a Public Side Lender.

“ Note ” means, collectively, the Term Loan Notes and the Revolving Loan Notes.

“ Obligations ” means all obligations of every nature of each Credit Party under the Credit Documents, including obligations from time to time owed thereunder to Agents (including former Agents), the Lenders or any of them, all Indemnitees and Lender Counterparties, under any Credit Document or Hedge Agreement, whether for

 

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principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), payments for early termination of Hedge Agreements, fees, expenses, indemnification or otherwise.

“ Obligee Guarantor ” as defined in Section 7.7.

“ Organizational Documents ” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended (including any certificates of designations), and its bylaws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization or certificate of formation, as amended, and its operating agreement or limited liability company agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “ Organizational Document ” shall only be to a document of a type customarily certified by such governmental official.

“ Parent ” as defined in the preamble hereto.

“ Parent Subordinated Indebtedness ” means the subordinated Indebtedness of Parent in an aggregate face amount not exceeding $175 million incurred pursuant to those certain subordinated notes payable to Colony Xanadu Stock II, LLC and Colony Xanadu Stock III, LLC, dated as of November 22, 2006.

“ PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.

“ Pension Plan ” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.

“ Permit ” means any permit, consent, approval, authorization, license, variance, certificate of occupancy or permission required from any Person pursuant to Requirements of Law, including any Governmental Authorization.

“ Permitted Dispositions ” as defined in Section 2.10(a).

“ Permitted Leases ” means leases or subleases (including ground leases and licenses and other occupancy agreements) (i) entered into in the ordinary course of business by any Group Member, in each case, on an arms’ length basis and on terms which do not materially impair the interests of such Group Member in the Property subject thereto or the value of such Property or (ii) are otherwise approved by Administrative Agent.

 

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“ Permitted Liens ” means each of the Liens permitted pursuant to Section 6.2.

“ Person ” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.

“ Platform ” as defined in Section 5.1(o).

“ Pledge Agreements ” means, collectively, the Pledge and Security Agreement and the Non-Foreclosable Pledge Agreements.

“ Pledge and Security Agreement ” means the Pledge and Security Agreement to be executed by Borrower and each Guarantor substantially in the form of Exhibit I-1 , as it may be amended, supplemented or otherwise modified from time to time.

“ Potential Tax Payment ” means that certain contingent liability in an amount not to exceed $12,000,000, as identified by the Borrower to Administrative Agent prior to the Closing Date.

“ Prime Rate ” means the rate of interest quoted in The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.

“ Principal Office ” means such Person’s “ Principal Office ” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Borrower, Administrative Agent and each Lender.

“ Pro Rata Share ” means (a) with respect to all payments, computations and other matters relating to the Term Loan of any Lender, the percentage obtained by dividing (i) the Term Loan Exposure of that Lender, by (ii) the aggregate Term Loan Exposure of all Lenders; (b) with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Revolving Lender, the percentage obtained by dividing (i) the Revolving Loan Exposure of that Revolving Lender, by (ii) the aggregate Revolving Loan Exposure of all Revolving Lenders; and (c) for all other purposes with respect to each Lender, the percentage obtained by dividing (i) the Exposure of that Lender by (ii) the Aggregate Exposure.

 

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“ Property ” means any Real Estate Asset or personal property, plant, building, facility, structure, underground storage tank or unit, equipment, general intangible, receivable, or other asset owned, leased or operated by any Group Member (including any surface water thereon or adjacent thereto, and soil and groundwater thereunder).F

“ Public Side ” means with respect to the Lenders and participants, any Lender or participant that, pursuant to this Agreement, is not permitted to receive any material Nonpublic Information with respect to the Parent and its Subsidiaries.

“ Qualified Manager ” means a Person that is a reputable and experienced professional management company of first class, full service properties of the nature of the Real Estate Assets of the Group Members and manages or operates at least 5,000,000 square feet of gross leaseable area of commercial space.

“ Qualified Replacement Agent ” means a Person that (i) is a commercial bank of nationally recognized standing or an investment bank, that is in the business of extending credit or buying loans and customarily acts in the capacity of an administrative agent in syndicated loan financings and (ii) is not and will not, directly or indirectly through any Affiliate or other Person be a purchaser in any M&A Transaction.

“ Real Estate Asset ” means all of the present and future right, title and interest (including, without limitation, any leasehold interests) of the Controlled Group Members in (i) any plots, pieces or parcels of land, (ii) any Improvements of every nature whatsoever (the rights and interests described in clauses (i) and (ii) above being the “ Premises ”), (iii) all easements, rights of way, gores of land or any lands occupied by streets, ways, alleys, passages, sewer rights, water courses, water rights and powers, and public places adjoining such land, and any other interests in property constituting appurtenances to the Premises, or which hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all hereditaments, gas, oil, minerals (including any right to extract, sever and remove such gas, oil and minerals), and easements, of every nature whatsoever, located in, on or benefiting the Premises and (v) all other rights and privileges thereunto belonging or appertaining and all extensions, additions, improvements, betterments, renewals, substitutions and replacements to or of any of the rights and interests described in clauses (iii) and (iv) above.

“ Record Document ” means, with respect to any Leasehold Property, (i) the lease evidencing such Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.

“ Recorded Leasehold Interest ” means a Leasehold Property with respect to which a Record Document has been recorded in all places necessary or desirable, in Administrative Agent’s reasonable judgment, to give constructive notice of such Leasehold Property to third-party purchasers and encumbrances of the affected real property.

 

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“ Redevelopment Assets ” means the redevelopment projects set forth on Schedule VII .

“ Register ” as defined in Section 2.4(b).

“ Regulation D ” means Regulation D of the Board of Governors, as in effect from time to time.

“ Regulation T ” means Regulation T of the Federal Reserve Board as in effect from time to time.

“ Regulation U ” means Regulation U of the Federal Reserve Board as in effect from time to time.

“ Regulation X ” means Regulation X of the Federal Reserve Board as in effect from time to time.

“ Regulation FD ” means Regulation FD as promulgated by the US Securities and Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.

“ REIT ” means a domestic trust or corporation that qualifies as a real estate investment trust under the provisions of Sections 856, et seq . of the Internal Revenue Code.

“ REIT Distributions ” means the minimum amount necessary for Parent to maintain its tax status as REIT.

“ Related Fund ” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“ Related Obligations ” as defined in Section 9.9.

“ Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

“ Reorganization ” means any proceeding in respect of bankruptcy, insolvency, winding up, receivership, dissolution or assignment for the benefit of creditors, in each of the foregoing events whether under the Bankruptcy Code or any similar federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.

 

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“ Replacement Lender ” as defined in Section 2.18.

“ Requirements of Law ” means, as to any Person, the Organizational Documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject including, without limitation, the Securities Act, the Securities Exchange Act, Regulations D, T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, Americans with Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement or Permit and Environmental Laws.

“ Requisite Lenders ” means one or more Lenders having or holding Exposures representing more than 50% of the Aggregate Exposures.

“ Restatement and Related Matters ” means (i) the pending restatement of Borrower’s and Parent’s historical financial statements described in Borrower’s and Parent’s SEC Filings, the associated delay of filing Borrower’s and Parent’s annual report on Form 10-K and quarterly reports on Form 10-Q and any Existing Agreed Default, (ii) the informal and formal investigations initiated by the SEC described in the SEC Filings, (iii) the review of Borrower’s and Parent’s historical financial statements and transactions reflected therein by their independent auditors described in the SEC Filings, (iv) the independent investigation of Borrower’s and Parent’s historical financial statements and transactions reflected therein by the audit committee and its counsel as described in SEC Filings and (v) litigation by certain holders of securities of Parent and the Borrower relating to the foregoing.

“ Restricted Group Member ” means any Group Member (other than Parent and Borrower) that is prohibited by the terms of any Contractual Obligation or by its Organizational Documents, in each case as in effect on the Closing Date, from becoming a Guarantor.

“ Restricted Payment ” means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of Borrower or Parent now or hereafter outstanding, except a dividend payable solely in shares of Capital Stock to the holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of Borrower or Parent now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of Borrower or Parent now or hereafter outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to, any subordinated Indebtedness (including the Parent Subordinated Indebtedness); provided , that the Specified Stock Repurchase Payments shall not constitute Restricted Payments for purposes of this Agreement.

 

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“ Revolving Commitment ” means, with respect to any Lender, the obligation of such Lender to make Revolving Loans pursuant to the terms and conditions of this Agreement, which shall not exceed the principal amount set forth opposite such Lender’s name under the column “Revolving Commitment” on the signature pages hereof or in the Assignment Agreement by which it became (or becomes) a Lender, as such may be modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment Agreement; and “ Revolving Commitments ” means the aggregate principal amount of the Revolving Commitments of all Lenders, which principal amount shall not exceed Three Hundred Sixty Five Million, Three Hundred Eleven Thousand, Eight Hundred Twelve Dollars and Eighteen Cents ($365,311,812.18), as such amount may be reduced from time to time as provided in this Agreement.

“ Revolving Commitment Period ” means the period from the Closing Date, to but excluding the Revolving Commitment Termination Date.

“ Revolving Commitment Termination Date ” means the earliest to occur of (i) the Maturity Date, (ii) the date the Commitments are permanently reduced to zero pursuant to Section 2.9(b), and (iii) the date of the termination of the Commitments pursuant to Section 8.1.

“ Revolving Lender ” means a Lender that has a Revolving Commitment or holds Revolving Loans.

“ Revolving Loan Exposure ” means, with respect to any Lender as of any date of determination, (i) prior to the Revolving Commitment Termination Date, such Lender’s Revolving Commitment; and (ii) after the Revolving Commitment Termination Date, the aggregate outstanding principal amount of Revolving Loans of such Lender.

“ Revolving Loan ” means a loan made by a Lender to Borrower pursuant to Section 2.1A.

“ Revolving Loan Note ” means, with respect to the Revolving Loans, a promissory note in the form of Exhibit B-2 , as each may be amended, supplemented or otherwise modified from time to time.

“ Riverside Property ” means that certain parcel of land, and improvements thereon, owned by Federated Department Stores, Inc. or an affiliate thereof, located in Hackensack, New Jersey adjacent to the retail property known as “The Shops at Riverside,” which parcel and improvements are presently operated as a Bloomingdales Home Store.

“ S&P ” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.

 

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“ Scheduled Dispositions ” means the Asset Sales described on Schedule 6.9 .

“ SEC ” means the United States Securities and Exchange Commission.

“ SEC Filings ” means Borrower’s and/or Parent’s public filings with the SEC prior to the date hereof.

“ Secured Indebtedness ” means any Indebtedness of any Group Member secured by a Lien on Property or other interests of any Group Member.

“ Secured LTV Ratio ” means, at any time, the ratio, expressed as a percentage, of Total Secured Indebtedness to Total Asset Value at such time.

“ Secured Parties ” means, collectively, the Agents, the Lenders, the Lender Counterparties and each other holder of an Obligation.

“ Securities ” means any Capital Stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“ Securities Account ” has the meaning given to such term in the UCC.

“ Securities Act ” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“ Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“ Settlement Confirmation ” as defined in Section 10.6(b).

“ Settlement Service ” as defined in Section 10.6(d).

“ Solvency Certificate ” means a Solvency Certificate of the chief financial officer of Parent on behalf of Parent and Borrower substantially in the form of Exhibit G-2 .

“ Solvent ” means, with respect to any Person, that as of the date of determination, both (i) (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on the Closing Date or with respect to any transaction contemplated or undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay

 

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such debts as they become due (whether at maturity or otherwise); and (ii) such Person is “ solvent ” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (provided that such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

“ Specified Development Assets ” means the development projects at Block 37, Del Amo and the Riverside Property.

“ Specified Development Assets Report ” means a report showing for each Specified Development Asset, by line item, (a) the original budget for such project, (b) any subsequent revisions to such budget, (c) the current budget for such project and (d) costs incurred or amounts spent in excess of $500,000 for such project; provided , that Borrower shall maintain reasonable support detail, including vendor names and invoice numbers, dates and amounts to facilitate review of the report by Administrative Agent or its agents or representatives.

“ Specified Indebtedness ” means, as applied to any Person (without duplication, and in each case, excluding the Existing Preferred Interests):

(i) all indebtedness for borrowed money;

(ii) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP and the present value of future rental payments under all synthetic leases;

(iii) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; and

(iv) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction (including any Interest Rate Agreement and Currency Agreement), whether entered into for hedging or speculative purposes, calculated at the Swap Termination Value thereof.

“ Specified Officer ” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, chief operating officer, one of its executive vice presidents (or the equivalent thereof), chief financial officer or treasurer.

“ Specified Rent Adjustments ” means non-cash adjustments to rent related to amortization of tenant improvements that may result during the restatement of Borrower’s historical financial statements which are (i) required to be accounted for as tenant inducements in accordance with GAAP and (ii) actually used for tenant improvements, in an aggregate amount for all such Specified Rent Adjustments not to exceed $6,000,000.

 

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“ Specified Stock Repurchase Payments ” means payments made by or on behalf of Parent (or dividends or other distributions by Borrower to Parent for purposes of making such payments) in an aggregate amount made for the purpose of repurchasing Capital Stock from present and former officers and employees to enable such Persons and/or Parent to satisfy their withholding or other tax obligations upon (i) the exercise of stock options granted to them pursuant to Parent’s equity plans in effect on or prior to the date hereof or (ii) the lapsing of restrictions with respect to the vesting of Parent’s Capital Stock issued pursuant to Parent’s equity plans in effect on or prior to the date hereof.

“ SPG ” as defined in the Preamble hereto.

“ Standstill Period ” means the period commencing on the date an Involuntary Event of Default occurs and ending on the earliest of:

(i) the occurrence of a Termination Event;

(ii) the occurrence of an Event of Default specified in Section 8.1(f) or 8.1(g);

(iii) the occurrence of an Event of Default specified in Section 8.1(b) and the holder of such Specified Indebtedness giving rise to such Event of Default shall have accelerated the obligations in connection with such Specified Indebtedness or taken any other action to exercise remedies in connection therewith;

(iv) the date such Involuntary Event of Default is cured or waived in writing;

(v) 60 days after the Merger Effective Time (as defined in the Merger Agreement); and

(vi) the Maturity Date.

“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided , in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

 

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“ Swap Termination Value ” means, in respect of any exchange traded or over the counter derivative transaction (including any Interest Rate Agreement and Currency Agreement) after taking into account the effect of any legally enforceable netting agreement relating to such derivative transaction, (a) for any date on or after the date such derivative transaction has been closed out and a termination value determined in accordance therewith, such termination value, and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value for such derivative transaction, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such derivative transactions (which may include any Agent or any Lender).

“ Syndication Agent ” as defined in the preamble hereto.

“ Tax ” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, by any Governmental Authority and wherever imposed, levied, collected, withheld or assessed; provided , “Tax on the overall net income” of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or in which that Person’s applicable principal office (and/or, in the case of a Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender, its lending office) is deemed to be doing business (without regard to the transactions contemplated under this Agreement) on all or part of the net income, profits or gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office).

“ Terminated Lender ” as defined in Section 2.18.

“ Termination Date ” means the date on which a Termination Event occurs.

“ Termination Event ” means the termination of the Merger Agreement pursuant to Section 7.1 of the Merger Agreement.

“ Term Loan ” means a term loan made by a Lender having Term Loan Commitment to Borrower pursuant to Section 2.1(a).

“ Term Loan Commitment ” means, with respect to any Lender, the obligation of such Lender to make Term Loans pursuant to the terms and conditions of this Agreement, which shall not exceed the principal amount set forth opposite such Lender’s name under the column “Term Loan Commitment” on the signature pages hereof or in the Assignment Agreement by which it became (or becomes) a Lender, as such may be modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment Agreement; and “ Term Loan Commitments ” means the aggregate principal amount of the Term Loan Commitments of all Lenders, which principal amount shall not exceed One Billion, One Hundred Eighty Seven Million, Six Hundred Eighty-Eight Thousand, One Hundred Eighty-Seven Dollars and Eighty Two Cents ($1,187,688,187.82), as such amount may be reduced from time to time as provided in this Agreement.

 

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“ Term Loan Exposure ” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Term Loans of such Lender.

“ Term Loan Note ” means, with respect to the Term Loans, a promissory note in the form of Exhibit B-1 , as each may be amended, supplemented or otherwise modified from time to time.

“ Title Policy ” as defined in Schedule 5.14.

“ Total Asset Value ” means, at any date, with respect to Borrower and, to the extent Allocable to Borrower, each other Group Member, the sum (without duplication) of:

(i)(a) Net Operating Income for the most recently ended trailing twelve month period divided by (b) the applicable Capitalization Rate;

(ii) unrestricted Cash and Cash Equivalents;

(iii) 100% of Investments in Redevelopment Assets; and

(iv) 100% of Investments in Development Assets.

“ Total Indebtedness ” means, at any date, with respect to Parent and Borrower and, to the extent Allocable to Borrower, each other Group Member, all indebtedness, including contingent liabilities, which are or would be required to be recorded as indebtedness on a balance sheet of such Group Member in accordance with GAAP, other than Existing Preferred Interests and the CVS Portfolio Debt; provided , that it is acknowledged and agreed that letters of credit that are cash collateralized in full shall not constitute indebtedness for purposes of calculating Total Indebtedness.

“ Total Secured Indebtedness ” means, at any date, the amount equal to (i) Total Indebtedness that is Secured Indebtedness minus (ii) the aggregate outstanding principal amount of the Loans.

“ Total Utilization ” means, as at any date of determination, the aggregate principal amount of all outstanding Revolving Loans.

“ Type of Loan ” means either a Base Rate Loan or a Eurodollar Rate Loan.

“ UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided , however , that, in the event that, by reason of mandatory provisions of law, any of the attachment, perfection or priority of the Collateral Agent’s and the Secured Parties’ security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “ UCC ” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.

 

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“ Unadjusted Eurodollar Rate Component ” means that component of the interest costs to Borrower in respect of a Eurodollar Rate Loan that is based upon the rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate.

1.2 Accounting Terms . Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by any Credit Party to Lenders pursuant to Sections 5.1(b) and (c) shall be prepared in accordance with GAAP as in effect at the time of such preparation.

1.3 Interpretation, etc . Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not no limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.

SECTION 2. LOANS

2.1 Term Loans .

(a) Term Loan Commitments . Subject to the terms and conditions hereof, each Lender having a Term Loan Commitment severally agrees to make, on the Closing Date, a Term Loan to Borrower in an amount equal to such Lender’s Term Loan Commitment. Borrower may make only one borrowing under the Term Loan Commitment, which borrowing shall be on the Closing Date. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.9 and 2.10, all amounts owed hereunder with respect to the Term Loans shall be paid in full no later than the Maturity Date. The Term Loan Commitment of each Lender having a Term Loan Commitment shall terminate immediately and without further action on the Closing Date after giving effect to the funding of such Lender’s Term Loan Commitment on such date.

(b) Borrowing Mechanics for Term Loans.

(i) Borrower shall have delivered to Administrative Agent a fully executed Funding Notice for the borrowing of the Term Loans no later than three Business Days prior to the Closing Date (or such shorter period as Administrative Agent may agree). Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender having a Term Loan Commitment of the proposed borrowing.

 

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(ii) Each Lender having a Term Loan Commitment shall make its Term Loan to Administrative Agent not later than 12:00 p.m. (New York City time) on the Closing Date, by wire transfer of same day funds in Dollars, at the Principal Office designated by Administrative Agent. Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the net proceeds of the Term Loans available to Borrower on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Term Loans received by Administrative Agent from Lenders having a Term Loan Commitment to be credited to such accounts of Borrower or as otherwise directed by Borrower.

 

2.1A

Revolving Loans .

(a) Commitments . During the Revolving Commitment Period, subject to the terms and conditions hereof, each Revolving Lender severally agrees to make Revolving Loans to Borrower in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided that, after giving effect to the making of such Revolving Loans in no event shall the Total Utilization exceed the Revolving Commitments at such time. Amounts borrowed pursuant to this Section 2.1A (a) may be repaid and reborrowed during the Revolving Commitment Period. Each Revolving Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans shall be paid in full no later than the Maturity Date.

(b) Borrowing Mechanics for Revolving Loans .

(i) Revolving Loans shall be in an aggregate minimum amount of $3,000,000 and integral multiples of $1,000,000 in excess of that amount.

(ii) Whenever Borrower desires that the Revolving Lenders make Revolving Loans, Borrower shall deliver to Administrative Agent a fully executed Funding Notice no later than 11:00 a.m. (New York City time) at least five Business Days in advance of the proposed Credit Date.

(iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together with the amount of each Revolving Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by Administrative Agent to each applicable Revolving Lender with reasonable promptness.

(iv) Each Revolving Lender shall make the amount of its Revolving Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office. Administrative Agent shall make the proceeds of such Revolving Loans available to Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by Administrative Agent from Revolving Lenders to be credited to such accounts of Borrower or as otherwise directed by Borrower.

 

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2.2 Pro Rata Shares; Availability of Funds .

(a) Pro Rata Shares . All Loans shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.

(b) Availability of Funds . Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify applicable Borrower and such Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Loans. Nothing in this Section 2.2(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.

2.3 Use of Proceeds The proceeds of the Term Loans shall be applied by Borrowers (i) to prepay in full the outstanding obligations of Borrower under the Existing Credit Agreement and to cash collateralize letters of credit outstanding pursuant thereto and (ii) to pay fees and expenses in connection with this Agreement and the transactions contemplated hereby (including without limitation, any breakup or termination fees). The proceeds of the Revolving Loans shall be applied by Borrower to provide for the ongoing working capital requirements and general corporate purposes of each Controlled Group Member and, where applicable, each Minority Holding in accordance with Section 5.20. No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or to violate the Exchange Act.

 

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2.4 Evidence of Debt; Register; Lenders’ Books and Records; Notes .

(a) Lenders’ Evidence of Debt . Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Borrower, absent manifest error; provided , that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitment or Borrower’s Obligations in respect of any applicable Loans; and provided further , in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

(b) Register . Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the Commitment and the Loans of each Lender from time to time (the “ Register ”). The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice and Administrative Agent will provide, promptly following the written request of Borrower (but not more than once per month), a copy of such Register to Borrower. Administrative Agent shall record, or shall cause to be recorded, in the Register the Commitments and the Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error; provided , failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitment or Borrower’s Obligations in respect of the Loans. Borrower hereby designates the Administrative Agent to serve as Borrower’s agent solely for purposes of maintaining the Register as provided in this Section 2.4, and Borrower hereby agrees that, to the extent that the Administrative Agent serves in such capacity, the Administrative Agent and its officers, directors, employees, agents, subagents and Affiliates shall constitute “ Indemnitees .”

(c) Notes . If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, applicable Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s’ receipt of such notice) a Note or Notes to evidence such Lender’s Loan.

2.5 Interest on Loans.

(a) Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof at the Adjusted Eurodollar Rate plus the Applicable Margin; provided , however , that if any Loan becomes a Base Rate Loan under this Agreement, such Loan shall bear interest at the Base Rate plus the Applicable Margin minus 100 basis points.

 

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(b) As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.

(c) Interest payable pursuant to Section 2.5(a) shall be computed on the basis of a 360-day year (provided that for any Base Rate Loans interest shall be calculated on the basis of a 365-day or 366-day year), in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Loan, the last Interest Payment Date with respect to such Loan or, with respect to a Base Rate Loan being mandatory converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded.

(d) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis on and to the last day of each Interest Period (or in the case of any Base Rate Loan, month) most recently ended prior to such payment date and shall be payable in arrears on each Interest Payment Date, (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid, and (iii) shall accrue on a daily basis and shall be payable in arrears on the Maturity Date. With respect to any accrued interest payable on an Interest Payment Date, Borrower may elect to make such payment of interest by adding the amount of such payment to the principal amount of the Loans (the “ Capitalized Portion ”). Borrower may make such election by giving Administrative Agent notice of such election at least five Business Days prior to the applicable Interest Payment Date. Borrower agrees that the Applicable Margin with respect to the Capitalized Portion of the Loans shall be increased by an additional 3.00% per annum.

2.6 Default Interest . Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or, to the extent overdue, other amounts owed hereunder or under the other Credit Documents, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is 3.00% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.6 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.

 

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2.7 Fees . Borrower agrees to pay to the Initial Lender its Pro Rata Share of (A) a closing fee (the “ Closing Fee ”) equal to 1% of the Aggregate Loan Amount, 100% of which shall be payable on the Closing Date and (B) a funding fee (the “ Funding Fee ,” and, together with the Closing Fee, the “ Fees ”) equal to 0.5% of the Aggregate Loan Amount, 100% of which shall be payable on the earliest of (i) the date that is six (6) months from the execution of the Merger Agreement, (ii) the Merger Effective Time (as defined in the Merger Agreement), and (iii) the date on which the Merger Agreement is terminated and the principal amount of all Loans is repaid in full; provided , however , that in the event that the Initial Lender or any of such Initial Lender's Affiliates participates in any refinancing of the Obligations, 50% of such Initial Lender's Pro Rata Share of the Funding Fee shall be refunded to the Borrower; and provided further , that for the avoidance of doubt, the right to receive any and all such fees (which right shall include the obligation to refund any such fees in accordance with this Section 2.7 ) shall be freely assignable by the Initial Lender to any assignee of Loans therefrom in accordance with Section 10.6.

2.8 Maturity.

(a) Maturity Date . The Loans together with all other Obligations outstanding on the Maturity Date shall be due and payable on the Maturity Date.

2.9 Voluntary Prepayments; Commitment Reductions; Deemed Repayments.

(a) Voluntary Prepayments .

(i) Any time and from time to time with respect to any Loans, Borrower may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.

(ii) All such prepayments shall be made upon not less than three Business Days’ prior written or telephonic notice given to Administrative Agent by 12:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or original notice for Loans, by telefacsimile or telephone to each Lender). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in Section 2.11(a).

 

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(b) Voluntary Revolving Commitment Reductions .

(i) Borrower may, upon not less than three Business Days’ prior written or telephonic notice confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization at the time of such proposed termination or reduction; provided that, any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess of that amount.

(ii) Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in Borrower’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof.

(c) Deemed Repayment . Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, any provisions regarding prepayment and application of payments), in the event that any amounts owing by the Borrower under this Agreement are “forgiven” (such amounts, the “ Subject Amounts ”) as contemplated by Section 5.16 of the Merger Agreement, any such Subject Amounts shall be deemed to be forgiven by SPG solely with respect to Term Loans held by it, and shall reduce the total amount of Term Loans then outstanding held by SPG. For the avoidance of doubt, any “forgiveness” of the Subject Amounts contemplated by Section 5.16 of the Merger Agreement and this Section 2.9(c) shall have no effect on any other Loans not so forgiven.

2.10 Mandatory Prepayments.

(a) Asset Sales . No later than the first Business Day following the date of receipt by Parent, any of its Subsidiaries or any Cash Controlled Minority Holding of any Net Asset Sale Proceeds received in excess of $5,000,000 for any Asset Sale (in a single transaction or a series of related transactions) or in excess of $10,000,000 in the aggregate for all such Asset Sales during any Fiscal Year, unless otherwise agreed in writing by the Requisite Lenders, Borrower shall prepay the Loans as set forth in Section 2.11(b) in an aggregate amount equal to such Net Asset Sale Proceeds (or, in the case of any non-wholly-owned Subsidiary or Cash Controlled Minority Holding, to the extent of Borrower’s direct or indirect interest therein); provided , however , that so long as no Default or Event of Default is continuing, Net Asset Sale Proceeds (or Borrower’s direct or indirect interest therein, as applicable) from individual Asset Sales in the ordinary course (including out parcel sales) not exceeding $10,000,000 individually or $30,000,000 in the aggregate may be reinvested in accordance with the Approved Budget within 90 days of receipt thereof (such Asset Sales within such limitations, the “ Permitted Dispositions ”).

 

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(b) Insurance/Condemnation Proceeds . No later than the first Business Day following the date of receipt by Parent, any of its Subsidiaries or any Cash Controlled Minority Holding, or any Agent as loss payee, of any Net Insurance/Condemnation Proceeds, unless otherwise agreed in writing by Administrative Agent, Borrower shall prepay the Loans as set forth in Section 2.11(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds (or, in the case of any non-wholly-owned Subsidiary or Controlled Minority Holding, to the extent of Borrower’s direct or indirect interest therein); provided that, (i) to the extent that Borrower is under a Contractual Obligation to repair, restore or replace the applicable asset for which such Net Insurance/Condemnation Proceeds have been received, such proceeds may be applied to the extent necessary under the such Contractual Obligation to provide for such repair, restoration or replacement, as the case may be and (ii) so long as no Default or Event of Default is continuing to the extent that aggregate Net Insurance/Condemnation Proceeds with respect to any applicable asset does not represent more than 25% (or such higher percentage as Administrative Agent may approve) of the fair market value of the applicable asset prior to the relevant event, such Net Insurance/Condemnation Proceeds may be applied within 365 days of receipt thereof to repair, restore or replace the applicable asset.

(c) Issuance of Equity Securities . No later than the first Business Day following the date of receipt by Parent, any of its Subsidiaries or any Cash Controlled Minority Holding of any Cash proceeds from a capital contribution to, or the issuance of any Capital Stock of, Parent, any of its Subsidiaries or any Minority Holding (except (so long as no Default or Event of Default has occurred and is continuing) pursuant to any employee stock or stock option compensation plan existing prior to the Closing Date), unless otherwise agreed in writing by the Requisite Lenders, Borrower shall prepay the Loans as set forth in Section 2.11(b) in an aggregate amount equal to 100% of such proceeds (or, in the case of any non-wholly-owned Subsidiary or Controlled Minority Holding, to the extent of Borrower’s direct or indirect interest therein), net of underwriting discounts and commissions and other reasonable costs and expenses directly incurred in connection therewith, including reasonable legal fees and expenses.

(d) Issuance of Debt . No later than the first Business Day following the date of receipt by Parent, any of its Subsidiaries or any Cash Controlled Minority Holding of any Cash proceeds from the incurrence of any Indebtedness for borrowed money of Parent, any of its Subsidiaries or any Minority Holding, unless otherwise agreed in writing by the Requisite Lenders, Borrowers shall prepay the Loans as set forth in Section 2.11(b) in an aggregate amount equal to 100% of such proceeds (or, in the case of any non-wholly-owned Subsidiary or Controlled Minority Holding, to the extent of Borrower’s direct or indirect interest therein), net of underwriting discounts and commissions and other reasonable costs and expenses directly incurred in connection therewith, including reasonable legal fees and expenses; provided , however , that the requirements of this Section 2.10(d) shall not apply to proceeds of Indebtedness permitted to be incurred pursuant to Section 6.1.

 

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(e) Change of Control . Immediately upon a Change of Control, Borrower shall prepay the Loans in full, together with all other Obligations under the Credit Documents, and the Commitments shall terminate.

(f) Prepayment Certificate . Concurrently with any prepayment of the Loans pursuant to Sections 2.10(a) through 2.10(d), Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.

(g) Net Proceeds Calculation . Notwithstanding the other provisions of this Section 2.10, any prepayment of the Loans required pursuant to Sections 2.10(a), (b), (c) or (d) shall be net of any accrued interest and fees then payable pursuant to the Credit Documents and any amounts payable pursuant to Section 2.14(c), in each case as a result thereof.

2.11 Application of Prepayments.

(a) Application of Voluntary Prepayments . Any prepayment of any Loan pursuant to Section 2.9(a) shall be applied as specified by Borrower in the applicable notice of prepayment; provided , in the event Borrower fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied as follows:

(i) first , to prepay outstanding Revolving Loans (excluding the Capitalized Portion thereof) to the full extent thereof (without a corresponding reduction of the Revolving Commitments);

(ii) second , to prepay the Term Loans (excluding the Capitalized Portion thereof), on a pro rata basis (in accordance with the respective outstanding principal amounts thereof); and

(iii) third , to prepay the Capitalized Portion of the Loans.

(b) Application of Mandatory Prepayments . Any amount required to be paid pursuant to Sections 2.10(a) through 2.10(d) shall be applied to prepay the Loans as follows:

(i) first , to prepay the Term Loans (excluding the Capitalized Portion thereof) on a pro rata basis (in accordance with the respective outstanding principal amounts thereof);

 

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(ii) second , to prepay Revolving Loans (excluding the Capitalized Portion thereof) to the full extent thereof (without a corresponding reduction of the Revolving Commitments); and

(iii) third , to prepay the Capitalized Portion of the Loans.

2.12 General Provisions Regarding Payments.

(a) All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on the date due at the Principal Office designated by Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by applicable Borrower on the next succeeding Business Day.

(b) All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid (together with any fees then payable under the Credit Documents).

(c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including, without limitation, all fees payable with respect thereto, to the extent received by Administrative Agent.

(d) [Intentionally Omitted.].

(e) Whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.

(f) [Intentionally Omitted.].

(g) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but (unless otherwise permitted by Administrative Agent) in no event less than the period from the

 

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date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.6 from the date such amount was due and payable until the date such amount is paid in full.

(h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by Agents hereunder in respect of any of the Obligations, shall be applied in accordance with the application arrangements described in Section 7.2 of the Pledge and Security Agreement.

2.13 Ratable Sharing . Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “ Aggregate Amounts Due ” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided , if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by such Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.

2.14 Making or Maintaining Eurodollar Rate Loans .

(a) Inability to Determine Applicable Interest Rate . In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of

 

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Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by such Borrower.

(b) Illegality or Impracticability of Eurodollar Rate Loans . In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Borrower and Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “ Affected Lender ” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans (the “ Affected Loans ”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice, Borrower shall have the option, subject to the provisions of Section 2.14(c), to rescind such Funding Notice as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.14(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms hereof.

(c) Compensation for Breakage or Non-Commencement of Interest Periods . Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable

 

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losses, expenses and liabilities (including any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by Borrower.

(d) Booking of Eurodollar Rate Loans . Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

(e) Assumptions Concerning Funding of Eurodollar Rate Loans . Calculation of all amounts payable to a Lender under this Section 2.14 and under Section 2.15 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided , however , each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.14 and under Section 2.15.

2.15 Increased Costs; Capital Adequacy .

(a) Compensation For Increased Costs and Taxes . Subject to the provisions of Section 2.16 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other governmental