EXECUTION VERSION

 

TABLE OF CONTENTS

 

		Page
ARTICLE 1 INTERPRETATION OF THIS AGREEMENT		1
Section 1.1	Definitions	1
Section 1.2	Accounting Terms	22
Section 1.3	Interpretive Provisions	22
ARTICLE 2 TERM LOAN; INTEREST AND FEES		23
Section 2.1	Total Facility	23
Section 2.2	Term Loan	24
Section 2.3	Interest	24
Section 2.4	Exit Fees	25
Section 2.5	Interest Limitation	25
Section 2.6	Agent’s Fee	26
ARTICLE 3 PAYMENTS AND PREPAYMENTS		26
Section 3.1	Term Loan	26
Section 3.2	Optional Prepayment of the Term Loan	26
Section 3.3	Mandatory Prepayments of the Term Loan	26
Section 3.4	Payments by the Borrowers	28
Section 3.5	Apportionment, Application, and Reversal of Payments	28
Section 3.6	Indemnity for Returned Payments	29
Section 3.7	The Agent’s Books and Records	29
ARTICLE 4 CASH COLLATERAL ACCOUNTS		29
Section 4.1	Cash Collateral Accounts	29
ARTICLE 5 TAXES, YIELD PROTECTION, AND ILLEGALITY		30
Section 5.1	Taxes	30
Section 5.2	Increased Costs and Reduction of Return	32
Section 5.3	Certificates of Lenders	32
Section 5.4	Replacement of Lenders	32
Section 5.5	Survival	33
ARTICLE 6 COLLATERAL		33
Section 6.1	Grant of Security Interest	33
Section 6.2	Perfection and Protection of Security Interest	35
Section 6.3	Delivery of Mortgages	36
Section 6.4	Title to, Liens on, and Use of Collateral	36

 

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TABLE OF CONTENTS
(continued)

 

		Page
Section 6.5	Access and Examination; Confidentiality	37
Section 6.6	Documents, Instruments, and Chattel Paper	37
Section 6.7	Right to Cure	37
Section 6.8	Power of Attorney	38
Section 6.9	The Agent’s and Lenders’ Rights, Duties, and Liabilities	38
Section 6.10	Site Visits, Observations, and Testing	38
Section 6.11	Joinder of Subsidiaries	39
Section 6.12	Voting Rights, etc. in Respect of Investment Property	39
Section 6.13	Remedies	41
ARTICLE 7 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES		41
Section 7.1	Books and Records	41
Section 7.2	Financial Information	41
Section 7.3	Notices to the Agent	44
ARTICLE 8 GENERAL WARRANTIES AND REPRESENTATIONS		46
Section 8.1	Authorization, Validity, and Enforceability of this Agreement and the Loan Documents; No Conflicts	46
Section 8.2	Validity and Priority of Security Interest; Administrative Priority	47
Section 8.3	Corporate Name; Prior Transactions	48
Section 8.4	Capitalization; Subsidiaries	48
Section 8.5	Material Agreements	48
Section 8.6	Proprietary Rights	48
Section 8.7	Litigation	48
Section 8.8	Labor Disputes	48
Section 8.9	Environmental Laws	48
Section 8.10	No Violation of Law	49
Section 8.11	ERISA Compliance	49
Section 8.12	Taxes	50
Section 8.13	Regulated Entities	50
Section 8.14	Use of Proceeds	50
Section 8.15	Full Disclosure	50
Section 8.16	Bank Accounts	51
Section 8.17	Governmental Authorization	51
Section 8.18	First Lien Properties	51
Section 8.19	Prior Lien Debt	51
Section 8.20	Leases	52
Section 8.21	Title	52
Section 8.22	Physical Condition	52

 

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TABLE OF CONTENTS
(continued)

 

		Page
Section 8.23	Management	53
Section 8.24	Condemnation	53
Section 8.25	Utilities and Public Access	53
Section 8.26	Separate Lots	53
Section 8.27	Permits; Certificate of Occupancy	53
Section 8.28	Ground Leased Property	53
Section 8.29	Embargoed Person	53
Section 8.30	Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws	54
ARTICLE 9 AFFIRMATIVE AND NEGATIVE COVENANTS		54
Section 9.1	Existence and Good Standing	54
Section 9.2	Compliance with Law and Agreements; Maintenance of Licenses	55
Section 9.3	Insurance	55
Section 9.4	Casualty and Condemnation	55
Section 9.5	Covenants with Respect to REA	56
Section 9.6	Environmental Laws	57
Section 9.7	Compliance with ERISA	58
Section 9.8	Mergers, Consolidations, Sales, Acquisitions	58
Section 9.9	Transactions with Affiliates	60
Section 9.10	Business Conducted	62
Section 9.11	Debt; Liens; No Negative Pledge	62
Section 9.12	New Subsidiaries	65
Section 9.13	Use of Proceeds	65
Section 9.14	Investments	66
Section 9.15	Case Matters	66
Section 9.16	No Amendments or Advances of Prior Lien Debt	68
Section 9.17	Maintenance of Property; Compliance with Legal Requirements; Parking	68
Section 9.18	Taxes and Other Claims	69
Section 9.19	Leases	69
Section 9.20	Restricted Payments	70
ARTICLE 10 CONDITIONS OF LENDING		71
Section 10.1	Conditions Precedent to Making of Term Loan	71
ARTICLE 11 DEFAULT; REMEDIES		73
Section 11.1	Events of Default	73

 

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TABLE OF CONTENTS
(continued)

 

		Page
Section 11.2	Remedies	76
ARTICLE 12 GUARANTY		80
Section 12.1	Guaranty; Limitation of Liability	80
Section 12.2	Guaranty Absolute	81
Section 12.3	Waivers and Acknowledgments	82
Section 12.4	Subrogation	83
Section 12.5	Guaranty Supplements	83
Section 12.6	Continuing Guaranty; Assignments	83
Section 12.7	Limitation on Guaranty	84
ARTICLE 13 AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS		84
Section 13.1	No Waivers; Cumulative Remedies	84
Section 13.2	Amendments and Waivers	84
Section 13.3	Assignments; Participations	85
ARTICLE 14 THE AGENT		88
Section 14.1	Appointment and Authorization	88
Section 14.2	Delegation of Duties	88
Section 14.3	Liability of the Agent	89
Section 14.4	Reliance by the Agent	89
Section 14.5	Notice of Default	90
Section 14.6	Credit Decision	90
Section 14.7	Indemnification	90
Section 14.8	The Agent in Individual Capacity	91
Section 14.9	Successor Agent	91
Section 14.10	Withholding Tax	92
Section 14.11	Collateral Matters	94
Section 14.12	Restrictions on Actions by the Lenders; Sharing of Payments	95
Section 14.13	Agency for Perfection	95
Section 14.14	Payments by the Agent to the Lenders	95
Section 14.15	Concerning the Collateral and the Related Loan Documents	96
Section 14.16	Relation Among the Lenders	96
ARTICLE 15 MISCELLANEOUS		96
Section 15.1	Cumulative Remedies	96
Section 15.2	Severability	96

 

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TABLE OF CONTENTS
(continued)

 

		Page
Section 15.3	Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver	96
Section 15.4	Waiver of Jury Trial	97
Section 15.5	Survival	98
Section 15.6	Fees and Expenses	98
Section 15.7	Notices	99
Section 15.8	Waiver of Notices	100
Section 15.9	Binding Effect	100
Section 15.10	Indemnity of the Agent and the Lenders by the Obligors	100
Section 15.11	Limitation of Liability	101
Section 15.12	Final Agreement	101
Section 15.13	Counterparts	102
Section 15.14	Captions	102
Section 15.15	Agency of the General Partner for the Other Obligors	102
Section 15.16	Patriot Act	102
Section 15.17	Absence of Fiduciary Relationship; Affiliates; Etc.	102
Section 15.18	Incorporation of Financing Order by Reference	103
Section 15.19	Right to Publicize and Advertise	103
Section 15.20	Consent of the Agent and Lenders	103
Section 15.21	Lead Arranger	103
Section 15.22	Schedules	103

 

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Schedules :
Schedule 1.1A		—		Fee Properties
Schedule 1.1B		—		Guarantors
Schedule 1.1C		—		Leased Properties
Schedule 1.1D		—		Primary Properties
Schedule 3.1		—		Debt to Equity Conversion Schedule
Schedule 6.1		—		Commercial Tort Claims
Schedule 6.3		—		Delivery of Mortgages
Schedule 8.3		—		Prior Names
Schedule 8.4		—		Capitalization
Schedule 8.5		—		Material Agreements — Exceptions
Schedule 8.9		—		Environmental Matters
Schedule 8.11		—		ERISA Matters
Schedule 8.16		—		Bank Accounts
Schedule 8.17		—		Governmental Authorization — Exceptions
Schedule 8.18		—		First Lien Properties
Schedule 8.19-1		—		Prior Lien Debt
Schedule 8.19-2		—		M&M Liens
Schedule 8.20		—		Current Rent Roll
Schedule 8.20-1		—		A/R Report
Schedule 8.21		—		Title Exception Issues
Schedule 8.22		—		Physical Condition — Exceptions
Schedule 8.23		—		Management
Schedule 8.25		—		Utilities and Public Access — Exceptions
Schedule 8.27		—		Permits — Exceptions
Schedule 8.28		—		Unrecorded Ground Leases
Schedule 9.3		—		Insurance
Schedule 9.8		—		Property Dispositions
Schedule 9.13		—		Use of Proceeds — Debt
		—
Exhibits :
Exhibit A		—		Form of Continuation Notice
Exhibit B		—		Form of Financing Order
Exhibit C		—		Form of Funding Notice
Exhibit D		—		Form of Term Note
Exhibit E		—		Form of Compliance Certificate
Exhibit F		—		Form of Subordination, Non-Disturbance and Attornment Agreement
Exhibit G		—		[Intentionally Omitted]
Exhibit H		—		Form of Guaranty Supplement
Exhibit I-1		—		Form of Mortgage
Exhibit I-2		—		Form of Deed of Trust
Exhibit J-1		—		Form of Legal Opinion of Ronald L. Gern and Jeffrey Palkovitz
Exhibit J-2		—		Form of Legal Opinion of Weil, Gotshal & Manges LLP
Exhibit K-1		—		Form of Deed of Trust Subordination Agreement
Exhibit K-2		—		Form of Mortgage Subordination Agreement

 

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SENIOR SECURED DEBTOR IN POSSESSION
CREDIT, SECURITY AND GUARANTY AGREEMENT

 

This Senior Secured Debtor in Possession Credit, Security and Guaranty Agreement, dated as of May 15, 2009, is made and entered into by and among the entities parties hereto as Lenders (as defined herein) from time to time, UBS AG, STAMFORD BRANCH, as administrative agent for the Lenders, GENERAL GROWTH PROPERTIES, INC., a Delaware corporation, as a co-Borrower, GGP LIMITED PARTNERSHIP, a Delaware limited partnership, as a co-Borrower, and the Subsidiaries of General Growth Properties, Inc. from time to time parties hereto as Guarantors (as defined herein).

 

W I T N E S S E T H

 

A.                                    On April 16, 2009 (the “ Petition Date ”), the Borrowers and certain of the Guarantors filed with the United States Bankruptcy Court for the Southern District of New York (the “ Bankruptcy Court ”) voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. , and have continued in the possession of their assets pursuant to Sections 1107 and 1108 thereof.  Each of the Guarantors is a Subsidiary of the Borrowers.

 

B.                                      The Borrowers have requested that the Lenders make a post-petition term loan (the “ Term Loan ”) to the Borrowers consisting of a debtor-in-possession credit facility in an aggregate principal amount not to exceed $400,000,000, subject to this Agreement and, if and when entered, the Financing Order (as defined herein).

 

C.                                      The Lenders are severally, and not jointly, willing to extend such credit to the Borrowers under this Agreement upon the terms and subject to the conditions set forth in this Agreement and the Financing Order.

 

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Lenders, the Agent (as defined herein), the Borrowers and the Guarantors hereby agree as follows.

 

ARTICLE 1

 

INTERPRETATION OF THIS AGREEMENT

 

Section 1.1                                                   Definitions .  Capitalized terms wherever used in this Agreement shall have the following respective meanings.

 

“ Account ” means “accounts,” as defined in the UCC, and any other rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance, and “ Accounts ” means all of the foregoing.

 

“ Additional Lender Amounts ” has the meaning specified in Section 5.2 .

 

 

“ Affiliate ” means, as to any Person (the “ subject Person ”), any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, the subject Person or which owns, directly or indirectly, 15.0% or more of the outstanding equity interests of the subject Person.  A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise.  Notwithstanding the foregoing, none of the Agent, the Lenders or any controlled Affiliate of the foregoing shall be Affiliates of any Obligor for any purpose of the Loan Documents.

 

“ Affiliate Investments ” has the meaning specified in Section 9.9 .

 

“ Agent ” means UBS AG, Stamford Branch, solely in its capacity as administrative agent for the Lenders, and any successor agent.  References herein to “Agent” shall include each Person (if any) performing the duties of the Agent in accordance with Section 14.2 .

 

“ Agent’s Liens ” means the Liens in the Collateral granted to the Agent, for the benefit of the Lenders and the Agent, pursuant to this Agreement and the other Loan Documents.

 

“ Agent-Related Persons ” means the Agent, together with its Affiliates, and the officers, directors, employees, agents, sub-agents and attorneys-in-fact of the Agent and its Affiliates.

 

“ Agreement ” means this Senior Secured Debtor in Possession Credit, Security and Guaranty Agreement.

 

“ A/R Report ” has the meaning specified in Section 8.20(b) .

 

“ Assignee ” has the meaning specified in Section 13.3(a) .

 

“ Assignment and Acceptance ” has the meaning specified in Section 13.3(a) .

 

“ Automatic Stay ” means the automatic stay imposed under Section 362 of the Bankruptcy Code.

 

“ Bankruptcy Code ” means Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. , and each successor statute thereto.

 

“ Bankruptcy Court ” has the meaning specified in Recital A of this Agreement.

 

“ Bankruptcy Rules ” means the Federal Rules of Bankruptcy Procedure, applicable to the Case.

 

“ Borrowers ” means the General Partner, as debtor and debtor in possession in the Case and GGPLP, as debtor and debtor in possession in the Case and the respective successors and assigns thereof, including, without limitation, any trustee in bankruptcy with respect thereto.

 

“ Borrowing ” means the borrowing hereunder consisting of the Term Loan made on the same date by the Lenders to the Borrowers.

 

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“ Breakage Costs ” has the meaning specified in Section 3.4(c) .

 

“ Breakage Prepayment Account ” has the meaning specified in Section 3.3(c) .

 

“ Business Day ” means any day that is not a Saturday, Sunday, or a day on which banks in Chicago, Illinois or New York, New York are required or permitted to be closed; provided, however , that when used in connection with a LIBOR Rate determination in respect of the Term Loan, the term “Business Day” also shall exclude any day on which banks in London, England are not open for dealing in deposits of Dollars in the London interbank market.

 

“ Capital Adequacy Regulation ” means any guideline, request, or directive of any central bank or other Governmental Authority, or any other law, rule, or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.

 

“ Capital Lease ” means, with respect to any Person, any lease of property which, in accordance with GAAP, should be reflected as a capital lease on a balance sheet of such Person.

 

“ Capital Stock ” means any and all corporate stock, units, shares, partnership interests, membership interests, equity interests, rights, securities, or other equivalent evidences of ownership (however designated) issued by any Person.

 

“ Carve-Out ” has the meaning specified in the Financing Order.

 

“ Case ” means the jointly administered Chapter 11 case captioned In Re:  General Growth Properties, Inc., et al. , Case No. 09-11977 (ALG) arising upon the filing by certain of the Debtors of voluntary petitions for relief with the Bankruptcy Court on the Petition Date.

 

“ Cash Collateral Account ” means, in respect of the Obligors (a) one or more deposit accounts maintained with U.S. Bank National Association or another Eligible Institution in accordance with this Agreement and (b) the Main Operating Account, which deposit accounts shall contain amounts transferred thereto in accordance with this Agreement and the other Loan Documents and, in the case of each of the foregoing clauses (a) and (b), with respect to which the Agent shall have a perfected Agent’s Lien as security for the payment and performance of the Obligations by virtue of, and having the priority set forth in, the Financing Order.

 

“ Cash Equivalents ” means: (i) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition; (ii) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000; (iii) repurchase obligations for underlying securities of the types described in clauses (i), (ii) and (iv) entered into with any financial institution meeting the qualifications specified in clause (ii) above; (iv) marketable short-term money market and similar securities having a rating of at least P-1 or A-1 from either Moody’s Investors Service, Inc.

 

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(“ Moody’s ”) or Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“ S&P ”), respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency acceptable to the Majority Lenders) and in each case maturing within 12 months after the date of creation or acquisition thereof; (v) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an investment grade rating from either Moody’s or S&P with maturities of 12 months or less from the date of acquisition; (vi) Investments with average maturities of twelve months or less from the date of acquisition in money market funds rated within the top two ratings category by S&P or Moody’s; and (vii) any other similar Investment permitted by the Bankruptcy Code or approved by the Bankruptcy Court.

 

“ Cash Management Order ” means the order of the Bankruptcy Court entered by the Court in respect of cash management of the Debtor.

 

“ Casualty ” means a fire, explosion, flood, hurricane, tsunami, collapse, earthquake or other casualty affecting all or any portion of any Property.

 

“ Change in Control ” means the occupation after the Closing Date of a majority of the seats (other than vacant seats) on the board of directors of the General Partner by Persons who were neither (a) nominated by the board of directors of the General Partner nor (b) appointed by directors so nominated.

 

“ Charges ” has the meaning specified in Section 2.5 .

 

“ Closing Date ” means the date of this Agreement.

 

“ Code ” means the Internal Revenue Code of 1986 and the regulations promulgated thereunder.

 

“ Collateral ” has the meaning specified in Section 6.1(a).

 

“ Commitment ” means , at any time with respect to a Lender, the principal amount set forth beside such Lender’s name under the heading “Commitment” on the signature page of this Agreement or on the signature page of the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, or the most recent Assignment and Acceptance to which such Lender is a party, in accordance with the provisions of Section 13.3 , as such Commitment may be adjusted from time to time in accordance with the provisions of Section 13.3 , and “ Commitments ” means, collectively, the aggregate amount of the Commitments of all of the Lenders.

 

“ Commitment Letter ” means the Commitment Letter dated as of May 12, 2009, among the Borrowers and the Initial Lenders.

 

“ Compliance Certificate ” has the meaning specified in Section 7.2(d) .

 

“ Condemnation ” means a taking or voluntary conveyance of all or part of any of the Properties or any interest in or right accruing to or use of any of the Properties, as the result of, or

 

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in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority.

 

“ Contaminant ” means any substance, material or waste that is regulated, classified or otherwise characterized as a pollutant, hazardous substance, toxic substance, hazardous waste, including petroleum or petroleum derived substance or waste, asbestos, polychlorinated biphenyls, in each case to the extent regulated under any applicable Environmental Law.

 

“ Continuation Date ” means the effective date of a continuation as set forth in the applicable Continuation Notice.

 

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

 

“ Conversion Amount ” has the meaning specified in Section 3.1 .

 

“ Debt ” means, with respect to a Person without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property (other than trade payables and accrued expenses incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations in respect of Capital Leases of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under acceptance, letter of credit, surety bond or similar facilities, (g) Guaranties of such Person with respect to obligations of the type described clauses (a)  through (f)  above, (h) all obligations of other Persons of the kind referred to in clauses (a)  through (g)  above secured by any Lien on property owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (i) for the purposes of Section 11.1(d)  only, the net obligations of such Person in respect of post-petition Hedge Agreements.  The Debt of any Person shall include the Debt of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Debt expressly provide that such Person is not liable therefor.

 

“ Debtor ” means either Borrower, any Guarantor or any Negative Pledge Debtor that is a party to the Case.

 

“ Debtors ” means the Borrowers, the Guarantors and the Negative Pledge Debtors that are party to the Case, collectively.

 

“ Default ” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, waived pursuant to Section 13.2 , or otherwise remedied during such time) constitute an Event of Default.

 

5

 

“ Default Rate ” means a per annum interest rate at all times equal to the sum of (a) the interest rate otherwise applicable to the Term Loan as set forth in this Agreement or, if no principal amount of the Term Loan is then outstanding, the one-month LIBOR Rate plus 12.0% per annum, plus (b) (i) on or before the Outside Date, 2.0% per annum, and (ii) after the Outside Date, 3.0% per annum.

 

“ Disqualified Lender ”  means  (i) any Person identified to the Agent in writing prior to the date hereof, (ii) any Person which is primarily engaged in the ownership of retail malls in the United States at the time of the relevant assignment or participation which directly or indirectly compete with the Obligors,  (iii) any direct competitor of the General Partner, any of its Subsidiaries and their respective affiliates or any affiliate of such direct competitor that controls, is controlled by or is under common control therewith, in each case engaged in the ownership of retail malls in the United States, and (iv) any REIT which is, or any affiliate that controls, is controlled by or is under common control therewith which is, at the time of any applicable assignment or participation primarily engaged in the business of owning or operating commercial real estate in the United States with commercial real estate assets having a value in excess of $2 billion; provided that neither any Market Maker nor any Lender (or any of its Affiliates) shall be a Disqualified Lender.

 

“ DOL ” means the United States Department of Labor or any successor department or agency.

 

“ Dollar ” and “ $ ” means dollars in the lawful currency of the United States.

 

“ Eligible Assignee ” means:  (a) a commercial bank, commercial finance company or other lender in the business of making secured loans having total assets in excess of $250,000,000, (b) any Lender listed on the signature page of this Agreement; (c) any Affiliate of any Lender; and (d) any other Person reasonably acceptable to the Agent; provided that , at any time on or prior to the Maturity Date, no Disqualified Lender may, without the Borrowers’ prior written consent, be an Eligible Assignee unless the maturity of the Term Loan has been accelerated.

 

“ Eligible Institution ” means any depository institution as approved under or contemplated by the cash management order entered in the Case.

 

“ Embargoed Person ” has the meaning specified in Section 8.29(a) .

 

“ Entry Date ” means the date on which the Financing Order was entered on the docket of the Bankruptcy Court (the “ original entry date ”) and, with respect to any wholly-owned Subsidiary of the Borrowers or its property becoming subject to the Case after the original entry date, the date on which such Subsidiary or its property becomes subject to the Case.

 

“ Environmental Compliance Issues ” has the meaning specified in Section 9.6(a) .

 

“ Environmental Laws ” means all applicable federal, state, or local laws, statutes, common law duties, rules, regulations, ordinances, and codes, together with all applicable administrative orders, licenses, authorizations and permits of, and legally binding agreements

 

6

 

with, any Governmental Authority, in each case relating to the protection of the environment and natural resources or human health and safety with respect to exposure to contaminants.

 

“ Environmental Lien ” means a Lien in favor of any Governmental Authority for any liability under Environmental Laws.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, and regulations promulgated thereunder.

 

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with any Obligor within the meaning of Section 414(b) or (c) of the Code and Sections 414(m) and (o) of the Code.

 

“ ERISA Event ” means (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Pension Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Pension Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (d) the incurrence by the Borrowers or any of their ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of the Borrowers or any of their ERISA Affiliates from any Pension Plan or Multi-employer Plan; (e) the receipt by the Borrowers or any of their ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan; (f) the adoption of any amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (g) the receipt by the Borrowers or any of their ERISA Affiliates of any notice, or the receipt by any Multi-employer Plan from the Borrowers or any of their ERISA Affiliates of any notice, concerning the imposition of withdrawal liability (as defined in Part I of Subtitle E of Title IV of ERISA) or a determination that a Multi-employer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence of a “prohibited transaction” with respect to which the Borrowers or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which the Borrowers or any such Subsidiary could reasonably be expected to have a material liability; or (i) any other event or condition with respect to a Pension Plan or Multi-employer Plan that could result in liability of the Borrowers or any Subsidiary.

 

“ Event of Default ” has the meaning specified in Section 11.1 .

 

“ Exchange Act ” means the Securities Exchange Act of 1934, and regulations promulgated thereunder.

 

“ Exit Fee ” has the meaning specified in Section 2.4 .

 

“ Federal Funds Rate ” means, for any day, the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve

 

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Bank of New York (including any such successor, “ H.15(519) ”) on the preceding Business Day opposite the caption “Federal Funds (Effective),” or, if for any relevant day such rate is not so published on any such preceding Business Day, the rate for such day will be the arithmetic mean as determined by the Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of three leading brokers of Federal funds transactions in New York City selected by the Agent.

 

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

 

“ Fee Properties ” means the Real Estate properties owned in fee by a Debtor, which properties owned as of the Petition Date are listed on Schedule 1.1A .

 

“ Financing Order ” means the order of the Bankruptcy Court in the form of Exhibit B (except as may otherwise be agreed in writing or on the record at the final hearing with respect to such order in the Case by the Majority Lenders) entered in the Case after notice and any hearing pursuant to the Bankruptcy Rules and applicable local rules which, among other matters, authorizes the Obligors to obtain credit, incur (or guaranty) the Obligations and grant Liens under the Loan Documents and provides for the priority of the Agent’s and the Lenders’ claims, as the same may be modified or supplemented from time to time after the Entry Date with the written consent of the Majority Lenders.

 

“ First Lien Properties ” means all Properties set forth in Schedule 8.18 , together with any Property of a wholly-owned Subsidiary that becomes a Guarantor after the Closing Date.

 

“ Fiscal Quarter ” means a period of three calendar months beginning on the first day of each January, April, July, and October, constituting a Person’s fiscal quarter for financial accounting purposes, with the first of such measurement periods beginning on the first day of each Fiscal Year and the last of such measurement periods ending on the last day of such Fiscal Year.

 

“ Fiscal Year ” means, with respect to any Person, such Person’s fiscal year for financial accounting purposes.

 

“ Foreign Subsidiary ” means any Subsidiary of an Obligor (i) that is not incorporated or organized under the laws of the United States, any State thereof or the District of Columbia, or (ii) that is a disregarded entity for U.S. federal income tax purposes, (A) which is treated for U.S. federal income tax purposes as a division of an entity described in clause (i)  above or (B) substantially all of the assets of which consist of the Capital Stock of Subsidiaries described in clause (i)  above.

 

“ Fraudulent Conveyance ” has the meaning specified in Section 12.7 .

 

“ Funding Date ” means the date on which the Borrowing occurs.

 

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

 

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“ GAAP ” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the United States accounting profession), as in effect from time to time.

 

“ General Intangibles ” means “general intangibles,” as defined in the UCC, chooses in action and causes of action, and any other intangible personal property of every kind and nature (other than Accounts), including, without limitation, all contract rights, payment intangibles, Proprietary Rights, corporate or other business records, inventions, designs, blueprints, plans, specifications, patents, patent applications, trademarks, service marks, trade names, trade secrets, goodwill, copyrights, computer software, customer lists, registrations, licenses, franchises, tax refund claims, any funds which may become due to a Person in connection with the termination of any employee benefit plan or any rights thereto and any other amounts payable to a Person from any employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the lives of key employees on which a Person is beneficiary, rights to receive dividends, distributions, cash, instruments, and other property in respect of or in exchange for pledged equity interests or Investment Property, and any letter of credit, guarantee, claim, security interest, or other security held by or granted to a Person.

 

“ General Partner ” means General Growth Properties, Inc., a Delaware corporation and the general partner of GGPLP.

 

“ GGPLP ” means GGP Limited Partnership, a Delaware limited partnership.

 

“ GGMI ” means General Growth Management, Inc., a Delaware corporation.

 

“ Gift Card and Lotto Accounts ” means one or more deposit accounts established by the General Partner or any Subsidiary that are used exclusively to hold the proceeds of gift cards or lotto sales, respectively, which accounts shall not be included in the Collateral.

 

“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government.

 

“ Ground Lease ” means each ground lease pursuant to which a Debtor is leasing Real Estate from another Person.

 

“ Guaranteed Obligations ” has the meaning specified in Section 12.1(a) .

 

“ Guarantor ” means each of the Persons identified on Schedule 1.1B and any other wholly-owned Subsidiary that (a) ceases to be a Negative Pledge Debtor and/or (b) becomes a party to the Case.  Notwithstanding anything else in this Agreement, no Foreign Subsidiary and no Negative Pledge Debtor shall be a Guarantor.

 

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“ Guaranty ” means, with respect to any Person, all obligations of such Person which in any manner directly or indirectly guarantee or assure, or in effect guarantee or assure, the payment or performance of any indebtedness, dividend, or other obligations of any other Person (the “ guaranteed obligations ”), or assure or in effect assure the holder of the guaranteed obligations against loss in respect thereof, including any such obligations incurred through an agreement, contingent, or otherwise:  (a) to purchase the guaranteed obligations or any property constituting security therefor; (b) to advance or supply funds for the purchase or payment of the guaranteed obligations or to maintain a working capital or other balance sheet condition; or (c) to lease property or to purchase any debt or equity securities or other property or services.

 

“ Guaranty Supplement ” has the meaning specified in Section 12.5 .

 

“ Hedge Agreements ” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other hedging agreements.

 

“ Improvements ” means all buildings, structures and other improvements located on any of the Properties and owned by any Debtor from time to time.

 

“ Initial Lender ” means each of the Persons listed on the signature pages to this Agreement as an “Initial Lender.”

 

“ Insurance Requirements ” means, collectively, (a) all material terms of any insurance policy required pursuant to this Agreement and (b) all material regulations and then current standards applicable to or affecting any of the Properties or any portion thereof or any use or condition thereof, which may, at any time, be recommended by the board of fire underwriters, if any, having jurisdiction over any of the Properties, or any other body exercising similar functions.

 

“ Intercompany Subordination Agreement ” means, collectively, that certain (i) Deed of Trust Subordination Agreement by and among the General Partner, GGPLP, Century Plaza, L.L.C., Century Plaza, Inc. and the Agent in the form of Exhibit K-1 , and (ii) Mortgage Subordination Agreement by and among the General Partner, GGPLP, Howard Hughes Properties, Inc., TRC and the Agent in the form of Exhibit K-2 .

 

“ Interest Determination Date ” means, in connection with the determination of the LIBOR Rate for any Interest Period, the second Business Day preceding the first day of such Interest Period; provided that the initial Interest Determination Date under this Agreement shall be the Funding Date.

 

“ Interest Period ” means, a period of (i) one month or such shorter time period as may be consented to by Agent (such consent not to be unreasonably withheld) and (ii) with the consent of the Agent, one, two, three, six or, if acceptable to all Lenders, nine months as selected by Borrowers in the applicable Funding Notice or Continuation Notice (A) initially, commencing on the Funding Date or Continuation Date thereof, as the case may be; and (B) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided , (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest

 

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Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day, (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c)  of this definition, end on the last Business Day of a calendar month, and (c) no Interest Period shall extend beyond the Outside Date.

 

“ Investment Property ” means “investment property,” as defined in the UCC, and any (a) securities whether certificated or uncertificated, (b) securities entitlements, (c) securities accounts, (d) commodity contracts and (e) commodity accounts, together with all other units, shares, partnership interests, membership interests, equity interests, rights or other equivalent evidences of ownership (howsoever designated) issued by any Person.

 

“ Investments ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (i) the purchase or other acquisition of Capital Stock or debt or other securities of another Person, (ii) a loan, advance or capital contribution to, Guaranty or assumption of Debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person or (iii) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person (other than purchases of (1) real property and related rights that are adjacent to or ancillary to any Property or (2) other assets ancillary to a Property of the Debtors or (3) the Capital Stock of a Person whose assets consist primarily of any of the foregoing).  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

 

“ IRS ” means the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.

 

“ Issuer ” has the meaning specified in Section 6.2(c) .

 

“ Knowledge ” means, with respect to any Obligor, the actual knowledge of the president, chief executive officer, chief financial officer, general counsel, vice president and associate general counsel of development and finance or the equivalent officer performing similar functions of any of the foregoing, in each case of such Obligor.

 

“ Lead Arranger ” means UBS Securities LLC, solely in its capacity as lead arranger under this Agreement.

 

“ Lease ” means any lease, sublease, sub-sublease, license, letting, concession, occupancy agreement or other agreement (whether written or oral and whether now or hereafter in effect) under which any Debtor is a lessor, existing as of the Closing Date or hereafter entered into by any Debtor, pursuant to which any other Person (including Affiliates of any Debtor) is granted a possessory interest in, or right to use or occupy all or any portion of any space in any of the Properties, and every modification, amendment or other agreement relating to such lease, sublease, sub-sublease, or other agreement entered into, in accordance with the terms of the Loan

 

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Documents, in connection with such lease, sublease, sub-sublease, or other agreement and all agreements related thereto, and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.

 

“ Leased Properties ” means the Real Estate leased by a Debtor, as lessee, pursuant to a Ground Lease which Real Estate leased as of the Petition Date is listed on Schedule 1.1C .

 

“ Legal Requirements ” means:  (a) all applicable and legally binding governmental statutes, laws, rules, orders, regulations, ordinances (including, without limitation, zoning and other similar ordinances), judgments, decrees and injunctions of Governmental Authorities (including Environmental Laws) affecting either a Debtor or the Property or any portion thereof or the construction, ownership, use, alteration or operation thereof, or any portion thereof (whether now or hereafter enacted and in force), and (b) all permits, licenses and authorizations and regulations relating thereto.

 

“ Lender ” means any Person, in its capacity as a lender hereunder and its successors and permitted assigns in such capacity as a lender, and “ Lenders ” means two or more of such Persons, collectively.

 

“ LIBOR Rate ” means the greater of (a) 1.50% per annum and (b) the rate per annum determined by the Agent to be the arithmetic mean of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on the Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m., London, England time, on the second full London Business Day preceding the first day of such Interest Period; provided , however , that (i) if no comparable term for an Interest Period is available, the rate per annum shall be determined by using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall at any time no longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page, the rate per annum shall equal the rate at which the Agent is offered deposits in Dollars at approximately 11:00 a.m., London, England time, two London Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein.  “Telerate British Bankers Assoc. Interest Settlement Rates Page” shall mean the display designated as Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market).

 

All percentages resulting from any calculations or determinations referred to in this definition will be rounded upwards to the nearest multiple of 1/1,000 of 1% and all United States dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent or more being rounded upwards).

 

“ Lien ” means:  (a) any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute, or contract, and including a security interest, charge, claim, or lien arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment, deposit arrangement, agreement, security agreement, conditional sale or trust receipt or a lease, consignment, or bailment for security purposes and (b) to the extent not included under clause (a)  preceding, any

 

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reservation, exception, encroachment, easement, right of way, covenant running with the land, condition, restriction, lease, or other title exception or encumbrance affecting any Property, in each case excluding any zoning or similar law or right reserved to or vested in any Governmental Authority to contest or regulate the use of any Property.

 

“ Loan Documents ” means, collectively (a) the Financing Order, (b) this Agreement, (c) the Term Note and (d) any other agreements, instruments, and documents heretofore, now or hereafter evidencing, securing, guaranteeing, or otherwise relating to the Obligations or the Collateral.

 

“ London Business Day ” shall mean any day on which banks are generally open for dealings in dollar deposits in the London interbank market.

 

“ Loss Proceeds ” means amounts, awards or payments payable to any Debtor or the Agent in respect of all or any portion of any of the Properties in connection with a Casualty or Condemnation thereof (after the deduction therefrom and payment to such Debtor and the Agent (or the holder of any Pre-Petition Lien with respect to such Property, any Tenant of such Property or holder of any Ground Lease or REA in respect of such Property to the extent required by the terms of the documents evidencing Pre-Petition Liens, the Lease, the Ground Lease or REA with such Person, as applicable), respectively, (a) of any and all reasonable out-of-pocket expenses incurred by such Debtor, the Agent or such other Person in the recovery thereof, including all reasonable out-of-pocket attorneys’ fees and disbursements, the fees of insurance experts and adjusters and the reasonable out-of-pocket costs incurred in any litigation or arbitration with respect to such Casualty or Condemnation, (b) of any taxes payable with respect to such payments and (c) of any amounts required to be paid to or for the benefit of the holders of any Pre-Petition Lien).

 

“ M&M Liens ” means mechanics’, materialmen’s, repairmen’s or similar Liens created under any contract or existing under any applicable law and affecting any Property.

 

“ Main Operating Account ” has the meaning specified in the first day motions and orders.

 

“ Major Entities ” means, on any date, the General Partner, GGPLP, TRC, any Obligor that owns any First Lien Property and any direct or indirect parent holding company of such Obligor.

 

“ Major Lease ” means any Lease which covers more than 75,000 square feet of rentable building area.

 

“ Major REA ” means any reciprocal easement agreement with respect to a regional shopping center entered into by the applicable Debtor and an anchor occupant.

 

“ Majority Lenders ” means one or more Lenders whose Pro Rata Shares aggregate more than 50.0% as such percentage is determined under the definition of Pro Rata Share set forth herein.

 

“ Margin Stock ” means “margin stock” as such term is defined in Regulation T, U, or X of the Federal Reserve Board.

 

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“ Market Maker ”  means (a) any Person identified, in writing, to the Borrowers by or on behalf of the Initial Lenders prior to delivery by the Initial Lenders of the signed Commitment Letter and (b) any firm that regularly makes a trading market in, or quotes prices for purchase and sale of, debt instruments and which, in the case of this clause (b) , is approved by the Borrowers, such approval not to be unreasonably withheld.

 

“ Material Adverse Effect ” means:  (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties or condition (financial or otherwise) of the Debtors, taken as a whole, or of the Collateral, taken as a whole, (b) a material adverse change in, or a material adverse effect upon, the First Lien Properties, taken as a whole, (c) a material adverse change in, or a material adverse effect upon, the Negative Pledge Properties, taken as a whole, or (d) a material adverse effect upon the legality, validity, binding effect, or enforceability against any Obligor of the Loan Documents, taken as a whole; provided that, for purposes of determining the existence or occurrence of a Material Adverse Effect, (i) the effect of any Casualty or Condemnation shall be excluded, (ii) “Material Adverse Effect” excludes the foregoing if and to the extent the foregoing arise as a result of the filing of the Petitions and commencement of the Case and/or the events leading thereto and (iii) when used in this Agreement with respect to any action, event or circumstance that is subject to the Automatic Stay, such action, event or circumstance could not have, or be expected to have, a Material Adverse Effect for so long as such action, event or circumstance remains subject to the Automatic Stay.

 

“ Material Agreements ” means each contract and agreement (other than Leases and agreements in respect of Debt) relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of any Properties (a) under which a Debtor has the obligation to pay more than $10,000,000 per annum or (b) as to which the breach, nonperformance or cancellation thereof, or the failure thereof to be renewed could reasonably be expected to have a Material Adverse Effect.

 

“ Maturity Date ” means the date that is the earliest to occur of (a) the Outside Date, (b) the Plan Date or (c) the date the Term Loan is accelerated pursuant to the terms hereof, whether at stated maturity, upon an Event of Default or otherwise.

 

“ Maximum Rate ” has the meaning specified in Section 2.5 .

 

“ Maximum Term Loan Amount ” means the lesser of (a) $400,000,000 or (b) such amount as is approved by the Bankruptcy Court to be advanced pursuant to the Financing Order.

 

“ Mortgage ” has the meaning specified in Section 6.3 .

 

“ Multi-employer Plan ” means a multi-employer plan as defined in Section 3(37) or Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to by any Borrower or any ERISA Affiliate.

 

“ Municipal Financing ” means any tax increment financings, sales or real estate tax rebates, payment in lieu of taxes (PILOTs), special improvement districts, financings funded by the issuance of bonds or other negotiable instruments sponsored or issued by a Governmental

 

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Authority or quasi-Governmental Authority, financings related to on-site or off-site infrastructure or public works or any other financing arrangements for which a Debtor is an obligor and a Governmental Authority or quasi-Governmental Authority is the obligee.

 

“ Negative Pledge Debtor ” means (i) any Subsidiary of the Borrower party to the Case on the Closing Date which holds one or more Negative Pledge Properties, (ii) any wholly-owned Subsidiary becoming a party to the Case after the Closing Date which holds one or more Negative Pledge Properties and (iii) any Subsidiary of a Person set forth in clause (i) or clause (ii) above.

 

“ Negative Pledge Properties ” means (a) all Properties other than First Lien Properties and (b) all Capital Stock of a Person owning Property (or the direct holding company of such Person) which Capital Stock has been pledged to secure Prior Lien Debt constituting so-called “mezzanine loans.”

 

“ Negative Pledge Property Retention Amount ” means, with respect to any sale or other disposition of any Negative Pledge Property (or any Debtor owning any Negative Pledge Property or its direct or indirect parent holding company), an amount equal to (a) 50% of all Net Proceeds of all such sales or other dispositions aggregating up to $100 million of Net Proceeds, (b) 40% of all Net Proceeds of such sales or other dispositions aggregating more than $100 million and up to $200 million of Net Proceeds, (c) 30% of all Net Proceeds of such sales or dispositions aggregating more than $200 million and up to $300 million of Net Proceeds and (d) 20% of all Net Proceeds of such sales or dispositions aggregating more than $300 million of Net Proceeds.

 

“ Net Proceeds ” means, with respect to any sale or disposition contemplated in Section 3.3(a) , an amount equal to all proceeds of such sale or disposition net of the items specified in Section 3.3(a)(1) , (2) , (3)  and (5) .

 

“ New Lending Office ” has the meaning specified in Section 5.1(d) .

 

“ Non-Debtor Guarantor ” means GGMI unless it becomes a party to the Case.

 

“ Non-U.S. Lender ” means each Lender (or Assignee) that is not a “United States person” as defined in Section 7701(a)(30) of the Code.

 

“ Obligations ” means all loans, advances, liabilities, obligations, covenants, duties, and debts owing by the Obligors (or any thereof) to the Agent and/or any Lender, arising under or pursuant to this Agreement or any of the other Loan Documents, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, acceptance, loan, guaranty, indemnification, or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys’ fees, filing fees, and any other sums chargeable to any Obligor hereunder or under any of the other Loan Documents.  “Obligations” includes, without limitation, all debts, liabilities, and obligations of the Obligors now or hereafter arising from or in connection with the Term Loan and all Exit Fees.

 

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“ Obligor ” means either Borrower or any Guarantor, and “ Obligors ” means the Borrowers and the Guarantors.

 

“ Obligor Materials ” has the meaning specified in Section 7.2 .

 

“ OFAC List ” means the list of specially designated nationals and other prohibited parties maintained by the United States Treasury Department’s Office of Foreign Assets Control.

 

“ Other Taxes ” means any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies (excluding, in the case of each Lender and the Agent, such taxes (including income taxes or franchise taxes) as are imposed on or measured by such Lender’s or the Agent’s, as the case may be, net income) which arise from any payment made hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any other Loan Documents, excluding any and all taxes that are attributable to such Lender’s or the Agent’s failure to comply with the applicable requirements set forth in Section 14.10 .

 

“ Outside Date ” means May 16, 2011.

 

“ Participant ” has the meaning specified in Section 13.3(f) .

 

“ Participant Register ” has the meaning specified in Section 13.3(g) .

 

“ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001; Public Law 107-56).

 

“ Payment Date ” means the first Business Day of each month.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to any of its principal functions thereof.

 

“ Pension Plan ” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA which any Obligor or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions at any time during the current year or the immediately preceding five plan years, but excluding any Multi-employer Plan.

 

“ Permits ” means all licenses, permits, variances and certificates used in connection with the ownership, operation, use or occupancy by each Obligor and each Debtor in respect of its Properties (including certificates of occupancy, business licenses, state health department licenses, licenses to conduct business and all such other permits, licenses and rights, obtained from any Governmental Authority or private Person concerning ownership, operation, use or occupancy of the Property).

 

“ Permitted Liens ” means:

 

(a)           the Agent’s Liens;

 

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(b)           Pre-Petition Liens and Liens resulting from the refinancing of the obligations secured thereby; provided that (i) such refinancing is on the same or substantially similar terms, (ii) the obligations secured thereby (A) shall not be increased, (B) shall have a final maturity no sooner than and a weighted average life no less than the obligations being refinanced and (C) shall not be the obligation of any Person other than the Person previously obligated thereon, and (iii) the Liens shall not cover any additional property;

 

(c)           Liens for taxes, fees, assessments, or other charges of a Governmental Authority not overdue by more than 30 days or, if more than 30 days overdue, which are (i) subject to the Automatic Stay or (ii) being contested in good faith and by appropriate proceedings diligently pursued and as to which adequate financial reserves have been established in accordance with GAAP on the applicable Debtor’s books and records;

 

(d)           Liens (i) consisting of deposits made in the ordinary course of business exclusively in connection with, or to secure payment of, obligations under worker’s compensation, unemployment insurance, social security, and other similar laws, or to secure the performance of bids, tenders, or contracts (other than for the repayment of borrowed money) or to secure indemnity, performance, performance and completion bonds or guarantees, other similar obligations for the performance of bids, tenders, or contracts (other than for the repayment of borrowed money) or to secure statutory obligations (other than Liens arising under ERISA or Environmental Liens) or surety, stay, customs or appeal or other similar bonds, (ii) consisting of deposits made in the ordinary course of business exclusively to secure liability for insurance premiums or deductibles or self-retention amounts, (iii) securing Debt of the type set forth in ]Section 9.11(a)(ix)  secured exclusively by the policies financed thereby (and the proceeds thereof), and (iv) consisting of deposits in respect of letters of credit or bank guaranties posted exclusively to support payment of the items in clauses (i)  and (ii)  or exclusively to secure letters of credit or bank guaranties otherwise permitted under Section 9.11(a)(vi)  or Section 9.11(a)(xvii) ;

 

(e)           Liens securing the claims or demands of carriers, warehousemen, landlords, and other like Persons;

 

(f)            Liens constituting encumbrances in the nature of reservations, exceptions, encroachments, easements, rights of way, covenants running with the land, and other similar title exceptions or encumbrances affecting any Real Estate of a Debtor including any REA; provided that such Liens do not in the aggregate materially detract from the value of such Real Estate for its intended purpose or materially interfere with its use in the ordinary conduct of such Debtor’s business or the business of any material tenant occupying any of such Real Estate;

 

(g)           Liens securing the claims or demands of materialmen, mechanics, repairmen and similar Liens: (i) in respect of work done prior to the Petition Date, and (ii) M&M Liens arising after the Petition Date in respect of amounts not overdue by more than 60 days or, if more than 60 days overdue, the amount or validity of such Lien is being contested by the Debtor whose Property is affected thereby, by appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence;

 

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(h)           Liens arising from judgments and attachments in connection with court proceedings; provided the attachment or enforcement of such judgment Liens would not otherwise result in an Event of Default hereunder;

 

(i)            any “adequate protection liens” expressly contemplated by the Financing Order;

 

(j)            Liens created with the prior written consent of the Majority Lenders;

 

(k)           Liens not otherwise referred to in this definition incurred in the ordinary course of business that do not secure Debt; provided that the granting of such Lien could not be reasonably expected to have a Material Adverse Effect;

 

(l)            licenses of Proprietary Rights granted by Debtors in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Debtors, taken as a whole, the granting of which could not reasonably be expected to result in a Material Adverse Effect;

 

(m)          rights of existing and future Tenants (as tenants only) pursuant to written Leases related to the Property in question to the extent such Leases are entered into in conformity with the provisions of this Agreement;

 

(n)           any interest or title of a lessor (or its mortgagor) under any Ground Lease (with respect to a Leased Property) (including a sub-lessor) under any operating lease or Ground Lease;

 

(o)           leases, subleases, licenses and sublicenses granted to other Persons not interfering in any material respect with the (i) ordinary course of the business of the Debtors, taken as a whole, and (ii) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Debtor or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;

 

(p)           bankers’ Liens, rights of setoff and other similar Liens on cash and cash equivalents on deposit in one or more accounts maintained by any Debtor, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements in respect of such deposit accounts, and not securing any obligations relating to any extension of credit;

 

(q)           the filing of UCC financing statements solely as a precautionary measure in connection with operating leases, consignment of goods or sales of Accounts;

 

(r)            Liens consisting of (i) an agreement to dispose of any property pursuant to a disposition permitted under Section 9.8 and (ii) earnest money deposits of cash or cash equivalents by any Debtor in connection with any letter of intent or purchase agreement permitted hereunder;

 

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(s)           the granting of any purchase option, right of first refusal, right of first offer or similar right in respect of any portion of any of the Properties or the subjecting of any portion of any of the Properties to restrictions on transfer, in each case, in the ordinary course of business and (i) to the extent existing on the Petition Date, (ii) consisting of customary purchase options, rights of first refusal, rights of first offer or similar rights given in respect of anchor occupant parcels or outparcels, in the case of clause (ii) , that do not contain a restraint on alienation to reasonably similar competitors of the Debtors, taken as a whole, or (iii) in respect of any Negative Pledge Property;

 

(t)            Liens securing Debt of the type permitted under Section 9.11(a)(iv) provided that individual financings of assets of the Debtors provided by one lender or its Affiliates may be cross-collateralized to other financings of assets provided by such lender or its Affiliates;

 

(u)           Liens set forth in any UCC search results delivered or made available to the Agent on or prior to the Petition Date with respect to the Non-Debtor Guarantor; and

 

(v)           Liens evidencing and/or securing any Municipal Financing and, to the extent constituting Debt, if such Debt is permitted under Section 9.11(a)(xxi) .

 

“ Person ” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity.

 

“ Petition Date ” has the meaning specified in Recital A of this Agreement (the “ original petition date ”) and, with respect to any wholly-owned Subsidiary of the Borrowers that becomes a party to the Case after the original petition date, the date on which such Subsidiary becomes subject to the Case.

 

“ Petitions ” means the voluntary petitions filed by the Debtors with the Bankruptcy Court for relief under Chapter 11 of the Bankruptcy Code.

 

“ Plan Date ” means the effective date of a plan of reorganization in respect of the Debtors in the Case.

 

“ Platform ” has the meaning specified in Section 7.2 .

 

“ Pledged Collateral ” has the meaning specified in Section 6.12(b) .

 

“ Prepayment Cash Collateral Account ” has the meaning specified in Section 3.3(d) .

 

“ Pre-Petition Liens ” means Liens which (a) were valid, enforceable, properly perfected (or are permitted to be perfected after the Petition Date pursuant to the Bankruptcy Code and are so perfected) and non-avoidable as of the Petition Date, if any, (b) as a matter of applicable nonbankruptcy law, would have priority over the Agent’s Liens as of the Petition Date if the Agent’s Liens were created as of such date (or with respect to Liens permitted to be perfected after the Petition Date pursuant to the Bankruptcy Code and which are so perfected, have priority over the Agent’s Liens as of such date of perfection) and (c) are not avoided in the Case.

 

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“ Primary Properties ” means the Properties described on Schedule 1.1D .

 

“ Prior Lien Debt ” means the Debt and other obligations existing as of the Petition Date which are secured by Pre-Petition Liens.

 

“ Private Side Communications ” has the meaning specified in Section 7.2 .

 

“ Pro Rata Share ” means, with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the sum of the principal amount of the Term Loan owed to such Lender and the denominator of which is the aggregate principal amount of the Term Loan owed to all Lenders.

 

“ Professional Person ” means a Person who is an attorney, accountant, appraiser, auctioneer, financial advisor, or other professional Person and who is retained with approval of the Bankruptcy Court, after notice and opportunity for hearing to the Agent and the Lenders, by (a) any Debtor pursuant to Section 327 of the Bankruptcy Code, (b) a committee pursuant to Section 1103(a) of the Bankruptcy Code or (c) the official committee of unsecured creditors.

 

“ Properties ” means the Fee Properties and the Leased Properties, including all Improvements thereon.

 

“ Proprietary Rights ” means, with respect to a Person, all of such Person’s now owned and hereafter arising or acquired:  licenses, franchises, permits, patents, patent rights, copyrights, works which are the subject matter of copyrights, trademarks, service marks, trade names, trade styles, patent, trademark and service mark applications, and all licenses and rights related to any of the foregoing (including goodwill), and all other rights under any of the foregoing, all extensions, renewals, reissues, divisions, continuations, and continuations in part of any of the foregoing, and all rights to sue for past, present, and future infringement of any of the foregoing.

 

“ Public Lender ” has the meaning specified in Section 7.2 .

 

“ REA ” means any reciprocal easement or similar agreement affecting any Property.

 

“ Real Estate ” means, with respect to any Person, all of such Person’s now or hereafter owned or leased estates in real property, including, without limitation, all fees, leaseholds, and future interests, together with all of such Person’s now or hereafter owned or leased interests in the improvements thereon, the fixtures attached thereto, and the easements appurtenant thereto.  The Real Estate includes, without limitation, the Properties.

 

“ Register ” has the meaning specified in Section 13.3(d) .

 

“ REIT ” means a real estate investment trust as defined in Section 856 of the Code or any successor provision.

 

“ Release ” means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of a Contaminant into the environment including, without limitation, indoor air.

 

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“ Rent Roll ” has the meaning specified in Section 8.20(a) .

 

“ Responsible Officer ” means, with respect to any Obligor, the chief executive officer, the president, the chief financial officer, or any senior vice president, the treasurer, any assistant treasurer, the Secretary or any assistant secretary of such Obligor (or of the general partner or manager of such Obligor if it is not a corporation), or any other officer having substantially the same authority and responsibility.

 

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of any Debtor, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock or any option, warrant or other right to acquire any such Capital Stock (other than convertible Debt).

 

“ Subsidiary ” as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the General Partner.

 

“ Taxes ” means any and all present or future taxes, levies, imposts, deductions, charges, or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Agent, taxes (including income taxes or franchise taxes and branch profits taxes) as are imposed on or measured by such Lender’s or the Agent’s, as the case may be, net income by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender or the Agent, as the case may be, is organized or maintains a lending office or does business, or by a jurisdiction to which the Agent or such Lender is or previously was otherwise connected pursuant to the laws of such jurisdiction, other than by reason of activity arising solely from the Agent or such Lender having executed this Agreement and having enjoyed its rights and performed its obligations under this Agreement.

 

“ Tenant ” means any Person liable by contract or otherwise to pay monies (including a percentage of gross income, revenue or profits) pursuant to a Lease.

 

“ Tenant Allowances ” means tenant improvements paid or reimbursed through allowances to or credit against rent only by a Tenant pursuant to such Tenant’s Lease.

 

“ Cash Management Order ” means the order of the Bankruptcy Court entered by the Court in respect of cash management of the Debtor.

 

“ Tenant Obligations Order ” means the order of the Bankruptcy Court entered by the Court in respect of tenant obligations of the Debtor.

 

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“ Term Loan ” has the meaning specified in Recital B of this Agreement.

 

“ Term Note ” means a promissory note made by the Borrowers payable to the order of a Lender evidencing the obligation of the Borrowers to pay the aggregate unpaid principal amount of the Term Loan made to the Borrowers by such Lender and/or held by such Lender (and any promissory note or notes that may be issued from time to time in substitution, renewal, extension, replacement, or exchange thereof whether payable to such Lender or to a different Lender in connection with a Person becoming a Lender after the Closing Date or otherwise) substantially in the form of Exhibit D , with all of the blanks properly completed.

 

“ Threshold Amount ” means, with respect to any Property, $25,000,000.

 

“ TRC ” means The Rouse Company LP.

 

“ Unfunded Pension Liability ” means the excess of a Pension Plan’s actuarial value of benefit liabilities under Section 4001(a)(16) of ERISA, over the current actuarial value of that Pension Plan’s assets allocable to such benefit liabilities, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 or Section 430 of the Code (or corresponding provisions of ERISA) for the applicable plan year.

 

“ UCC ” means the Uniform Commercial Code (or any successor statute) of the State of New York or of any other state the laws of which are required by Section 9-301 thereof to be applied in connection with the issue of perfection of security interests.

 

“ United States ” means the United States of America.

 

“ U.S. Lender ” means each Lender (or Assignee) that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

Section 1.2                                                   Accounting Terms .  Any accounting term used in this Agreement without definition shall have, unless otherwise specifically provided herein, the meaning customarily given in accordance with GAAP, and all financial computations hereunder shall be computed, unless otherwise specifically provided herein, in accordance with GAAP.

 

Section 1.3                                                   Interpretive Provisions .

 

(a)                                   The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)                                  The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(i)                                      The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices, and other writings, however evidenced.

 

(ii)                                   The term “including” is not limiting and means “including without limitation.”

 

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(iii)                                In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”

 

(c)                                   Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, amendments and restatements, supplements and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation.

 

(d)                                  The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

(e)                                   This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the Agent, the Lenders, and the Obligors and are the products of all parties.  Accordingly, the Loan Documents shall not be construed against the Agent, any Lender, or any Obligor merely because of any such Person’s involvement in their preparation.

 

(f)                                     Terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the UCC.

 

(g)                                  Whenever the payment of any obligation or the performance of any covenant, agreement or obligation is stated to be due on a day which is not a Business Day, such payment or performance shall (except to the extent set forth in the definition of Interest Period) be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as applicable.

 

(h)                                  All references in any Loan Document to all or any part of the Obligations being paid in full, payment in full, paid in full in cash, payment in full in cash, paid in cash, repayment in full, repaid in full, payment and satisfaction in full or indefeasibly paid or any similar phrase shall refer to such portion of the Obligations either being paid in full in cash or being converted to equity and/or debt to the extent permitted by, and in the manner set forth on, Schedule 3.1-A .

 

ARTICLE 2

TERM LOAN; INTEREST AND FEES

 

Section 2.1                                                   Total Facility .  Subject to all of the terms and conditions of this Agreement and the Financing Order, the Lenders severally agree to make available a term credit facility of up to the Maximum Term Loan Amount for use by the Debtors.  The term credit facility described in the preceding sentence is not a revolving line of credit, and the Borrowers may not reborrow sums previously advanced as part of the Term Loan and prepaid or repaid.

 

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Section 2.2                                                   Term Loan .

 

(a)                                   The Term Loan .  Subject to Section 10.1 , the Lenders agree, on the terms and conditions hereinafter set forth, to make a single advance in the amount equal to its Commitment or such lesser amount as is authorized by the Financing Order to the Borrowers on or, at the Lenders’ option, before the date which is two (2) Business Days following the Entry Date.

 

(b)                                  No Liability .  The Agent shall not incur any liability to any Obligor as a result of acting reasonably under this Section 2.2 , and the crediting of Term Loan to the Borrowers’ deposit account, or wire transfer to such Person as the Borrowers shall direct, shall conclusively establish the obligation of the Borrowers to repay such Term Loan as provided herein.

 

(c)                                   Notation .  The Agent shall record on its books the principal amount of the Term Loan owing to each Lender from time to time.  In addition, each Lender is authorized, at such Lender’s option, to note the date and amount of each payment or prepayment of principal of such Lender’s Term Loan in its books and records, including computer records, such books and records constituting presumptive evidence, absent manifest error, of the accuracy of the information contained therein.

 

(d)                                  Term Notes .  The Borrowers shall execute and deliver to the Agent, on behalf of each Lender, effective as of the Closing Date and on the date of the assignment of any portion of any Lender’s Term Loan, a Term Note, to evidence such Lender’s Term Loan, in the principal amount equal to the greater of the amount of such Lender’s Commitment with respect to the Term Loan or the aggregate principal amount of the Term Loan owed to such Lender.

 

(e)                                   Commitment Termination .  All Commitments shall automatically terminate at 5:00 P.M., New York City time, on June 1, 2009, if the conditions to the Funding Date set forth in Section 10.1 shall not have been satisfied by such time.

 

Section 2.3                                                   Interest .

 

(a)                                   Interest Rates .  The Term Loan shall bear interest on the unpaid outstanding principal amount thereof (including, to the extent permitted by law, on accrued interest thereon not paid when due) from the date made until paid in full in cash at a per annum rate equal to the lesser of (i) the Maximum Rate or (ii) the LIBOR Rate for the relevant Interest Period applicable to such Term Loan, plus twelve percent (12.0%).  Subject to Section 2.5 , all interest charges on the Obligations shall be computed on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a 365-day year).

 

(b)                                  The basis for determining the LIBOR Rate and the Interest Period with respect to the Term Loan or any portion of the Term Loan (as the Borrowers may elect), shall be selected by the Borrowers and notified to Agent pursuant to the applicable Funding Notice or Continuation Notice, as the case may be.

 

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(c)                                   The Borrowers shall deliver a Continuation Notice to Agent no later than 1:00 p.m. (New York City time) at least three Business Days in advance of the expiration of any Interest Period.

 

(d)                                  In the event the Borrowers fail to specify an Interest Period for determining the LIBOR Rate in the applicable Funding Notice or Continuation Notice, or if the Borrowers fail to deliver a Continuation Notice as required pursuant to clause (c)  above, the LIBOR Rate for the related Term Loan will be automatically determined using  one-month LIBOR for purposes of clause (b)  of the definition of “LIBOR Rate.”

 

(e)                                   Default Rate .  Subject to Section 2.5 , upon the occurrence and during the continuance of an Event of Default, the principal amount of the Term Loan outstanding and, to the extent permitted by applicable law, any interest payments on the Term Loan or any fees, in each case, which are overdue, shall thereafter bear interest payable on demand at a rate per annum equal to the lesser of (i) the Maximum Rate or (ii) the Default Rate.

 

Section 2.4                                                   Exit Fees .  Subject to Section 2.5 , the Borrowers agree to pay to the Agent, for the account of the Lenders, an exit fee (the “ Exit Fee ”) in the following amounts and on the following dates:  (a) in the case of any prepayment in whole or in part in cash or otherwise of the Term Loan prior to the Maturity Date, whether by virtue of any voluntary or mandatory prepayment or otherwise (and including as a result of the application of any Collateral or proceeds thereof to the principal amount of the Term Loan as permitted by the Loan Documents but excluding any such application as a result of the occurrence of an Event of Default and the acceleration of the maturity of the Term Loan), an Exit Fee in the amount of three and three-quarters percent (3.75%) of the principal amount of the Term Loan prepaid, payable on the date of such prepayment and (b) on the earlier to occur of the Maturity Date or the date of the acceleration of the maturity of the Term Loan as a result of the occurrence of an Event of Default, an Exit Fee in the amount equal to the remainder of (i) three and three-quarters percent (3.75%) of the initial aggregate Commitments minus (ii) the aggregate amount of Exit Fees previously paid by the Borrowers to the Agent pursuant to clause (a)  above.  The Exit Fees shall be fully earned when due and are non-refundable in all cases.  The payment of the Exit Fee on the Maturity Date may be paid by conversion of such amount as provided in Schedule 3.1-A.

 

Section 2.5                                                   Interest Limitation   Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to the Term Loan, together with all fees, charges and other amounts which are treated as interest on such Term Loan under applicable law (collectively the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Lenders holding such Term Loan in accordance with applicable law, the rate of interest payable in respect of such Term Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Term Loan but were not payable as a result of the operation of this Section 2.5 shall be cumulated and the interest and Charges payable to such Lender in respect of such Term Loan or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount shall have been received by such Lender if such amount may be paid to such Lender without violating any Legal Requirement.

 

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Section 2.6                                                   Agent’s Fee.   Subject to Section 2.5 , the Borrowers agree to pay, to the Agent for the Agent’s own account, collateral management, agency and administrative fees at the times and in the amounts separately agreed in writing among the Borrowers and the Agent; provided that the amount of such fees shall not exceed $30,000 per month but may be required to be paid annually in advance.

 

ARTICLE 3

PAYMENTS AND PREPAYMENTS

 

Section 3.1                                                   Term Loan .  The Borrowers jointly and severally agree to repay the outstanding principal balance of the Term Loan plus all accrued but unpaid interest thereon, together with all other non-contingent Obligations, on the Maturity Date; provided that the General Partner (on its own behalf and on behalf of GGPLP) shall have the right to elect to convert the outstanding principal amount of the Term Loan, the Exit Fee and accrued and unpaid interest due and owing upon the Plan Date (the “ Conversion Amount ”) to equity and/or debt to the extent permitted by, and in the manner set forth on, Schedule 3.1-A .  Accrued and unpaid interest on the Term Loan shall be due and payable on each Payment Date (beginning on June 1, 2009) and on the Maturity Date, and the Borrowers agree to pay such accrued and unpaid interest on such dates (it being understood that the payment of interest on the Maturity Date may be paid by conversion of such amounts to the extent permitted by the preceding sentence).

 

Section 3.2                                                   Optional Prepayment of the Term Loan .  The Borrowers may prepay the principal of the Term Loan, in whole or in part, at any time and from time to time by (a) providing to the Agent two (2) Business Days prior written notice of its intention to make such prepayment and (b) paying to the Agent (i) all accrued and unpaid interest on the principal amount being prepaid and (ii) the required Exit Fee, in each case concurrently with the making of such prepayment; provided, however , that each such optional prepayment  shall be in a minimum principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof.

 

Section 3.3                                                   Mandatory Prepayments of the Term Loan .  The Borrowers shall prepay the principal amount of the Term Loan at the following times and in the following amounts:

 

(a)                                   (i) in the case of a sale or disposition pursuant to Section 9.8(d)  within two (2) Business Days (during which period no Obligor shall be entitled to make any Restricted Payments) and (ii) in the case of any sale or disposition of condominiums pursuant to Section 9.8(f)(i) , on or before the last Business Day of the applicable Fiscal Quarter during which such sale or disposition was made of (A) any First Lien Property (or any Debtor owning such First Lien Property or its direct or indirect parent holding company) or (B) any Negative Pledge Property (or any Debtor owning such Negative Pledge Property or its direct or indirect parent holding company), all proceeds of such sale or other disposition net of (1) the reasonable and customary out-of-pocket costs and expenses of such sale or disposition paid to Persons that are not Obligors or their Subsidiaries, (2) the amount applied to all obligations secured by a Pre-Petition Lien on the asset being sold or the Capital Stock of the Person (or the direct holding company of such Person) owning such asset being sold which is secured by any Pre-Petition Lien, (3) the amount of sales and transfer taxes that are payable by a Debtor or any Affiliate in connection therewith, (4) in the case of a sale or disposition of (x) First Lien Property, to the

 

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extent the net proceeds of all such sales or dispositions since the Closing Date exceed $75,000,000 in the aggregate and (y) Negative Pledge Property, the Negative Pledge Property Retention Amount, if applicable, and (5) an amount equal to the Exit Fee that will be payable in connection with such sale or disposition;

 

(b)                                  with respect to the Loss Proceeds of any Casualty or Condemnation with respect to any Property of any Debtor, at the time and in the amount of such prepayment as required by Section 9.4(e) , net of an amount equal to the Exit Fee that will be payable in connection with the application of such Loss Proceeds;

 

(c)                                   notwithstanding any of the other provisions of this Section 3.3 , so long as no Event of Default shall have occurred and be continuing, if any prepayment of the Term Loan is required to be made on a date other than on the last day of the Interest Period therefor and Breakage Costs would be payable as a result of prepayment on such other date, the Borrowers may, if Lenders have been requested in writing to, and have elected not to, waive such Breakage Costs, retain such amount of any such prepayment otherwise required to be made hereunder in a Breakage Prepayment Account (or pursuant to other arrangements satisfactory to the Agent) until the last day of such Interest Period, at which time such prepayment shall be made.  For purposes of this clause (c) , the term “ Breakage Prepayment Account ” means a deposit or securities account established by a Borrower with a bank or other financial institution designated by the Agent and over which the Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this clause (c) , pursuant to an account control agreement in form and substance satisfactory to the Agent.  If the maturity of the Term Loan has been accelerated pursuant to Section 11.2 , or if the Term Loan has matured in accordance with its terms the Agent shall at the direction of the Majority Lenders, apply all amounts on deposit in the Breakage Prepayment Accounts (or otherwise held by the Agent) to satisfy any of the Obligations; and

 

(d)                                  notwithstanding any of the other provisions of this Section 3.3 , so long as no Event of Default shall have occurred and be continuing, any prepayment of the Term Loan  required to be made pursuant to this Section may, at the election of the Borrowers, be maintained in a Prepayment Cash Collateral Account (or pursuant to other arrangements reasonably satisfactory to the Agent) and, so long as no Event of Default has occurred and is continuing, such amount shall not be required to be applied to reduce the principal amount of the Term Loan at such time as would otherwise be required by this Section 3.3 .  For purposes of this clause (d) , the term “ Prepayment Cash Collateral Account ” means a deposit or securities account established by a Borrower with a bank designated by the Agent and over which the Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this clause (d) ; provided that the Borrowers shall have the right to reasonably direct the investment of amounts on deposit in a Prepayment Cash Collateral Account in Cash Equivalents as the Borrowers shall elect.  If the maturity of the Term Loan has been accelerated pursuant to Section 11.2 or if the Term Loan has matured in accordance with its terms, the Agent  shall at the direction of the Majority Lenders apply all amounts on deposit in the Prepayment Cash Collateral Accounts (or otherwise held by the Agent) to satisfy any of the Obligations.

 

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Section 3.4                                                   Payments by the Borrowers .

 

(a)                                   All payments to be made by the Borrowers shall be made without set-off, recoupment, or counterclaim except as otherwise expressly permitted hereunder.  Except as otherwise expressly provided herein, all payments by the Borrowers shall be made to the Agent, for the account of the Lenders (but in any event in one wire transfer), at the Agent’s address set forth in Section 15.7 , and shall be made in Dollars and in immediately available funds, no later than 3:00 p.m. (New York City time) on the date specified herein.  Any payment received by the Agent later than 3:00 p.m. (New York City time) may, at the option of the Agent, be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue.

 

(b)                                  Unless the Agent receives notice from the Borrowers prior to the date on which any payment is due to the Lenders that the Borrowers will not make such payment in full as and when required, the Agent may assume that the Borrowers have made such payment in full to the Agent on such date in immediately available funds and the Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender.  If and to the extent the Borrowers have not made such payment in full to the Agent, each Lender shall repay to the Agent on demand such amount distributed to such Lender, together with interest thereon at the Federal Funds Rate for each day from the date such amount is distributed to such Lender until the date repaid.

 

(c)                                   The Borrowers agree to compensate each Lender for any loss, cost or expense (collectively, “ Breakage Costs ”) actually incurred by such Lender as a result of the making of a payment of the Term Loan for any reason (including, without limitation, the acceleration of the maturity of the Term Loan following an Event of Default) on a day that is not the last day of the applicable interest period.  To avoid doubt “Breakage Costs” shall not include the interest margins applicable to such prepaid Term Loan.  Each Lender will furnish to the Borrowers a certificate setting forth the basis and amount of each request by such Lender for compensation under this Section 3.4(c) , which certificate shall provide reasonable detail as to the calculation of such Breakage Costs.  Such certificate shall constitute prima facie evidence of the amount of such Breakage Costs, which shall be calculated by each Lender on a reasonable basis, consistent with the basis on which such calculations are then being made by similarly situated banks or financial institutions generally.

 

Section 3.5                                                   Apportionment, Application, and Reversal of Payments .  Except as otherwise expressly provided herein, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Term Loan to which such payments relate held by each Lender) and payments of the fees (including, without limitation, the Exit Fees) shall, as applicable, be apportioned ratably among the Lenders as of the date such fees are received by the Agent.  Except as specifically provided otherwise herein or in the Financing Order, all payments shall be remitted to the Agent and all such payments not constituting payment of specific fees, and all proceeds of Accounts or other Collateral received by the Agent, shall be applied, ratably, subject to the provisions of this Agreement, FIRST , to pay any interest or fees then due with respect to, or which constitute, Obligations, SECOND , to pay or prepay principal of the Term Loan under this Agreement, and THIRD , to the payment of any other Obligation.  The Agent shall promptly distribute to each

 

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Lender, pursuant to the applicable wire transfer instructions received from each Lender in writing, such funds as it may be entitled to receive.

 

Section 3.6                                                   Indemnity for Returned Payments .  If, after receipt of any payment which is applied to the payment of all or any part of the Obligations, the Agent or any Lender is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Agent or such Lender and the Borrowers shall be liable to pay to the Agent and the Lenders, and hereby do indemnify the Agent and the Lenders and hold the Agent and the Lenders harmless for, the amount of such payment or proceeds surrendered.  The provisions of this Section 3.6 shall be and remain effective notwithstanding any contrary action which may have been taken by the Agent or any Lender in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the Agent’s and the Lenders’ rights under this Agreement and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable.  The provisions of this Section 3.6 shall survive the termination of this Agreement.

 

Section 3.7                                                   The Agent’s Books and Records .  The Obligors agree that the Agent’s books and records showing the Obligations and the transactions pursuant to this Agreement and the other Loan Documents shall be admissible in any action or proceeding arising therefrom, and shall constitute rebuttably presumptive proof thereof, irrespective of whether any Obligation is also evidenced by a promissory note or other instrument.  Such books and records shall be deemed correct, accurate, and binding on the Borrowers and an account stated (except for corrections of errors discovered by the Agent) in the absence of evidence to the contrary.  In the event a timely written notice of objections is given by the Borrowers, only the items to which exception is expressly made will be considered to be disputed by the Borrowers.

 

ARTICLE 4

CASH COLLATERAL ACCOUNTS

 

Section 4.1                                                   Cash Collateral Accounts .

 

(a)                                   All cash of the Obligors shall be deposited by the Obligors in one or more accounts subject to the perfected Agent’s Lien by virtue of, and having the priority set forth in, the Financing Order and, except for the Main Operating Account, if at any time required by the Agent upon the occurrence and during the continuance of an Event of Default, under its exclusive dominion and control upon written notice to the General Partner and the applicable financial institution.  Such funds shall be held in a Cash Collateral Account until such time as the amounts held therein are applied by the relevant Obligors to pay expenses or otherwise used in accordance with this Agreement.  So long as no Event of Default shall have occurred and be continuing, amounts held in a Cash Collateral Account shall be available to the Obligors for use in a manner or for a purpose not prohibited by this Agreement.  During the existence of an Event of Default all amounts held in any Cash Collateral Account (other than

 

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amounts held in the Main Operating Account subject to the Liens in favor of the Adequate Protection  Parties (as defined in the Financing Order)), at the election of the Agent, shall be applied as required by Section 11.2(e) ; provided that during the existence of an Event of Default (1) notwithstanding the existence of such Event of Default or an acceleration of the Obligations, funds in the Main Operating Account that are not subject to the first priority Agent’s Lien shall not be transferred out of the Main Operating Account other than for ordinary course expenditures to protect and preserve the Collateral (including all documented payroll expenses (including benefits), operating expenses of the Properties, taxes, insurance premiums, ground rents with respect to the Properties, and cash management, in each case, in the ordinary course of business, and the adequate protection payments) and (2) funds in any Cash Collateral Account that are subject to the first priority Agent’s Lien (x) may, until otherwise directed by Agent, be transferred out of the Cash Collateral Accounts only for ordinary course expenditures to protect and preserve the Collateral (including all documented payroll expenses (including benefits), operating expenses of the Properties, taxes, insurance premiums, ground rents with respect to the Properties, and cash management, in each case, in the ordinary course of business and (y) at the Agent’s sole discretion and with the consent of the Majority Lenders, any funds in the Cash Collateral Accounts that are subject to the first priority Agent’s Lien may instead be applied at the direction of the Agent.

 

(b)                                  If no Event of Default has occurred and is continuing, the Obligors may invest the funds in any Cash Collateral Account as permitted by the Bankruptcy Court.

 

(c)                                   The Non-Debtor Guarantor shall maintain one or more accounts for the collection of the revenues and income of the Non-Debtor Guarantor and its Subsidiaries.  The Non-Debtor Guarantor shall pay its expenses and the expenses of its Subsidiaries from such account consistent with its past practices.  From time to time, and not less than once per calendar month, the Non-Debtor Guarantor shall cause any funds in excess of those needed to pay the actual and reasonably forecasted expenses of the Non-Debtor Guarantor and its Subsidiaries for the remainder of such month and the following month to be transferred into a Cash Collateral Account either directly or indirectly through one or more Cash Collateral Accounts.

 

(d)                                  The Obligors shall cause the Negative Pledge Debtors to use all cash of the Negative Pledge Debtors only in accordance with the Cash Management Order, the Tenant Obligations Order and the Financing Order.

 

ARTICLE 5

 

TAXES, YIELD PROTECTION, AND ILLEGALITY

 

Section 5.1                                                   Taxes .

 

(a)                                   Any and all payments by any Obligor to a Lender or the Agent under this Agreement and any other Loan Document shall be made free and clear of, and without deduction or withholding for any Taxes, except as provided below.  In addition, the Borrowers shall pay all Other Taxes.

 

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(b)                                  The Borrowers shall indemnify and hold harmless each Lender and the Agent for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 5.1 ) paid by such Lender or the Agent and any liability (including penalties, interest, additions to tax, and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  Payment under this indemnification shall be made within 30 days after the date such Lender or the Agent makes written demand therefor accompanied by a certificate setting forth in reasonable detail the amount and calculation of any indemnification payment so requested by such Lender or the Agent.  However, no Lender shall be entitled to any amounts under this Section 5.1 to the extent that the event giving rise to such Taxes or Other Taxes occurred more than one hundred and twenty (120) days prior to the date notice and demand therefor was given to the Borrowers.

 

(c)                                   If any Obligor shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder to any Lender or the Agent, then:

 

(i)                                      the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 5.1 ) such Lender or the Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made;

 

(ii)                                   such Obligor shall make such deductions and withholdings; and

 

(iii)                                such Obligor shall pay the full amount deducted or withheld to the relevant Governmental Authority or other authority in accordance with any Legal Requirements.

 

(d)                                  No Obligor shall be required to increase any amounts payable to a Lender (including an Assignee) or the Agent with respect to any Taxes under this Section 5.1 where (i) such Taxes are attributable to the failure of the Agent or such Lender to comply with the requirements of Section 14.10 or (ii) the obligation to withhold amounts with respect to Taxes existed on the date (A) the Agent or such Lender became a party to this Agreement or (B) with respect to payments to a Lender which changes its applicable lending office by designating a different lending office (a “ New Lending Office ”), the date such Lender designated such New Lending Office with respect to the Term Loan.

 

(e)                                   If the Agent or a Lender determines in its sole discretion that it has received a refund or credit that is attributable to any Taxes or Other Taxes as to which the Agent or such Lender has been indemnified by an Obligor, or with respect to which the Obligor has paid an additional amount hereunder, the Agent or such Lender shall within 30 days after the date of such receipt pay over the amount of such refund or credit (to the extent so attributable) to such Obligor.  If a Governmental Authority later determines that the Agent or such Lender is not entitled to such refund or credit, such Obligor shall return the amount of such refund or credit to the Agent or Lender upon written demand.

 

(f)                                     Within a reasonable period after the date of any payment by any Obligor of Taxes or Other Taxes pursuant to this Article 5 , such Obligor shall furnish the Agent the

 

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original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment reasonably satisfactory to the Agent.

 

(g)                                  Notwithstanding any other provision contained herein, if a Lender is classified for U.S. federal income tax purposes as a partnership and is composed of partners, which if such partners were themselves Non-U.S. Lenders would be required to provide the documentation described in Section 14.10 , then Section 5.1 hereof shall be applied to payments to such Lender as if such payments were made directly to the partners of such Lender provided such Lender obtains from such partners the documents described in Section 14.10 and provides such documentation to the Agent and Borrowers.

 

Section 5.2                                                   Increased Costs and Reduction of Return .  If any Lender shall have determined that (a) the introduction after the Closing Date of any Capital Adequacy Regulation, (b) any change after the Closing Date in any Capital Adequacy Regulation, (c) any change after the Closing Date in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (d) compliance by such Lender or any corporation or other entity controlling such Lender with any Capital Adequacy Regulation issued after the Closing Date, affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation or other entity controlling such Lender and (taking into consideration such Lender’s or such corporation’s or other entity’s policies with respect to capital adequacy and such Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment, Term Loan, credits, or obligations under this Agreement, then, within thirty (30) days following receipt by the Borrowers of written demand for such payment (accompanied by a certificate referred to in Section 5.3 ) by such Lender through the Agent, the Borrowers shall pay to such Lender, from time to time as specified by such Lender, additional amounts (the “ Additional Lender Amounts ”) sufficient to compensate such Lender for such increase; provided that such Lender shall not be entitled to any such amounts to the extent that the event giving rise to such additional cost or reduced amount receivable occurred more than one hundred and twenty (120) days prior to the date such notice and demand was given to the Borrowers.

 

Section 5.3                                                   Certificates of Lenders .  Any Lender claiming reimbursement or compensation under this Article 5 shall deliver to the Borrowers (with a copy to the Agent) a certificate setting forth in reasonable detail the amount and calculation of the funds payable to such Lender hereunder and such certificate shall be presumed to be correct and binding on the Borrowers.  To the extent any Lender receives a refund of all or a portion of the Additional Lender Amounts, such Lender shall promptly remit the same to the Borrowers.

 

Section 5.4                                                   Replacement of Lenders .  If (i) any Lender requests reimbursement or compensation under this Article 5 , (ii) if any Lender refuses to consent to an amendment, modification, supplement or waiver required pursuant to Section 13.2 with respect to any Loan Document which has otherwise been approved by Majority Lenders or (iii) any Lender becomes insolvent or has its assets become subject to a receiver, liquidator, trustee, custodian or other officer having similar powers, then Borrowers may, at their sole expense and effort, upon notice to such Lender and Agent, require such Lender to assign and delegate at par (in accordance with Section 13.3 ), all of its interests, rights and obligations in connection with the Term Loan under

 

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this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that if a Lender is being replaced as a result of a request for reimbursement or compensation under this Article  5 with respect to taxes, costs or other amounts being incurred generally by the other Lenders, such Lender may only be replaced by an Eligible Assignee that will alleviate the need for the reimbursement or payment of such taxes, costs or other amounts.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply.

 

Each Lender hereby grants to the Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by, and in accordance with, this Section 5.4 .

 

Section 5.5                                                   Survival .  The agreements and obligations of the Obligors in this Article 5 shall survive the payment of all other Obligations.

 

ARTICLE 6

COLLATERAL

 

Section 6.1                                                   Grant of Security Interest .

 

(a)                                   As security for all Obligations, each Obligor hereby collaterally assigns and grants to the Agent, for the benefit of the Agent and the Lenders, a continuing security interest in, Lien on, assignment of, all of the following property and assets of such Obligor, whether now owned or existing or hereafter acquired or arising, regardless of where located:

 

(i)                                      all Accounts, including all credit enhancements therefor;

 

(ii)                                   all contract rights, including, without limitation, all rights of such Obligor as either lessor or lessee under any lease or rental agreement of real or personal property, including, without limitation, each Lease;

 

(iii)                                all chattel paper;

 

(iv)                               all documents;

 

(v)                                  all instruments;

 

(vi)                               all supporting obligations and letter-of-credit rights;

 

(vii)                            all General Intangibles (including, without limitation, payment intangibles, intercompany accounts, and software);

 

(viii)                         all inventory and other goods;

 

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(ix)                                 all equipment and fixtures;

 

(x)                                    all Investment Property (except as provided in the last sentence of this Section 6.1(a)  below);

 

(xi)                                 all money, cash, cash equivalents, securities, and other property of any kind;

 

(xii)                              the Cash Collateral Accounts, the Breakage Prepayment Account, each Prepayment Cash Collateral Account and all other deposit accounts and all other credits and balances with and other claims against any financial institution;

 

(xiii)                           all notes, and all documents of title;

 

(xiv)                          all books, records, and other property related to or referring to any of the foregoing, including, without limitation, books, records, account ledgers, data processing records, computer software and other property, and General Intangibles at any time evidencing or relating to any of the foregoing;

 

(xv)                             all commercial tort claims listed on Schedule 6.1 and disclosed from time to time to the Agent pursuant to the terms of this Agreement;

 

(xvi)                          if such Obligor is a Debtor, all Real Estate owned or leased by such Obligor;

 

(xvii)                       all other personal property of such Obligor, excluding any avoidance actions under Chapter 5 of the Bankruptcy Code and recoveries therefrom; and

 

(xviii)                    all accessions to, substitutions for, and replacements, products, and proceeds of any of the foregoing, including, but not limited to, proceeds of any insurance policies, claims against third parties, and condemnation or requisition payments with respect to all or any of the foregoing.

 

All of the foregoing and all other property of such Obligor in which the Agent or any Lender may at any time be granted a Lien, is herein collectively referred to as the “ Collateral .”  Notwithstanding anything herein to the contrary, in no event shall the Collateral (or any component term thereof) include or be deemed to include (i) the Capital Stock of any Foreign Subsidiary, other than 65% in total voting power of such Capital Stock and 100% of non-voting Capital Stock, in each case, of a first tier Foreign Subsidiary of any Obligor, (ii) any contracts, instruments, licenses, license agreements or other documents (or any rights thereunder), to the extent (and only to the extent) that the grant of a security interest would (A) constitute a violation of a restriction in favor of a third party on such grant, (B) give any other party to such contract, instrument, license, license agreement or other document the right to terminate its obligations thereunder, or (C) violate any law; provided that the limitation set forth in this clause (ii)  above shall not affect, limit, restrict or impair the grant by an Obligor of a security interest pursuant to this Agreement in any such right, to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC or the

 

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Bankruptcy Code, (iii) any direct or indirect interest in any Capital Stock of any joint venture, partnership or other entity if and for so long as the grant of such security interest or Lien shall constitute a default under or termination pursuant to the terms of the joint venture agreement, partnership agreement or other organizational documents of, or contract or other agreement of (or covering or purporting to cover the assets of) such joint venture, partnership or entity or its direct or indirect parent, or require the payment of a fee, penalty or similar increased costs or result in the loss of economic benefit or the abandonment or invalidation of such Obligor’s or any Subsidiary’s interest in such Capital Stock or shall otherwise adversely impact such interest in such joint venture, partnership or other entity; provided that the limitation set forth in this clause (iii)  above shall not affect, limit, restrict or impair the grant by an Obligor of a security interest pursuant to this Agreement in any such right, to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC or the Bankruptcy Code, (iv) any Ground Lease of a Debtor which has been assumed pursuant to Section 365 of the Bankruptcy Code if the granting of a Lien hereunder would cause a default under or allow the termination of such Ground Lease (it being agreed that, to the extent the Lien granted pursuant to this Section 6.1 attaches to any such Ground Lease prior to a Debtor’s assumption thereof, and the granting of a Lien hereunder would cause a default under or allow the termination of such Ground Lease, such Lien shall automatically be released upon such assumption and any Mortgage evidencing such Lien shall automatically terminate with respect to such Ground Lease), (v) the Gift Card and Lotto Accounts and (vi) any Real Estate of the Non-Debtor Guarantor; provided , further , that any such security interest and Lien shall attach immediately and automatically after any such disqualifying condition specified in clause (ii)  or (iii)  of this paragraph shall cease to exist.

 

(b)                                  All of the Obligations shall be secured by all of the Collateral.

 

Section 6.2                                                   Perfection and Protection of Security Interest .

 

(a)                                   Each Obligor shall, as applicable, at such Obligor’s expense, perform all steps reasonably requested by the Agent at any time to perfect, maintain, protect, and enforce the Agent’s Liens, including:  upon an Event of Default, delivering to the Agent (1) the originals of all instruments, documents, and chattel paper, and all other Collateral of which the Agent reasonably determines it should have physical possession in order to perfect and protect the Agent’s security interest therein, duly pledged, endorsed, or assigned to the Agent without restriction, (2) warehouse receipts covering any portion of the Collateral located in warehouses and for which warehouse receipts are issued, (3) certificates of title (excluding deeds for Real Estate) covering any portion of the Collateral for which certificates of title have been issued and (4) all letters of credit on which such Obligor is named beneficiary.  Notwithstanding anything to the contrary contained herein, no Obligor shall be required to obtain, maintain or provide any (x) mortgage or deed of trust (except as set forth in Section 6.3 below), title insurance commitment or policy or survey, in each case, in respect of any Property or (y) lockbox agreement, deposit account control agreement (or similar agreement), or securities account control agreement (or similar agreement), in each case, in respect of any Collateral.

 

(b)                                  To the extent permitted by any Legal Requirement, the Agent may file, without any Obligor’s signature, one or more financing statements disclosing the Agent’s Liens on the Collateral; provided that the Agent will not file any financing statement against any Obligor if

 

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such filing would require the payment of any documentary, intangibles or similar fees or taxes (other than customary filing charges per page and nominal fees and taxes).

 

(c)                                   To the extent any Obligor is or becomes the issuer of any Investment Property that is Collateral (in such capacity, an “ Issuer ”), each Obligor agrees as follows with respect to such Investment Property, but subject to the terms of any documents or agreements entered into prior to the Closing Date creating or evidencing any Pre-Petition Lien with respect to such Investment Property:

 

(i)                                      All such Investment Property issued by such Issuer, all warrants, and all non-cash dividends and other non-cash distributions in respect thereof at any time registered in the name of, or otherwise deliverable to, any Obligor, shall be delivered directly to the Agent, for the account of such Obligor, at the Agent’s address for notices set forth in Section 15.7 .

 

(ii)                                   All cash dividends, cash distributions, and other cash or cash equivalents in respect of such Investment Property at any time payable or deliverable to any Obligor shall be deposited into the Cash Collateral Account.

 

(iii)                                Such Issuer will not acknowledge any transfer or encumbrance in respect of such Investment Property to or in favor of any Person other than the Agent or a Person designated by the Agent in writing.

 

Section 6.3                                                   Delivery of Mortgages .  Within sixty (60) days of the Funding Date, the applicable Obligor shall deliver mortgages with respect to each of the Primary Properties substantially in the relevant form attached hereto as Exhibit I-1 or I-2 appropriately completed, with such state specific changes as are necessary to create a Lien on the applicable Real Estate in such state and otherwise in a form described in Schedule 6.3 (each, a “ Mortgage ” and, collectively, the “ Mortgages ”).

 

Section 6.4                                                   Title to, Liens on, and Use of Collateral .  Each Obligor represents and warrants to the Agent and the Lenders and agrees with the Agent and the Lenders that:  (a) all of the Collateral owned by such Obligor is and will (subject to dispositions permitted hereunder) continue to be owned by such Obligor free and clear of all Liens whatsoever, except for Permitted Liens, (b) the Agent’s Liens in the Collateral will not be junior in priority to any prior Lien other than the Carve-Out, the Pre-Petition Liens and Liens described in clauses (b) , (c) , (d) , (e) , (f) , (g) , (i)  (to the extent, and only to the extent, set forth in the Financing Order), (j)  (to the extent, and only to the extent, so agreed by the Majority Lenders), (m) , (n) , (o) , (p) , (s) , (t) , (u)  and (v)  (to the extent existing on the Entry Date) of the definition of “ Permitted Liens ” and (c) such Obligor will use, store, and maintain the Collateral owned by such Obligor with all reasonable care.  The inclusion of proceeds in the Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted herein.

 

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Section 6.5                                                   Access and Examination; Confidentiality .

 

(a)                                   The Agent (or its representatives and/or advisors) may at reasonable times during regular business hours as may be requested by the Agent upon reasonable advance notice, and at any time when an Event of Default exists, upon reasonable notice to the Borrowers have access to, examine, audit, make extracts from or copies of, and inspect any or all of the Obligors’ records, files, and books of account and the Collateral, and discuss the Obligors’ affairs with executive officers of any Obligor.

 

(b)                                  The Agent and each Lender severally agree to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all financial information and other information relating to the Borrowers and each Debtor, except to the extent that such information (i) was or becomes generally available to the public other than as a result of disclosure by the Agent or such Lender or (ii) was or becomes available on a nonconfidential basis from a source other than a Debtor (so long as such source is not known to Agent, such Lender or any of their respective Affiliates to be bound by confidentiality obligations to any Debtor).  Notwithstanding the foregoing, the Agent and any Lender may disclose any such information (1) pursuant to any requirement of any Governmental Authority to which the Agent or such Lender is subject or in connection with an examination of the Agent or such Lender by any such Governmental Authority, (2) pursuant to subpoena or other court process, (3) when appropriate to do so in accordance with the provisions of any applicable Legal Requirement, (4) to the extent reasonably necessary in connection with any litigation or proceeding between or among any Obligor and the Agent, any Lender, or their respective Affiliates or any other litigation or proceeding to which the Agent, any Lender, or their respective Affiliates may be party arising out of or related to this Agreement, any other Loan Document, or any transaction contemplated herein, (5) to the extent reasonably required in connection with the exercise of any right or remedy hereunder or under any other Loan Document, (6) to the Agent’s or such Lender’s directors, officers, employees, managers,  independent auditors, accountants, attorneys, and other professional advisors on a “need to know” basis for use in connection with this Agreement and the other Loan Documents, (7) to any prospective Participant or Assignee, actual or potential and (8) to its Affiliates  on a “need to know” basis for use in connection with this Agreement and the other Loan Documents; provided that the receiving parties pursuant to subsections (6), (7) and (8) above, agree to keep such information confidential to the same extent required of the Agent and the Lenders hereunder.  The obligations of each party contained in this Section 6.5(b)  shall continue for a period of three (3) years after such party ceases to be a party to this Agreement.

 

Section 6.6                                                   Documents, Instruments, and Chattel Paper .  Each Obligor represents and warrants to the Agent and the Lenders that (a) to its Knowledge all documents, instruments, and chattel paper describing, evidencing, or constituting Collateral owned by such Obligor, and all signatures and endorsements thereon of any Obligor, are and will be complete, valid, and genuine in all material respects, and (b) all goods evidenced by such documents, instruments, and chattel paper are and will be owned by such Obligor, free and clear of all Liens other than Permitted Liens.

 

Section 6.7                                                   Right to Cure .  Upon the occurrence and during the continuance of an Event of Default, the Agent may, in its reasonable discretion, and shall, at the direction of the

 

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Majority Lenders and upon ten (10) days notice to the applicable Obligor, pay any amount or do any act required of any Obligor hereunder or under any other Loan Document in order to preserve, protect, maintain, or enforce the Obligations, the Collateral, or the Agent’s Liens therein, and which any Obligor fails to pay or do, including payment of any judgment against any Obligor, any insurance premium, any warehouse charge, any finishing or processing charge, any landlord’s or bailee’s claim, and any other obligation secured by a Lien upon or with respect to the Collateral; provided, however , that the Agent’s obligations to make any payments under this Section 6.7 shall only arise to the extent the Agent receives sufficient funds from the Lenders to make such payments; provided further that neither the Agent nor the Lenders shall pay any amount (i) being diligently contested by appropriate proceedings or (ii) in respect of any Pre-Petition Lien.  All payments that the Agent makes under this Section 6.7 and all out-of-pocket costs and reasonable expenses that the Agent pays or incurs in connection with any reasonable action taken by it hereunder shall be considered part of the Obligations and shall bear interest until repaid at the Default Rate.  Any payment made or other action taken by the Agent under this Section 6.7 shall be without prejudice to any right to assert an Event of Default hereunder and to proceed thereafter as herein provided.

 

Section 6.8                                                   Power of Attorney .  Upon the occurrence of and during the continuance of an Event of Default, each Obligor hereby appoints the Agent and the Agent’s designee(s) as such Obligor’s attorney to sign such Obligor’s name on any invoice, bill of lading, warehouse receipt, or other document of title relating to any Collateral, on drafts against customers, on assignments of Accounts, on notices of assignment, financing statements, and other public records and to file any such financing statements permitted under this Agreement by electronic means with or without a signature as authorized or required by applicable law or filing procedure.  Each Obligor ratifies and approves all acts of such attorney.  This power, being coupled with an interest, is irrevocable until this Agreement has been terminated and the non-contingent Obligations have been fully satisfied.

 

Section 6.9                                                   The Agent’s and Lenders’ Rights, Duties, and Liabilities .  The Obligors assume all responsibility and liability arising from or relating to the use, sale, or other disposition of the Collateral.  The Obligations shall not be affected by any failure of the Agent or any Lender to take any steps to perfect the Agent’s Liens or to collect or realize upon the Collateral, nor shall loss of or damage to the Collateral release any Obligor from any of the Obligations.

 

Section 6.10                                             Site Visits, Observations, and Testing .  The Agent and its representatives will have the right at any commercially reasonable time, and upon reasonable advance notice to the applicable Obligor and subject to the terms and conditions of any applicable Ground Lease or other Lease, to enter and visit the Real Estate of any Obligor constituting Collateral for the purposes of observing such Real Estate and taking and removing soil or groundwater samples on any part of such Real Estate (a) upon prior consultation with such Obligor where the Agent reasonably believes there exists the presence of a Contaminant at concentrations exceeding those allowed by Environmental Laws that could reasonably be expected to materially and adversely affect the value of such Real Estate or (b) at any time during the existence of an Event of Default; provided that in the event such Real Estate is leased by a Obligor, such observing and testing shall be conducted in accordance with the terms of the Ground Lease with respect to such Real Estate and in observation of the rights of any Tenant. 

 

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The Agent is under no duty, however, to visit or observe such Real Estate or to conduct tests, and any such acts by the Agent will be solely for the purposes of protecting the Agent’s Liens and preserving the Agent and the Lenders’ rights and remedies under this Agreement.  No site visit, observation, or testing by the Agent and the Lenders will result in a waiver of any Default or Event of Default or impose any liability on the Agent or the Lenders other than for damages incurred as a result of the gross negligence, willful misconduct, bad faith or breach of the Loan Documents by the Agent or any Lender.  In each instance, the Agent will give such Obligor reasonable notice before entering such Real Estate or any other place the Agent is permitted to enter under this Section 6.10 .  The Agent will make reasonable efforts to avoid interfering with any use of such Real Estate or any other property in exercising any rights provided hereunder.  The Agent agrees to indemnify, defend and hold harmless such Obligor from any loss or liability arising from damages caused to Real Estate or any personal property by Agent’s representatives’ actions taken under the authority granted by this Section 6.10 .  The Agent agrees that any environmental professional retained to perform the taking and removing soil or groundwater samples under this Section 6.10 shall be reasonably qualified and possess reasonable levels of insurance naming Borrowers and any other relevant Obligor as an additional insured for the environmental sampling the environmental professional has been retained to conduct.

 

Section 6.11                                             Joinder of Subsidiaries .  Promptly upon any (a) wholly-owned Subsidiary (other than a Foreign Subsidiary or a Negative Pledge Debtor) of the Borrowers or its property becoming subject to the Case or (b) any wholly-owned Subsidiary (other than a Foreign Subsidiary) that is a Negative Pledge Debtor avoiding or having avoided or repaid or discharged the Pre-Petition Liens securing such Subsidiary’s Prior Lien Debt (other than pursuant to a refinancing permitted by this Agreement), the Borrowers shall cause such Subsidiary to execute and deliver to the Agent a joinder agreement and a Guaranty Supplement pursuant to which such Subsidiary will become a party hereto for the purposes of guaranteeing the Obligations and granting the Agent Liens on the Collateral of such new Subsidiary of a type described in the definition of Collateral and such Subsidiary shall (a) obtain such orders from the Bankruptcy Court in the Case as the Agent may reasonably request to effect such joinder and such guarantee and (b) execute and deliver such other instruments, certificates, supplements to the Schedules and agreements in connection herewith and therewith as the Agent may reasonably request subject to the limitations set forth in Section 6.2 .

 

Section 6.12                                             Voting Rights, etc. in Respect of Investment Property .

 

(a)                                   So long as no Event of Default shall be in existence and the relevant Obligor has not received a written notice pursuant to Section 6.12(b)  (i) each Obligor shall be entitled to exercise any and all voting and other consensual rights (including, without limitation, the right to give consents, waivers, and notifications in respect of any securities) pertaining to its Investment Property or any part thereof; provided that without the prior written consent of the Majority Lenders, no vote shall be cast or consent, waiver, or ratification given or action taken which would (A) be inconsistent with or violate any provision of this Agreement or any other Loan Document in any material respect or (B) amend, modify, or waive any material term, provision, or condition of the certificate of incorporation, bylaws, certificate of formation, or other charter document or other agreement relating to, evidencing, providing for the issuance of, or securing any such Investment Property, in any manner that would materially impair such Investment Property or the Agent’s Liens therein and (ii) each Obligor shall be entitled to

 

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receive, and each Obligor must, promptly following its receipt, deposit into the Cash Collateral Accounts, any and all dividends and interest paid in respect of any of such Investment Property (unless otherwise required, or permitted to be used, by this Agreement, including uses permitted under Section 9.13 ).

 

(b)                                  During the existence of an Event of Default, (i) the Agent may, upon written notice to the relevant Obligor, transfer or register in the name of the Agent or any of its nominees, for the benefit of the Agent and the Lenders, any or all of the Collateral consisting of Investment Property, the proceeds thereof (in cash or otherwise), and all liens, security, rights, remedies, and claims of any Obligor with respect thereto (as used in this Section 6.12 collectively, the “ Pledged Collateral ”) held by the Agent hereunder, and the Agent or its nominee may thereafter, after written notice to the applicable Obligor, exercise all voting and corporate rights at any meeting of any corporation, partnership, or other business entity issuing any of the Pledged Collateral and any and all rights of conversion, exchange, subscription, or any other rights, privileges, or options pertaining to any of the Pledged Collateral as if it were the absolute owner thereof, including, without limitation, the right to exchange at its discretion any and all of the Pledged Collateral upon the merger, consolidation, reorganization, recapitalization, or other readjustment of any corporation, partnership, or other business entity issuing any of such Pledged Collateral or upon the exercise by any such issuer or the Agent of any right, privilege, or option pertaining to any of the Pledged Collateral, and in connection therewith, to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar, or other designated agency upon such terms and conditions as it may determine, all without liability except to account for property actually received by it, but the Agent shall have no duty to exercise any of the aforesaid rights, privileges, or options, and the Agent shall not be responsible for any failure to do so or delay in so doing, (ii) to the extent permitted under Legal Requirements, after the Agent’s giving of the notice specified in clause (i)  of this Section 6.12(b)  all rights of any Obligor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to Section 6.12(a)(i)  and to receive the dividends, interest, and other distributions which it would otherwise be authorized to receive and retain thereunder shall be suspended until such Event of Default shall no longer exist, and all such rights shall, until such Event of Default shall no longer exist, thereupon become vested in the Agent which shall thereupon have the sole right to exercise such voting and other consensual rights and to receive and hold as Pledged Collateral such dividends, interest, and other distributions, (iii) all dividends, interest, and other distributions which are received by any Obligor contrary to the provisions of this Section 6.12(b)  shall be received in trust for the benefit of the Agent, shall be segregated from other funds of such Obligor and shall be forthwith deposited into the Cash Collateral Accounts as Collateral in the same form as so received (with any necessary endorsement), and (iv) each Obligor shall execute and deliver (or cause to be executed and delivered) to the Agent all such proxies and other instruments as the Agent may reasonably request for the purpose of enabling the Agent to exercise the voting and other rights which it is entitled to exercise pursuant to this Section 6.12(b)  and to receive the dividends, interest, and other distributions which it is entitled to receive and retain pursuant to this Section 6.12(b) .

 

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Section 6.13                                             Remedies .  Neither the Agent nor any Lender shall take any action under this Article 6 (or similar provisions of any Loan Document) except after the five Business Day waiting period in accordance with the Financing Order.

 

ARTICLE 7

 

BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES

 

Section 7.1                                                   Books and Records .  The Borrowers shall maintain, at all times, correct and complete books, records, and accounts to enable the preparation of its financial statements, on a consolidated basis, in accordance with GAAP.

 

Section 7.2                                                   Financial Information .  The Borrowers will furnish, or cause to be furnished, to the Agent, the following:

 

(a)                                   As soon as available, but in any event not later than 90 days after the close of each Fiscal Year, an audited consolidated balance sheet and consolidated statements of income and cash flow for the General Partner and its consolidated Subsidiaries for such Fiscal Year, and with respect to such audited financial statements, setting forth in comparative form figures for the previous Fiscal Year, all in reasonable detail, fairly presenting, in all material respects, the financial position and the results of operations of the General Partner and its consolidated Subsidiaries as at the date thereof and for the Fiscal Year then ended in accordance with GAAP.  Such financial statements shall be examined in accordance with generally accepted auditing standards by, and accompanied by a report thereon (without any qualification or exception as to the scope of such audit, other than any such qualification or exception arising as a result of the commencement of the Case or the events leading thereto) of Deloitte & Touche LLP, other independent certified public accountants of national standing selected by