Exhibit 10.59


 


FORM OF
CREDIT AND GUARANTY AGREEMENT


(Final
agreement will be in substantially the same form)


 


CREDIT
AND GUARANTY AGREEMENT


 


dated
as of November [9], 2010


 


among


 


GGP LIMITED PARTNERSHIP,


GGPLP L.L.C.,


GGPLP REAL
ESTATE 2010 LOAN PLEDGOR HOLDING, LLC,


GGPLPLLC
2010 LOAN PLEDGOR HOLDING, LLC


and


GGPLP 2010
LOAN PLEDGOR HOLDING, LLC


 


as
Borrowers,


 


GENERAL GROWTH PROPERTIES, INC.
AND CERTAIN OF ITS SUBSIDIARIES,


 


as
Guarantors,


 


VARIOUS
LENDERS,


 


DEUTSCHE
BANK SECURITIES INC., WELLS FARGO SECURITIES, LLC AND


RBC
CAPITAL MARKETS CORPORATION,


as
Joint Lead Arrangers and Joint Bookrunners,


 


DEUTSCHE
BANK TRUST COMPANY AMERICAS,


as
Administrative Agent and Collateral Agent,


 


WELLS FARGO BANK, N.A. AND RBC CAPITAL MARKETS
CORPORATION,


as Syndication Agents,


 


and


 


BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION
OF BARCLAYS BANK PLC, GOLDMAN SACHS LENDING PARTNERS LLC, MACQUARIE CAPITAL
(USA) INC., TD SECURITIES (USA) LLC AND UBS SECURITIES LLC,


as Documentation Agents and Joint Bookrunners


 






 


$300,000,000
Senior Secured Credit Facility


 






 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 1.
  DEFINITIONS AND INTERPRETATION

  	
  2

  
	
  1.1. Definitions

  	
  2

  
	
  1.2. Accounting Terms

  	
  32

  
	
  1.3. Interpretation, Etc.

  	
  33

  
	
   

  	
   

  
	
  SECTION 2. LOANS AND LETTERS OF CREDIT

  	
  33

  
	
  2.1. Intentionally Omitted

  	
  33

  
	
  2.2. Revolving Loans

  	
  33

  
	
  2.3. Swing Line Loans

  	
  34

  
	
  2.4. Issuance of Letters of Credit and Purchase of
  Participations Therein

  	
  37

  
	
  2.5. Pro Rata Shares; Availability of Funds

  	
  42

  
	
  2.6. Use of Proceeds

  	
  43

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

  	
  43

  
	
  2.8. Interest on Loans

  	
  44

  
	
  2.9. Conversion/Continuation

  	
  46

  
	
  2.10. Default Interest

  	
  46

  
	
  2.11. Fees

  	
  47

  
	
  2.12. Scheduled Payments/Commitment Reductions

  	
  48

  
	
  2.13. Voluntary Prepayments/Commitment Reductions

  	
  48

  
	
  2.14. Intentionally Omitted

  	
  49

  
	
  2.15. Application of Prepayments/Reductions

  	
  49

  
	
  2.16. General Provisions Regarding Payments

  	
  50

  
	
  2.17. Ratable Sharing

  	
  51

  
	
  2.18. Making or Maintaining Eurodollar Rate Loans

  	
  51

  
	
  2.19. Increased Costs; Capital Adequacy

  	
  53

  
	
  2.20. Taxes; Withholding, Etc.

  	
  55

  
	
  2.21. Obligation to Mitigate

  	
  57

  
	
  2.22. Defaulting Lenders

  	
  58

  
	
  2.23. Removal or Replacement of a Lender

  	
  59

  
	
  2.24. Co-Borrowers

  	
  60

  
	
   

  	
   

  
	
  SECTION 3. CONDITIONS PRECEDENT

  	
  63

  
	
  3.1. Closing Date

  	
  63

  
	
  3.2. Conditions to Each Credit Extension

  	
  66

  
	
   

  	
   

  
	
  SECTION 4. REPRESENTATIONS AND WARRANTIES

  	
  67

  
	
  4.1. Organization; Requisite Power and Authority;
  Qualification

  	
  67

  
	
  4.2. Capital Stock and Ownership

  	
  67

  
	
  4.3. Due Authorization

  	
  68

  
	
  4.4. No Conflict

  	
  68

  
	
  4.5. Governmental Consents

  	
  68

  
	
  4.6. Binding Obligation

  	
  68

  
	
  4.7. Historical Financial Statements

  	
  68

  
	
  4.8. Projections

  	
  69

  



 


ii

















 


	
  4.9. No Material Adverse Effect

  	
  69

  
	
  4.10. Adverse Proceedings, Etc.

  	
  69

  
	
  4.11. Payment of Taxes

  	
  69

  
	
  4.12. Properties

  	
  69

  
	
  4.13. Environmental Matters

  	
  70

  
	
  4.14. No Defaults

  	
  71

  
	
  4.15. Intentionally Omitted

  	
  71

  
	
  4.16. Governmental Regulation

  	
  71

  
	
  4.17. Employee Matters

  	
  71

  
	
  4.18. Employee Benefit Plans

  	
  71

  
	
  4.19. Solvency

  	
  72

  
	
  4.20. Security Documents

  	
  72

  
	
  4.21. Compliance with Statutes, Etc.

  	
  73

  
	
  4.22. Disclosure

  	
  73

  
	
  4.23. PATRIOT Act

  	
  74

  
	
  4.24. Sanctioned Persons

  	
  74

  
	
  4.25. Use of Proceeds

  	
  74

  
	
  4.26. REIT Status

  	
  74

  
	
  4.27. Insurance

  	
  74

  
	
   

  	
   

  
	
  SECTION 5. AFFIRMATIVE COVENANTS

  	
  74

  
	
  5.1. Financial Statements and Other Reports

  	
  75

  
	
  5.2. Existence

  	
  77

  
	
  5.3. Payment of Taxes, Claims, and Obligations

  	
  77

  
	
  5.4. Maintenance and Operation of Properties

  	
  77

  
	
  5.5. Insurance

  	
  78

  
	
  5.6. Books and Records; Inspections

  	
  78

  
	
  5.7. Compliance with Laws and Material Contracts

  	
  78

  
	
  5.8. Additional Guarantees

  	
  79

  
	
  5.9. Additional Collateral

  	
  79

  
	
  5.10. Use of Proceeds

  	
  80

  
	
  5.11. Maintenance of REIT Status

  	
  80

  
	
  5.12. Further Assurances

  	
  80

  
	
  5.13. Intentionally Omitted

  	
  80

  
	
  5.14. Environmental Compliance

  	
  80

  
	
  5.15. Post Closing Obligations

  	
  81

  
	
   

  	
   

  
	
  SECTION 6. NEGATIVE COVENANTS

  	
  81

  
	
  6.1. Indebtedness

  	
  82

  
	
  6.2. Liens

  	
  84

  
	
  6.3. No Further Negative Pledges

  	
  86

  
	
  6.4. Restricted Junior Payments

  	
  86

  
	
  6.5. Restrictions on Subsidiary Distributions

  	
  87

  
	
  6.6. Investments

  	
  88

  
	
  6.7. Financial Covenants

  	
  90

  
	
  6.8. Fundamental Changes; Disposition of Assets

  	
  93

  
	
  6.9. Transactions with Shareholders and Affiliates

  	
  95

  



 


iii

















 


	
  6.10. Conduct of Business

  	
  95

  
	
  6.11. Amendments or Waivers of Organizational Documents and Certain Related Agreements

  	
  95

  
	
  6.12. Amendments or Waivers and Prepayments with respect to
  Certain Indebtedness

  	
  96

  
	
  6.13. Fiscal Year

  	
  96

  
	
  6.14. Limitation on Hedge Agreements

  	
  96

  
	
   

  	
   

  
	
  SECTION 7. GUARANTY

  	
  96

  
	
  7.1. Guaranty of the Obligations

  	
  96

  
	
  7.2. Contribution by Guarantors

  	
  96

  
	
  7.3. Payment by Guarantors

  	
  97

  
	
  7.4. Liability of Guarantors Absolute

  	
  97

  
	
  7.5. Waivers by Guarantors

  	
  99

  
	
  7.6. Guarantors’ Rights of Subrogation,
  Contribution, Etc.

  	
  100

  
	
  7.7. Subordination of Other Obligations

  	
  101

  
	
  7.8. Continuing Guaranty

  	
  101

  
	
  7.9. Authority of Guarantors or Borrowers

  	
  101

  
	
  7.10. Financial Condition of Borrowers

  	
  102

  
	
  7.11. Bankruptcy, Etc.

  	
  102

  
	
  7.12. Discharge of Guaranty Upon Sale of Guarantor

  	
  103

  
	
  7.13. Mortgages; Guarantor Obligations

  	
  103

  
	
   

  	
   

  
	
  SECTION 8. EVENTS OF DEFAULT

  	
  103

  
	
  8.1. Events of Default

  	
  103

  
	
  8.2. Application of Proceeds

  	
  107

  
	
   

  	
   

  
	
  SECTION 9. AGENTS

  	
  108

  
	
  9.1. Appointment of Agents

  	
  108

  
	
  9.2. Powers and Duties

  	
  109

  
	
  9.3. General Immunity

  	
  109

  
	
  9.4. Agents Entitled to Act as Lender

  	
  111

  
	
  9.5. Lenders’ Representations, Warranties and
  Acknowledgment

  	
  111

  
	
  9.6. Right to Indemnity

  	
  111

  
	
  9.7. Successor Administrative Agent, Collateral Agent and
  Swing Line Lender

  	
  112

  
	
  9.8. Collateral Documents and Guaranty

  	
  114

  
	
  9.9. Withholding Taxes

  	
  115

  
	
   

  	
   

  
	
  SECTION 10. MISCELLANEOUS

  	
  116

  
	
  10.1. Notices

  	
  116

  
	
  10.2. Expenses

  	
  118

  
	
  10.3. Indemnity

  	
  118

  
	
  10.4. Set-Off

  	
  119

  
	
  10.5. Amendments and Waivers

  	
  120

  
	
  10.6. Successors and Assigns; Participations

  	
  122

  
	
  10.7. Independence of Covenants

  	
  125

  



 


iv

















 


	
  10.8. Survival of Representations, Warranties and
  Agreements

  	
  125

  
	
  10.9. No Waiver; Remedies Cumulative

  	
  126

  
	
  10.10. Marshalling; Payments Set Aside

  	
  126

  
	
  10.11. Severability

  	
  126

  
	
  10.12. Obligations Several; Independent Nature of Lenders’
  Rights

  	
  126

  
	
  10.13. Headings

  	
  127

  
	
  10.14. APPLICABLE LAW

  	
  127

  
	
  10.15. CONSENT TO JURISDICTION

  	
  127

  
	
  10.16. WAIVER OF JURY TRIAL

  	
  127

  
	
  10.17. Confidentiality

  	
  128

  
	
  10.18. Usury Savings Clause

  	
  129

  
	
  10.19. Counterparts

  	
  129

  
	
  10.20. Effectiveness; Entire Agreement

  	
  130

  
	
  10.21. PATRIOT Act

  	
  130

  
	
  10.22. Electronic Execution of Assignments

  	
  130

  
	
  10.23. No Fiduciary Duty

  	
  130

  
	
  10.24. Disclosure of Information Relating to Agreement

  	
  131

  



 


v

















 


	
  APPENDICES:

  	
  A

  	
  Revolving Commitments

  
	
   

  	
  B

  	
  Notice Addresses

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
  1.1

  	
  Guarantors

  
	
   

  	
  1.2

  	
  Special Consideration Properties

  
	
   

  	
  3.1(d)

  	
  Closing Date Mortgaged Properties

  
	
   

  	
  3.1(e)

  	
  Closing Date Pledged Properties

  
	
   

  	
  4.1

  	
  Jurisdictions of Organization and Qualification

  
	
   

  	
  4.2

  	
  Capital Stock and Ownership

  
	
   

  	
  4.12

  	
  Title to Properties

  
	
   

  	
  5.15

  	
  Post Closing Obligations

  
	
   

  	
  6.2

  	
  Existing Liens

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
  A-1

  	
  Funding Notice

  
	
   

  	
  A-2

  	
  Conversion/Continuation Notice

  
	
   

  	
  A-3

  	
  Issuance Notice

  
	
   

  	
  B-1

  	
  Revolving Loan Note

  
	
   

  	
  B-2

  	
  Swing Line Note

  
	
   

  	
  C

  	
  Compliance Certificate

  
	
   

  	
  D

  	
  Opinions of Counsel

  
	
   

  	
  E

  	
  Assignment Agreement

  
	
   

  	
  F

  	
  Certificate re Non-Bank Status

  
	
   

  	
  G-1

  	
  Closing Date Certificate

  
	
   

  	
  G-2

  	
  Solvency Certificate

  
	
   

  	
  H

  	
  Counterpart Agreement

  
	
   

  	
  I

  	
  Pledge Agreement

  
	
   

  	
  J

  	
  Mortgage

  
	
   

  	
  K

  	
  Budget

  
	
   

  	
  L

  	
  Subordination, Non-Disturbance and Attornment
  Agreement

  



 


vi














 


CREDIT
AND GUARANTY AGREEMENT


 


This CREDIT AND
GUARANTY AGREEMENT, dated as of November [9], 2010 is entered
into by and among GGP LIMITED PARTNERSHIP,
a Delaware limited partnership (the “Partnership”),
GGPLP L.L.C., a Delaware limited
liability company (the “LLC”) GGPLP REAL ESTATE 2010 LOAN
PLEDGOR HOLDING, LLC, a
Delaware limited liability company (“GGPLP RE Pledgor”), GGPLPLLC 2010 LOAN PLEDGOR HOLDING, LLC, a Delaware limited liability company (“GGPLPLLC Pledgor”), and GGPLP 2010 LOAN PLEDGOR
HOLDING, LLC, a Delaware limited liability company (“GGPLP Pledgor” and, together with the
Partnership, the LLC, GGPLP RE Pledgor and GGPLPLLC Pledgor, being referred to
herein, individually or collectively, as the context shall require, as “Borrower” or “Borrowers”), GENERAL GROWTH PROPERTIES, INC., a Delaware corporation
formerly known as New GGP, Inc. (“Parent”),
and CERTAIN SUBSIDIARIES OF PARENT,
as Guarantors, the Lenders party hereto from time to time,  WELLS FARGO BANK, N.A. and
RBC CAPITAL MARKETS CORPORATION, as
Syndication Agents (in such capacity, “Syndication
Agents”), DEUTSCHE BANK TRUST
COMPANY AMERICAS (“DBTCA”),
as Administrative Agent (together with its permitted successors in such
capacity, “Administrative Agent”)
and as Collateral Agent (together with its permitted successors in such
capacity, “Collateral Agent”), and
BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION
OF BARCLAYS BANK PLC, GOLDMAN SACHS LENDING PARTNERS LLC, MACQUARIE CAPITAL
(USA) INC., TD SECURITIES (USA) LLC and UBS
SECURITIES LLC, as Documentation Agents (in such capacity, “Documentation Agents”).


 


RECITALS:


 


WHEREAS,
capitalized terms used in these Recitals shall have the respective meanings set
forth for such terms in Section 1.1 hereof;


 


WHEREAS,
General Growth Properties, Inc., a Delaware corporation (“Existing GGPI”), the Partnership, the LLC and certain of
their Subsidiaries, are debtors and debtors-in-possession in jointly
administered cases, Case No. 09-11977
(ALG) (collectively, the “Bankruptcy Cases” and
such Subsidiaries, the “Debtor Subsidiaries”),
pending in the United States Bankruptcy Court for the Southern District of New
York (the “Bankruptcy Court”) under the
Bankruptcy Code.


 


WHEREAS, as
part of the implementation of the Plan, Borrowers have requested, and Lenders
have agreed to make available to Borrowers, a revolving credit facility
consisting of $300,000,000 aggregate principal amount of Revolving
Commitments.  The proceeds of the
Revolving Loans made on the Closing Date, if any, together with the proceeds of
the contribution of new equity, will be used on the Closing Date to finance the
Plan, which may include the refinancing of certain Indebtedness of Existing
GGPI and its Subsidiaries, including, without limitation, the Matured Rouse
Notes, and to pay fees, commissions and expenses in connection therewith.  The proceeds of the Revolving Loans may also
be used on and after the Closing Date for general corporate purposes (including
working capital).


 

















 


WHEREAS,
Borrowers have agreed to secure all of their Secured Obligations by granting to
Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on
the Mortgaged Properties and the Pledged Properties owned by them; and


 


WHEREAS,
Guarantors have agreed to guarantee the Obligations of Borrowers hereunder and
to secure their respective Secured Obligations by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on the Mortgaged
Properties and the Pledged Properties owned by them, as the case may be, if
any.


 


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


 


SECTION 1.  
DEFINITIONS AND INTERPRETATION


 


1.1.   Definitions.  The following terms used herein,
including (except to the extent specifically stated otherwise) in the preamble,
recitals, exhibits and schedules hereto, shall have the following meanings:


 


“Adjusted EBITDA” means with respect to any GGP Property or Parent Guarantors, Borrowers
or the Management Company, as the case may be, for any period, an amount equal
to such GGP Property’s or such Person’s net income (calculated on a GAAP basis
and, for the avoidance of doubt, in the case of Parent Guarantors, Borrowers or
the Management Company, taking into account such Person’s corporate overhead)
plus, to the extent reducing such net income, the sum, without duplication, of
amounts for (a) depreciation, (b) amortization, (c) interest
expense (less interest income), (d) income taxes, (e) impairment
expenses, (f) costs and expenses incurred in connection with any
restructurings or reorganizations of such GGP Property or any entity owning a
direct or indirect interest therein or Parent Guarantors, Borrowers or the
Management Company, as the case may be (including in connection with the
Bankruptcy Cases and in connection with the transactions contemplated by the
Credit Documents, the Cornerstone Agreement and the Plan and hereinafter each a
“Restructuring”), provided that
cash restructuring charges not associated with the Bankruptcy Cases and the
transactions contemplated by the Credit Documents, the Cornerstone Agreement
and the Plan, shall be subject to a cumulative cap of $25,000,000 per annum and
$100,000,000 during the term of this Agreement, (g) the costs and expenses
of legal settlements, fines, judgments or orders to the extent reimbursed by
insurance, (h) non-cash charges, expenses or other items (including the
effects of purchase accounting) and items related to FAS 107 adjustments, FAS
141 adjustments, the straight lining of rents, tax stabilization adjustments,
the amortization of non-cash interest expense and the amortization of market
rate adjustments on any Indebtedness permitted under this Agreement (but
excluding non-cash charges, expenses or other items that constitute an accrual
of or reserve for future cash payments), and (i) extraordinary, unusual or
non-recurring losses (which losses shall not be duplicative of expense items
treated added back pursuant to clauses (a) through (h) above)
(and minus extraordinary, unusual or non-recurring gains) related to
(i) the sale of assets, (ii) foreign currency exchange rates,
(iii) litigation, (iv) securities available-for-sale (but only where
such security gain or loss is unrealized) and  (v) the
early extinguishment or forgiveness of debt. 
Adjusted EBITDA shall be calculated on a pro forma 


 


2

















 


basis for any GGP Property that has been open for
business for less than four (4) calendar quarters.


 


“Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by
dividing (and rounding upward to the next whole multiple of 1/10,000 of 1%) (i) (a) the
rate per annum (rounded to the nearest 1/10,000 of 1%) equal to the rate
reasonably determined by Administrative Agent to be the offered rate which
appears on the page of the Reuters Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently
being LIBOR01 page) for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the
preceding clause (a) does not appear on such page or service
or if such page or service shall cease to be available, the rate per annum
(rounded to the nearest 1/10,000 of 1%) equal to the rate reasonably determined
by Administrative Agent to be the offered rate on such other page or other
service which displays an average British Bankers Association Interest
Settlement Rate for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the
preceding clauses (a) and (b) are not available, the
rate per annum (rounded to the nearest 1/10,000 of 1%) equal to the offered
quotation rate to first class banks in the London interbank market by DBTCA for
deposits (for delivery on the first day of the relevant period) in Dollars of
amounts in same day funds comparable to the principal amount of the applicable
Loan of Administrative Agent, in its capacity as a Lender, for which the
Adjusted Eurodollar Rate is then being determined with maturities comparable to
such period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, by (ii) an amount equal to (a) one minus
(b) the Applicable Reserve Requirement.


 


“Administrative Agent” as defined in the preamble hereto.


 


“Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Parent or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
whether pending or, to the knowledge of Parent or any of its Subsidiaries,
threatened against or affecting Parent or any of its Subsidiaries or any
property of Parent or any of its Subsidiaries.


 


“Affected Lender” as defined in Section 2.18(b).


 


“Affected Loans” as defined in Section 2.18(b).


 


“Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the
purposes of this definition, “control” (including, with correlative meanings,
the terms “controlling”, “controlled by” and “under common control with”), as
applied to any Person, means the possession, directly or indirectly, of the
power (a) to vote 15% or more of the Capital Stock having ordinary voting
power for the election of directors of such Person or (b) to direct or 


 


3

















 


cause the direction of the management and policies of
that Person, whether through the ownership of voting Capital Stock or by
contract or otherwise.


 


“Agent” means each of (a) Administrative Agent, (b) Syndication
Agents, (c) Collateral Agent, (d) Documentation Agents and (e) any
other Person appointed under and in accordance with the Credit Documents to
serve in an agent or similar capacity.


 


“Agent Affiliates” as defined in Section 10.1(b)(iii).


 


“Aggregate Amounts Due” as defined in Section 2.17.


 


“Aggregate Payments” as defined in Section 7.2.


 


“Agreement” means this Credit and Guaranty Agreement, dated as of November [9],
2010, as it may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time.


 


“Applicable Margin” means (a) in the case of Eurodollar Rate Loans, 4.50% per annum and
(b) in the case of Base Rate Loans, 3.50% per annum.


 


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


 


“Applicable Revolving Commitment
Fee Percentage” means 0.50% per annum; provided
that at any time that the Total Utilization of Revolving Commitments exceeds
50% of the aggregate Revolving Commitments, the Applicable Revolving Commitment
Fee Percentage shall equal 0.375% per annum.


 


“Approved Electronic
Communications” means any notice, demand,
communication, information, document or other material that any Credit Party
provides to Administrative Agent pursuant to any Credit Document or the
transactions contemplated therein which is distributed to Agents, Lenders or
Issuing Bank by means of electronic communications pursuant to Section 10.1(b).


 


4

















 


“Asset Sale” means a sale, lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor),
transfer or other disposition to, or any exchange of property with, any Person,
in one transaction or a series of transactions, of all or any part of Parent’s
or any of its Subsidiaries’ businesses, assets or properties of any kind,
whether real, personal, or mixed and whether tangible or intangible, whether
now owned or hereafter acquired, leased or licensed, including the Capital Stock
of any of Parent’s Subsidiaries or any Joint Ventures owned by Parent or any of
its Subsidiaries.


 


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


 


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


 


“Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president,
chief operating officer, executive vice president of finance or chief financial
officer of such Person; provided that the secretary or any assistant
secretary of such Person shall have delivered an incumbency certificate to
Administrative Agent as to the authority of such Authorized Officer.


 


“Bank Products” means any services provided from time to time
by any Agent, any Lender or any of their respective Affiliates to any Borrower
or any other Credit Party in connection with collections, payroll, trust, or
other depository or disbursement accounts, including automatic clearinghouse,
controlled disbursement, depository, electronic funds transfer, information
reporting, lockbox, stop payment, overdraft and/or wire transfer services.


 


“Bankruptcy Cases” as defined in the recitals hereto.


 


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


 


“Bankruptcy Court” as defined in the recitals hereto.


 


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


 


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


 


“Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.


 


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


 


5

















 


“Borrower” as defined in the preamble hereto.


 


“Bridge Notes” as defined in the Plan.


 


“Budget” as defined in Section 5.1(g).


 


“Business Day” means (a) any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or is a day on which
banking institutions located in such state are authorized or required by law or
other governmental action to close and (b) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” means any day which is a
Business Day described in clause (a) and which is also a day for
trading by and between banks in Dollar deposits in the London interbank market.


 


“Capital Lease” means, as applied to any Person, any lease of any property (whether
real, personal or mixed) by a Person as lessee which, in conformity with GAAP,
is accounted for as a capital lease on the balance sheet of that Person; provided,
however, that notwithstanding the foregoing, in no event will any lease
that would have been categorized as an operating lease in accordance with GAAP
as of the Closing Date be considered to be a Capital Lease for any purpose
under this Agreement.


 


“Capital Lease Obligations” means, with respect to any Person, the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as Capital Leases
on a balance sheet of such Person under GAAP; and, for the purposes of the
Credit Documents, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.


 


“Capital Stock” means any and all capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing.


 


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


 


“Cash Equivalents” means, as at any date of determination, any of the following: (a) marketable
direct obligations issued by, or unconditionally guaranteed by, the United
States government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year from the
date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits, bankers’ acceptances or overnight bank deposits
having maturities of one year or less from the date of acquisition issued by
any Lender or  by any commercial bank
organized under the laws of the United States of America, any state thereof,
the District of Columbia, any foreign bank, or its branches or agencies (fully
protected against currency fluctuations) having combined capital and surplus of
not less than $500,000,000; (c) commercial paper of an issuer rated at
least A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
one year 


 


6

















 


or less from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of no more than 30
days with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or
less from the date of acquisition, issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody’s; (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of
this definition; and (h) the equivalents of the foregoing in any
jurisdiction in which any Subsidiary or Joint Venture of Parent is organized or
doing business.


 


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


 


“Change in Law” as defined in Section 2.19(a).


 


“Change of Control” means the failure of the Parent to be, or to have Control of, the
general partner of the Partnership.


 


“Closing Date” means November [9], 2010.


 


“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit G-1.


 


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


 


“Closing Date Pledged Property” as defined in Section 3.1(e).


 


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


 


“Collateral Agent” as defined in the preamble hereto.


 


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


 


“Combined EBITDA” means, for any period, the sum of (a) 100% of the Adjusted EBITDA
of any GGP Properties owned or leased by Parent Guarantors, Borrowers and the
Wholly Owned Subsidiaries of Borrowers for such period; (b) the portion of
the Adjusted EBITDA of the GGP Properties of any consolidated non-Wholly Owned
Subsidiaries or Joint 


 


7

















 


Ventures of Borrowers or Parent Guarantors for such
period allocable (based on economic share and not necessarily the percentage
ownership) to Parent Guarantors, Borrowers or their Wholly Owned Subsidiaries;
and (c) Adjusted EBITDA of Parent Guarantors, Borrowers and the Management
Company; provided, that Combined EBITDA shall include Adjusted EBITDA
allocable to the Management Company only to the extent that Adjusted EBITDA allocable
to the Management Company does not exceed 4% of Combined EBITDA.


 


“Combined Total Debt” means, as at any date of determination, the difference of (a) total Indebtedness (calculated at the
outstanding principal amount based on the contract and not reflecting purchase
accounting adjustments pursuant to GAAP) of Parent Guarantors, Borrowers and
their Subsidiaries and Joint Ventures (but, in the case of consolidated
non-Wholly Owned Subsidiaries and Joint Ventures of Parent Guarantors or
Borrowers, only to the extent allocable (based on economic share and not
necessarily the percentage ownership) to Parent Guarantors, Borrowers or their
Wholly Owned Subsidiaries) minus (b) unrestricted Cash and Cash
Equivalents (and restricted Cash and Cash Equivalents securing Indebtedness (i) which
are held in a lockbox or cash management account and are to be applied toward
the next installment of regularly scheduled principal payments under any
Permitted Project Level Financing so long as no event of default has occurred
and is continuing under such Permitted Project Level Financing or (ii) the
application of which is to be made against the principal of such Indebtedness)
of Parent Guarantors, Borrowers and their Subsidiaries and Joint Ventures (but,
in the case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of
Parent Guarantors or Borrowers, only to the extent allocable (based on economic
share and not necessarily the percentage ownership) to Parent Guarantors,
Borrowers or their Wholly Owned Subsidiaries), in each case as determined in
accordance with GAAP, except as otherwise noted above with respect to the
principal amount of Indebtedness and non-Wholly Owned Subsidiary and Joint
Venture allocations, without duplication and collectively in an amount not to
exceed $1,500,000,000.


 


“Commitment” means any Revolving Commitment.


 


“Commitment Letter” as defined in Section 10.20.


 


“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.


 


“Confirmation Order” as defined in Section 3.1(c).


 


“Consolidated Capital Expenditures” means, for any
period, the aggregate of all expenditures of Parent and its Subsidiaries during
such period determined on a consolidated basis that, in accordance with GAAP,
are or should be included in “purchase of property and equipment” or similar
items, or which should otherwise be capitalized, reflected in the consolidated
statement of cash flows of Parent and its Subsidiaries.


 


“Consolidated Cash Management
System” means the cash management system of Parent and
its Subsidiaries substantially as in effect on the Closing Date.


 


“Contingent Obligations” means, as to any Person, without duplication, (a) any contingent
obligation of such Person required to be included in such Person’s balance
sheet in 


 


8

















 


accordance with GAAP, and (b) any obligation
required to be included in the disclosure contained in the footnotes to such
Person’s financial statements in accordance with GAAP, guaranteeing partially
or in whole any Non-Recourse Indebtedness, lease, dividend or other obligation,
exclusive of (i) contractual indemnities (including, without limitation,
any indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and (ii) guarantees of non-monetary
obligations (other than guarantees of completion), in each case under clauses
(i) and (ii) which have not yet been called on or
quantified, of such Person or of any other Person. The amount of any Contingent
Obligation described in clause (b) above in this definition
shall be deemed to be (A) with respect to a guaranty of interest, interest
and principal, or operating income, the sum of all payments required to be made
thereunder (which in the case of an operating income guaranty shall be deemed
to be equal to the debt service for the note secured thereby), calculated at
the interest rate applicable to such Indebtedness, through (x) in the case
of an interest or interest and principal guaranty, the stated date of maturity
of the obligation (and commencing on the date interest could first be payable
thereunder), or (y) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (B) with respect to
all guarantees not covered by the preceding clause (A), an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as recorded on the balance sheet and in the
footnotes to the most recent financial statements required to be delivered
pursuant to Sections 5.1(a) and 5.1(b).  Notwithstanding anything contained herein to
the contrary, guarantees of completion or other performance shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion or other performance
shall be deemed to be a Contingent Obligation in an amount equal to any such
claim.  Subject to the preceding
sentence, (1) in the case of a joint and several guaranty given by such
Person and another Person (but only to the extent such guaranty is Recourse
Indebtedness, directly or indirectly to such Person or any of its
Subsidiaries), the amount of the guaranty shall be deemed to be 100% thereof
unless and only to the extent that (i) such other Person has delivered
Cash or Cash Equivalents to secure all or any part of such Person’s obligations
under such joint and several guaranty or (ii) such other Person holds an
Investment Grade Credit Rating from any of Fitch, Moody’s or S&P, or has
creditworthiness otherwise reasonably acceptable to the Administrative Agent,
and (2) in the case of a guaranty (whether or not joint and several) of an
obligation otherwise constituting Indebtedness of such Person, the amount of
such guaranty shall be deemed to be only that amount in excess of the amount of
the obligation constituting Indebtedness of such Person.  Notwithstanding anything contained herein to
the contrary, “Contingent Obligations” shall not be deemed to include
guarantees of loan commitments or of construction loans to the extent the same
have not been drawn.


 


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


 


“Contributing Guarantors” as defined in Section 7.2.


 


9

















 


“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person.


 


“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case
may be, as set forth in the applicable Conversion/Continuation Notice.


 


“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.


 


“Cornerstone Agreement” as defined in Section 3.1(c).


 


“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.8.


 


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


 


“Credit Document” means any of this Agreement, the Notes, if any, the Collateral
Documents, the Perfection Certificate, any documents or certificates executed
by any Borrower in favor of Issuing Bank relating to Letters of Credit, and all
other documents, certificates, instruments or agreements executed and delivered
by or on behalf of a Credit Party for the benefit of any Agent, Issuing
Bank or any Lender required to be delivered under any of the foregoing.


 


“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.


 


“Credit Party” means the Borrowers and the Guarantors from time to time party to a
Credit Document.


 


“DBTCA” as defined in the preamble hereto.


 


“Default” means a condition or event that, with notice or lapse of time or both,
shall become an Event of Default.


 


“Default Excess” means, with respect to any Funds Defaulting Lender, (a) in the case
of a failure to fund a Loan, the excess, if any, of such Defaulting Lender’s
Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Funds Defaulting Lenders (including such Funds
Defaulting Lender) had funded all of their respective Defaulted Loans) over the
aggregate outstanding principal amount of all Loans actually funded by such
Funds Defaulting Lender and (b) in the case of a failure to purchase
participations under Section 2.3(b)(v) or Section 2.4(e) or
to fund its Pro Rata Share of any payment under Section 9.6, such
Lender’s Pro Rata Share with respect to such participation or payment.


 


“Default Period” means, (a) with respect to any Defaulting Lender, the period
commencing on the date that such Lender became a Defaulting Lender and ending
on the earlier of:  (i) the date on
which (x) the Default Excess with respect to such Defaulting Lender shall
have been reduced to zero (whether by the funding by such Defaulting Lender of
any of its Defaulted Loans or by the non-pro rata application of any voluntary
prepayments of the Loans in


 


10














 


accordance with the terms of Section 2.13 or
by a combination thereof) and/or such Defaulting Lender shall have purchased
all participations required under Section 2.3(b)(v) and Section 2.4(e) or
shall have paid all amounts required to be paid by it under Section 9.6,
as the case may be, and (y) such Defaulting Lender shall have delivered to
Borrowers and Administrative Agent a written reaffirmation of its intention to
honor its obligations hereunder with respect to its Commitments, and (ii) the
date on which Borrowers, Administrative Agent and Requisite Lenders waive all
failures of such Defaulting Lender to fund or make payments required hereunder
in writing; and (b) with respect to any Insolvency Defaulting Lender, the
period commencing on the date such Lender became an Insolvency Defaulting
Lender and ending on the date that such Defaulting Lender ceases to hold any
portion of the Loans or Commitments.


 


“Defaulted Loan” means any Revolving Loan or portion of any unreimbursed payment under Section 2.3(b)(v) or
2.4(e) not made by any Lender when required hereunder.


 


“Defaulting Lender” means any Funds Defaulting Lender or Insolvency Defaulting Lender.


 


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


 


“Designated Environmental
Property” means any Mortgaged Property
and any Underlying Collateral Property (in each case, other than a Specified
Property) that is owned by Parent or any of its Material Subsidiaries.


 


“Disqualified Capital Stock” means, with respect to any Person, any Capital Stock of such Person
which, by its terms, or by the terms of any security into which it is
convertible or for which it is putable or exchangeable, or upon the happening
of any event, matures or is mandatorily redeemable (other than solely for
Capital Stock which is not Disqualified Capital Stock) pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the holder
thereof (in each case, other than solely as a result of a change of control or
asset sale), in whole or in part, in each case prior to the date that is 91
days after the third anniversary of the Closing Date; provided,  however,  that if such Capital Stock is issued to any plan for the
benefit of employees of Parent or its direct or indirect Subsidiaries or by any
such plan to such employees, such Capital Stock shall not constitute
Disqualified Capital Stock solely because it may be required to be repurchased
in order to satisfy applicable statutory or regulatory obligations.


 


“Disqualified Institutions” means (a) competitors of Borrowers and
Affiliates of such competitors, in each case identified by Borrowers to
Administrative Agent in writing prior to the date of the Commitment Letter,
with respect to the Lenders on the Closing Date and subsequent assignments and
participations in accordance with Section 10.6, and additional
competitors and Affiliates of such competitors identified by Borrowers to
Administrative Agent (and Administrative Agent shall forward such list to
Lenders) in writing from time to time after the Closing Date with respect to
subsequent assignments and participations (but no such identification shall apply
retroactively to Persons that already acquired and continue to hold an 


 


11

















 


assignment or participation
interest) and (b) other Persons identified by Borrowers to Administrative
Agent  in writing prior to the date of
the Commitment Letter.


 


“Documentation Agents” as defined in the preamble hereto.


 


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


 


“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.


 


“Eligible Assignee” means any Person other than a natural Person that is (a) a Lender,
an affiliate of any Lender or a Related Fund (any two or more Related Funds
being treated as a single Eligible Assignee for all purposes hereof), or
(b) a commercial bank, insurance company, investment or mutual fund or
other entity that is an “accredited investor” (as defined in Regulation D
under the Securities Act) and which extends credit or buys loans in the
ordinary course of business; provided, neither any Disqualified
Institution nor any Credit Party nor any Affiliate thereof shall be an Eligible
Assignee.


 


“Employee Benefit Plan” means (a) any “employee benefit plan” as defined in Section 3(3) of
ERISA which is or was sponsored, maintained or contributed to by, or required
to be contributed by, Parent or any of its Subsidiaries or (b) any “employee
benefit plan” as defined in Section 3(3) of ERISA, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA, with respect to any of their
respective ERISA Affiliates.


 


“Environmental Claim” means any investigation, notice of violation, claim, action, suit,
proceeding, demand, abatement order or other order or directive (conditional or
otherwise), by any Governmental Authority, arising or resulting from or related
to any Hazardous Material Activity or violation of any Environmental Law.


 


“Environmental Laws” means any and all applicable foreign or domestic, federal or state (or
any subdivision of either of them), statutes, ordinances, orders, rules,
regulations, judgments, Governmental Authorizations, or any other legally
binding requirements of Governmental Authorities relating to (a) the protection
of the environment, including those relating to any Hazardous Materials
Activity; or (b) the generation, use, storage, transportation or disposal
of Hazardous Materials, in any manner applicable to Parent or any of its
Subsidiaries or any Facility.


 


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


 


“ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a
member of a controlled group of corporations within the meaning of Section 414(b) of
the Internal Revenue Code of which that Person is a member; (b) any trade
or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c) of
the Internal Revenue Code of which that Person is a member; and (c) any
member of an affiliated service group within the meaning of Section 


 


12

















 


414(m) or (o) of the Internal Revenue Code of
which that Person, any corporation described in clause (a) above or
any trade or business described in clause (b) above is a
member.  Any former ERISA Affiliate of
Parent or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of Parent or any such Subsidiary within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate of
Parent or such Subsidiary and with respect to liabilities arising after such
period for which Parent or such Subsidiary could be liable under the Internal
Revenue Code or ERISA.


 


“ERISA Event” means (a) a “reportable event” within the meaning of Section 4043
of ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (b) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(c) of
the Internal Revenue Code) or the failure to make by its due date a required
installment under Section 430(j) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (c) the provision by the administrator of any
Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section 4041(c) of
ERISA; (d) the withdrawal by Parent, any of its Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to
Parent, any of its Subsidiaries or any of their respective Affiliates pursuant
to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan; (f) the
imposition of liability on Parent, any of its Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the
withdrawal of Parent, any of its Subsidiaries or any of their respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefore, or the receipt by Parent, any of its Subsidiaries or any
of their respective ERISA Affiliates of notice from any Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A
or 4042 of ERISA; (h) the occurrence of an act or omission which could
give rise to the imposition on Parent, any of its Subsidiaries or any of their
respective ERISA Affiliates of fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee
Benefit Plan; (i) receipt from the Internal Revenue Service of notice of
the failure of any Pension Plan (or any other Employee Benefit Plan intended to
be qualified under Section 401(a) of the Internal Revenue Code) to
qualify under Section 401(a) of the Internal Revenue Code, or the
failure of any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue Code; or (j) the
imposition of a lien pursuant to Section 430(k) of the Internal
Revenue Code or ERISA or a violation of Section 436 of the Internal
Revenue Code.


 


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


 


13

















 


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


 


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


 


“Exchangeable Notes” means, collectively, any of the 3.98% Exchangeable Senior Notes due 2027
of the Partnership.


 


“Existing GGPI” as defined in the recitals hereto.


 


“Facility” means any real property (including all buildings, fixtures or other
improvements located thereon) at any time owned, leased, or operated by Parent
or any of its Subsidiaries or any of their respective Affiliates.


 


“Fair Market Value” means the
price that would be paid in an arm’s-length transaction between an informed and
willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy, as reasonably determined by the Person making an
Asset Sale or other determination of Fair Market Value; provided that solely with respect to the calculation of Value, if
Parent or its Subsidiary or Joint Venture obtains or causes any other Person to
obtain a third party appraisal with respect to any asset by an appraiser
reasonably acceptable to Administrative Agent having an effective date no more
than 180 days prior to the date of calculation, the Fair Market Value of such
asset is to be conclusively determined by such appraisal.


 


“Fair Share” as defined in Section 7.2.


 


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


 


“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded
upwards, if necessary, to the next higher 1/10,000 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided, (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent on such day on such transactions
as reasonably determined by Administrative Agent.


 


“Fee Letter” means that certain Fee Letter dated as of September 21, 2010 among
the Lender Commitment Parties (as defined therein), the Partnership, the LLC
and Existing GGP.


 


“FFO” means net income, excluding gains (or losses) from debt restructuring
and sales of property, plus depreciation and amortization, and after
adjustments for unconsolidated partnerships and Joint Ventures (which will be
calculated to reflect funds from operations on the 


 


14

















 


same basis), as determined and adjusted in accordance
with the standards established from time to time by the National Association of
Real Estate Investment Trusts.


 


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


 


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


 


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


 


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


 


“Fitch” means Fitch, Inc.


 


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


 


“Foreign Subsidiary” means (a) any Subsidiary that is not a Domestic Subsidiary or (b) any
Subsidiary that is a Domestic Subsidiary that is treated as a disregarded
entity for U.S. federal income tax purposes and substantially all of the assets
of which consists of Capital Stock of one or more Foreign Subsidiaries.


 


“Fraudulent Transfer Laws” as defined in Section 2.24(a).


 


“Funding Borrower” as defined in Section 2.24(b).


 


“Funding Guarantors” as defined in Section 7.2.


 


“Funding Notice” means a notice substantially in the form of Exhibit A-1.


 


“Funds Defaulting Lender” means a Lender that has (a) failed to fund any portion of the
Loans, or participations in Letter of Credit or Swing Line Loan exposure
required to be funded by it on the date required, (b) otherwise failed to
pay Administrative Agent or any other Lender any other amount required to be
paid under the Credit Documents on the date when due unless the subject of a
good faith dispute, (c) notified Administrative Agent or Borrowers in
writing that it does not intend to comply with any of its obligations under the
Credit Documents or (d) failed, within three (3) Business Days after
request by Administrative Agent or the Partnership, to affirm its willingness
to comply with its funding obligations under the Credit Documents.


 


15

















 


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


 


“GGP” means GGP, Inc. (f/k/a General Growth Properties, Inc.), a
Delaware corporation.


 


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


 


“GGP Properties” means any asset owned, leased or operated by any Parent Guarantor, a
Borrower or any Subsidiary of Parent Guarantors or Borrowers (whether a Wholly
Owned Subsidiary or otherwise) or Joint Venture owned by Parent or any of its
Subsidiaries.


 


“Good Faith Contest” means, in the case of any disputed Tax, Lien, or Environmental Claim,
that such matter is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) adequate
reserves or other appropriate provision, as shall be required in conformity
with GAAP shall have been made therefor, and (b) in the case of such
matter which has or may become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such Tax or claim.


 


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


 


“Governmental Authority” means any nation or government, any state or other political subdivision
thereof and any entity of competent authority and jurisdiction exercising
executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government.


 


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


 


“Guaranteed Obligations” as defined in Section 7.1.


 


“Guarantor” means (a) on the Closing Date, each of the entities listed on Schedule
1.1 hereto (other than, in the case of any Borrower, with respect to those
Secured Obligations in respect of which such Borrower is the primary obligor)
and (b) after the Closing Date, each Person listed in clause (a) and
each other Domestic Subsidiary of Parent owning any Mortgaged Properties or
Pledged Properties, in each case, other than Foreign Subsidiaries. For the
avoidance of doubt, none of The Rouse Company, LLC, formerly known as The Rouse
Company LP, or any of its Subsidiaries shall be Guarantors.


 


“Guarantor Subsidiary” means each Guarantor other than Borrowers and Parent Guarantors.


 


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


 


16

















 


“Hazardous Materials” means any substance, material, or waste that is classified,
characterized or regulated as “hazardous”, “toxic”, a “pollutant”, or “contaminant”,
or words of similar meaning under the Environmental Laws; provided, however,
that “Hazardous Materials” shall not include the foregoing items to the extent (a) the
same exist on the applicable Real Estate Asset in retail packaging for sale as
consumer products or are present in negligible amounts  in connection with the construction, heating
and cooling or repair and maintenance activities at such property and are
stored and used in accordance with all Environmental Laws or (b) are used
in connection with a tire or battery retail store provided the same are stored,
sold and used in accordance with all Environmental Laws.


 


“Hazardous Materials Activity” means any condition, event or occurrence involving any Hazardous
Material that has resulted in a violation of Environmental Laws, including the
use, manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Materials in violation of
Environmental Laws.


 


“Hedge Agreement” means an interest rate or currency swap, cap or collar agreement,
foreign exchange agreement, commodity contract or similar arrangement entered
into by Parent or any of its Subsidiaries providing for protection against
fluctuations in interest rates, currency exchange rates, commodity prices or
the exchange of nominal interest obligations, either generally or under
specific contingencies.


 


“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws
applicable to any Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow.


 


“Historical Financial Statements” means as of the Closing Date, (a) the audited financial statements
of Existing GGPI, for the Fiscal Year ended December 31, 2009, consisting
of balance sheets and the related consolidated statements of income and cash
flows for such Fiscal Year, and (b) the unaudited financial statements of
Existing GGPI and its Subsidiaries for each Fiscal Quarter ended after December 31,
2009 and at least 60 days prior to the Closing Date, consisting of a balance
sheet and the related consolidated statements of income and cash flows for the
three-, six-or nine-month period, as applicable, ending on such date.


 


“Holding Companies” means, collectively, GGP Real Estate Holding I, Inc., a Delaware
corporation, and GGP Real Estate Holding II, Inc., a Delaware corporation.


 


“Immaterial Subsidiaries” means, at any time, Subsidiaries that, on a consolidated basis with
their respective Subsidiaries and treated as if all such Subsidiaries and their
respective Subsidiaries were combined and consolidated as a single Subsidiary,
have an aggregate net equity value of $200,000,000 or less.


 


“Increased-Cost Lenders” as defined in Section 2.23.


 


17

















 


“Indebtedness” means, with respect to any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other than
trade payables and accrued expenses incurred by such Person in the ordinary
course of business) and only to the extent such obligations constitute
indebtedness for purposes of GAAP, (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under
acceptance, letter of credit or similar facilities, (g) all obligations of
such Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Disqualified Capital Stock of such Person (other than (i) obligations
existing on the Closing Date that any direct or indirect parent of such Person
has the right (subject to satisfaction of applicable securities law requirements,
including the filing of registration statements) to satisfy by delivery of its
Capital Stock, (ii) obligations that any direct or indirect parent of such
Person is given the right to satisfy by delivery of its Capital Stock and (iii) obligations
to redeem trust preferred securities), (h) all Contingent Obligations of
such Person in respect of the foregoing items (a) through (g), (i) all
obligations of the kind referred to in clause (a) through (h) above
secured by any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has assumed
or become liable for the payment of such obligation, and (j) for the
purposes of Section 8.1(b) only, the net obligations of such
Person in respect of Hedge Agreements. 
The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness expressly provide that such Person
is not liable therefor.  The amount of
any Indebtedness under clause (i) above shall be limited to the
lesser of the amount of such Indebtedness that is Non-Recourse Indebtedness or
the fair market value of the assets securing such Indebtedness that is
Non-Recourse Indebtedness, as reasonably determined by Borrowers.  The amount of Indebtedness of any Person shall
be calculated at the outstanding principal amount based on the contract and not
reflecting purchase accounting or other adjustments pursuant to GAAP.


 


“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims, actions,
judgments, suits, costs (including the costs of any investigation, study,
sampling, testing, abatement, cleanup, removal, remediation or other response
action necessary to remove, remediate, clean up or abate any Hazardous
Materials present in the environment at concentrations exceeding those allowed
by Environmental Laws), expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial
proceeding or hearing commenced or threatened by any Person, whether or not any
such Indemnitee shall be designated as a party or a potential party thereto,
and any fees or expenses incurred by Indemnitees in enforcing this indemnity; provided
that the Indemnitees shall use their reasonable efforts to use a single outside
counsel for all such Indemnitees taken as a whole (and, if reasonably
necessary, one local counsel in any relevant material jurisdiction) to
represent them, with exceptions in the case of conflicts of 


 


18

















 


interest and in all cases the total legal fees for all
counsel representing the Indemnitees must be reasonable taken as a whole,
taking into account the nature of the proceeding or hearing and, in the case of
multiple counsel, the necessity of same), whether direct, indirect, special or
consequential (but subject to Section 10.3(b)) and whether based on
any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations
and Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (a) this Agreement
or the other Credit Documents or the transactions contemplated hereby or
thereby (including the Lenders’ agreement to make Credit Extensions, the syndication
of the credit facilities provided for herein or the use or intended use of the
proceeds thereof, any amendments, waivers or consents with respect to any
provision of this Agreement or any of the other Credit Documents, or any
enforcement of any of the Credit Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the
Guaranty)); (b) the Commitment Letter, the Fee Letter and any related fee
letter delivered to Borrowers with respect to the transactions contemplated by
this Agreement; or (c) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from any past or present activity, operation,
land ownership, or practice of Parent or any of its Subsidiaries.


 


“Indemnitee” as defined in Section 10.3(a).


 


“Insolvency Defaulting Lender” means any Lender that has become, or whose direct or indirect parent has
become, insolvent or is the subject of a receivership, bankruptcy or other
insolvency proceeding; provided that a Lender shall not be an Insolvency
Defaulting Lender solely by virtue of the ownership or acquisition by a
Governmental Authority or an instrumentality thereof of any Capital Stock in
such Lender or a parent company thereof.


 


“Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Combined
EBITDA for the four-Fiscal Quarter period then ended to (ii) Net Cash
Interest Expense for such four-Fiscal Quarter period.


 


“Interest Payment Date” means with respect to (a) any Loan that is a Base Rate Loan, each January 1,
April 1, July 1 and October 1, commencing on the first such date
to occur after the Closing Date and the final maturity date of such Loan; and (b) any
Loan that is a Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided, in the case of each Interest Period
of longer than three months “Interest Payment Date” shall also include each
date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.


 


“Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of
one-, two-, three-, six- or (if agreed to by all Lenders) nine-months, as
selected by Borrowers in the applicable Funding Notice or
Conversion/Continuation Notice, (a) initially, commencing on the Credit
Date or Conversion/Continuation Date thereof, as the case may be; and (b) thereafter,
commencing on the day on which the immediately preceding Interest Period
expires; provided, (i) if an Interest Period would otherwise expire
on a day that is not a Business Day, such Interest 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 


 


19

















 


immediately preceding Business Day; (ii) 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 (iii) of
this definition, end on the last Business Day of a calendar month; and (iii) no
Interest Period with respect to any portion of the Revolving Loans shall extend
beyond the third anniversary of the Closing Date.


 


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


 


“Intermediate Parent” means, collectively, GGP and GGP LP II.


 


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


 


“Investment” means (a) any purchase or other acquisition by Parent or any of its
Subsidiaries of, or of a beneficial interest in, any Capital Stock of any other
Person (other than Parent or a Guarantor Subsidiary); (b) any loan,
advance (other than advances to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business) or capital contributions by Parent or any of its Subsidiaries to any
other Person (other than Parent or any Guarantor Subsidiary), including all
Indebtedness of that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business and (c) all
investments consisting of any exchange traded or over the counter derivative
transaction, including any Hedge Agreement, whether entered into for hedging or
speculative purposes or otherwise.  The
amount of any Investment of the type described in clauses (a), (b) and
(c) shall be the original cost of such Investment plus the cost of
all additions thereto, minus repayment of or returns on such Investment, but
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.


 


“Investment Grade Credit Rating” means (a) with respect to Fitch, a credit rating of BBB- or higher,
(b) with respect to Moody’s, a credit rating of Baa3 or higher and
(c) with respect to S&P, a credit rating of BBB- or higher.


 


“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.


 


“Issuing Bank” means DBTCA as Issuing Bank hereunder and other Lenders with a Revolving
Commitment that agree in writing with Borrowers and Administrative Agent to
issue Letters of Credit hereunder, in each case, together with their respective
permitted successors and assigns in such capacity.


 


“Joint Lead Arrangers” means, collectively, Deutsche Bank Securities
Inc., Wells Fargo Securities, LLC and RBC Capital Markets Corporation, in their
capacity as Joint Lead Arrangers.


 


“Joint Venture” means a joint venture, partnership or other similar arrangement, whether
in corporate, partnership or other legal form; provided, in no event
shall any corporate Subsidiary of any Person be considered to be a Joint
Venture to which such Person is a party.


 


20














 


“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property included in the Collateral as a Mortgaged Property.


 


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


 


“Lender Bank Product Provider” means each Lender and each of their respective Affiliates that provides
Bank Products (including any Person who is a Lender (and any Affiliate thereof)
as of the Closing Date but subsequently, whether before or after providing any
such Bank Products, ceases to be a Lender).


 


“Lender Counterparty” means each Lender and each of their respective Affiliates counterparty to
a Hedge Agreement (including any Person who is a Lender (and any Affiliate
thereof) as of the Closing Date but subsequently, whether before or after
entering into a Hedge Agreement, ceases to be a Lender).


 


“Letter of Credit” means a standby letter of credit issued or to be issued by Issuing Bank
pursuant to this Agreement.


 


“Letter of Credit Sublimit” means the lesser of (a) $75,000,000 and (b) the aggregate
unused amount of the Revolving Commitments then in effect.


 


“Letter of Credit Usage” means, as at any date of determination, the sum of (a) the maximum
aggregate amount which is, or at any time thereafter may become, available for
drawing under all Letters of Credit then outstanding, and (b) the
aggregate amount of all drawings under Letters of Credit honored by Issuing Bank
and not theretofore reimbursed by or on behalf of Borrowers.


 


“Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (a) Combined
Total Debt to (b) Combined EBITDA for the four-Fiscal Quarter period
ending on such date.


 


“Lien” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement in respect of
the property of a Person, in each case, in the nature of security (including,
without limitation, any conditional sale or other title retention agreement and
any Capital Lease having substantially the same economic effect as any of the
foregoing).


 


“Limited Minority Holdings” means non-Wholly Owned Subsidiaries or Joint Ventures in which
(a) Parent and its Wholly Owned Subsidiaries have a less than 50%
ownership interest and  (b) Parent
and its Wholly Owned Subsidiaries do not control the day-to-day management of
such non-Wholly Owned Subsidiary or Joint Venture, whether as the general
partner or managing member of such non-Wholly Owned Subsidiary or Joint
Venture, or otherwise.  As used in this
definition, Parent and any Wholly Owned Subsidiaries shall be deemed to “control”
the management of such non-Wholly Owned Subsidiary or Joint Venture if 


 


21

















 


such Person has the authority to manage day-to-day
operations of such non-Wholly Owned Subsidiary or Joint Venture.


 


“LLC” as defined in the preamble hereto.


 


“Loan” means a Revolving Loan and a Swing Line Loan.


 


“Management Company” means General Growth Management, Inc., a Delaware corporation, and
any of its successors and assigns that are Affiliates of Parent.


 


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


 


“Material Adverse Effect” means, a material adverse effect on (a) the business, operations or
financial condition of Parent and its Subsidiaries, taken as a whole; (b) the
material rights and remedies of Administrative Agent and the Lenders, taken as
a whole, under the Credit Documents; or (c) the legality, validity or
enforceability of the Credit Documents, taken as a whole.


 


“Material Contract” means any contract or other arrangement to which Parent or any of its
Subsidiaries is a party (other than the Credit Documents) for which breach,
nonperformance, cancellation or failure to renew could reasonably be expected
to have a Material Adverse Effect.


 


“Material Real Estate Asset” means all or a portion of any Real Estate Asset with a purchase price in
excess of $10,000,000 (calculated at the amount allocable to Borrowers or their
Wholly Owned Subsidiaries on the date of such acquisition).


 


“Material REIT Subsidiary” means a Material Subsidiary of Parent that is a REIT (other than any
Subsidiary or Subsidiaries all or substantially all of whose assets comprise
Specified Properties or equity of a Person all or substantially all of whose
assets comprise any Specified Property).


 


“Material Subsidiary” means each Subsidiary of Parent that is not an
Immaterial Subsidiary.


 


“Matured Rouse Notes” means, collectively, the 3.625% Notes due 2009 of The Rouse Company LP
and the 8.00% Notes due 2009 of The Rouse Company LP.


 


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


 


“Mortgage” means a mortgage or deed of trust substantially in the form of Exhibit J,
as it may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.


 


“Mortgaged Properties” means, collectively, the Closing Date Mortgaged
Properties and each other Material Real Estate Asset subject to the Lien of the Collateral 


 


22

















 


Documents in favor of Collateral Agent, for the benefit
of Secured Parties, pursuant to the requirements of Section 5.9.


 


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


 


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


 


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


 


“Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a customary narrative report describing the operations
of Parent and its Subsidiaries in the form prepared for presentation to senior
management thereof for the applicable Fiscal Quarter or Fiscal Year and for the
period from the beginning of the then current Fiscal Year to the end of such
period to which such financial statements relate.  For the avoidance of doubt, any such
narrative report in compliance with the requirements of Form 10-Q (in the
case of each applicable Fiscal Quarter) and Form 10-K (in the case of each
Fiscal Year) under the Exchange Act shall satisfy this definition.


 


“Net Cash Interest Expense” means, for any period, total interest expense (including (a) that
portion attributable to Capital Leases in accordance with GAAP, (b) commissions,
discounts, and other fees and charges owed with respect to letters of credit,
and (c) net costs under Hedge Agreements, including any termination fee or
payment thereunder, provided that notwithstanding the treatment of such fees or
payments under GAAP, such termination fee or payment shall be amortized on a
straight-line basis over the remaining term of the applicable terminated Hedge
Agreement) of Parent Guarantors, Borrowers and their Subsidiaries and Joint
Ventures (but, in the case of
consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent
Guarantors or Borrowers, only to the extent allocable (based on economic share
and not necessarily the percentage ownership) to Parent Guarantors, Borrowers
or their Wholly Owned Subsidiaries), but excluding, however, (i) any
amount not payable in Cash, (ii) one-time payments, (iii) original issue
discount, (iv) fees payable under the Fee Letter and any amounts referred
to in Section 2.11(d), (v) fees and expenses paid in
connection with (x) any Investment permitted under Section 6.6,
(y) Indebtedness incurred under Section 6.1 or (z) issuance of
Capital Stock, in each case whether or not consummated, and (vii) any
default interest, make-whole or similar payments required to be paid pursuant
to the Plan.


 


“Net Indebtedness to Value Ratio”
means the ratio as of the last day of any Fiscal
Quarter of (a) Combined Total Debt
to (b) Value (less the aggregate amount of unrestricted Cash and Cash
equivalents subtracted from Indebtedness pursuant to clause (b) of
the definition of Combined Total Debt) for
the four-Fiscal Quarter period ending on such date.


 


23

















 


“Next Day Revolving Loans” as defined in Section 2.2(b)(i).


 


“Non-Consenting Lender” as defined in Section 2.23.


 


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


 


“Non-Recourse Indebtedness” means Indebtedness which is not Recourse Indebtedness.


 


“Non-US Lender” as defined in Section 2.20(c).


 


“Note” means a Revolving Loan Note or a Swing Line Note.


 


“Notice” means a Funding Notice, an Issuance Notice, or a Conversion/
Continuation Notice.


 


“Obligation Aggregate Payments” as defined in Section 2.24(b).


 


“Obligation Fair Share” as defined in Section 2.24(b).


 


“Obligation Fair Share Contribution
Amount” as
defined in Section 2.24(b).


 


“Obligation Fair Share Shortfall” as defined in Section 2.24(b).


 


“Obligations” means all obligations of every nature of each Credit Party owing from
time to time to Agents (including former Agents), Joint Lead Arrangers, Lenders
or any of them under any Credit Document, whether for principal, interest
(including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or
not a claim is allowed against such Credit Party for such interest in the
related bankruptcy proceeding), reimbursement of amounts drawn under Letters of
Credit, fees, expenses, indemnification or otherwise required under any Credit
Document.


 


“Obligee Guarantor” as defined in Section 7.7.


 


“OFAC” means  the Office of Foreign Assets Control of the U.S. Treasury Department.


 


“Organizational Documents” means (a) with respect to any corporation or company, its
certificate, memorandum or articles of incorporation, organization or
association, as amended, and its by-laws, as amended, (b) with respect to
any limited partnership, its certificate or declaration of limited partnership,
as amended, and its partnership agreement, as amended, (c) with respect to
any general partnership, its partnership agreement, as amended, (d) with
respect to any limited liability company, its articles of organization, as
amended, and its operating agreement, as amended, and (e) for any trust,
the trust agreement and any other instrument or agreement relating to the
rights between the trustors, trustees and beneficiaries or pursuant to which
such trust is formed.  In the event any
term or condition of this Agreement or any other Credit Document requires any
Organizational Document to be certified by a secretary of state or 


 


24

















 


similar Governmental Authority, the reference to any
such “Organizational Document” shall only be to a document of a type
customarily certified by such Governmental Authority.


 


“Other Taxes” means any and all present or future stamp or documentary Taxes or any
other excise or property Taxes, charges or similar levies (and interest, fines,
penalties and additions related thereto) arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Credit Document.


 


“Participant Register” as defined in Section 10.6(g)(i).


 


“Parent” as defined in the preamble hereto.


 


“Parent Guarantors” means Parent, GGP, GGP LP II and the Holding Companies.


 


“Partnership” as defined in the preamble hereto.


 


“PATRIOT Act” as defined in Section 3.1(r).


 


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


 


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


 


“Perfection Certificate” means a certificate in form reasonably satisfactory to Collateral Agent
that provides information with respect to the personal or mixed property of
each Credit Party.


 


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


 


“Permitted Project Level
Financing” means any Indebtedness
secured by a mortgage (or negative pledge (which, for purposes of this
Agreement and the other Credit Documents, shall constitute a Lien) or similar
security instrument in lieu of any of the foregoing) on any Real Estate Asset
(or, for convenience, to avoid expense or for other bona fide business purposes
of Borrowers, secured by rentals or cash flow of one or more Real Estate Assets
but not by a mortgage) or secured by a Lien on any Capital Stock of any Person
whose primary asset is (a) the Real Estate Asset financed by such
Indebtedness or (b) the Capital Stock of an entity that directly or
indirectly owns such Real Estate Asset; provided, that Permitted Project
Level Financing shall not be secured by any Collateral.


 


“Permitted Refinancing” means, with respect to any Person, any modification, amendment,
restatement, amendment and restatement, refinancing, refunding, renewal or
extension of any Indebtedness of such Person (the “Original
Indebtedness”); provided that (a) the principal amount
(or accreted value, if applicable) thereof does not exceed the principal amount
(or accreted value, if applicable) of the Original Indebtedness except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably 


 


25

















 


incurred, in connection with such modification,
amendment, restatement, amendment and restatement, refinancing, refunding,
renewal or extension and by an amount equal to any existing commitments
unutilized thereunder (to the extent such commitments could be drawn at the
time of such refinancing in compliance with this Agreement) or as otherwise
permitted pursuant to Section 6.1, (b) if the Original
Indebtedness is subordinated in right of payment to the Obligations, such
modification, amendment, restatement, amendment and restatement, refinancing,
refunding, renewal or extension is subordinated in right of payment to the
Obligations on terms at least as favorable to the Lenders as those contained in
the documentation governing the Original Indebtedness, (c) such modification,
amendment, restatement, amendment and restatement, refinancing, refunding,
renewal or extension shall not be secured (i) by any Lien on any asset
other than the assets that secured the Original Indebtedness (or would have
been required to secure such Original Indebtedness pursuant to the terms
thereof); provided, that this clause (c) shall not prohibit such
modification, amendment, restatement, amendment and restatement, refinancing,
refunding, renewal or extension to be secured by a Lien on assets other than
those that secured the Original Indebtedness if such Indebtedness may be
secured pursuant to a Permitted Lien or (ii), in the event Liens securing such
Original Indebtedness shall have been contractually subordinated to any Lien
securing the Obligations, by any Lien that shall not have been contractually
subordinated to at least the same extent and (d) at the time thereof, no
Default or Event of Default shall have occurred and be continuing.


 


“Person” means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, Joint Venture, Governmental Authority or other entity of whatever
nature.


 


“Plan” means the Third Amended Joint Plan of Reorganization Under Chapter 11 of
the Bankruptcy Code, dated August 27, 2010, filed by Existing GGPI, the
Partnership, the LLC and the Debtor Subsidiaries with the Bankruptcy Court,
together with all exhibits, supplements, annexes, schedules and any other
attachments filed as of the date of the Commitment Letter.


 


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


 


“Pledge Agreement” means the Pledge Agreement to be executed by the Pledgors substantially
in the form of Exhibit I, as it may be amended, restated, amended
and restated, supplemented or otherwise modified from time to time.


 


“Pledged Properties” means, collectively, the Closing Date Pledged
Properties and the additional Capital Stock subject
to the Lien of the Collateral Documents in favor of Collateral Agent, for the
benefit of Secured Parties, pursuant to the requirements of Section 5.8.


 


“Pledgor” as defined in the Pledge Agreement.


 


“Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section as
the Prime Rate (currently defined as the base rate on corporate loans posted by
at least 75% of the nation’s thirty (30) largest banks), as in effect from time
to time.  The Prime Rate is a reference
rate and does not necessarily represent the lowest or 


 


26

















 


best rate actually charged to any customer.  Administrative Agent or any other Lender may
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.


 


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


 


“Projections” as defined in Section 4.8.


 


“Pro Rata Share” with respect to any Lender means the percentage obtained by dividing (a) the
Revolving Exposure of that Lender, by (b) the aggregate Revolving Exposure
of all Lenders.


 


“Public Lenders” means Lenders that do not wish to receive material Non-Public
Information with respect to Parent, its Subsidiaries or their securities.


 


“Qualified Capital Stock” means Capital Stock that is not Disqualified Capital Stock.


 


“Qualified Permitted Liens” as defined in the Pledge Agreement.


 


“Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then directly owned by any Credit Party or any Subsidiary of a
Credit Party in any real property.


 


“Recourse Indebtedness” means any Indebtedness, to the extent that recourse of the applicable
lender for non-payment is not limited to such lender’s Liens on a particular
asset or group of assets.


 


“Recourse Secured Mortgage
Indebtedness” means any Permitted Project
Level Financing that is Recourse Indebtedness.


 


“Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).


 


“Register” as defined in Section 2.7(b).


 


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


 


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


 


“Reimbursement Date” as defined in Section 2.4(d).


 


“Reinstated Rouse Notes” means, collectively, any of the 7.20% Notes due 2012 of The Rouse
Company LP, any of the 5.375% Notes due 2013 of The Rouse Company LP, and 


 


27

















 


any of the 63⁄4% Notes due 2013 of The Rouse Company LP,
together with any refinancing or replacement thereof contemplated by the Plan.


 


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


 


“REIT Subsidiary” means a Subsidiary of Parent that is a REIT.


 


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


 


“Release” means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of any Hazardous Material into the environment, including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.


 


“Replacement Lender” as defined in Section 2.23.


 


“Requisite Lenders” means one or more Lenders having or holding Revolving Exposure and representing
more than 50% of the aggregate Revolving Exposure of all Lenders.


 


“Restricted Junior Payment” means any dividend or other distribution, direct or indirect, on account
of any shares of any class of stock of the Partnership or any Parent Guarantor
now or hereafter outstanding, except a dividend payable solely in shares of
Capital Stock of such Person or of any direct or indirect parent of such Person
or in rights to subscribe for the purchase of such Capital Stock.


 


“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Revolving
Loan and to acquire participations in Letters of Credit and Swing Line Loans
hereunder and “Revolving Commitments” means
such commitments of all Lenders in the aggregate.   The amount of each Lender’s Revolving
Commitment, if any, is set forth on Appendix A or in the applicable Assignment
Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof.  The aggregate amount
of the Revolving Commitments as of the Closing Date is $300,000,000.


 


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


 


“Revolving Commitment
Termination Date” means the earliest to occur
of (a) the third anniversary of the Closing Date, (b) the date the
Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b),
and (c) the date of the termination of the Revolving Commitments pursuant
to Section 8.1.


 


“Revolving Exposure” means, with respect to any Lender as of any date of determination,
(a) prior to the termination of the Revolving Commitments, that Lender’s
Revolving Commitment; and (b) after the termination of the Revolving
Commitments, the sum of (i) the aggregate outstanding principal amount of
the Revolving Loans of that Lender, (ii) in 


 


28

















 


the case of Issuing Bank, the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender (net of any
participations by Lenders in such Letters of Credit),  (iii) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any
unreimbursed drawing under any Letter of Credit, (iv) in the case of Swing
Line Lender, the aggregate outstanding principal amount of all Swing Line Loans
(net of any participations therein by other Lenders), and (v) the
aggregate amount of all participations therein by that Lender in any
outstanding Swing Line Loans.


 


“Revolving Loan” means a Loan made by a Lender to Borrowers pursuant to Section 2.2(a).


 


“Revolving Loan Note” means a promissory note in the form of Exhibit B-1, as it
may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.


 


“S&P” means Standard & Poor’s, a Division of The McGraw-Hill
Companies, Inc.


 


“Secured Bank Product Agreement” means any agreement or instrument governing
any Bank Products provided by any Lender Bank Product Provider.


 


“Secured Hedge Agreement” means any Hedge Agreement entered into with a
Lender Counterparty.


 


“Secured Obligations” means the
Obligations and any obligations of every nature of each Credit Party owing from
time to time to any Lender Counterparty (including any Agent or Joint Lead
Arranger in its capacity as a Lender Counterparty) under any Secured Hedge
Agreement (including payments for each termination of Secured Hedge Agreements)
and to any Lender Bank Product Providers under any Secured Bank Product
Agreement.


 


“Secured Parties” has the meaning assigned to that term in the Pledge Agreement.


 


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


 


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


 


“Solvent” means, with respect to any Credit Party, that as of the date of
determination, both (a) (i) the sum of such Credit Party’s debt
(including contingent liabilities) does not exceed the present fair saleable
value of such Credit Party’s present assets; (ii) such Credit Party’s
capital is not unreasonably small in relation to its business as contemplated
on the Closing Date or with respect to any transaction contemplated to be
undertaken after the Closing Date; and (iii) such Person has not incurred
and does not intend to incur, or believe (nor should it reasonably believe)
that it will incur, debts beyond its ability to pay such debts as they become
due (whether at maturity or otherwise); and (b) such Person is “solvent”
within the meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and 


 


29

















 


conveyances.  For
purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability (irrespective of whether
such contingent liabilities meet the criteria for accrual under Statement of
Financial Accounting Standard No.5).


 


“Special Consideration
Properties”
means those Real Estate Assets identified on Schedule 1.2 hereto.


 


“Specified Equity Contribution” as defined in Section 6.7(e).


 


“Specified Properties” means the Special Consideration Properties and
Real Estate Assets and/or Subsidiaries having an aggregate net equity value
less than $200,000,000.


 


“Subject Transaction” as defined in Section 6.7(d)(i).


 


“Subordinated Indebtedness” means any Indebtedness expressly subordinated in right of payment to the
Obligations.


 


“Subsidiary” means, as to any Person, a corporation, partnership, limited liability
company, trust, estate 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, limited liability company or other entity are
at the time owned, directly or indirectly through one or more intermediaries,
or both, by such Person.


 


“Swing Line Lender” means DBTCA in its capacity as Swing Line Lender hereunder, together
with its permitted successors and assigns in such capacity.


 


“Swing Line Loan” means a Loan made by Swing Line Lender to Borrowers pursuant to Section 2.3.


 


“Swing Line Note” means a promissory note in the form of Exhibit B-2, as it
may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time.


 


“Swing Line Sublimit” means the lesser of (i) $30,000,000, and (ii) the aggregate
unused amount of Revolving Commitments then in effect.


 


“Syndication Agents” as defined in the preamble hereto.


 


“Tax” means any present or future tax, levy, impost, duty, assessment, charge,
fee, deduction or withholding (together with interest, penalties and other
additions thereto) of any nature and whatever called, imposed, levied,
collected, withheld or assessed by any Governmental Authority; provided,
“Tax on the overall net income” of a Person shall be construed as a reference
to a tax imposed by the jurisdiction in which that Person is organized or in
which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending


 


30






 










 


office) is located on all or part of the overall net
income, profits or gains (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a particular
jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender,
its applicable lending office).


 


“Terminated Lender” as defined in Section 2.23.


 


“Total Utilization of Revolving
Commitments” means, as at any date of
determination, the sum of (a) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing Issuing Bank for any
amount drawn under any Letter of Credit, but not yet so applied), (b) the
aggregate principal amount of all outstanding Swing Line Loans, and
(c) the Letter of Credit Usage.


 


“Transaction Costs” means the fees, costs and expenses payable by Parent or any of its
Subsidiaries on or before the Closing Date in connection with the transactions
contemplated by the Credit Documents.


 


“TRUP Notes” means, collectively, any of the TRUP Junior Subordinated Notes due 2036
of the Partnership.


 


“Trust Preferred Securities
Issuer” means a special purpose entity of which Parent
or any of Borrowers and the Wholly Owned Subsidiaries of one or more of
Borrowers owns 100% of the common interests, which special purpose entity is
established for the purpose of issuing such trust preferred securities and
using the proceeds of such issuance to make loans to Parent or a Borrower or a
Wholly Owned Subsidiary of one or more of Borrowers.


 


“Type of Loan” means (a) with respect to Revolving Loans, a Base Rate Loan or a
Eurodollar Rate Loan, and (b) with respect to Swing Line Loans, a Base
Rate Loan.


 


“UCC” means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect from time to time in any applicable jurisdiction.


 


“Underlying Collateral Properties” means all Real Estate Assets directly owned by the entities whose
Capital Stock constitutes Pledged Properties and their Subsidiaries.


 


“Unsecured Indebtedness Sublimit” as defined in Section 6.1(c).


 


“U.S. Lender” as defined in Section 2.20(c).


 


“Value” means the sum, without duplication, of (a) Combined EBITDA for the
immediately preceding four (4) calendar quarters capped at 7.25% (excluding any GGP Property
included on a cost basis pursuant to clause (c) below),  (b) the Fair Market Value of development and inactive
assets owned by Parent, Borrowers or any of their Subsidiaries (Wholly Owned
Subsidiaries or otherwise) or Joint Ventures, including raw land, vacant
outparcels, loans receivable, capital expenditures and the headquarters
buildings in Illinois and Maryland and other underutilized assets with de
minimis income (at the lesser of cost or fair market value, provided
that the headquarters buildings shall be valued at their appraised values);
(c) the cost 


 


31

















 


basis of new acquisitions of Parent, Borrowers or any of
their Subsidiaries (Wholly Owned Subsidiaries or otherwise) or Joint Ventures
(calculated as (i) 100% for assets owned by any Parent Guarantor, any
Borrower or any Wholly Owned Subsidiary of Borrowers and (ii) in the case
of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent
Guarantors or Borrowers, only to the extent allocable (based on economic share
and not necessarily the percentage ownership) to Parent Guarantors, Borrowers
or their Wholly Owned Subsidiaries for the twelve month period after any such
acquisition); (d) unrestricted Cash and Cash Equivalents of Parent
Guarantors, Borrowers and their Subsidiaries and Joint Ventures (but, in the
case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent
Guarantors or Borrowers, only to the extent allocable (based on economic share
and not necessarily the percentage ownership) to Parent Guarantors, Borrowers
or their Wholly Owned Subsidiaries),  in each case as determined in accordance with
GAAP, except as otherwise noted above with respect to non-Wholly Owned Subsidiary
and Joint Venture allocations, without duplication; and
(e) aggregate sums spent on the construction of improvements (including
land acquisition costs) for any Real Estate Asset which is raw land, vacant
out-parcels or is the subject of a material construction project but excluding
such sums with respect to Real Estate Assets subject to material construction
projects, if Parent elects to include revenues in Adjusted EBITDA (provided
that such costs can be included if the project is a renovation or expansion of
a Real Estate Asset that is otherwise complete and operational, the
construction will not impair ongoing business and operations and the inclusion
of such revenues in Adjusted EBITDA and such aggregate sums in Value is not
duplicative).


 


“Wholly Owned Subsidiary” means, as to any Person or Persons, any Subsidiary of any of such Person
or Persons all of the Capital Stock of which (other than directors’ qualifying
shares and, in the case of any REIT Subsidiary, non-participating preferred
equity with a base liquidation preference of no more than $180,000) is owned by
such Person or Persons directly or indirectly.


 


1.2.   Accounting
Terms. 
Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity
with GAAP.  Financial statements required
to be delivered by Parent to Administrative Agent pursuant to Section 5.1(a) and
5.1(b) shall be prepared in accordance with GAAP as in effect at
the time of such preparation.  Subject to
the foregoing, calculations in connection with the definitions, covenants and
other provisions hereof shall (i) utilize accounting principles and
policies in conformity with GAAP and (ii) shall not give
effect to any election made by Parent or any of its Subsidiaries under
Accounting Standards Codification 825-10 (or any other Financial Accounting
Standard having a similar result or effect) to value Indebtedness or other liabilities of any Credit
Party or any Subsidiary of any Credit Party or any Joint Venture at “fair
value.”  If at
any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Credit Document, and Parent shall so request,
Administrative Agent and Parent shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of Requisite Lenders), provided
that, until so amended, such ratio or requirement shall continue to be computed
in conformity with those accounting principles and policies in effect before
giving effect to such change in GAAP.


 


32

















 


1.3.   Interpretation, Etc.  Any of the terms defined herein
may, unless the context otherwise requires, be used in the singular or the
plural, depending on the reference. 
References herein to any Section, Appendix, Schedule or Exhibit shall
be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be,
hereof unless otherwise specifically provided. 
The use herein of the word “include” or “including”, when following any
general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
non-limiting language (such as “without limitation” or “but not limited to” or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.  The terms lease and license shall include
sub-lease and sub-license, as applicable. 
Whenever any payment to be made hereunder shall be stated to be due on a
day that is not a Business Day, such payment shall be made as set forth in Section 2.16(e) and
(f), the provisos set forth in the definition of “Interest Period”, or,
to the extent provided in any amendment, waiver, or modification of a Credit
Document, as provided therein, as applicable. 
Whenever performance of any other obligation or agreement is required on
a day that is not a Business Day, the date for such performance shall be
extended to the next succeeding Business Day.


 


SECTION 2.   LOANS
AND LETTERS OF CREDIT


 


2.1.   Intentionally
Omitted.


 


2.2.   Revolving
Loans.


 


(a)  
Revolving Commitments. 
During the Revolving Commitment Period, subject to the terms and
conditions hereof, each Lender severally agrees to make Revolving Loans to
Borrowers in an aggregate amount up to but not exceeding such Lender’s
Revolving Commitment; provided, that after giving effect to the making
of any Revolving Loans in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.2(a) may
be repaid and reborrowed during the Revolving Commitment Period.  Each Lender’s Revolving Commitment shall
expire on the Revolving Commitment Termination Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Commitments shall be paid in full no later than such date.


 


(b)  
Borrowing Mechanics for Revolving Loans.


 


(i)  
Revolving Loans that are Base Rate Loans (other than Revolving Loans made
pursuant to Section 2.4(d)), shall be made in an aggregate minimum
amount of $1,000,000 and integral multiples of $500,000  in excess of that amount, and Revolving
Loans that are Eurodollar Rate Loans shall be in an aggregate minimum amount of
$3,000,000 and integral multiples of $500,000
in excess of that amount. 
Notwithstanding the foregoing, if Swing Line Lender resigns and no
replacement Swing Line Lender is appointed within thirty (30) days after such
resignation, Borrowers may request Revolving Loans that are Base Rate Loans on
one Business Day’s notice (“Next Day
Revolving Loans”) in an aggregate minimum amount of $250,000 and
integral multiples 


 


33

















 


of $50,000, but in no event shall such Next Day Revolving
Loans, in the aggregate, exceed  the
Swing Line Sublimit.


 


(ii)  
Subject to Section 3.2(b), whenever Borrowers desire that
Lenders make Revolving Loans, Borrowers shall deliver to Administrative Agent a
fully executed and delivered Funding Notice no later than 11:00 a.m. (New
York City time) at least three Business Days in advance of the proposed Credit
Date in the case of a Eurodollar Rate Loan, and at least one Business Day in
advance of the proposed Credit Date in the case of a Revolving Loan that is a
Base Rate Loan.  Notwithstanding the
foregoing, if Swing Line Lender resigns and no replacement Swing Line Lender is
appointed within thirty (30) days after such resignation, Borrowers may request
Next Day Revolving Loans by delivering to Administrative Agent a fully executed
and delivered Funding Notice no later than 5:00 p.m. (New York City time)
one Business Day in advance of the proposed Credit Date.  Except as otherwise provided herein, a
Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be
irrevocable on and after the related Interest Rate Determination Date, and
Borrowers shall be bound to make a borrowing in accordance therewith.


 


(iii)  
Notice of receipt of each Funding Notice in respect of Revolving Loans,
together with the amount of each Lender’s Pro Rata Share thereof, if any,
together with the applicable interest rate, shall be provided by Administrative
Agent to each applicable Lender by facsimile or electronic mail with reasonable
promptness, but (provided Administrative Agent shall have received such notice
by 11:00 a.m. (New York City time) (or 5:00 p.m. (New York City time)
in the case of Next Day Revolving Loans)) not later than 3:00 p.m. (New
York City time) (or 6:00 p.m. (New York City time) in the case of Next Day
Revolving Loans) on the same day as Administrative Agent’s receipt of such
Notice from Borrowers.


 


(iv)  
Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at the
Principal Office of Administrative Agent. 
Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds of
such Revolving Loans available to Borrowers on the applicable Credit Date by
causing an amount of same day funds in Dollars equal to the proceeds of all
such Revolving Loans received by Administrative Agent from Lenders to be
credited to the account of Borrowers at the Principal Office designated by
Administrative Agent or such other account as may be designated in writing to
Administrative Agent by Borrowers.


 


2.3.   Swing
Line Loans.


 


(a)  
Swing Line Loans Commitments. 
During the Revolving Commitment Period, subject to the terms and
conditions hereof, Swing Line Lender agrees to make Swing Line Loans to
Borrowers in the aggregate amount up to but not exceeding the Swing Line
Sublimit; provided, that after giving effect to the making of any Swing
Line Loan, in no event shall the Total Utilization of Revolving Commitments
exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.3
may be repaid and reborrowed 


 


34

















 


during the Revolving Commitment Period.  Swing Line Lender’s Revolving Commitment
shall expire on the Revolving Commitment Termination Date and all Swing Line
Loans and all other amounts owed hereunder with respect to the Swing Line Loans
and the Revolving Commitments shall be paid in full no later than such date.


 


(b)  
Borrowing Mechanics for Swing Line Loans.


 


(i)  
Swing Line Loans shall be made in an aggregate minimum amount of
$250,000 and integral multiples of $50,000 in excess of that amount.


 


(ii)  
Subject to Section 3.2(b), whenever Borrowers desire that
Swing Line Lender make a Swing Line Loan, Borrowers shall deliver to
Administrative Agent a Funding Notice no later than 1:00 p.m. (New York
City time) on the proposed Credit Date.


 


(iii)  
Swing Line Lender shall make the amount of its Swing Line Loan available
to Administrative Agent not later than 3:00 p.m. (New York City time) on
the applicable Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent’s Principal Office. 
Except as provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds of
such Swing Line Loans available to Borrowers on the applicable Credit Date by
causing an amount of same day funds in Dollars equal to the proceeds of all
such Swing Line Loans received by Administrative Agent from Swing Line Lender
to be credited to the account of Borrowers at Administrative Agent’s Principal
Office, or to such other account as may be designated in writing to
Administrative Agent by Borrowers.


 


(iv)  
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Borrowers pursuant to Section 2.13, Swing Line Lender
may at any time in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Borrowers), no later than 11:00 a.m. (New York City
time) at least one Business Day in advance of the proposed Credit Date, a
notice (which shall be deemed to be a Funding Notice given by Borrower)
requesting that each Lender holding a Revolving Commitment make Revolving Loans
that are Base Rate Loans to Borrowers on such Credit Date in an amount equal to
the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender
requests Lenders to prepay.  Anything
contained in this Agreement to the contrary notwithstanding, (1) the
proceeds of such Revolving Loans made by the Lenders other than Swing Line
Lender shall be immediately delivered by Administrative Agent to Swing Line
Lender (and not to Borrowers) and applied to repay a corresponding portion of
the Refunded Swing Line Loans and (2) on the day such Revolving Loans are
made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall
be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender to Borrowers, and such portion of the Swing Line Loans deemed to be so
paid shall no longer be outstanding as Swing Line Loans and shall no longer be
due under the Swing Line Note, if any, of Swing Line Lender but shall instead
constitute part of Swing Line Lender’s outstanding Revolving Loans to Borrowers
and shall be due under the Revolving Loan Note, if any, issued by Borrowers to
Swing Line Lender.  If any portion 


 


35

















 


of any such amount paid (or deemed to be paid) to
Swing Line Lender should be recovered by or on behalf of Borrowers from Swing
Line Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by Section 2.17.


 


(v)  
If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in
an amount sufficient to repay any amounts owed to Swing Line Lender in respect
of any outstanding Swing Line Loans on or before the third Business Day after
written demand for the making thereof by Swing Line Lender, each Lender holding
a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased
a participation in such outstanding Swing Line Loans in an amount equal to its
Pro Rata Share of the applicable unpaid amount together with accrued interest
thereon.  Upon one Business Day’s notice
from Swing Line Lender, each Lender holding a Revolving Commitment shall
deliver to Swing Line Lender an amount equal to its respective participation in
the applicable unpaid amount in same day funds at the Principal Office of Swing
Line Lender. In order to evidence such participation, each Lender holding a
Revolving Commitment agrees to enter into a participation agreement at the
request of Swing Line Lender in form and substance reasonably satisfactory to
Swing Line Lender.  In the event any Lender
holding a Revolving Commitment fails to make available to Swing Line Lender the
amount of such Lender’s participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on written demand from such
Lender together with interest thereon for three Business Days at the rate
customarily used by Swing Line Lender for the correction of errors among banks
and thereafter at the Base Rate, as applicable.


 


(vi)  
Notwithstanding anything contained herein to the contrary, (1) each
Lender’s obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and each
Lender’s obligation to purchase a participation in any unpaid Swing Line Loans
pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (B) the occurrence or continuation of a Default or
Event of Default; (C) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any
Credit Party; (D) any breach of this Agreement or any other Credit
Document by any party thereto; or (E) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided
that such obligations of each Lender are subject to the condition that Swing
Line Lender had not received prior notice from Borrowers or Requisite Lenders
that any of the conditions under Section 3.2 to the making of the
applicable Refunded Swing Line Loans or other unpaid Swing Line Loans were not
satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans
were made; and (2) Swing Line Lender shall not be obligated to make any
Swing Line Loans (A) if it has elected not to do so after the occurrence
and during the continuation of a Default or Event of Default, (B) it does not
in good faith believe that all conditions under Section 3.2 to the
making of such Swing Line Loan have been satisfied or waived by Requisite
Lenders or (C) at a time when any Lender is a Defaulting Lender 


 


36

















 


unless (x) first,
Administrative Agent is holding sufficient Cash collateral for the obligations
of such Defaulting Lender, (y) second, after
taking into account the reallocation of such Defaulting Lender’s participation
obligations pro rata, among the non-Defaulting Lenders, the Revolving Exposure
of such Revolving Lenders does not exceed their respective Revolving
Commitments or (z) third, Swing
Line Lender has entered into arrangements reasonably satisfactory to it and
Borrowers to eliminate Swing Line Lender’s risk with respect to the Defaulting
Lender’s participation obligations in respect of such Swing Line Loan,
including by Cash collateralizing such Defaulting Lender’s Pro Rata Share of
the outstanding Swing Line Loans.


 


(c)  
Resignation and Removal of Swing Line Lender.  Swing Line Lender may resign as Swing Line
Lender upon 30 days prior written notice to Administrative Agent, Lenders and
Borrowers.  Swing Line Lender may be
replaced at any time by written agreement among Borrowers, Administrative
Agent, the replaced Swing Line Lender (provided that no consent will be
required if the replaced Swing Line Lender has no Swing Line Loans outstanding)
and the successor Swing Line Lender. 
Administrative Agent shall notify Lenders of any such replacement of
Swing Line Lender.  At the time any such
replacement or resignation shall become effective, (i) Borrowers shall
prepay any outstanding Swing Line Loans made by the resigning or removed Swing
Line Lender, (ii) upon such prepayment, the resigning or removed Swing
Line Lender shall surrender any Swing Line Note held by it to Borrowers for
cancellation, and (iii) Borrowers shall issue, if so requested by the
successor Swing Line Loan Lender, a new Swing Line Note to the successor Swing
Line Lender, in the principal amount of the Swing Line Sublimit then in effect
and with other appropriate insertions. From and after the effective date of any
such replacement or resignation, (x) any successor Swing Line Lender shall
have all the rights and obligations of a Swing Line Lender under this Agreement
with respect to Swing Line Loans made thereafter and (y) references herein
to the term “Swing Line Lender” shall be deemed to refer to such successor or
to any previous Swing Line Lender, or to such successor and all previous Swing
Line Lenders, as the context shall require.


 


2.4.   Issuance
of Letters of Credit and Purchase of Participations Therein.


 


(a)  
Letters of Credit.  During
the Revolving Commitment Period, subject to the terms and conditions hereof, Issuing
Bank agrees to issue Letters of Credit for the account of Borrowers in the
aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,
(i) each Letter of Credit shall be denominated in Dollars; (ii) the
stated amount of each Letter of Credit shall not be less than $5,000 or such
lesser amount as the applicable Issuing Bank and Borrowers may agree; (iii) after
giving effect to such issuance, in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after
giving effect to such issuance, in no event shall the Letter of Credit Usage
exceed the Letter of Credit Sublimit then in effect; and (v) no event
Letter of Credit shall have an expiration date later than the earlier of (1) five
days prior to the third anniversary of the Closing Date (the “Letter of Credit Expiration Date”) and (2) the
date which is one year from the date of issuance of such Letter of Credit; provided,
however, that Issuing Bank may agree in its reasonable discretion that a
Letter of Credit will automatically be extended for one or more successive
periods not to exceed one year each (but in any event, not beyond the Letter of
Credit Expiration Date unless Borrowers shall, not later than five days preceding the 


 


37

















 


Letter of Credit
Expiration Date, Cash collateralize in accordance with Section 2.4(i),
on terms and conditions reasonably satisfactory to Administrative Agent and
Issuing Bank, an amount equal to the Letter of Credit Usage with respect to any
Letters of Credit having an expiry date later than the Letter of Credit
Expiration Date; provided, further, that the obligations under
this Section 2.4 in respect of such Letters of Credit of (i) Borrowers
shall survive the Revolving Commitment Termination Date and shall remain in
effect until no such Letters of Credit remain outstanding and (ii) each Lender shall be reinstated, to the
extent any such Cash collateral, the application thereof or reimbursement in respect
thereof is required to be returned to Borrowers by Issuing Bank after the
Revolving Commitment Termination Date and while the related Letter of Credit
remains outstanding.
Amounts held in such cash collateral account shall be held and applied by Administrative
Agent in the manner and for the purposes set forth in Section 2.4(d)), unless Issuing Bank elects not to extend for any such additional
period; provided, Issuing Bank shall not extend any such Letter of
Credit if it has received written notice that an Event of Default has occurred
and is continuing at the time Issuing Bank must elect to allow such extension; provided,
further, if any Lender is a Defaulting Lender, Issuing Bank shall
not be required to issue any Letter of Credit unless (x) first, Administrative Agent is holding sufficient Cash
collateral for the obligations of such Defaulting Lender, (y) second, after taking into account the reallocation of such
Defaulting Lender’s participation obligations pro rata, among the
non-Defaulting Lenders, the Revolving Exposure of such Revolving Lenders does
not exceed their respective Revolving Commitments or (z) third, Issuing Bank has entered into arrangements
reasonably satisfactory to it and Borrowers to eliminate Issuing Bank’s risk
with respect to the Defaulting Lenders’ participation obligations in respect of
Letters of Credit of the Defaulting Lender, including by Cash collateralizing
such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.


 


(b)  
Notice of Issuance. 
Subject to Section 3.2(b), whenever any Borrower desires the
issuance of a Letter of Credit, it shall deliver to Administrative Agent an
Issuance Notice no later than 12:00 p.m. (New York City time) at least
three Business Days, or such shorter period as may be agreed to by Issuing Bank
in any particular instance, in advance of the requested date of issuance.  Subject to satisfaction or waiver of the
conditions set forth in Section 3.2, Issuing Bank shall issue
the requested Letter of Credit on the requested date of issuance in accordance
with Issuing Bank’s standard operating procedures.  Upon the issuance of any Letter of Credit or
amendment or modification to a Letter of Credit, Issuing Bank shall
promptly notify each Lender with a Revolving Commitment of such issuance, and,
if requested by a Lender, provide a copy of such Letter of Credit or amendment
or modification to a Letter of Credit and the amount of such Lender’s
respective participation in such Letter of Credit pursuant to Section 2.4(e).


 


(c)  
Responsibility of Issuing Bank With Respect to Requests for Drawings
and Payments.  In determining whether
to honor any drawing under any Letter of Credit by the beneficiary thereof, Issuing
Bank shall be responsible only to examine the documents delivered under such
Letter of Credit with reasonable care so as to ascertain whether they appear on
their face to be in accordance with the terms and conditions of such Letter of
Credit.  As between Borrowers and Issuing
Bank, Borrowers assume all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by Issuing Bank by, the respective beneficiaries of
such Letters of Credit.  In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be
responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of 


 


38

















 


any document submitted by any party in connection
with the application for and issuance of any such Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) failure of the beneficiary of any such Letter of Credit to
comply fully with any conditions required in order to draw upon such Letter of
Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any such Letter of
Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes
beyond the control of Issuing Bank, including any Governmental Acts; none of
the above shall affect or impair, or prevent the vesting of, any of Issuing
Bank’s rights or powers hereunder. 
Without limiting the foregoing and in furtherance thereof, any action
taken or omitted by Issuing Bank under or in connection with the Letters of
Credit or any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not give rise to any liability on the part of
Issuing Bank to Borrowers. 
Notwithstanding anything to the contrary contained in this Section 2.4(c),
each Borrower shall retain any and all rights it may have against Issuing Bank
for any liability arising solely out of the gross negligence or willful
misconduct of Issuing Bank as determined by a final, non-appealable judgment of
a court of competent jurisdiction.


 


(d)  
Reimbursement by Borrowers of Amounts Drawn or Paid Under Letters of
Credit.  In the event Issuing Bank
has determined to honor a drawing under a Letter of Credit, it shall
immediately notify Borrowers and Administrative Agent, and Borrowers shall
reimburse Issuing Bank on or before the Business Day immediately following the
date on which such drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds equal to the amount of
such honored drawing; provided, anything contained herein to the
contrary notwithstanding, (i) unless Borrowers shall have notified
Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City
time) on the date such drawing is honored that Borrowers intend to reimburse
Issuing Bank for the amount of such honored drawing with funds other than the
proceeds of Revolving Loans, Borrowers shall be deemed to have given a timely
Funding Notice to Administrative Agent requesting Lenders with Revolving
Commitments to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars equal to the amount of such honored
drawing, and (ii) subject to satisfaction or waiver of the conditions
specified in Section 3.2, Lenders with Revolving Commitments shall,
on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied directly
by Administrative Agent to reimburse Issuing Bank for the amount of such
honored drawing; and provided further, if for any reason proceeds of Revolving Loans are not received by
Issuing Bank on the Reimbursement Date in an amount equal to the amount of such
honored drawing, Borrowers shall reimburse Issuing Bank, on written demand, in
an amount in same day funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such Revolving Loans, if any, which are so
received.  Nothing in this Section 2.4(d) shall
be deemed to relieve any Lender with a Revolving Commitment from its 


 


39

















 


obligation to make Revolving Loans on the terms and
conditions set forth herein, and each Borrower shall retain any and all rights
it may have against any such Lender resulting from the failure of such Lender
to make such Revolving Loans under this Section 2.4(d).


 


(e)  
Lenders’ Purchase of Participations in Letters of Credit.  Immediately upon the issuance of each Letter
of Credit, each Lender having a Revolving Commitment shall be deemed to have
purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a
participation in such Letter of Credit and any drawings honored thereunder in
an amount equal to such Lender’s Pro Rata Share (with respect to the Revolving
Commitments) of the maximum amount which is or at any time may become available
to be drawn thereunder.  In the event
that Borrowers shall fail for any reason to reimburse Issuing Bank as provided
in Section 2.4(d), Issuing Bank shall promptly notify each
Lender with a Revolving Commitment of the unreimbursed amount of such honored
drawing and of such Lender’s respective participation therein based on such Lender’s
Pro Rata Share of the Revolving Commitments. 
Each Lender with a Revolving Commitment shall make available to Issuing
Bank an amount equal to its respective participation, in Dollars and in same
day funds, at the office of Issuing Bank specified in such notice, not later
than 12:00 p.m. (New York City time) on the first Business Day after the
date notified by Issuing Bank.  In the
event that any Lender with a Revolving Commitment fails to make available to
Issuing Bank on such Business Day the amount of such Lender’s participation in
such Letter of Credit as provided in this Section 2.4(e), Issuing
Bank shall be entitled to recover such amount on written demand from such
Lender together with interest thereon for three Business Days at the rate
customarily used by Issuing Bank for the correction of errors among banks and
thereafter at the Base Rate.  Nothing in
this Section 2.4(e) shall be deemed to prejudice the right of
any Lender with a Revolving Commitment to recover from Issuing Bank any amounts
made available by such Lender to Issuing Bank pursuant to this Section in
the event that the payment with respect to a Letter of Credit in respect of
which payment was made by such Lender constituted gross negligence or willful
misconduct on the part of Issuing Bank. 
In the event Issuing Bank shall have been reimbursed by other Lenders
pursuant to this Section 2.4(e) for all or any portion of any
drawing honored by Issuing Bank under a Letter of Credit, such Issuing Bank
shall distribute to each Lender which has paid all amounts payable by it under
this Section 2.4(e) with respect to such honored drawing such
Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank
from Borrowers in reimbursement of such honored drawing when such payments are
received.  Any such distribution shall be
made to a Lender at its primary address set forth below its name on Appendix
B or at such other address as such Lender may request.


 


(f)  
Obligations Absolute.  The obligation of Borrowers to reimburse
Issuing Bank for drawings honored under
the Letters of Credit issued by it and to repay any Revolving Loans made by
Lenders pursuant to Section 2.4(d) and the obligations of
Lenders under Section 2.4(e) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms hereof
under all circumstances including any of the following circumstances: (i) any
lack of validity or enforceability of any Letter of Credit; (ii) the
existence of any claim, set-off, defense or other right which Borrowers or any
Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing
Bank, Lender or any other Person or, in the case of a Lender, against
Borrowers, whether in connection herewith, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between a
Borrower or one of


 


40






 










 


its Subsidiaries and the beneficiary for which any
Letter of Credit was procured); (iii) any draft or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (iv) payment by Issuing Bank under any Letter
of Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit; (v) any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Parent or any of its Subsidiaries; (vi) any
breach hereof or any other Credit Document by any party thereto; (vii) any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing; or (viii) the fact that an Event of Default or a Default
shall have occurred and be continuing; provided, in each case, that
payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the
circumstances in question as determined by a final, non-appealable judgment of
a court of competent jurisdiction.


 


(g)  
Indemnification.  Without
duplication of any obligation of Borrowers under Sections 2.20, 10.2
or 10.3, in addition to amounts payable as provided herein, each
Borrower hereby agrees to protect, indemnify, pay and save harmless Issuing
Bank from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees, out-of-pocket
expenses and disbursements of outside counsel) which Issuing Bank may incur or
be subject to as a consequence, direct or indirect, of (i) the issuance of
any Letter of Credit by Issuing Bank, other than as a result of (1) the
gross negligence or willful misconduct of Issuing Bank as determined by a
final, non-appealable judgment of a court of competent jurisdiction or (2) the
wrongful dishonor by Issuing Bank of a proper written demand for payment made
under any Letter of Credit issued by it, or (ii) the failure of Issuing
Bank to honor a drawing under any such Letter of Credit as a result of any
Governmental Act; provided, that to the extent such claims, demands,
liabilities, damages, losses, costs, charges and expenses relate to Taxes, they
shall be subject to the provisions of Section 2.20.


 


(h)  
Resignation and Removal of Issuing Bank.  An Issuing Bank may resign as Issuing Bank
upon 60 days prior written notice to Administrative Agent, Lenders and
Borrowers.  An Issuing Bank may be
replaced at any time by written agreement among Borrowers, Administrative
Agent, the replaced Issuing Bank (provided that no consent will be
required if the replaced Issuing Bank has no Letters of Credit or reimbursement
Obligations with respect thereto outstanding) and the successor Issuing
Bank.  Administrative Agent shall notify
Lenders of any such replacement of such Issuing Bank.  At the time any such replacement or
resignation shall become effective, Borrowers shall pay all unpaid fees accrued
for the account of the replaced Issuing Bank. 
From and after the effective date of any such replacement or
resignation, (i) any successor Issuing Bank shall have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement or
resignation of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto to the extent that Letters of Credit issued by it remain
outstanding and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement or resignation, but shall not be required to issue
additional Letters of Credit.


 


41

















 


(i)  
Cash Collateral.  For
purposes of this Agreement, providing “Cash collateral” or “Cash
collateralization” for, or to “Cash collateralize” a Letter of Credit means to
pledge and deposit with or deliver to Administrative Agent, for the benefit of
Issuing Bank and Lenders funding a participation in Letters of Credit pursuant
to Section 2.4(e), as collateral for the Obligations under the
Letters of Credit, Cash in the currency in which the Letters of Credit are
denominated and in an amount equal to the undrawn amount of such Letter of
Credit and pursuant to documentation in form and substance reasonably
satisfactory to Administrative Agent and Borrowers.  Borrowers hereby grant to Administrative Agent,
for the benefit of Issuing Bank and each Lender funding a participation in
Letters of Credit pursuant to Section 2.4(e), a security interest
in all such Cash, deposit accounts and all proceeds of the foregoing. All Cash
collateral shall be maintained with Administrative Agent for the benefit of
Issuing Bank and each Lender in an account subject to an account control
agreement in form and substance reasonably satisfactory to Administrative
Agent.


 


(j)  
Conflicts with Letter of Credit Documentation.  In the event of any conflict or inconsistency
between the terms hereof and any Letter of Credit documentation, the terms
hereof shall control and all representations, warranties or covenants contained
in any Letter of Credit documentation shall be qualified in the manner and to
the extent set forth herein mutatis mutandis and
to the extent not contained herein shall be null and void.


 


2.5.   Pro
Rata Shares; Availability of Funds.


 


(a)  
Pro Rata Shares.  Subject
to Section 2.22, all Loans shall be made, and all participations
purchased, by Lenders simultaneously and proportionately to their respective
Pro Rata Shares, it being understood that no Lender shall be responsible for
any default by any other Lender in such other Lender’s obligation to make a
Loan requested hereunder or purchase a participation required hereby nor shall
any Revolving Commitment of any Lender be increased or decreased as a result of
a default by any other Lender in such other Lender’s obligation to make a Loan
requested hereunder or purchase a participation required hereby.


 


(b)  
Availability of Funds. 
Unless Administrative Agent shall have been notified by any Lender prior
to the applicable Credit Date that such Lender does not intend to make
available to Administrative Agent the amount of such Lender’s Loan requested on
such Credit Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Credit Date and
Administrative Agent may, in its sole discretion, but shall not be obligated
to, make available to Borrowers a corresponding amount on such Credit
Date.  If such corresponding amount is
not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate.  If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent’s demand therefor,
Administrative Agent shall promptly notify Borrowers and Borrowers shall
promptly pay such corresponding amount to Administrative Agent together with
interest thereon, for each day from such Credit Date until the date such amount
is paid to Administrative Agent, at the rate payable hereunder for Base Rate
Loans for such Class of Loans. 
Nothing in this Section 2.5(b) shall be deemed to 


 


42

















 


relieve any Lender from its obligation to fulfill
its Revolving Commitments hereunder or to prejudice any rights that Borrowers
may have against any Lender as a result of any default by such Lender
hereunder.


 


2.6.   Use of
Proceeds.  The proceeds of the Revolving Loans, if any,
made on the Closing Date shall be applied by Borrowers to finance the Plan,
which may include the refinancing of certain Indebtedness of Existing GGPI and
its Subsidiaries, including, without limitation, the Matured Rouse Notes, and
to pay fees, commissions and expenses in connection therewith. The proceeds of
the Revolving Loans, Swing Line Loans and Letters of Credit made on and after
the Closing Date may also be applied by Borrowers for working capital and
general corporate purposes of Parent and its Subsidiaries.  No portion of the proceeds of any Credit
Extension shall be used in any manner that causes or might cause such Credit
Extension or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors or any other
regulation thereof or to violate the Exchange Act.


 


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


 


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


 


(b)  
Register.  Administrative
Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal
Office a register for the recordation of the names and addresses of Lenders and
the Revolving Commitments and Loans of each Lender from time to time (the “Register”).  The Register shall be available
for inspection by Borrowers or any Lender (with respect to any entry relating
to such Lender’s Loans) at any reasonable time and from time to time upon
reasonable prior notice.  Administrative
Agent shall record, or shall cause to be recorded, in the Register the
Revolving Commitments and the Loans in accordance with the provisions of Section 10.6,
and each repayment or prepayment in respect of the principal amount of the
Loans, and any such recordation shall be conclusive and binding on Borrowers
and each Lender, absent manifest error; provided, failure to make any
such recordation, or any error in such recordation, shall not affect any Lender’s
Revolving Commitments or Borrowers’ Obligations in respect of any Loan.  Borrowers hereby designate Administrative
Agent to serve as Borrowers’ agent solely for purposes of maintaining the
Register as provided in this Section 2.7, and Borrowers hereby
agree that, to the extent Administrative Agent serves in such capacity,
Administrative Agent and its officers, directors, employees, agents, sub-agents
and affiliates shall constitute “Indemnitees.”


 


(c)  
Notes.  If so requested by
any Lender by written notice to Borrowers (with a copy to Administrative Agent)
at least three Business Days prior to the Closing Date, or at any time
thereafter, Borrowers shall execute and deliver to such Lender (and/or, if
applicable and if so specified in such notice, to any Person who is an assignee
of such Lender pursuant to 


 


43

















 


Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date,
promptly after Borrowers’ receipt of such notice) a Note or Notes to evidence
such Lender’s Revolving Loan or Swing Line Loan, as the case may be.


 


2.8.   Interest
on Loans.


 


(a)  
Except as otherwise set forth herein, each Loan shall bear interest on
the unpaid principal amount thereof from the date made through repayment
(whether by acceleration or otherwise) thereof as follows:


 


(i)  
in the case of Revolving Loans:


 


(1) if a Base Rate Loan, at the Base
Rate plus the Applicable Margin; or


 


(2) if a Eurodollar Rate Loan, at the
Adjusted Eurodollar Rate plus the Applicable Margin; or


 


(ii)  
in the case of Swing Line Loans, at the Base Rate plus the Applicable
Margin.


 


(b)  
The basis for determining the rate of interest with respect to any Loan
(except a Swing Line Loan which can be made and maintained as Base Rate Loans
only), and the Interest Period with respect to any Eurodollar Rate Loan, shall
be selected by Borrowers and notified to Administrative Agent and Lenders pursuant
to the applicable Funding Notice or Conversion/Continuation Notice, as the case
may be; provided, until the earlier of (i) the date on which Joint
Lead Arrangers notify Borrowers that the primary syndication of the Loans and
Revolving Commitments has been completed, as determined by Joint Lead
Arrangers, and (ii) the date that is 60 days after the Closing Date, the
Loans shall be maintained as either (1) Eurodollar Rate Loans having an
Interest Period of no longer than one month or (2) Base Rate Loans.


 


(c)  
In connection with Eurodollar Rate Loans there shall be no more than
eight (8) Interest Periods outstanding at any time.  In the event Borrowers fail to specify
between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding
Notice or Conversion/Continuation Notice, such Loan (if outstanding as a
Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on
the last day of the then-current Interest Period for such Loan (or if
outstanding as a Base Rate Loan will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan).  In
the event Borrowers fail to specify an Interest Period for any Eurodollar Rate
Loan in the applicable Funding Notice or Conversion/Continuation Notice,
Borrowers shall be deemed to have selected an Interest Period of one
month.  As soon as practicable after
10:00 a.m. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent
manifest error, be final, conclusive and binding upon all parties) the interest
rate that shall apply to the Eurodollar Rate Loans for which an interest rate
is then being determined for the applicable Interest Period and shall promptly
give notice thereof (in writing or by telephone confirmed in writing) to
Borrowers and each Lender.


 


44

















 


(d)  
Interest payable pursuant to Section 2.8(a) shall be
computed (i) in the case of Base Rate Loans on the basis of a 365-day or
366-day year, as the case may be, and (ii) in the case of Eurodollar Rate
Loans, on the basis of a 360-day year, in each case for the actual number of
days elapsed in the period during which it accrues.  In computing interest on any Loan, the date
of the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a
Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to
such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided, if a Loan is
repaid on the same day on which it is made, one day’s interest shall be paid on
that Loan.


 


(e)  
Except as otherwise set forth herein, interest on each Loan (i) shall
accrue on a daily basis and shall be payable in arrears on each Interest
Payment Date with respect to interest accrued on and to the day immediately
preceding such payment date; (ii) shall accrue on a daily basis and shall
be payable in arrears upon any prepayment of that Loan, whether voluntary or
mandatory, to the extent accrued on the amount being prepaid; and (iii) shall
accrue on a daily basis and shall be payable in arrears at maturity of the
Loans, including final maturity of the Loans; provided, however, with
respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall
instead be payable on the applicable Interest Payment Date.


 


(f)  
Except to the extent funded with Revolving Loans deemed made pursuant to
Section 2.4(d), Borrowers agree to pay to Issuing Bank, with
respect to drawings honored under any Letter of Credit, interest on the amount
paid by Issuing Bank in respect of each such honored drawing from the date such
drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Borrowers at a rate equal to (i) for the period from the date
one Business Day following the date such drawing is honored to but excluding
the applicable Reimbursement Date, the rate of interest otherwise payable
hereunder with respect to Revolving Loans that are Base Rate Loans and (ii) thereafter,
a rate determined in accordance with Section 2.10.


 


(g)  
Interest payable pursuant to Section 2.8(f) shall be
computed on the basis of a 365/366-day year for the actual number of days
elapsed in the period during which it accrues, and shall be payable on written
demand or, if no such demand is made, on the date on which the related drawing
under a Letter of Credit is reimbursed in full. 
Promptly upon receipt by Issuing Bank of any payment of interest pursuant
to Section 2.8(f), Issuing Bank shall distribute to each
Lender, out of the interest received by Issuing Bank in respect of the period
from the date such drawing is honored to but excluding the date on which
Issuing Bank is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of any Revolving Loans), the amount that such
Lender would have been entitled to receive in respect of the letter of credit
fee that would have been payable in respect of such Letter of Credit for such
period if no drawing had been honored under such Letter of Credit.  In the event Issuing Bank shall have been
reimbursed by Lenders for all or any portion of such honored drawing, Issuing
Bank shall distribute to each Lender which has paid all amounts payable by it
under Section 2.4(e) with respect to such honored drawing such
Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of
that portion of such honored 


 


45

















 


drawing so reimbursed by Lenders for the period from
the date on which Issuing Bank was so reimbursed by Lenders to but excluding
the date on which such portion of such honored drawing is reimbursed by
Borrowers.


 


2.9.   Conversion/Continuation.


 


(a)  
Subject to Section 2.18 and so long as no Event of Default
shall have occurred and then be continuing, Borrowers shall have the option:


 


(i)  
to convert at any time all or any part of any Revolving Loan equal to
$3,000,000 and integral multiples of $500,000 in excess of that amount from one
Type of Loan to another Type of Loan; provided, (x) a Eurodollar
Rate Loan may only be converted on the expiration of the Interest Period
applicable to such Eurodollar Rate Loan unless Borrowers shall pay all amounts
due under Section 2.18 in connection with any such conversion and (y) if
a Default (but not an Event of Default) has occurred and is continuing,
Borrowers may not elect an Interest Period longer than one month; or


 


(ii)  
upon the expiration of any Interest Period applicable to any Eurodollar
Rate Loan, to continue all or any portion of such Loan equal to $3,000,000 and
integral multiples of $500,000 in excess of that amount as a Eurodollar Rate
Loan; provided that if a Default (but not an Event of Default) has occurred
and is continuing, Borrowers may not elect an Interest Period longer than one
month.


 


(b)  
Subject to Section 3.2(b), Borrowers shall deliver a
Conversion/Continuation Notice to Administrative Agent no later than 11:00 a.m.
(New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least
three Business Days in advance of the proposed conversion/continuation date (in
the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan).  Except as otherwise provided
herein, a Conversion/Continuation Notice for conversion to, or continuation of,
any Eurodollar Rate Loans shall be irrevocable on and after the related Interest
Rate Determination Date, and Borrowers shall be bound to effect a conversion or
continuation in accordance therewith.  If
on any day a Loan is outstanding with respect to which a Funding Notice or
Conversion/Continuation Notice has not been delivered to Administrative Agent
in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base
Rate Loan.


 


2.10.   Default
Interest.  Upon the occurrence and during the
continuance of an Event of Default under Section 8.1(a), the
overdue principal amount of Loans outstanding and, to the extent permitted by
applicable law, any overdue interest payments on the Loans or any overdue fees
or other amounts owed hereunder, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on written demand at a rate that is 2% per
annum in excess of the interest rate otherwise payable hereunder with respect
to the applicable Loans (or, in the case of any such fees and other amounts, at
a rate which is 2% per annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans); provided, in the case of Eurodollar Rate
Loans, upon the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear 


 


46

















 


interest
payable upon written demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Base Rate Loans.  Payment or acceptance of the increased rates
of interest provided for in this Section 2.10 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.


 


2.11.   Fees.


 


(a)  
Borrowers agree to pay to Lenders having Revolving Exposure:


 


(i)  
commitment fees equal to (1) the daily difference between (a) the
Revolving Commitments and (b) the aggregate principal amount of (x) all
outstanding Revolving Loans (for the avoidance of doubt, excluding Swing Line
Loans) plus (y) the Letter of Credit Usage, times (2) the Applicable
Revolving Commitment Fee Percentage; and


 


(ii)  
letter of credit fees equal to (1) the Applicable Margin for
Revolving Loans that are Base Rate Loans, times (2) the aggregate daily
maximum amount available to be drawn under all such Letters of Credit (regardless
of whether any conditions for drawing could then be met and determined as of
the close of business on any date of determination).


 


All fees referred to in this Section 2.11(a) shall
be paid to Administrative Agent at its Principal Office and upon receipt,
Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.


 


(b)  
Borrowers agree to pay directly to Issuing Bank, for its own account,
the following fees:


 


(i)  
a fronting fee equal to 0.250% per annum or such lesser amount as
Borrowers and Issuing Bank may agree (which shall not be less than $500 per
annum per Letter of Credit), times the aggregate daily maximum amount available
to be drawn under all Letters of Credit (determined as of the close of business
on any date of determination); and


 


(ii)  
such documentary and processing charges and a courier delivery fee of
$15 for any issuance, amendment, transfer or payment of a Letter of Credit as
are in accordance with Issuing Bank’s standard schedule for such charges and as
in effect at the time of such issuance, amendment, transfer or payment, as the
case may be.


 


(c)  
All fees referred to in Section 2.11(a) and 2.11(b)(i) shall
be calculated on the basis of a 360-day year and the actual number of days
elapsed and shall be payable quarterly in arrears on January 1, April 1,
July 1 and October 1 of each year during the Revolving Commitment
Period, commencing on the first such date to occur after the Closing Date, and
on the Revolving Commitment Termination Date.


 


(d)  
In addition to any of the foregoing fees, Borrowers agree to pay to
Agents such other fees in the amounts and at the times separately agreed upon
in writing.


 


47

















 


2.12.   Scheduled
Payments/Commitment Reductions.  The principal amounts of the Revolving Loans,
together with all other amounts owed hereunder with respect thereto, shall be
paid in full no later than the Revolving Commitment Termination Date.


 


2.13.   Voluntary
Prepayments/Commitment Reductions.


 


(a)  
Voluntary Prepayments.


 


(i)  
Any time and from time to time:


 


(1)           with
respect to Base Rate Loans, Borrowers may prepay any such Loans on any Business
Day in whole or in part, in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount (or the remaining
outstanding balance of such Loans);


 


(2)           with
respect to Eurodollar Rate Loans, Borrowers may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $3,000,000
and integral multiples of $500,000 in excess of that amount (or the remaining
outstanding balance of such Loans); and


 


(3)           with
respect to Swing Line Loans, Borrowers may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $250,000,
and in integral multiples of $50,000 in excess of that amount (or the remaining
outstanding balance of such Loans).


 


(ii)  
All such prepayments shall be made:


 


(1)           upon
not less than one Business Day’s prior written or telephonic notice in the case
of Base Rate Loans;


 


(2)           upon
not less than three Business Days’ prior written or telephonic notice in the
case of Eurodollar Rate Loans; and


 


(3)           upon
written or telephonic notice on the date of prepayment, in the case of Swing
Line Loans;


 


in each case given to Administrative Agent or Swing Line
Lender, as the case may be, by 12:00 p.m. (New York City time) on the date
required and, if given by telephone, promptly confirmed by delivery of written
notice thereof to Administrative Agent (and Administrative Agent will promptly
transmit such original notice for Revolving Loans by facsimile, electronic mail
or telephone to each Lender) or Swing Line Lender, as the case may be.  Upon the giving of any such notice, the
principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein; provided, that any
such notice may be conditioned on the consummation of a refinancing or other
transaction and may be rescinded or postponed on or prior to the proposed
prepayment date if such refinancing or other transaction is not consummated or
is delayed.  Any such voluntary
prepayment shall be applied as specified in Section 2.15(a).


 


48

















 


(b)  
Voluntary Commitment Reductions.


 


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


 


(ii)  
Borrowers’ notice to Administrative Agent shall designate the date
(which shall be a Business Day) of such termination or reduction and the amount
of any partial reduction, and such termination or reduction of the Revolving
Commitments shall be effective on the date specified in Borrowers’ notice and
shall reduce the Revolving  Commitment of
each Lender proportionately to its Pro Rata Share thereof; provided,
that any such notice may be conditioned on the consummation of a refinancing or
other transaction and may be rescinded or postponed on or prior to the proposed
reduction date if such refinancing or other transaction is not consummated or
is delayed.


 


2.14.   Intentionally
Omitted.


 


2.15.   Application
of Prepayments/Reductions.


 


(a)  
Application of Voluntary Prepayments by Type of Loans.  Any prepayment of any Loan pursuant to Section 2.13(a) shall
be applied as specified by Borrowers in the applicable notice of prepayment; provided,
in the event Borrowers fail to specify the Loans to which any such prepayment
shall be applied, such prepayment shall be applied as follows:


 


first, to repay outstanding Swing Line Loans to the full extent thereof;


 


second, to repay outstanding Revolving Loans to the full extent thereof; and


 


third, to Cash collateralize any outstanding Letters of Credit;


 


provided that
application pursuant to clause second
above shall be made with the objective of minimizing breakage costs, if any,
that would be payable by Borrowers pursuant to Section 2.18(c).


 


(b)  
Application of Prepayments of Loans to Base Rate Loans and Eurodollar
Rate Loans.  Any prepayment shall be
applied first to Base Rate Loans to the full extent thereof before application
to Eurodollar Rate Loans, in each case in a manner which minimizes the amount
of any payments required to be made by Borrowers pursuant to Section 2.18(c).


 


49

















 


2.16.   General
Provisions Regarding Payments.


 


(a)  
All payments by Borrowers of principal, interest, fees and other
Obligations shall be made in Dollars in same day funds, without defense,
recoupment, setoff or counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 2:00 p.m. (New York City
time) on the date due at the Principal Office of Administrative Agent for the
account of Lenders; for purposes of computing interest and fees, funds received
by Administrative Agent after that time on such due date shall be deemed to
have been paid by Borrowers on the next succeeding Business Day.


 


(b)  
All payments in respect of the principal amount of any Loan (other than
voluntary prepayments of Revolving Loans and Swing Line Loans) shall be
accompanied by payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments (and, in any event, any payments in respect
of any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest then due and payable before
application to principal.


 


(c)  
Administrative Agent (or its agent or sub-agent appointed by it) shall
promptly distribute to each Lender at such address as such Lender shall indicate
in writing, such Lender’s applicable Pro Rata Share of all payments and
prepayments of principal and interest due hereunder, together with all other
amounts due thereto, including all fees payable with respect thereto, to the
extent received by Administrative Agent.


 


(d)  
Notwithstanding the foregoing provisions hereof, if any Conversion/
Continuation Notice is withdrawn as to any Affected Lender or if any Affected
Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar
Rate Loans, Administrative Agent shall give effect thereto in apportioning
payments received thereafter.


 


(e)  
Subject to the provisos set forth in the definition of “Interest Period”
as they may apply to Revolving Loans, whenever any payment to be made hereunder
with respect to any Loan shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, with respect to Revolving Loans only, such extension of time shall be
included in the computation of the payment of interest hereunder or of the
Revolving Commitment fees hereunder.


 


(f)  
Administrative Agent shall deem any payment by or on behalf of Borrowers
hereunder that is not made in same day funds prior to 2:00 p.m. (New York
City time) on the date due to be a non-conforming payment.  Any such payment shall not be deemed to have
been received by Administrative Agent until the later of (i) the time such
funds become available funds, and (ii) the applicable next Business
Day.  Administrative Agent shall give
prompt telephonic notice to Borrowers and each applicable Lender (confirmed in
writing) if any payment is non-conforming. 
Any non-conforming payment may constitute or become a Default or Event
of Default in accordance with the terms of Section 8.1(a).  Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the rate determined
pursuant to


 


50






 










 


Section 2.10
from the date such amount was due and payable until the date such amount is
paid in full.


 


(g)  
If an Event of Default shall have occurred and not otherwise been
waived, and the maturity of the Obligations shall have been accelerated pursuant
to Section 8.1, all payments or proceeds received by Agents in
respect of any of the Obligations shall be applied in accordance with the
application arrangements described in Section 8.2.


 


2.17.   Ratable
Sharing.  Lenders hereby agree among themselves that if
any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof),
through the exercise of any right of set-off or banker’s lien, by counterclaim
or cross action or by the enforcement of any right under the Credit Documents
or otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to such Lender hereunder
or under the other Credit Documents (collectively, the “Aggregate
Amounts Due” to such Lender) which is
greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (a) notify Administrative Agent and
each other Lender of the receipt of such payment and (b) apply a portion
of such payment to purchase participations (which it shall be deemed to have
purchased from each seller of a participation simultaneously upon the receipt
by such seller of its portion of such payment) in the Aggregate Amounts Due to
the other Lenders so that all such recoveries of Aggregate Amounts Due shall be
shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided,
if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy
or reorganization of any Borrower or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest.  Borrowers expressly
consent to the foregoing arrangement and agree that any holder of a
participation so purchased may exercise any and all rights of banker’s lien,
consolidation, set-off or counterclaim with respect to any and all monies owing
by Borrowers to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.  The provisions of this Section 2.17
shall not be construed to apply to (a) any payment made by Borrowers
pursuant to and in accordance with the express terms of this Agreement or (b) any
payment obtained by any Lender as consideration for the assignment or sale of a
participation in any of its Loans or other Obligations owed to it.


 


2.18.   Making
or Maintaining Eurodollar Rate Loans.


 


(a)  
Inability to Determine Applicable Interest Rate.  In the event that Administrative Agent shall
have determined in good faith (which determination shall be final and
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the basis
provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by facsimile, electronic mail or by
telephone confirmed in writing) to Borrowers and each Lender of such
determination, 


 


51

















 


whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Borrowers and Lenders that the circumstances giving rise to such
notice no longer exist (which notice shall be given as soon as reasonably
practicable), and (ii) any Funding Notice or Conversion/Continuation
Notice given by Borrowers with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded or converted into a
request for borrowing of Base Rate Loans at Borrowers’ option, in each case
without payment of any amount under Section 2.18(c).


 


(b)  
Illegality or Impracticability of Eurodollar Rate Loans.  In the event that on any date any Lender
shall have determined in good faith (which determination shall be final and
conclusive and binding upon all parties hereto but shall be made only after
consultation with Borrowers and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not
be unlawful), or (ii) has become impracticable, as a result of
contingencies occurring after the date hereof which materially and adversely
affect the London interbank market or the position of such Lender in that
market, then, and in any such event, such Lender shall be an “Affected
Lender” and it shall on that day give notice (by
e-mail or by telephone confirmed in writing) to Borrowers and Administrative
Agent of such determination (which notice Administrative Agent shall promptly
transmit to each other Lender).  If
Administrative Agent receives a notice from (x) any Lender pursuant to clause
(i) of the preceding sentence or (y) a notice from Lenders
constituting Requisite Lenders pursuant to clause (ii) of the
preceding sentence, then (1) the obligation of the Lenders (or, in the
case of any notice pursuant to clause (i) of the preceding
sentence, such Lender) to make Loans as, or to convert Loans to, Eurodollar
Rate Loans shall be suspended until such notice shall be withdrawn by each
Affected Lender (which withdrawal shall be made as soon as reasonably
practicable), (2) to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by Borrowers pursuant to
a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the
case of any notice pursuant to clause (i) of the preceding
sentence, such Lender) shall make such Loan as (or continue such Loan as or
convert such Loan to, as the case may be) a Base Rate Loan, (3) the
Lenders’ (or in the case of any notice pursuant to clause (i) of
the preceding sentence, such Lender’s) obligations to maintain their respective
outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (4) the Affected Loans shall automatically convert
into Base Rate Loans on the date of such termination.  Notwithstanding the foregoing, to the extent
a determination by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by Borrowers pursuant to a Funding
Notice or a Conversion/Continuation Notice, Borrowers shall have the option,
subject to the provisions of Section 2.18(c), to rescind such
Funding Notice or Conversion/Continuation Notice as to all Lenders by giving
written or telephonic notice (promptly confirmed by delivery of written notice
thereof) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission Administrative Agent shall promptly transmit to each other
Lender).  Except as provided in the
immediately preceding sentence, nothing in this Section 2.18(b) shall
affect the obligation of any Lender other than an Affected Lender to make 


 


52

















 


or maintain Loans as, or to convert Loans to, Eurodollar
Rate Loans in accordance with the terms hereof.


 


(c)  
Compensation for Breakage or Non-Commencement of Interest Periods.  Borrowers shall compensate each Lender, upon
written request by such Lender (which request shall set forth the basis for
requesting such amounts), for all reasonable losses, expenses and liabilities
(including any interest paid or payable by such Lender to lenders of funds
borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense
or liability sustained by such Lender in connection with the liquidation or
re-employment of such funds but excluding loss of anticipated profits) which
such Lender may sustain: (i) if for any reason (other than a default by
such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Funding Notice or a telephonic request for borrowing,
or a conversion to or continuation of any Eurodollar Rate Loan does not occur
on a date specified therefor in a Conversion/Continuation Notice or a
telephonic request for conversion or continuation; (ii) if any prepayment
or other principal payment of, or any conversion of, any of its Eurodollar Rate
Loans occurs on a date prior to the last day of an Interest Period applicable
to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by
Borrowers.


 


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


 


(e)  
Assumptions Concerning Funding of Eurodollar Rate Loans.  Calculation of all amounts payable to a
Lender under this Section 2.18 and under Section 2.19
shall be made as though such Lender had actually funded each of its relevant
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of such Lender to a domestic office of such Lender in the United States
of America; provided, however, each Lender may fund each of its
Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions
shall be utilized only for the purposes of calculating amounts payable under
this Section 2.18 and under Section 2.19.


 


2.19.   Increased Costs; Capital Adequacy.


 


(a)  
Compensation For Increased Costs and Taxes.  Subject to the provisions of Section 2.20
(which shall be controlling with respect to the matters covered thereby), in
the event that any Lender (which term shall include Issuing Bank for purposes
of this Section 2.19(a)) shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental
rule, regulation or order), or any determination of a Governmental Authority,
in each case that becomes effective after the date hereof, or compliance by
such Lender with any guideline, request or directive issued or made after the
date hereof by any central bank or other Governmental or 


 


53

















 


quasi-Governmental Authority (whether or not having
the force of law) (a “Change in Law”):
(i) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or (ii) imposes any other condition (other than
with respect to a Tax matter) on or affecting such Lender (or its applicable
lending office) or its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender
of agreeing to make, making or maintaining Loans hereunder or to reduce any
amount received or receivable by such Lender (or its applicable lending office)
with respect thereto; then, in any such case, Borrowers shall promptly, but in
no event more than ten (10) Business Days after such Lender’s demand, pay
to such Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder, so long as such Lender generally requires similar obligors under
other credit facilities of this type made available by such Lender to similarly
so compensate such Lender.  Such Lender
shall deliver to Borrowers (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this Section 2.19(a),
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.


 


(b)  
Capital Adequacy Adjustment. 
In the event that any Lender (which term shall include Issuing Bank for
purposes of this Section 2.19(b)) shall have determined that the
adoption, effectiveness, phase-in or applicability after the Closing Date of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans or Revolving Commitments or Letters of
Credit, or participations therein or other obligations hereunder with respect
to the Loans or the Letters of Credit to a level below that which such Lender
or such controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, promptly but in any event
no more than ten (10) Business Days after receipt by Borrowers from such
Lender of the statement referred to in the next sentence, Borrowers shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction, so
long as such Lender generally requires similar obligors under other credit
facilities of this type made available by such Lender to similarly so
compensate such Lender. Such Lender shall deliver to Borrowers (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts 


 


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owed to Lender under this Section 2.19(b),
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.


 


2.20.   Taxes;
Withholding, Etc.


 


(a)  
Payments to Be Free and Clear. 
All sums payable by or on behalf of any Credit Party hereunder and under
the other Credit Documents shall (except to the extent required by law) be paid
free and clear of, and without any deduction or withholding on account of, any
Tax (other than a Tax on the overall net income of any Lender) imposed, levied,
collected, withheld or assessed by any Governmental Authority.


 


(b)  
Withholding of Taxes.  If
any Credit Party or any other Person (acting as a withholding
agent) is (in such withholding agent’s reasonable good faith discretion) required by law to make any deduction or
withholding on account of any Tax from any sum paid or payable by any Credit
Party to Administrative Agent or any Lender (which term shall include Issuing
Bank for purposes of this Section 2.20(b)) under any of the Credit
Documents: (i) Borrowers shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as any Borrower
becomes aware of it; (ii) Borrowers shall pay, or cause to be paid, any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is
imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf
of and in the name of Administrative Agent or such Lender; (iii) except
for any deduction or withholding on account of any Taxes on the overall net
income of any Lender or as otherwise provided in this Section 2.20, the sum payable by such Credit Party in
respect of which the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that, after the making of
that deduction, withholding or payment, Administrative Agent or such Lender, as
the case may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required or made;
and (iv) within thirty days after the due date of payment of any Tax which
it is required by clause (ii) above to pay, Borrowers shall deliver
to Administrative Agent evidence reasonably satisfactory to the other affected
parties of such deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority; provided, no such additional
amount shall be required to be paid to any Lender (other than a Lender that
becomes a Lender pursuant to Section 2.23) under clause (iii) above
except to the extent that any change after the date hereof (in the case of each
Lender listed on the signature pages hereof on the Closing Date), after
the effective date of the Assignment Agreement pursuant to which such Lender
became a Lender (in the case of each other Lender), or after the date any such
Lender designates a new lending office in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an increase in
the rate of such deduction, withholding or payment from that in effect at the
date hereof, at the date of such Assignment Agreement or at the date such new
lending office is designated, as the case may be, in respect of payments to
such Lender; provided that additional amounts shall be payable to a
Lender to the extent such Lender’s assignor (including a Lender that designates
a new lending office) was entitled to receive such additional amounts; provided further,
that no such additional amount shall be required to be paid to any Lender under
clause (iii) above to the extent such amount is attributable to any
United States federal withholding Tax under Sections 1471 through 1474 of the
Internal Revenue Code, or any amended version or successor provision 


 


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that is substantively comparable thereto, and, in
each case, any regulations promulgated thereunder and any interpretation or
other guidance issued in connection therewith.


 


(c)  
Evidence of Exemption From U.S. Withholding Tax.  Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code) for U.S. federal income tax purposes (a “Non-US Lender”) shall, to the extent
such Lender is legally able to do so,
deliver to Administrative Agent for transmission to Borrowers, on or prior to
the Closing Date (in the case of each Lender listed on the signature pages hereof
on the Closing Date) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the determination of Borrowers or
Administrative Agent (each in the reasonable exercise of its discretion), (i) two
original copies of Internal Revenue Service Form W-8BEN, W-8ECI,
W-8EXP and/or W-8IMY (or, in each case,
any successor forms), properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue Code and
reasonably requested by Borrowers to establish that such Lender is not subject
to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with
respect to any payments to such Lender of principal, interest, fees or other
amounts payable under any of the Credit Documents, or (ii) if such Lender
is not a “bank” or other Person described in Section 881(c)(3) of the
Internal Revenue Code, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8BEN (or any successor
form), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested
by Borrowers to establish that such Lender is not subject to (or is
subject to a reduced rate of) deduction
or withholding of United States federal income tax with respect to any payments
to such Lender of interest payable under any of the Credit Documents.  Each Lender that is a United States person
(as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code) for United States federal income tax purposes (a “U.S. Lender”) and is not an exempt
recipient within the meaning of Treasury Regulation Section 1.6049-4(c) shall
deliver to Administrative Agent and Borrowers on or prior to the Closing Date
(or, if later, on or prior to the date on which such Lender becomes a party to
this Agreement) two original copies of Internal Revenue Service Form W-9
(or any successor form), properly completed and duly executed by such Lender,
certifying that such U.S. Lender is entitled to an exemption from United States
backup withholding tax, or otherwise prove that it is entitled to such an
exemption. Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.20(c) hereby agrees, from time to
time after the initial delivery by such Lender of such forms, certificates or
other evidence, whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly deliver to Administrative
Agent for transmission to Borrowers two new original copies of Internal Revenue
Service Form W-8BEN, W-8ECI, W-8EXP, W-8IMY and/or W-9 (or, in each
case, any successor form), or a Certificate re Non-Bank Status and two original
copies of Internal Revenue Service Form W-8BEN (or any successor form), as
the case may be, properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably
requested by Borrowers to confirm or establish that such Lender is not subject
to deduction or withholding of United States federal income tax with respect to
payments to such Lender under the Credit Documents, or notify Administrative
Agent and Borrowers of its inability to deliver any such 


 


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forms, certificates or other evidence.  Borrowers shall not be required to pay any
additional amount to any Non-US Lender under Section 2.20(b)(iii) if
such Lender shall have failed (1) to deliver the forms, certificates or
other evidence required by
the first sentence of this Section 2.20(c), or (2) to notify
Administrative Agent and Borrowers of its inability to deliver any such forms,
certificates or other evidence, as the case may be; provided, if such Lender
shall have satisfied the requirements of the first sentence of this Section 2.20(c) on
the Closing Date or on the date of the Assignment Agreement pursuant to which
it became a Lender, as applicable, nothing in this last sentence of Section 2.20(c) shall
relieve Borrowers of their obligation to pay any additional amounts pursuant
this Section 2.20 in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof, such
Lender is no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender is not
subject to withholding as described herein.


 


(d)  
Without limiting or duplicating the provisions of Section 2.20(a) or
2.20(b), Borrowers shall timely pay all Other Taxes to the relevant
Governmental Authorities in accordance with applicable law.  Borrowers shall deliver to Administrative
Agent official receipts or other evidence of such payment reasonably
satisfactory to Administrative Agent in respect of any Other Taxes payable
hereunder promptly after payment of such Other Taxes.


 


(e)  
Borrowers shall indemnify the Administrative Agent and any Lender for
the full amount of Taxes for which additional amounts are required to be paid
pursuant to Section 2.20(b) arising in connection with
payments made under this Agreement or any other Credit Document and Other Taxes
(including any such Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section 2.20(e)) paid by the
Administrative Agent or Lender or any of their respective Affiliates and any
reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to such Credit Party shall be conclusive absent manifest
error. Such payment shall be due within thirty (30) days of such Credit Party’s
receipt of such certificate.


 


2.21.   Obligation to Mitigate.  Each Lender (which term shall include Issuing
Bank for purposes of this Section 2.21) agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Loans or Letters of Credit, as the case may be, becomes aware of the occurrence
of an event or the existence of a condition that would cause such Lender to
become an Affected Lender or that would entitle such Lender to receive payments
under Section 2.18, 2.19 or 2.20, it will, to the
extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make,
issue, fund or maintain its Credit Extensions, including any Affected Loans,
through another office of such Lender, or (b) take such other measures as such
Lender may deem reasonable, if as a result thereof the circumstances which
would cause such Lender to be an Affected Lender would cease to exist or the
additional amounts which would otherwise be required to be paid to such Lender
pursuant to Section 2.18, 2.19 or 2.20 would be
materially reduced and if, as determined by such Lender in its sole discretion,
the making, issuing, funding or maintaining of such Revolving Commitments,
Loans or Letters of Credit through such other office or in accordance with such
other measures, as the case may be, would not otherwise adversely affect 


 


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such Revolving Commitments,
Loans or Letters of Credit or the interests of such Lender; provided, such Lender
will not be obligated to utilize such other office pursuant to this Section 2.21
unless Borrowers agree to pay all incremental expenses incurred by such Lender
as a result of utilizing such other office as described above.  A certificate as to the amount of any such
expenses payable by Borrowers pursuant to this Section 2.21
(setting forth in reasonable detail the basis for requesting such amount)
submitted by such Lender to Borrowers (with a copy to Administrative Agent)
shall be conclusive absent manifest error. 
Notwithstanding anything in Section 2.18, 2.19 or 2.20
to the contrary, Borrowers shall not be required to compensate a Lender
pursuant to such Sections for any amount incurred or reductions suffered more
than ninety (90) days prior to the date that such Lender obtains actual
knowledge of the event that gives rise to such claim (except that, if the
change giving rise to such claim is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


2.22.   Defaulting
Lenders.  Anything contained herein to the contrary
notwithstanding, in the event that any Lender becomes a Defaulting Lender, then
during any Default Period with respect to such Defaulting Lender, such
Defaulting Lender shall be deemed not to be a “Lender” for purposes of any
amendment, waiver or consent with respect to any provision of the Credit
Documents that requires the approval of Requisite Lenders, and Borrowers shall
pay to Administrative Agent such additional amounts of cash as reasonably
requested by Issuing Bank or Swing Line Lender to be held as security for
Borrowers’ reimbursement Obligations in respect of Letters of Credit and Swing
Line Loans then outstanding (such amount not to exceed such Defaulting Lender’s
obligations under Section 2.3 and 2.4) (after taking into
account the reallocation of such Defaulting Lender’s participation obligations
pro rata, among the non-Defaulting Lenders (so long as no such non-Defaulting
Lender’s Revolving Exposure, after giving effect to such reallocation, exceeds
its Revolving Commitment) provided for in the immediately succeeding
sentence).  During any Default Period
with respect to any Defaulting Lender, (a) any amounts that would
otherwise be payable to such Defaulting Lender with respect to its Revolving
Loans and Revolving Commitments under the Credit Documents (including, without
limitation, voluntary and mandatory prepayments and fees) may, in lieu of being
distributed to such Defaulting Lender, at the written direction of Borrowers to
Administrative Agent, be retained by Administrative Agent and applied in the
following order of priority: first, to the
payment of any amounts owing by such Defaulting Lender to Administrative Agent
and to collateralize indemnification and reimbursement obligations of such
Defaulting Lender in an amount reasonably determined by Administrative Agent, second, to the payment of any amounts owing by such
Defaulting Lender to Swing Line Lender, third, to the
payment of any amounts owing by such Defaulting Lender to Issuing Bank, and fourth, to the payment of the Revolving Loans of other
Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender;
(b) the Total Utilization of Revolving Commitments as at any date of
determination shall be calculated as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender; and (c) any Revolving Loans to
be made or participation interests with respect to Letters of Credit or Swing
Line Loans shall first be reallocated to non-Defaulting Lenders holding
Revolving Commitments (but not in excess of such Lenders’ Revolving
Commitments) prior to the requirement that Borrowers provide Cash to secure the
Borrowers’ reimbursement Obligations. No Revolving Commitment of any Lender
shall be increased or otherwise affected, and, except as otherwise expressly
provided in this Section 2.22, performance by Borrowers of their
Obligations 


 


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hereunder
and the other Credit Documents shall not be excused or otherwise modified as a
result of any Lender becoming a Defaulting Lender or the operation of this Section 2.22.  The rights and remedies against a Defaulting
Lender under this Section 2.22 are in addition to other rights and
remedies which Borrowers may have against such Defaulting Lender as a result of
it becoming a Defaulting Lender and which Administrative Agent or any Lender
may have against such Defaulting Lender with respect thereto. Administrative
Agent shall not be required to ascertain or inquire as to the existence of any
Defaulting Lender. Notwithstanding any other provision of this Agreement to the
contrary, solely to the extent that and so long as the application of Section 2.22(a) with
respect to an Insolvency Defaulting Lender would violate the Bankruptcy Code or
any final order of a court of competent jurisdiction entered pursuant to a
bankruptcy or similar insolvency proceeding with respect to such Insolvency
Defaulting Lender, Section 2.20(a) shall not apply with
respect to such Insolvency Defaulting Lender, and any amounts that would
otherwise be payable to such Insolvency Defaulting Lender under the Credit
Documents (including without limitation, voluntary prepayments and fees) shall,
to the extent permitted under applicable law and at the written direction of
the Borrowers to Administrative Agent, be retained by Administrative Agent to
collateralize the indemnification and reimbursement obligations of such
Insolvency Defaulting Lender in an amount reasonably determined by
Administrative Agent, in lieu of being distributed to such Insolvency
Defaulting Lender.


 


2.23.   Removal
or Replacement of a Lender.  Anything contained herein to the contrary notwithstanding,
in the event that: (a) (i) any Lender (an “Increased-Cost
Lender”) shall give notice to Borrowers that such
Lender is an Affected Lender or that such Lender is entitled to receive
payments under Section  2.18, 2.19 or 2.20, (ii) the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and (iii) such
Lender shall fail to withdraw such notice within five Business Days after
Borrowers’ request for such withdrawal; or (b) (i) any Lender shall
become a Defaulting Lender, (ii) the Default Period for such Defaulting
Lender shall remain in effect, and (iii) such Defaulting Lender shall fail
to cure the default as a result of which it has become a Defaulting Lender
within five Business Days after Borrowers’ request that it cure such default;
or (c) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions hereof as
contemplated by Section 10.5(b), the consent of Requisite Lenders
shall have been obtained but the consent of one or more of such other Lenders
(each a “Non-Consenting Lender”)
whose consent is required shall not have been obtained; then, with respect to
each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender
(the “Terminated Lender”),
Borrowers may, by giving written notice to Administrative Agent and any
Terminated Lender of their election to do so, elect to cause such Terminated
Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans and its Revolving Commitments, if any, in full to one or more
Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and
Borrowers shall pay the fees, if any, payable thereunder in connection with any
such assignment from an Increased-Cost Lender or a Non-Consenting Lender (and
no fees shall be payable in connection with any such assignment from a
Defaulting Lender); provided, (1) on the date of such assignment,
the Replacement Lender shall pay to Terminated Lender an amount equal to the
sum of (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans of the Terminated Lender, (B) an amount equal to
all unreimbursed drawings under Letters of Credit that have been funded by such
Terminated Lender, together with all then 


 


59

















 


unpaid
interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant
to Section 2.11; (2) on the date of such assignment, Borrowers
shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c),
2.19 or 2.20 or otherwise as if it were a prepayment and (3) in
the event such Terminated Lender is a Non-Consenting Lender, each Replacement
Lender shall consent, at the time of such assignment, to each matter in respect
of which such Terminated Lender was a Non-Consenting Lender; provided,
Borrowers may not make such election with respect to any Terminated Lender that
is also an Issuing Bank unless, prior to the effectiveness of such election,
arrangements reasonably satisfactory to such Issuing Bank (including (x) the
furnishing of a back-up standby letter of credit in form and substance, and
issued by an issuer reasonably satisfactory to such Issuing Bank or (y) the
depositing of Cash collateral into a cash collateral account, in each case in
an amount not to exceed 103% of the face amount of all Letters of Credit of
such Issuing Bank and pursuant to arrangements reasonably satisfactory to such
Issuing Bank) have been made with respect to each outstanding Letter of Credit
issued by such Issuing Bank (or such outstanding Letter of Credit has been
cancelled).  Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated
Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer
constitute a “Lender” for purposes hereof; provided, any rights of such
Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.  Each Lender agrees
that if Borrowers exercise their option hereunder to cause an assignment by
such Lender as a Terminated Lender, such Lender shall, promptly after receipt
of written notice of such election, execute and deliver all documentation
necessary to effectuate such assignment in accordance with Section 10.6.  In the event that a Lender does not comply
with the requirements of the immediately preceding sentence within one Business
Day after receipt of such notice, each Lender hereby authorizes and directs
Administrative Agent to execute and deliver such documentation as may be
required to give effect to an assignment in accordance with Section 10.6
on behalf of a Terminated Lender and any such documentation so executed by the
Administrative Agent shall be effective for purposes of documenting an
assignment pursuant to Section 10.6.


 


2.24.   Co-Borrowers.


 


(a)  
Joint and Several Liability. 
All Obligations of Borrowers under this Agreement and the other Credit
Documents shall be joint and several Obligations of each Borrower.  Anything contained in this Agreement and the
other Credit Documents to the contrary notwithstanding, the Obligations of each
Borrower hereunder, solely to the extent that such Borrower did not receive
proceeds of Loans from any borrowing hereunder, shall be limited to a maximum
aggregate amount equal to the largest amount that would not render its
Obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under section 548 of the Bankruptcy Code, 11 U.S.C. §548, or any
applicable provisions of comparable state law (collectively, the “Fraudulent Transfer Laws”), in each case
after giving effect to all other liabilities of such Borrower, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Borrower in respect of intercompany
Indebtedness to any other Credit Party or Affiliates of any other Credit Party
to the extent that such Indebtedness would be discharged in an amount equal to
the amount paid by such Credit Party hereunder) and after giving effect as
assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any


 


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rights to subrogation or contribution of such
Borrower pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among such Borrower and other Affiliates
of any Credit Party of Obligations arising under the Guaranty by such parties.


 


(b)  
Subrogation.  Until the
Obligations shall have been paid in full in Cash, each Borrower shall withhold
exercise of any right of subrogation, contribution or any other right to
enforce any remedy that it now has or may hereafter have against the other
Borrowers or any other Guarantor of the Obligations.  Each Borrower further agrees that, to the
extent the waiver of its rights of subrogation, contribution and remedies as
set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any such rights such Borrower may have against the
other Borrowers, any collateral or security or any such other Guarantor, shall
be junior and subordinate to any rights Collateral Agent may have against the
other Borrowers, any such collateral or security, and any such other
Guarantor.  Borrowers together desire to
allocate among themselves, in a fair and equitable manner, their Obligations
arising under this Agreement and the other Credit Documents.  Accordingly, in the event any payment or
distribution is made on any date by any Borrower under this Agreement and the
other Credit Documents (a “Funding Borrower”)
that exceeds its Obligation Fair Share (as defined below) as of such date, that
Funding Borrower shall be entitled to a contribution from the other Borrowers
in the amount of such other Borrowers’ Obligation Fair Share Shortfalls (as
defined below) as of such date, with the result that all such contributions
will cause each Borrower’s Obligation Aggregate Payments (as defined below) to
equal its Obligation Fair Share as of such date.  “Obligation
Fair Share” means, with respect to a Borrower as of any date of
determination, an amount equal to (i) the ratio of (X) the Obligation
Fair Share Contribution Amount (as defined below) with respect to such Borrower
to (Y) the aggregate of the Obligation Fair Share Contribution Amounts
with respect to all Borrowers, multiplied  by (ii) the
aggregate amount paid or distributed on or before such date by all Funding
Borrowers under this Agreement and the other Credit Documents in respect of the
Obligations guarantied.  “Obligation Fair Share Shortfall” means,
with respect to a Borrower as of any date of determination, the excess, if any,
of the Obligation Fair Share of such Borrower over the Obligation Aggregate
Payments of such Borrower.  “Obligation Fair Share Contribution Amount”
means, with respect to a Borrower as of any date of determination, the maximum
aggregate amount of the Obligations of such Borrower under this Agreement and
the other Credit Documents that would not render its Obligations hereunder or
thereunder subject to avoidance as a fraudulent transfer or conveyance under
section 548 of Title 11 of the United States Code or any comparable applicable
provisions of state law; provided that, solely for purposes of
calculating the Obligation Fair Share Contribution Amount with respect to any
Borrower for purposes of this Section 2.24, any assets or
liabilities of such Credit Party arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or Obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Borrower.  “Obligation Aggregate Payments” means, with respect to a
Borrower as of any date of determination, an amount equal to (i) the
aggregate amount of all payments and distributions made on or before such date
by such Borrower in respect of this Agreement and the other Credit Documents
(including in respect of this Section 2.24) minus (ii) the
aggregate amount of all payments received on or before such date by such
Borrower from the other Borrowers as contributions under this Section 2.24.  The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or distribution
is made by the applicable Funding Borrower. 
The allocation among Borrowers of their 


 


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Obligations as set forth in this Section 2.24
shall not be construed in any way to limit the liability of any Borrower
hereunder or under any Credit Document.


 


(c)  
Representative of Borrowers. 
Each of LLC, GGPLP Pledgor, GGPLP RE Pledgor and GGPLPLLC Pledgor hereby
appoints the Partnership as its agent, attorney-in-fact and representative for
the purpose of (i) making any borrowing requests or other requests
required under this Agreement, (ii) the giving and receipt of notices by
and to Borrowers under this Agreement, (iii) the delivery of all
documents, reports, financial statements and written materials required to be
delivered by Borrowers under this Agreement, and (iv) all other purposes
incidental to any of the foregoing.  Each
of LLC, GGPLP Pledgor, GGPLP RE Pledgor and GGPLPLLC Pledgor agrees that any
action taken by the Partnership as the agent, attorney-in-fact and
representative of such Person shall be binding upon such Person to the same
extent as if directly taken by such Person.


 


(d)  
Allocation of Loans.  All
Loans shall be made to the Partnership as borrower unless a different
allocation of the Loans as among Borrowers with respect to any borrowing
hereunder is included in the applicable Funding Notice.


 


(e)  
Obligations Absolute.  Each
Borrower hereby waives, for the benefit of Beneficiaries, to the maximum extent
permitted by applicable law: (a) any right to require any Beneficiary, as
a condition of payment or performance by such Borrower, to (i) proceed
against any other Borrower, any Guarantor of the Guaranteed Obligations or any
other Person, (ii) proceed against or exhaust any security held from any
other Borrower, any Guarantor or any other Person, (iii) proceed against
or have resort to any balance of any Deposit Account or credit on the books of
any Beneficiary in favor of any other Borrower or any other Person, or (iv) pursue
any other remedy in the power of any Beneficiary whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any
disability or other defense of any other Borrower or any Guarantor including
any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations or any agreement or instrument relating
thereto or by reason of the cessation of the liability of any other Borrower or
any Guarantor from any cause other than payment in full of the Obligations; (c) any
defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (d) any defense based upon any
Beneficiary’s errors or omissions in the administration of the Obligations,
except behavior which amounts to gross negligence, willful misconduct or bad
faith or failure to duly credit to Borrowers payments actually received by  Lenders in full satisfaction of the
Obligations (and which payments are not being contested or subject to ongoing
proceedings for or an order directing disgorgement or reimbursement to
Borrowers); (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any
legal or equitable discharge of such Borrower’s obligations hereunder, (ii) the
benefit of any statute of limitations affecting such Borrower’s liability
hereunder or the enforcement hereof, (iii) any rights to set-offs,
recoupments and counterclaims (except after payment in full of the Obligations,
which payments are not being contested or subject to ongoing proceedings for or
an order directing disgorgement or reimbursement to Borrowers), and
(iv) promptness, diligence and any requirement that any Beneficiary
protect, secure, perfect or insure any security interest or lien or any
property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any 


 


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action or inaction, including acceptance hereof,
notices of default under this Agreement, the Secured Hedge Agreements, the
Secured Bank Product Agreements or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Obligations or any
agreement related thereto, notices of any extension of credit to Borrowers and
notices of any of the matters referred to in Section 7.4 and any
right to consent to any thereof; and (g) any defenses or benefits that may
be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof (other than
payment in full of the Obligations, which payments are not being contested or
subject to ongoing proceedings for or an order directing disgorgement or
reimbursement to Borrowers).


 


SECTION 3.  
CONDITIONS PRECEDENT


 


3.1.   Closing
Date.  The
obligation of each Lender or Issuing Bank, as applicable, to make a Credit
Extension on the Closing Date is subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions on or
before the Closing Date:


 


(a)  
Credit Documents. 
Administrative Agent and Joint Lead Arrangers shall have received
sufficient copies of each Credit Document as Administrative Agent shall
request, originally executed and delivered by each applicable Credit Party.


 


(b)  
Organizational Documents; Incumbency.  Administrative Agent and Joint Lead Arrangers
shall have received, in respect of each Credit Party, (i) copies of each
Organizational Document as Administrative Agent shall reasonably request, and,
to the extent applicable, certified as of the Closing Date or a recent date
prior thereto by the appropriate Governmental Authority; (ii) signature
and incumbency certificates of the officers of such Credit Party; (iii) copies
of resolutions of the Board of Directors or similar governing body of such
Credit Party approving and authorizing the execution, delivery and performance
of this Agreement and the other Credit Documents to which it is a party as of
the Closing Date, certified as of the Closing Date by its secretary or an
assistant secretary as being in full force and effect without modification or
amendment; and (iv) a good standing certificate from the applicable
Governmental Authority of such Credit Party’s jurisdiction of incorporation,
organization or formation, each dated the Closing Date or a recent date prior
thereto.


 


(c)  
Confirmation Order.  The
Bankruptcy Court shall have entered an order (the “Confirmation Order”) confirming the plan of reorganization of
Existing GGPI, the Partnership, the LLC and the Debtor Subsidiaries in
accordance  with section 1129 of the
Bankruptcy Code, which plan of reorganization shall not have been modified or
amended in any manner materially adverse to the interests of Administrative
Agent and Lenders, taken as a whole, from the Plan, the Confirmation Order
shall be in full force and effect (without waiver of the 14 day period set
forth in Bankruptcy Rule 3020(e)) as of the Closing Date and shall not be
subject to a stay of effectiveness. The time to appeal, petition for certiorari
or move for reargument or rehearing of the Confirmation Order shall have
expired and no appeal, petition for certiorari or other proceedings for
reargument or rehearing shall be pending. If an appeal, writ of certiorari,
reargument or rehearing of the Confirmation Order has been sought, the
Confirmation Order shall have been affirmed by the highest court to which it
has been appealed, or certiorari shall have been denied or reargument or
rehearing shall have been 


 


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denied or resulted in no modification thereof
materially adverse to the interests of Administrative Agent and Lenders, and
the time to take any further appeal, petition for certiorari or move for
reargument or rehearing shall have expired. The effective date of the plan of
reorganization of Existing GGPI, the Partnership, the LLC and the Debtor
Subsidiaries shall have occurred or shall occur substantially simultaneously
with the Closing Date and substantial consummation of such plan (including the
payment of any Indebtedness as and when contemplated by the Plan) shall have
occurred or shall be scheduled to occur but for the funding of the Loans and
the use of proceeds thereof. The Closing (as defined in that certain Amended
and Restated Cornerstone Investment Agreement effective as of March 31,
2010, between Existing GGPI and REP Investments LLC (as further amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the
“Cornerstone Agreement”)) shall
occur concurrently with the initial funding of the Loans and no provision of
the Cornerstone Agreement shall have been amended or waived in any respect
materially adverse to the Lenders without the prior or concurrent written
consent of the Joint Lead Arrangers, such consent not to be unreasonably
withheld.


 


(d)  
Real Estate Assets.  In
order to create in favor of Collateral Agent, for the benefit of Secured
Parties, a valid and, subject to any filing and/or recording referred to
herein, perfected First Priority security interest in certain Real Estate
Assets, Collateral Agent shall have received from each applicable Credit Party
fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each Real
Estate Asset listed in Schedule 3.1(d) (each, a “Closing Date Mortgaged Property”).


 


(e)  
Personal Property Collateral. 
In order to create in favor of Collateral Agent, for the benefit of
Secured Parties, a valid, perfected First Priority security interest in the
Capital Stock listed on Schedule 3.1(e) (the “Closing Date Pledged Property”), each
Pledgor shall have (i) delivered to Collateral Agent a fully executed
counterpart of the Pledge Agreement and authorized the filing of UCC financing
statements describing such Closing Date Pledged Property and delivered any
certificated Closing Date Pledged Property as provided therein and (ii) executed
and delivered or caused to be executed and delivered any other documents and
instruments required to perfect Collateral Agent’s First Priority security
interests in the Collateral to the extent required by the Credit Documents.


 


(f)  
Title Reports; Surveys. 
Collateral Agent shall have received (i) title reports with respect
to each Closing Date Mortgaged Property and (ii) copies of any existing
surveys of the Closing Date Mortgaged Properties in Borrowers’ possession.


 


(g)  
Environmental Reports.  To
the extent requested and in Borrowers’ possession, Administrative Agent and
Joint Lead Arrangers shall have received (or been provided access to) existing
Phase I environmental reports with respect to each of the Closing Date Mortgaged
Properties.


 


(h)  
Financial Statements. 
Administrative Agent shall have received unaudited consolidated balance
sheets and related statements of income and cash flows of Existing GGPI for
each Fiscal Quarter of 2010 ended more than 60 days prior to the Closing Date,
and certified by the chief financial officer of Existing GGPI that they fairly
present, in all material 


 


64

















 


respects, the financial condition of Existing GGPI
as at the dates indicated and the results of its operations and its cash flows
for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.


 


(i)  
Evidence of Insurance. 
Collateral Agent shall have received a certificate from the applicable
Credit Party’s insurance broker or other evidence reasonably satisfactory to it
that all insurance required to be maintained pursuant to Section 5.5 is in
full force and effect, together with customary insurance certificates naming
Collateral Agent, for the benefit of Secured Parties, as additional insured and
loss payee thereunder to the extent required under Section 5.5.


 


(j)  
Opinions of Counsel to Credit Parties.  Agents and Lenders and their respective
counsel shall have received custonary written opinions of (i) Weil,
Gotshal & Manges LLP, counsel for Credit Parties, and Borrowers’
general counsel as to such matters as Administrative Agent may reasonably
request, dated as of the Closing Date, and (ii) counsel (which counsel
shall be satisfactory to Collateral Agent) in each state in which a Closing
Date Mortgaged Property is located with respect to the enforceability of the
form(s) of Mortgages to be recorded in such state and such other matters
as Collateral Agent may reasonably request, in each case, in form and substance
reasonably satisfactory to Administrative Agent (and each Credit Party hereby
instructs such counsel to deliver such opinions to Agents and Lenders).


 


(k)  
Fees.  Lenders,
Administrative Agent and Joint Lead Arrangers shall have received all fees due
as of the Closing Date under the Credit Documents and the Fee Letter, and all
expenses required to be paid under the Credit Documents and the Fee Letter for
which invoices have been presented at least three business days prior to the
Closing Date.


 


(l)  
Solvency Certificate.  On
the Closing Date, Administrative Agent and Joint Lead Arrangers shall have
received a Solvency Certificate from Parent and Borrowers on behalf of all
Credit Parties.


 


(m)  
Closing Date Certificate. 
Parent and Borrowers shall have delivered to Administrative Agent an
originally executed Closing Date Certificate, together with all attachments
thereto.


 


(n)  
Intentionally Omitted.


 


(o)  
No Restriction.  To the
extent any Indebtedness remains outstanding (whether by reinstatement,
amendment, consent or otherwise) pursuant to the Plan, no term (as reinstated,
amended or otherwise existing) of any such Indebtedness shall prohibit or
otherwise restrict the Loans and Commitments hereunder, the transactions
contemplated hereby and by the other Credit Documents or the Liens granted to
Collateral Agent under the Collateral Documents.


 


(p)  
Completion of Proceedings. 
All partnership, corporate and other proceedings required to authorize
the transactions contemplated hereby shall have been completed, and
Administrative Agent and its counsel shall have received copies of all
documents incidental thereto as Administrative Agent may reasonably request.


 


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(q)  
PATRIOT Act.  Administrative
Agent and Lenders shall have received all documentation and other information
required by bank regulatory authorities under applicable “know-your-customer”
and anti-money laundering rules and regulations, including the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001) the “PATRIOT Act”); provided
such information shall have been requested at least ten (10) days prior to
the Closing Date.


 


(r)  
UCC Lien, Judgment and Tax Lien Search Results.  Administrative Agent shall have received the
results of recent UCC Lien, judgment and tax Lien searches in each relevant
jurisdiction with respect to each of the Credit Parties, and such search
results shall reveal no Liens on any of the assets of the Credit Parties,
except for Liens permitted by the Plan, Permitted Liens or Liens to be
discharged on or prior to the Closing Date.


 


(s)  
No Material Adverse Effect. 
No Material Adverse Effect (as defined in the Cornerstone Agreement)
shall have occurred.


 


3.2.   Conditions
to Each Credit Extension.


 


(a)  
Conditions Precedent.  The
obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter
of Credit, on any Credit Date, including the Closing Date, are subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following
conditions precedent:


 


(i)  
Administrative Agent shall have received a fully executed and delivered
Funding Notice or Issuance Notice, as the case may be;


 


(ii)  
after making the Credit Extensions requested on such Credit Date, the
Total Utilization of Revolving Commitments shall not exceed the Revolving
Commitments then in effect;


 


(iii)  
as of such Credit Date, the representations and warranties contained
herein and in the other Credit Documents shall be true and correct in all
material respects on and as of that Credit Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and  correct in all material respects on and as of
such earlier date;


 


(iv)  
as of such Credit Date, no event shall have occurred and be continuing
or would result from the consummation of the applicable Credit Extension that
would constitute an Event of Default or a Default; and


 


(v)  
on or before the date of issuance of any Letter of Credit,
Administrative Agent shall have received all other information required by the
applicable Issuance Notice, and such other documents or information as Issuing
Bank may reasonably require in connection with the issuance of such Letter of
Credit;


 


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provided, that
the conditions set forth in clauses (iii) and (iv) above
shall not apply in the case of extensions, renewals or amendments of Letters of
Credit not resulting in an increase in the face amount thereof.


 


(b)  
Notices.  Any Notice shall
be executed by an Authorized Officer of Borrowers in a writing delivered to
Administrative Agent.  In lieu of
delivering a Notice, Borrowers may give Administrative Agent telephonic notice
by the required time of any proposed borrowing, conversion or continuation of
any Loan or issuance of a Letter of Credit, as the case may be; provided
each such notice shall be promptly confirmed in writing by delivery of the
applicable Notice to Administrative Agent on or before the close of business on
the date that the telephonic notice is given. 
In the event of a discrepancy between the telephone notice and the
written Notice, the written Notice shall govern.  In the case of any Notice that is irrevocable
once given, if Borrowers provide telephonic notice in lieu thereof, such telephonic
notice shall also be irrevocable once given. 
Neither Administrative Agent nor any Lender shall incur any liability to
Borrowers in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by an Authorized
Officer of any Borrower or for otherwise acting in good faith, including,
without limitation, as a result of a discrepancy between a telephonic notice
and a subsequent written Notice.


 


SECTION 4.  
REPRESENTATIONS AND WARRANTIES


 


In order to induce Agents, Lenders and Issuing Bank to
enter into this Agreement and to make each Credit Extension to be made thereby,
each Credit Party represents and warrants to each Agent, Lender and Issuing
Bank, on the Closing Date and on each Credit Date (other than the extension,
renewal or amendment of Letters of Credit not resulting in an increase in the
face amount thereof), as follows (it being understood and agreed that the
representations and warranties made on the Closing Date are deemed to be made concurrently
with the effective date of the Plan as contemplated hereby):


 


4.1.   Organization;
Requisite Power and Authority; Qualification.  Each of Parent and its Subsidiaries (a) is
duly organized and validly existing under the laws of its jurisdiction of
organization as identified in Schedule 4.1 except (i) as the result
of any transaction permitted under Section 6.8(g) or (l) or
(ii) where the failure of such Person (other than the Credit Parties) to
be so organized or validly existing has not had, and could not reasonably be
expected to have, a Material Adverse Effect, (b) has all requisite power
and authority to own and operate its properties, to carry on its business as
now conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, except where the failure of
such Person (other than the Credit Parties) to do so has not had, and could not
reasonably be expected to have, a Material Adverse Effect, and (c) is
qualified to do business and in good standing in its jurisdiction of
organization and every jurisdiction where necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or
in good standing has not had, and could not be reasonably expected to have, a
Material Adverse Effect.


 


4.2.   Capital
Stock and Ownership.  Schedule 4.2 correctly sets forth in
all material respects the ownership interest of Parent and each of its
Subsidiaries in their respective 


 


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Subsidiaries
and Joint Ventures as of the Closing Date after giving effect to the Plan.  From and after the Closing Date, Schedule
4.2 (as supplemented from time to time in accordance with Section 5.8)
correctly sets forth in all material respects the ownership interest of Parent
and each of its Subsidiaries in their respective Subsidiaries and Joint
Ventures; provided that any Subsidiary or Joint Venture that is sold,
transferred or otherwise disposed of pursuant to an Asset Sale, or is merged,
consolidated or amalgamated out of existence pursuant to a transaction, in each
case permitted by Section 6.8 shall be presumptively deleted from
such Schedule solely for purposes of this sentence.


 


4.3.   Due
Authorization.  The execution, delivery and performance of
the Credit Documents have been duly authorized by all necessary action on the
part of each Credit Party that is a party thereto.


 


4.4.   No
Conflict.  The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
borrowing of the Loans, the issuances of Letters of Credit and the use of
proceeds thereof do not and will not (a) violate (i) in any material
respect any provision of any law or any governmental rule or regulation
applicable to Parent or any of its Subsidiaries, (ii) any of the
Organizational Documents of Parent or any of its Subsidiaries, or (iii) in
any material respect any order, judgment or decree of any court or other agency
of government binding on Parent or any of its Subsidiaries; (b) conflict
in any material respect with, result in a material breach of or constitute
(with due notice or lapse of time or both) a material default under any
Material Contract; (c) result in or require the creation or imposition of
any Lien upon any of the properties or assets of Parent or any of its
Subsidiaries (other than any Liens created under any of the Credit Documents in
favor of Collateral Agent, on behalf of the Secured Parties, and/or Permitted
Liens).


 


4.5.   Governmental
Consents.  The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
borrowing of the Loans, the issuances of Letters of Credit and the use of
proceeds thereof do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any Governmental
Authority except for (a) the entry of the Confirmation Order by the
Bankruptcy Court, (b) filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Collateral Agent for filing
and/or recordation, as of the Closing Date, (c) any such approvals or
consents the failure of which to obtain could not reasonably be expected to
have a material adverse effect on any of the Collateral or any of the
Underlying Collateral Properties and (d) any other approvals or consents
the failure of which to obtain could not reasonably be expected to have a
Material Adverse Effect.


 


4.6.   Binding
Obligation.  Each Credit Document has been duly executed and
delivered by each Credit Party that is a party thereto and is the legally valid
and binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors’ rights generally or by equitable principles relating to
enforceability.


 


4.7.   Historical
Financial Statements.  The Historical Financial Statements were
prepared in all material respects in conformity with GAAP and fairly present,
in all material 


 


68

















 


respects,
the financial position, on a consolidated basis, of the Persons described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows, on a consolidated basis, of the entities described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal
year-end adjustments.


 


4.8.   Projections.  On and as of the Closing Date,
the projections of Parent and its Subsidiaries for the period of Fiscal Year
2010 through and including Fiscal Year 2015 (the “Projections”) were prepared in good faith and are based on reasonable assumptions
made by the management of Parent at the time prepared; provided, the
Projections are not to be viewed as facts and that actual results during the
period or periods covered by the Projections may differ from such Projections
and that the differences may be material.


 


4.9.   No
Material Adverse Effect.  Since December 31, 2009, no event,
circumstance or change has occurred that has had, or could reasonably be
expected to have, either in any case or in the aggregate, a Material Adverse
Effect after giving effect to any change resulting from the consummation of the
Plan and each transaction specifically contemplated thereby (including the
spin-off of Spinco) in accordance with its terms, the consummation of the
transactions specifically contemplated in the Investment Agreements in
accordance with their terms; provided, that no fact or circumstance
disclosed in the Plan, the disclosure statements filed with respect to the Plan
and other documents related thereto that have been delivered to Administrative
Agent prior to the Closing Date shall constitute a Material Adverse Effect.


 


4.10.   Adverse
Proceedings, Etc.  There are no Adverse Proceedings that could
reasonably be expected to have a Material Adverse Effect.  Neither Parent nor any of its Subsidiaries is
subject to or in material default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any Governmental Authority
which could reasonably be expected to result, individually or in the aggregate,
in an Event of Default under Section 8.1(h).


 


4.11.   Payment
of Taxes.  Except as otherwise permitted under Section 5.3,
all federal and other material Tax returns and reports of Parent and its
Subsidiaries required to be filed by any of them have been timely filed (taking
into account any extension of the due date thereof), all such Tax returns are
true and accurate in all material respects, and all material amounts of Taxes
shown on such Tax returns to be due and payable and all material assessments,
fees and other material governmental charges upon Parent and its Subsidiaries
and upon their respective properties, assets, income, businesses and franchises
which are due and payable have been paid when due and payable.


 


4.12.   Properties.


 


(a)  
Title.  Except as set forth
on Schedule 4.12, each of Parent and its Subsidiaries has (i) good,
sufficient and legal title to (in the case of fee interests in real property), (ii) valid
leasehold interests in (in the case of leasehold interests in real or personal
property), (iii) valid licensed rights in (in the case of licensed
interests in intellectual property) and (iv) good title to (in the case of
all other personal property), (x) all of the Collateral and Underlying
Collateral Properties and (y) all of their other respective properties and
assets 


 


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(other than any Special Consideration Properties)
reflected in their respective Historical Financial Statements referred to in Section 4.7
and in the most recent financial statements delivered pursuant to Section 5.1,
except in the case of this clause (y) where the failure to have
such right, title, interest or licensed right could not reasonably be expected
to have a Material Adverse Effect and, in each case of clauses (x) and
(y), except for assets disposed of since the date of such financial
statements in the ordinary course of business or as otherwise permitted under Section 6.8.  Except as permitted by this Agreement, all
such properties and assets are free and clear of Liens.


 


(b)  
Intellectual Property. 
Except as could not reasonably be expected to have a Material Adverse
Effect, (i) each of Parent and its Subsidiaries owns, is licensed to use,
or otherwise has the right to use, all intellectual property necessary for the
conduct of its business as currently conducted, (ii) no claim has been
asserted and is pending by any Person challenging or questioning the use of any
intellectual property or the validity or effectiveness of any intellectual property
owned or licensed by Parent and its Subsidiaries, nor does any of Parent or any
of its Subsidiaries know of any valid basis for any such claim and (iii) the
use of intellectual property necessary for the conduct of its business as
currently conducted by each of Parent and its Subsidiaries does not infringe on
the rights of any Person.


 


4.13.   Environmental
Matters.  Neither Parent nor any of its Subsidiaries
nor any of their respective Real Estate Assets are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any
Environmental Claim, or any Hazardous Materials Activity that (a) in the
case of any Designated Environmental Properties, could reasonably be expected
to have, individually or in the aggregate, a material adverse effect on any
such Designated Environmental Property or (b) in the case of all other
Real Estate Assets, could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. 
Neither Parent nor any of its Subsidiaries has received any letter
or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604)
or any comparable state law that (i) in the case of any Designated
Environmental Properties, could reasonably be expected to have, individually or
in the aggregate, a material adverse effect on any such Designated
Environmental Property or (ii) in the case of all other Real Estate
Assets, could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.  To the best
knowledge of the Credit Parties, there have been no conditions, occurrences, or
Hazardous Materials Activities which could reasonably be expected to form the basis
of an Environmental Claim against Parent or any of its Subsidiaries that (x) in
the case of any Designated Environmental Properties, could reasonably be
expected to have, individually or in the aggregate, a material adverse effect
on any such Designated Environmental Property or (y) in the case of all
other Real Estate Assets, could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. 
Neither Parent nor any of its Subsidiaries nor, to any Credit Party’s
knowledge, any predecessor of Parent or any of its Subsidiaries has filed any
notice under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and, to the Credit Parties’ best
knowledge, none of Parent’s or any of its Subsidiaries’ operations involves the
generation, transportation, treatment, storage or disposal of hazardous waste,
as defined under 40 C.F.R. Parts 260-270 or any state equivalent, except in
each case as could not reasonably result a violation of Environmental Laws and
a material adverse effect to a Designated Environmental Property or the owner
thereof.  Compliance with all current
Environmental Laws could not be reasonably


 


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expected
to have, individually or in the aggregate, a Material Adverse Effect.  No event or condition has occurred or is
occurring with respect to Parent or any of its Subsidiaries relating to any
Environmental Law, any Release of Hazardous Materials, or any Hazardous
Materials Activity which has had, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


4.14.   No
Defaults.  Neither Parent nor any of its Subsidiaries is
in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its Material
Contracts, and no condition exists which, with the giving of notice or the
lapse of time or both, could constitute such a default, except where the consequences,
direct or indirect, of such default or defaults, if any, could not reasonably
be expected to have a Material Adverse Effect. 
No Default or Event of Default has occurred and is continuing.


 


4.15.   Intentionally
Omitted.


 


4.16.   Governmental
Regulation.  Neither Parent nor any of its Subsidiaries is
subject to regulation under the Investment Company Act of 1940 or under any
other federal or state statute or regulation which may limit its ability to
incur Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable.  Neither
Parent nor any of its Subsidiaries is a “registered investment company” or a
company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in
the Investment Company Act of 1940.


 


4.17.   Employee
Matters.  Neither Parent nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have
a Material Adverse Effect.  There is (a) no
unfair labor practice complaint pending against Parent or any of its
Subsidiaries, or to the knowledge of Parent and Borrowers, threatened against
any of them before the National Labor Relations Board and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement that is so pending against Parent or any of its Subsidiaries or to
the knowledge of Parent and Borrowers, threatened in writing against any of
them, (b) no strike or work stoppage in existence or threatened in
writing involving Parent or any of its Subsidiaries, and (c) to the
knowledge of Parent and Borrowers, no union representation question existing
with respect to the employees of Parent or any of its Subsidiaries and, to the
knowledge of Parent and Borrowers, no union organization activity that is
taking place, except (with respect to any matter specified in clause (a),
(b) or (c) above, either individually or in the
aggregate) such as could not reasonably be expected to have a Material Adverse
Effect.


 


4.18.   Employee
Benefit Plans. Except as could not
reasonably be expected to have a Material Adverse Effect, (a) Parent, each
of its Subsidiaries and each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of applicable law,
including, without limitation, ERISA and the Internal Revenue Code and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan; (b) each Employee Benefit Plan which is intended to
qualify under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the Internal Revenue Service
indicating that such Employee Benefit Plan is so qualified, and each trust
forming a part of any such Employee Benefit Plan that is intended to qualify
for exemption from taxation under Section 


 


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501(a) of
the Internal Revenue Code is so exempt; (c) no liability to the PBGC
(other than required premium payments), the Internal Revenue Service, any
Employee Benefit Plan or any trust established under Title IV of ERISA has been
or is expected to be incurred by Parent, any of its Subsidiaries or any of
their ERISA Affiliates; (d) no ERISA Event has occurred or is reasonably
expected to occur; (e) except to the extent required under Section 4980B
of the Internal Revenue Code or similar state laws, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of Parent, any of its
Subsidiaries or any of their respective ERISA Affiliates; (f) the present
value of the aggregate benefit liabilities under each Pension Plan sponsored,
maintained or contributed to by Parent, any of its Subsidiaries or any of their
ERISA Affiliates (determined as of the end of the most recent plan year on the
basis of the actuarial assumptions specified for funding purposes in the most
recent actuarial valuation for such Pension Plan), did not exceed the aggregate
current value of the assets of such Pension Plan; (g) as of the most
recent valuation date for each Multiemployer Plan for which the actuarial
report is available, the potential liability of Parent, its Subsidiaries and
their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e) of
ERISA is zero; and (h) Parent, each of its Subsidiaries and each of their
ERISA Affiliates have complied with the requirements of Section 515 of
ERISA with respect to each Multiemployer Plan and are not in “default” (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan.


 


4.19.   Solvency.  (i) Parent and its
Subsidiaries, taken as a whole, and (ii) the Credit Parties, taken as a
whole, in each case, are Solvent.


 


4.20.   Security
Documents.


 


(a)  
Pledge Agreement.  The
Pledge Agreement is effective to create in favor of Collateral Agent for the
benefit of Secured Parties, legal, valid and enforceable Liens on, and security
interests in, the Collateral (as defined in the Pledge Agreement) and (i) when
financing statements and other filings in appropriate form are filed and (ii) upon
the taking of possession by Collateral Agent of certificates, if any,
representing the Collateral (as defined in the Pledge Agreement), the Liens
created by the Pledge Agreement shall constitute fully perfected Liens on all
right, title and interest of the Pledgors in the Collateral (as defined in the
Pledge Agreement), in each case subject to no Liens other than Qualified
Permitted Liens.


 


(b)  
Mortgages.  Each Mortgage
is effective to create, in favor of Collateral Agent, for its benefit and the
benefit of Secured Parties, legal, valid and enforceable First Priority Liens
on all of Credit Parties’ right, title and interest in and to the Mortgaged
Properties thereunder and the proceeds thereof, and when the Mortgages are
filed in the appropriate offices specified in the local counsel opinions
delivered with respect thereto, the Mortgages shall constitute fully perfected
Liens on all right, title and interest of Credit Parties in the Mortgaged
Properties and the proceeds thereof, in each case prior and superior in right
to any other Person, other than Permitted Liens; provided, however,
that no default under this Section 4.19(b) shall be deemed to
arise with respect to Mortgaged Properties having, individually or in the
aggregate, an equity value less than $25,000,000 so long as (i) the
failure to duly perfect the Lien of the Mortgages as otherwise contemplated
herein is a result of an 


 


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inadvertent error in the form or filing of the
Mortgages or as a result of an act or omission of Collateral Agent, and (ii) any
such error is corrected and such Mortgages constitute fully perfected First
Priority Liens on such Mortgaged Properties within ten (10) days after the
applicable Credit Party is notified or otherwise obtains knowledge of such
error.


 


(c)  
Valid Liens.  Each
Collateral Document delivered pursuant to Section 5.9 will, upon
execution and delivery thereof, be effective to create in favor of Collateral
Agent, for the benefit of Secured Parties, legal, valid and enforceable Liens
on, and security interests in, all of Credit Parties’ right, title and interest
in and to the Collateral thereunder, and (i) when all appropriate filings
or recordings are made in the appropriate offices as may be required under
applicable law and (ii) upon the taking of possession by Collateral Agent
of certificates, if any, representing the Collateral (as defined in the Pledge
Agreement), such Collateral Document will constitute fully perfected Liens on,
and security interests in, all right, title and interest of Credit Parties in
such Collateral, in each case subject to no Liens other than (A) Qualified
Permitted Liens, in the case of the Pledged Properties and (B) Permitted
Liens, in the case of the Mortgaged Properties; provided, however,
that no default under this Section 4.19(c) shall be deemed to
arise with respect to Mortgaged Properties having, individually or in the
aggregate, an equity value less than $25,000,000 so long as (i) the
failure to duly perfect the Lien under any Mortgage as otherwise contemplated
herein is a result of an inadvertent error in the form or filing of the
Mortgages or as a result of an act or omission of Collateral Agent, and (ii) any
such error is corrected and such Mortgages constitute fully perfected First
Priority Liens on such Mortgaged Properties within ten (10) days after the
applicable Credit Party is notified or otherwise obtains knowledge of such
error.


 


4.21.   Compliance
with Statutes, Etc.  Each of Parent and its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, in respect of
the conduct of its business and the ownership of its property (including
compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset
or the operations of Parent or any of its Subsidiaries), except such
non-compliance that could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.


 


4.22.   Disclosure.  No representation or warranty of
any Credit Party contained in any Credit Document or in any other documents,
certificates or written statements (other than any projections, pro forma
financial information, other forward-looking information and information of a
general economic or industry-specific nature) furnished to any Agent or Lender
by or on behalf of Parent or any of its Subsidiaries for use in connection with
the transactions contemplated hereby, when taken as a whole, contained at the
time furnished any untrue statement of a material fact or omitted to state a
material fact (known to Parent or Borrowers, in the case of any document not
furnished by either of them) necessary in order to make the statements
contained herein or therein not materially misleading in light of the circumstances
in which the same were made.  Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Parent or Borrowers
to be reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the 


 


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period
or periods covered by any such projections may differ from the projected results
and such differences may be material.


 


4.23.   PATRIOT Act.  To the extent applicable, each
Credit Party is in compliance, in all material respects, with (a) the
Trading with the Enemy Act, as amended, and each of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) and any other enabling legislation or executive order
relating thereto, and (b) the PATRIOT Act. 
No part of the proceeds of the Loans will be used, directly or indirectly,
for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else
acting in an official capacity, in order to obtain, retain or direct business
or obtain any improper advantage, in violation of the United States Foreign
Corrupt Practices Act of 1977, as amended.


 


4.24.   Sanctioned
Persons.  None of Parent or any of its
Subsidiaries nor, to the knowledge of Parent or any Borrower, (i) any
director, officer, agent or employee of Parent or any of its Subsidiaries, or (ii) any
Affiliate that is Controlled by Parent or any of its Subsidiaries, or (iii) any
other Affiliate of Parent (except to the extent in the case of this clause (iii) that
Parent has complied with the filing or notification requirements, if any, under
OFAC in connection with or as a result of such Person’s acquisition of Capital
Stock of Parent), is currently subject to any U.S. sanctions administered by
OFAC.  Borrowers will not directly or
indirectly use the proceeds of the Loans or otherwise make available such
proceeds to any Person, for the purpose of financing the activities of any
Person currently subject to any U.S. sanctions administered by OFAC.


 


4.25.   Use of Proceeds.  The proceeds of the Loans shall be used for
purposes permitted by Section 2.6.


 


4.26.   REIT Status.  Beginning with its taxable year ending December 31,
2010, (a) Parent has been organized and operated in conformity with the
requirements for qualification and taxation as a REIT under the Internal
Revenue Code, (b) Parent’s proposed method of operation will enable it to
meet the requirements for qualification and taxation as a REIT under the
Internal Revenue Code, (c) Parent has not revoked its election to be taxed
as a REIT and such election has not been terminated, and (d) Parent has
not engaged in any “prohibited transaction” as defined for purposes of Section 857(b)(6) of
the Internal Revenue Code that could have a Material Adverse Effect.


 


4.27.   Insurance.  The insurance coverages required by Section 5.5
have been obtained and are in effect as of the Closing Date.


 


SECTION 5.  
AFFIRMATIVE COVENANTS


 


Each Credit Party covenants and agrees that, so long as
any Commitment is in effect and until payment in full of all Obligations (other
than contingent Obligations for which no claim has been made) and cancellation
or expiration or Cash collateralization in accordance with Section 2.4(i) of
all Letters of Credit, each Credit Party shall perform, and shall cause each of
its Subsidiaries to perform, all covenants in this Section 5.


 


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5.1.   Financial
Statements and Other Reports.  Parent will deliver to Administrative Agent
(for further distribution to Lenders), which delivery may be made in accordance
with Section 10.1(b):


 


(a)  
Quarterly Financial Statements. 
As soon as available, and in any event within sixty (60) days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, commencing
with the Fiscal Quarter ending March 31, 2011, the consolidated balance
sheets of Parent and its Subsidiaries as at the end of such Fiscal Quarter and
the related consolidated statements of income and cash flows of Parent and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, setting forth
in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year (the making of such comparisons
to commence with the financial statements delivered for the Fiscal Quarter
ending March 31, 2012), in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto;


 


(b)  
Annual Financial Statements. 
As soon as available, and in any event within one hundred five (105)
days after the end of each Fiscal Year, commencing with the Fiscal Year in
which the Closing Date occurs, (i) the consolidated balance sheets of
Parent and its Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of income and cash flows of Parent and its Subsidiaries
for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year (the making of such comparisons
to commence with the financial statements delivered for the Fiscal Year ending December 31,
2012), in reasonable detail, together with a Financial Officer Certification
and a Narrative Report with respect thereto; and (ii) with respect to such
consolidated financial statements a report thereon of Deloitte &
Touche LLP, any other “Big Four” accounting firm selected by Parent, or any
other independent certified public accountants of recognized national standing
selected by Parent and reasonably satisfactory to Administrative Agent (which
report and/or the accompanying financial statements shall be unqualified as to
going concern and scope of audit, and shall state that such consolidated
financial statements fairly present, in all material respects, the consolidated
financial position of Parent and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards);


 


(c)  
Compliance Certificate. 
Together with each delivery of financial statements of Parent and its
Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly
executed and completed Compliance Certificate (including notices of any
material damage, destruction or condemnation of any Collateral);


 


(d)  
Notice of Default. 
Promptly upon any Authorized Officer of Parent or any Borrower obtaining
actual knowledge (i) of any condition or event that constitutes a Default
or an Event of Default; (ii) the occurrence of any environmental event
that has had or could reasonably be expected to have a Material Adverse Effect;
or (iii) of the occurrence of any event or change that has had, either in
any case or in the aggregate, a Material Adverse Effect, 


 


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a certificate of an Authorized Officer specifying
the nature and period of existence of such condition, event or change, and what
action, if any, any Borrower has taken, is taking and proposes to take with
respect thereto;


 


(e)  
Notice of Litigation. 
Promptly upon any Authorized Officer of Parent or any Borrower obtaining
actual knowledge of (i) any Adverse Proceeding not previously disclosed in
writing by Borrowers to Lenders, or (ii) any development in any Adverse
Proceeding that, in the case of either clause (i) or (ii),
could be reasonably expected to have a Material Adverse Effect, written notice
thereof together with such other non-privileged information as may be
reasonably available to Parent or Borrowers to enable Lenders and their counsel
to evaluate such matters;


 


(f)  
ERISA.  (i) Promptly
upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA
Event that could reasonably be expected to result in liability in excess of
$5,000,000, a written notice specifying the nature thereof, what action Parent,
any of its Subsidiaries or any of their respective ERISA Affiliates has taken,
is taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto; and (ii) with reasonable promptness, copies
of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Parent, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan
that could reasonably be expected to result in liability in excess of
$5,000,000; (2) all notices received by Parent, any of its Subsidiaries or
any of their respective ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (3) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;


 


(g)  
Budget.  As soon as
practicable and in any event no later than ninety (90) days after the beginning
of each Fiscal Year, a budget for Parent and its Subsidiaries for such Fiscal
Year in the form of Exhibit K hereto, or otherwise in form and
substance reasonably satisfactory to Administrative Agent (a “Budget”), with appropriate presentation and discussion of the principal
assumptions upon which such Budget is based;


 


(h)  
Information Regarding Collateral.  At the
time of delivery of financial statements in accordance with Section 5.1(a) and
within sixty (60) days after the end of each Fiscal Year (commencing with the
Fiscal Year ending December 31, 2010), Borrowers will furnish to
Collateral Agent prompt written notice of any change during the 90-day period
prior to such delivery date (i) in any Credit Party’s corporate name, (ii) in
any Credit Party’s identity or corporate structure, (iii) in any Credit
Party’s jurisdiction of organization or (iv) in any Credit Party’s Federal
Taxpayer Identification Number or state organizational identification number;


 


(i)  
Other Information.  Such other information and data with
respect to Parent or any of its Subsidiaries as from time to time may be
reasonably requested by Administrative Agent or any Lender (acting through
Administrative Agent); and


 


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(j)  
Certification of Public Information.  Parent, each Borrower and each Lender
acknowledge that certain of the Lenders may be Public Lenders and, if documents
or notices required to be delivered pursuant to this Section 5.1 or
otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or
another relevant website or other information platform (the “Platform”), any document or notice that
Parent or any Borrower has indicated contains Non-Public Information shall not
be posted on that portion of the Platform designated for such Public
Lenders.  Each of Parent and each
Borrower agrees to clearly designate all information provided to Administrative
Agent by or on behalf of Parent or Borrowers which is suitable to make
available to Public Lenders.  If Parent
has not, or Borrowers have not, as applicable, indicated whether a document or
notice delivered pursuant to this Section 5.1 contains Non-Public
Information, Administrative Agent shall post such document or notice solely on
that portion of the Platform designated for Lenders who wish to receive
material non-public information with respect to Parent, its Subsidiaries and
their securities.


 


5.2.   Existence.  Except as otherwise permitted
under Section 6.8, each Credit Party shall, and shall cause each of
its Material Subsidiaries to, at all times preserve and keep in full force and
effect its existence and all rights and franchises, licenses and permits
material to its business; provided, no Credit Party (other than any
Borrower with respect to existence) or any of its Material Subsidiaries shall
be required to preserve any such existence, right or franchise, licenses or
permits if (a) such Person’s board of directors (or similar governing
body) shall determine that the preservation thereof is no longer desirable in
the conduct of the business of such Person, and that the loss thereof is not
disadvantageous in any material respect to such Person or to Lenders or (b) solely
in the case of rights, franchises, licenses and permits, the failure to
maintain such could not reasonably be expected to have a Material Adverse
Effect.


 


5.3.   Payment
of Taxes, Claims, and Obligations.  Each Credit Party shall, and shall cause each
of its Subsidiaries to, (a) other than with respect to obligations that
upon becoming a Lien would result in a Default under Section 6.2(b) or
6.2(c) do not exceed $50,000,000 in the aggregate, pay its material
obligations (other than Indebtedness) in accordance with their terms, pay all
material Taxes imposed upon it or any of its properties or assets or in respect
of any of its income, businesses or franchises, and pay all claims (including
claims for labor, services, materials and supplies), in each case either (i) prior
to such sums becoming, or having a reasonable likelihood of becoming, a Lien
upon any of its properties or assets; or (ii) within 30 days from the date
such sums first become overdue, unless, in each case, the applicable Credit
Party has initiated and is maintaining a Good Faith Contest with respect to
such matter; and (b) perform or comply with, as the case may be, all its
Obligations in the manner specified in this Agreement and the other Credit
Documents.  No Credit Party will, nor
will it permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than Parent or any of its
Subsidiaries).


 


5.4.   Maintenance
and Operation of Properties.  Except (a) with respect to the Special
Consideration Properties, or (b) as otherwise permitted under Section 6.8,
each Credit Party shall, and shall cause each of its Material Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
as determined in Parent’s reasonable business judgment, ordinary wear and tear
and casualty and condemnation excepted, all material properties used or useful
in the business of Parent and its Material Subsidiaries and (i) from time
to time will make or cause to be made all appropriate repairs, renewals and
replacements thereof 


 


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as
determined in Parent’s reasonable business judgment, and (ii) operate such
properties in the ordinary course of business.


 


5.5.   Insurance.  Parent will maintain or cause to
be maintained, with financially sound and reputable insurers, such public
liability insurance, third party property damage insurance, business
interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, property and business of Parent and
its Subsidiaries as may customarily be carried or maintained under similar
circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons.  Without limiting the generality of the
foregoing, Parent will maintain or cause to be maintained replacement value
casualty insurance on the Mortgaged Properties under such policies of
insurance, with such insurance companies, in such amounts, with such
deductibles, and covering such risks as are at all times carried or maintained
under similar circumstances by Persons of established reputation engaged in
similar businesses.  Each such policy of
insurance in respect of the Mortgaged Properties shall (i) name Collateral
Agent, on behalf of the Secured Parties, as an additional insured thereunder as
its interests may appear, (ii) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, reasonably satisfactory
in form and substance to Collateral Agent, that names Collateral Agent, on
behalf of the Secured Parties, as the loss payee thereunder and provide for at
least thirty (30) days’ prior written notice to Collateral Agent of any
modification or cancellation of such policy (other than non-payment, which
shall be ten (10) days’ prior written notice).


 


5.6.   Books
and Records; Inspections.  Each Credit Party shall, and shall cause each
of its Subsidiaries to, keep proper books of record and accounts in which full,
true and correct shall be made to enable the preparation of the financial
statements entries in conformity in all material respects with GAAP.  Each Credit Party shall, and shall cause each
of its Subsidiaries to, permit any authorized representatives designated by
Administrative Agent and any Lender (when accompanying Administrative Agent) to
visit and inspect any of the properties of any Credit Party and any of its
respective Subsidiaries, to inspect, copy and take extracts from its and their
financial and accounting records, and to discuss its and their affairs,
finances and accounts with its and their officers and independent public
accountants; provided, that the representatives of such Credit Party
shall be given the opportunity to be present at or participate in any such
discussion, all upon reasonable notice and at such reasonable times during
normal business hours; provided  further that, unless an Event of
Default has occurred and is continuing, (a) Borrowers shall not be
required to pay the expense of any such visit and (b) only two such visits
shall be permitted during any Fiscal Year.


 


5.7.   Compliance
with Laws and Material Contracts.  Each Credit Party shall comply, and shall
cause each of its Subsidiaries and use commercially reasonable efforts to cause
all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority (including all Environmental Laws), except where such
noncompliance, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. 
Each Credit Party shall, and shall cause each of its Subsidiaries to,
comply and perform in all material respects in accordance with the terms and
conditions of all Material Contracts; provided, that such material
breach of a 


 


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Material
Contract shall not constitute a default under this Section 5.7 if
such breach is cured within 30 days after the applicable Credit Party or
Subsidiary obtains knowledge of such failure.


 


5.8.   Additional
Guarantees.  In the event that any Material Real Estate
Asset or Capital Stock is required to be pledged to Collateral Agent in
accordance with Section 5.9, Borrowers shall (a) promptly, but
in no event later than thirty (30) days following the acquisition of such
Material Real Estate Asset or Capital Stock, cause the applicable Domestic
Subsidiary of Parent owning such Material Real Estate Asset or Capital Stock,
if not already a Guarantor hereunder, to become a Guarantor hereunder and, if
applicable, a Pledgor under the Pledge Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take
all such actions and execute and deliver, or cause to be executed and
delivered, all such documents, instruments, agreements, and certificates reasonably
requested by Collateral Agent, including those which are similar to those
described in Sections 3.1(b) and 3.1(k).  With respect to each Subsidiary required to
become a Guarantor which is formed or acquired after the Closing Date,
Borrowers shall promptly send to Administrative Agent written notice setting
forth with respect to such Person (i) the date on which such Person became
a Subsidiary of Parent, and (ii) all of the data required to be set forth
in Schedules 4.1 and 4.2 with respect to all Subsidiaries of
Parent; and such written notice shall be deemed to supplement Schedules 4.1
and 4.2 for all purposes hereof.


 


5.9.   Additional
Collateral.  In the event that any Credit Party acquires a
Material Real Estate Asset and such interest has not otherwise been made
subject to the Lien of the Collateral Documents in favor of Collateral Agent,
for the benefit of Secured Parties, then such Credit Party shall promptly, but
in no event later than thirty (30) days following the acquisition of such Material
Real Estate Asset, take all such actions and execute and deliver, or cause to
be executed and delivered, all such mortgages, documents, instruments,
agreements, opinions and certificates, including those which are similar to
those described in Sections 3.1(e), 3.1(f), 3.1(g) and
3.1(h) with respect to each such Material Real Estate Asset that
Collateral Agent shall reasonably request to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid and, subject to any filing
and/or recording referred to herein, perfected First Priority Lien on such
Material Real Estate Assets (or if a Lien on any such Real Estate Asset cannot
be provided, a First Priority perfected Lien on the Capital Stock of the
Subsidiary that owns a direct interest in such Real Estate Asset; provided
that if such Subsidiary is a Foreign Subsidiary, the Domestic Subsidiary owning
such Foreign Subsidiary (directly or through other Foreign Subsidiaries) shall
grant a First Priority perfected Lien on the Capital Stock of any such
directly-owned Foreign Subsidiary, which Lien shall be limited to (A) 66%
of the voting Capital Stock of such Foreign Subsidiary and (B) 100% of the
non-voting Capital Stock of such Subsidiary), in each case, subject to
Permitted Liens; provided that neither Parent nor any other Credit Party
shall be required to provide or cause to be provided such additional Collateral
(or Guarantees pursuant to Section 5.8) if (i) at the time of
acquisition of such Material Real Estate Asset or Capital Stock, the ratio of
(A) the aggregate Value of all Collateral securing the Secured Obligations
(determined as of the most recent Fiscal Quarter or Fiscal Year for which
financial statements are available) to (B) the aggregate Revolving
Commitments of all Lenders is at least 4.00 to 1:00 or (ii) any existing
Contractual Obligations assumed or entered into by Parent or any such
Subsidiary to effectuate or reasonably facilitate the acquisition of such
Material Real Estate Assets (including Contractual Obligations governing
non-Wholly Owned Subsidiaries or Joint 


 


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Ventures
and Indebtedness permitted to be incurred pursuant to Section 6.1)
prohibits the granting of such Lien.


 


5.10.   Use of
Proceeds.  The Borrowers shall use the proceeds of the
Loans solely for the purposes permitted by Section 2.6.


 


5.11.   Maintenance
of REIT Status.  Parent and each of its Material REIT
Subsidiaries shall (a) solely in the case of Parent, on or before September 15,
2011, elect REIT status for the 2010 tax year, take all actions necessary to
qualify as a REIT beginning with such year, and maintain its status as a REIT
at all times after the effective date of such election, (b) in the case of
each Material REIT Subsidiary, maintain its status as a REIT, (c) not
revoke its election to be taxed as a REIT or cause or allow such election to be
terminated, and (d) not engage in any “prohibited transaction” as defined
for purposes of Section 857(b)(6) of the Internal Revenue Code that
could reasonably be expected to have a Material Adverse Effect; provided,
however, that the foregoing shall not prohibit any Material REIT
Subsidiary from engaging in any transaction permitted under Section 6.8(g) or
otherwise failing to maintain its election to be taxed as a REIT, in each case,
so long as such action does not result in a material adverse tax impact that is
not reasonably compensated or offset by other material benefits to Parent or
its Subsidiaries from such action.


 


5.12.   Further
Assurances.  At any time or from time to time upon the
request of Administrative Agent, each Credit Party will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such
other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit
Documents.  In furtherance and not in
limitation of the foregoing, each Credit Party shall take such actions as
Administrative Agent or Collateral Agent may reasonably request from time to
time to ensure that the Secured Obligations are guarantied by the Guarantors
and are secured by the Mortgaged Properties and the Pledged Properties (subject
to (i) limitations contained in Section 5.8 with respect to
certain Real Estate Assets and Capital Stock acquired after the Closing Date
and (ii) any transactions permitted under Section 6.8).


 


5.13.   Intentionally
Omitted.


 


5.14.   Environmental
Compliance. The Parent shall, and shall cause each of its
Subsidiaries to:


 


(a)  
Keep and maintain (i) all Designated Environmental Properties in
material compliance with any Environmental Laws unless the failure to so comply
would not be reasonably expected to result in a material adverse effect to such
Designated Environmental Property or the owner thereof and (ii) all other
Real Estate Assets in compliance with any Environmental Laws except to the
extent such noncompliance could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;


 


(b)  
Promptly (i) cause the removal of any Hazardous Materials Released
in, on or under (x) any Designated Environmental Properties that are in
violation of any Environmental Laws and which could be reasonably expected to
have a material adverse effect on such Designated Environmental Property or the
owner thereof or (y) any other Real Estate


 


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Assets that are in violation of any Environmental
Laws and which could be reasonably expected to result in a Material Adverse
Effect, and (ii) cause any remediation required by any Environmental Laws
or Governmental Authority to be performed, (x) except where the failure to
so cause such removal or remediation with respect to any Designated
Environmental Property could not reasonably be expected to have a material
adverse effect on such Designated Environmental Property or (y) except
where the failure to so cause such removal or remediation with respect to any
other Real Estate Assets could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect; provided, that no such
action shall be required if any action is subject to a Good Faith Contest.  In the course of carrying out such actions,
Borrowers shall provide Administrative Agent with such periodic information and
notices regarding the status of investigation, removal, and remediation, as
Administrative Agent may reasonably require; provided, Borrowers shall not be
required to provide such information and notices where doing so could
reasonably be expected to void any privilege attached to such information or
notices; and


 


(c)  
Promptly advise Administrative Agent in writing of any of the following:
(i) any Environmental Claims known to Borrowers that could be reasonably
expected to result in (x) a material adverse effect on any Designated
Environmental Property or (y) in the case of any other Real Estate Assets,
a Material Adverse Effect; (ii) the receipt of any notice of any alleged
violation of Environmental Laws with respect to any Designated Environmental
Property or any other Real Estate Assets (and Borrowers shall promptly provide
Administrative Agent with a copy of such notice of violation), provided that
such alleged violation, if true (and if any release of the Hazardous Materials
alleged therein were not promptly remediated), would result in a breach of subsections
(a) or (b) above; and (iii) the discovery of any
occurrence or condition on any Designated Environmental Properties or other
Real Estate Assets that could cause such Designated Environmental Properties,
such other Real Estate Assets or any part thereof to be in violation of clauses
(a) or, if not promptly remediated, (b) above.  If Administrative Agent, Issuing Lender
and/or any Lender shall be joined in any legal proceedings or actions initiated
in connection with any Environmental Claims, each Credit Party shall indemnify,
defend, and hold harmless such Person in accordance with Section 10.3.


 


5.15.   Post Closing Obligations.  Each of the
Credit Parties shall satisfy the requirements set forth on Schedule 5.15
on or before the date specified for such requirement or such later date to be
determined by Administrative Agent.


 


SECTION 6.  
NEGATIVE COVENANTS


 


Each Credit Party covenants and agrees that, so long as
any Commitment is in effect and until payment in full of all Obligations (other
than contingent Obligations for which no claim has been made) and cancellation
or expiration or Cash collateralization in accordance with Section 2.4(i) of
all Letters of Credit, such Credit Party shall perform, and shall cause each of
its Subsidiaries to perform, all covenants in this Section 6.


 


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6.1.   Indebtedness.  No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or guaranty, or otherwise become or remain directly or indirectly liable
with respect to any Indebtedness, except:


 


(a)  
the Obligations;


 


(b)  
intercompany Indebtedness among Parent and its Subsidiaries incurred (i) in
the ordinary course of business (including transactions in the ordinary course
of business in accordance with the Consolidated Cash Management System and
intercompany Indebtedness in lieu of an Investment otherwise permitted under Section 6.6)
or (ii) outside the ordinary course of business in connection with tax,
accounting, corporate structuring or reorganization or similar transactions
together with refinancings thereof to the extent such refinancing Indebtedness
would otherwise be permitted under this Section 6.1(b); provided
that intercompany Indebtedness pursuant to clause (ii) shall be
subordinated to the Obligations in a manner reasonably satisfactory to
Administrative Agent to the extent not otherwise restricted by any Contractual
Obligation;


 


(c)  
Indebtedness (including letters of credit not provided under this
Agreement) which, when aggregated with Indebtedness of Parent, Borrowers and
their Subsidiaries and Joint Ventures (but, in the case of consolidated
non-Wholly Owned Subsidiaries and Joint Ventures of Parent Guarantors or
Borrowers, only to the extent allocable (based on economic share and not necessarily
the percentage ownership) to Parent Guarantors, Borrowers or their Wholly Owned
Subsidiaries), would not cause Parent to fail to be in pro forma compliance
with the financial covenant set forth in Section 6.7(c) together
with Permitted Refinancings thereof to the extent such refinancing Indebtedness
would otherwise be permitted under this Section 6.1(c); provided
that (i) Parent and its Subsidiaries and Joint Ventures shall not incur
unsecured Indebtedness (other than unsecured Indebtedness permitted to exist as
of the Closing Date and Permitted Refinancings thereof) in excess of
$300,000,000 (the “Unsecured Indebtedness
Sublimit”) and (ii) the aggregate outstanding amount of any
Recourse Secured Mortgage Indebtedness shall not exceed the amount of Recourse
Secured Mortgage Indebtedness outstanding on the Closing Date plus
$750,000,000; provided that such Recourse Secured Mortgage Indebtedness
is (A) incurred to refinance, replace or extend Permitted Project Level
Financing or (B) incurred to finance the construction, development,
redevelopment, repair or improvement of any GGP Property;


 


(d)  
Indebtedness in respect of a Lien that is permitted under Section 6.2;


 


(e)  
guaranties by any Borrower of Indebtedness of a Guarantor Subsidiary or
guaranties by a Guarantor Subsidiary of Indebtedness of any Borrower or another
Guarantor Subsidiary, in each case, with respect to Indebtedness otherwise
permitted to be incurred pursuant to this Section 6.1; provided,
that if the Indebtedness that is being guarantied is unsecured and/or
subordinated to the Obligations, the guaranty shall also be unsecured and/or
subordinated to the Obligations;


 


(f)  
(i) Indebtedness existing on the Closing Date described in the plan
of reorganization of Existing GGPI, the Partnershp, the LLC and the Debtor
Subsidiaries and the 


 


82

















 


disclosure statement in connection therewith that is
not required to be repaid in accordance with such plan and (ii) Permitted
Refinancings thereof;


 


(g)  
(i) Indebtedness of any Borrower or its Subsidiaries with respect
to Capital Leases and (ii) purchase
money Indebtedness of any Borrower or its Subsidiaries;


 


(h)  
Indebtedness consisting of financing of insurance premiums in the
ordinary course of business;


 


(i)  
Indebtedness and other transactions specifically contemplated by the
Plan (including the reinstatement of the Exchangeable Notes, the reinstatement
of the TRUP Notes, the Reinstated Rouse Notes and the issuance of the Bridge
Notes) or specifically contemplated by the Investment Agreements, and Permitted
Refinancings thereof;


 


(j)  
cash management obligations and other Indebtedness in respect of
endorsements for collection or deposit, netting services, overdraft protections
and similar arrangements in each case in connection with deposit accounts; provided
that such Indebtedness is extinguished within five (5) Business Days after
its incurrence;


 


(k)  
Indebtedness consisting of (i) take-or-pay obligations contained in
utility supply arrangements and (ii) customary indemnification
obligations, in each case, incurred in the ordinary course of business and not
in connection with debt for money borrowed;


 


(l)  
letters of credit, bank guaranties or similar instruments in support of
obligations in respect of workers’ compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return of money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money
or Capital Leases);


 


(m)  
Indebtedness arising from agreements of Parent or any of its
Subsidiaries providing for indemnification, adjustment of purchase or
acquisition price, earn-out or similar obligations, in each case, incurred or
assumed in connection with the acquisition or disposition of any business or
assets (including Capital Stock) of Parent or any of its Subsidiaries not
prohibited by Section 6.6 or Section 6.8;


 


(n)  
Indebtedness incurred by Parent or any of its Subsidiaries representing
deferred compensation to directors, officers, employees, members of management
and consultants of such Person in the ordinary course of business;


 


(o)  
Indebtedness in respect of bankers’ acceptances supporting trade
payables, warehouse receipts or similar facilities entered into in the ordinary
course of business;


 


(p)  
Indebtedness incurred in lieu of (and not in an amount in excess of) any
Restricted Junior Payment permitted pursuant to Section 6.4;


 


(q)  
Indebtedness constituting a Municipal Financing incurred in the ordinary
course of business in connection with a new development or redevelopment of
real property;


 


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(r)  
to the extent constituting Indebtedness, Investments in repurchase
agreements constituting Cash Equivalents; and


 


(s)  
to the extent constituting Indebtedness, all premiums (if any),
interest, fees, expenses, charges and additional or contingent interest on
Indebtedness described in clauses (a) through (r) above.


 


6.2.   Liens.  No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or permit to exist any Lien on or with respect to any property or asset
of any kind (including any document or instrument in respect of goods or
accounts receivable) of Parent or any of its Subsidiaries, whether now owned or
hereafter acquired or licensed, or any income, profits or royalties therefrom,
or file or authorize the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any
Collateral under the UCC of any State or under any similar recording or notice
statute, except:


 


(a)  
Liens in favor of Collateral Agent for the benefit of Secured Parties
granted pursuant to any Credit Document;


 


(b)  
Liens for Taxes, assessments, utilities or governmental charges not more
than 30 days overdue, or if more than 30 days overdue, (x) that are the
subject of a Good Faith Contest, (y) which consist of Liens on one or more
Specified Properties or (z) which taxes, assessments, utilities or
governmental charges do not exceed $50,000,000 in the aggregate;


 


(c)  
statutory Liens of landlords, banks (and rights of set-off), carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens
imposed by law (other than any such Lien imposed pursuant to Section 430(k) of
the Internal Revenue Code or ERISA or a violation of Section 436 of the
Internal Revenue Code), in each case incurred in the ordinary course of
business (i) for amounts not more than 30 days overdue or (ii) for
amounts that are more than 30 days overdue (x) that are the subject of a
Good Faith Contest, (y) which consist of Liens on one or more Specified
Properties or (z) which amounts do not exceed $50,000,000 in the
aggregate;


 


(d)  
Liens incurred in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money or Capital Leases), so long as
no foreclosure, sale or similar proceedings have been commenced with respect to
any portion of the Collateral on account thereof;


 


(e)  
easements, reciprocal easement agreements, rights-of-way, restrictions,
encroachments, outstanding mineral and royalty interests, minor defects or
irregularities in title, and other similar encumbrances in each case which do
not and will not interfere in any material respect with the ordinary conduct of
the business of Parent or any of its Subsidiaries;


 


(f)  
any interest or title of a lessor or sublessor under any lease not
prohibited hereunder;


 


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(g)  
purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to operating leases of personal property entered
into in the ordinary course of business;


 


(h)  
any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;


 


(i)  
licenses of patents, copyrights, trademarks and other intellectual
property rights granted by Parent or any of its Subsidiaries in the ordinary
course of business and not interfering in any material respect with the
ordinary conduct of or materially detracting from the value of the business of
Borrowers or such Subsidiary;


 


(j)  
Liens described in Schedule 6.2 or on a title report or
survey delivered pursuant to Section 3.1(g);


 


(k)  
Liens securing Indebtedness permitted pursuant to Section 6.1(g);
provided, any such Lien shall encumber only the asset acquired with the
proceeds of such Indebtedness; provided, that individual financings
otherwise permitted to be secured hereunder provided by one Person (or its
Affiliates) may be cross collateralized to other such financings provided by
such Person (or its Affiliates);


 


(l)  
Liens securing Permitted Project Level Financings and other Indebtedness
permitted to be secured under Section 6.1(c);


 


(m)  
Intentionally omitted;


 


(n)  
Liens on Capital Stock of any non-Wholly Owned Subsidiary or Joint
Venture of Parent or any of its Subsidiaries securing obligations arising in
favor of other holders of Capital Stock of such Person pursuant to agreements
governing such Person;


 


(o)  
Liens securing judgments that do not constitute an Event of Default
under Section 8.1(h);


 


(p)  
Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks in the ordinary course of
business not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of Parent or any of its
Subsidiaries to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of Parent or any of its
Subsidiaries, (iii) relating to purchase orders and other agreements
entered into with customers of Parent or any of its Subsidiaries in the
ordinary course of business and (iv) attaching to brokerage accounts
incurred in the ordinary course of business;


 


(q)  
Liens in respect of leases, subleases, licenses, sublicenses or other
occupancy agreements of property in the ordinary course of business;


 


(r)  
Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of
goods;


 


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(s)  
Liens securing Hedge Agreements permitted hereunder, provided that such
Hedge Agreements are fixing floating rate debt only (i.e. provide for payments
by the counterparty in the event the specified floating rate exceeds a
specified strike price);


 


(t)  
deposits made in the ordinary course of business to secure liability to
insurance carriers and Liens on insurance policies and the proceeds thereof
securing the financing of the premiums with respect thereto;


 


(u)  
(i) Liens on advances of Cash or Cash Equivalents in favor of the
seller of any property to be acquired in a transaction not prohibited hereunder
to be applied against the purchase price for such transaction, (ii) Liens
consisting of an agreement in respect of any Asset Sale not prohibited
hereunder and (iii) earnest money deposits of Cash or Cash Equivalents by
Parent or any of its Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder;


 


(v)  
Liens deemed to exist in connection with repurchase agreements
constituting Cash Equivalents; provided, that such Liens do not extend
to any assets other than those that are the subject of such repurchase agreement;


 


(w)  
Liens evidencing and/or securing any Municipal Financing; provided,
that to the extent such Municipal Financing constitutes Indebtedness, such
Indebtedness is permitted under Section 6.1(q); and


 


(x)  
other Liens on assets other than the Collateral securing Indebtedness in
an aggregate amount not to exceed $75,000,000 at any time outstanding.


 


6.3.   No
Further Negative Pledges.  Except with respect to (a) specific
property encumbered to secure payment of particular Indebtedness permitted
under Section 6.1, (b) property that is the subject of an
executed agreement with respect to a permitted Asset Sale, (c) property
subject to Liens permitted under Section 6.2(d), (j), (k),
(n), (s), (t), (u), (v) and (w),
(d) restrictions by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses and
similar agreements entered into in the ordinary course of business (provided
that such restrictions are limited to the property or assets secured by such
Liens or the property or assets subject to such leases, licenses, easements,
occupancy agreements or similar agreements, as the case may be), (e) restrictions
granted in connection with any Indebtedness permitted under Section 6.1(g),
(h) and (l), and (f) restrictions existing at the time
a property or asset is acquired by a Credit Party or any of its Subsidiaries so
long as such restriction (i) is not entered into in contemplation of such
acquisition and (ii) does not apply to any property or assets other than
those acquired, no Credit Party nor any of its Subsidiaries shall enter into
any agreement prohibiting the creation or assumption of any Lien upon any of
its properties or assets, whether now owned or hereafter acquired, to secure
the Obligations.


 


6.4.   Restricted
Junior Payments.  Neither the Partnership nor any Parent
Guarantor shall, directly or indirectly, declare, order, pay, make or set
apart, or agree to declare, order, pay, make or set apart, any sum for any
Restricted Junior Payment except that:


 


(a)  
the Partnership and any other Parent Guarantor may pay or make
Restricted Junior Payments (and Parent may make Restricted Junior Payments to
its shareholders) in any 


 


86

















 


period in an amount which would allow Parent to make
Restricted Junior Payments not in excess of the greater of (i) the amount
required to be distributed (assuming 100% Cash distributions by Parent are
required) during such period in order to maintain REIT status of Parent and its
REIT Subsidiaries and avoid entity-level taxes and (ii) 90% of the FFO of
Parent Guarantors, Borrowers and their Subsidiaries and Joint Ventures (but, in
the case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of
Parent Guarantors or Borrowers, only to the extent allocable (based on economic
share and not necessarily the percentage ownership) to Parent Guarantors,
Borrowers or their Wholly Owned Subsidiaries) for such period;


 


(b)  
transactions in the ordinary course of business in accordance with the
Consolidated Cash Management System of Parent and its Subsidiaries shall be
permitted;


 


(c)  
the Partnership and any other Parent Guarantor may pay or make
Restricted Junior Payments to permit Parent or any other Parent Guarantor to (i) pay
any tax liabilities, operating expenses and other corporate overhead in the
ordinary course of business (including directors fees and expenses,
indemnification and similar items, franchise and other similar taxes and fees
and expenses of debt or equity offerings (whether successful or not)) and (ii) purchase,
redeem, retire or acquire Capital Stock (A) of Parent Guarantors or the
Partnership held as of the Closing Date by Persons other than Subsidiaries of
Parent or issued to any such Person after the Closing Date pursuant to Section 6.8(h) and
(B) of Parent (x) as contemplated by the Plan upon Parent’s exercise
of the New GGP Post-Emergence Public Offering Clawback Election (as defined in
the Plan) or (y) held by any present (at the time of such transaction) or
former director, officer or employee of Parent or any of its Subsidiaries or
Joint Ventures (or the heirs, estate, family members, spouse or former spouse
of any of the foregoing) in the case of this clause (y) in an
amount not in excess of $25,000,000 per Fiscal Year; and


 


(d)  
to the extent constituting a Restricted Junior Payment, the Partnership
and Parent Guarantors may make Investments not otherwise prohibited under the
Credit Documents; and


 


(e)  
the Partnership and Parent Guarantors may make Restricted Junior
Payments deemed to occur upon the non-cash exercise of stock options and
warrants, and the payment of taxes in respect of such options, warrants and
similar items.


 


6.5.   Restrictions
on Subsidiary Distributions.  Except as provided herein, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary of any Borrower to (i) pay
dividends or make any other distributions on any of such Subsidiary’s Capital
Stock owned by any Borrower or any other Subsidiary of any Borrower,
(ii) repay or prepay any Indebtedness owed by such Subsidiary to any
Borrower or any other Subsidiary of Borrower, (iii) make loans or advances
to Borrowers or any other Subsidiary of any Borrower, or (iv) transfer,
lease or license any of its property or assets to any Borrower or any other
Subsidiary of any Borrower, other than:


 


87

















 


(a)   
restrictions in agreements evidencing Indebtedness secured by a Lien on
particular property, which restrictions shall only apply to the obligors on
such Indebtedness and their Subsidiaries;


 


(b)  
restrictions in agreements, the obligations with respect to which are
secured by Liens permitted under Section 6.2(d), (j), (k),
(n), (s), (t), (u), (v) and (w);


 


(c)  
by reason of customary provisions restricting assignments, subletting or
other transfers contained in leases, licenses, joint venture agreements, asset
sale agreements  and similar agreements
entered into in the ordinary course of business;


 


(d)   
restrictions that are or were created by virtue of any transfer of,
agreement to transfer or option or right with respect to any property, assets
or Capital Stock not otherwise prohibited under this Agreement;


 


(e)  
customary restrictions on the assignment of any agreement; and


 


(f)  
restrictions on the distribution of deposits posted by Parent or any of
its Subsidiaries imposed under agreements entered into in the ordinary course
of business.


 


6.6.   Investments.  No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture, except:


 


(a)  
Investments in Cash and Cash Equivalents;


 


(b)  
Investments owned as of the Closing Date;


 


(c)  
Investments made after the Closing Date (i) among the Credit
Parties and the Wholly Owned Subsidiaries of Borrowers and (ii) in
non-Wholly Owned Subsidiaries of Borrowers and Joint Ventures owned as of the
Closing Date; provided, however, that no Investment under this clause
(ii) will be made in such existing entities which are dormant and/or
immaterial entities with no assets (other than (w) holding companies whose
only assets are Capital Stock of Subsidiaries or Joint Ventures that hold,
directly or indirectly, GGP Properties, (x) any entity that is party to an
indemnity deed of trust structure, (y) Investments in amounts required to
cover reasonable costs and expenses of such entities and (z) Investments
in such entities permitted in clause (i) below);


 


(d)  
Investments consisting of deposits, prepayments and other credits to
suppliers made in the ordinary course of business of Parent and its
Subsidiaries;


 


(e)  
intercompany loans to the extent permitted under Section 6.1(b);


 


(f)  
Consolidated Capital Expenditures (if, after giving effect to such
capital expenditure, Parent would be in compliance with Section 6.7);


 


(g)  
loans and advances to directors, officers and employees of Parent and
its Subsidiaries (i) made in connection with an employee stock purchase
plan or similar


 


88














 


arrangement or (ii) made in the ordinary course
of business in an aggregate principal amount at any time outstanding not to
exceed $5,000,000;


 


(h)  
Investments pursuant to Hedge Agreements not prohibited by Section 6.14;


 


(i)  
Investments in any after-acquired real or personal property (including
in any newly-formed or after-acquired non-Wholly Owned Subsidiary of Parent or
Joint Venture owning such property or any existing dormant or immaterial
entity); provided that (x) Investments in real estate upon which
material improvements are not complete (as evidenced by being opened for
business to the general public) shall not exceed, in the aggregate, 10% of
Value (it being understood that no Real Estate Asset that is at least 80%
leased shall be subject to this clause (x) and that for the
purposes of this provision any portion of such Real Estate Asset that is under
a binding contract of sale to an “anchor tenant” shall be deemed to be leased),
(y) Investments in any single Person owning any GGP Property shall not
exceed 25% of Value and (z) Investments in Limited Minority Holdings shall
not exceed, in the aggregate, 20% of Value after giving effect to such
Investment;


 


(j)  
the spin-off of Spinco Inc., as contemplated in the Plan;


 


(k)  
Investments reasonably required in the minimum amount necessary for
Parent and each of its REIT Subsidiaries to maintain its qualification as a
REIT;


 


(l)  
Investments received in connection with the bankruptcy or reorganization
of suppliers and lessees and in settlement of delinquent obligations of, and
other disputes with, lessees and suppliers arising in the ordinary course of
business;


 


(m)  
deposits with financial institutions available for withdrawal on demand,
prepaid expenses, and accounts receivable, in each case, made or incurred in
the ordinary course of business;


 


(n)  
guarantees of Indebtedness to the extent permitted by Section 6.1
and guarantees of other liabilities and obligations of Parent and its
Subsidiaries and Joint Ventures in the ordinary course of business;


 


(o)  
Investments in any Trust Preferred Securities Issuer and Investments by
any Trust Preferred Securities Issuer in Parent and its Subsidiaries;


 


(p)  
transactions in the ordinary course of business in accordance with the
Consolidated Cash Management System of Parent and its Subsidiaries;


 


(q)  
extensions of trade credit in the ordinary course of business;


 


(r)  
Investments in the ordinary course of business consisting of
endorsements for collection or deposit;


 


(s)  
loans and advances to tenants, customers, suppliers and distributors
made in the ordinary course of business and in accordance with Parent’s
reasonable business judgment;


 


89

















 


(t)  
any other Investments required or specifically contemplated by the
Investment Agreements or the Plan; and


 


(u)  
other Investments in an aggregate amount not to exceed $100,000,000 at
any time outstanding.


 


6.7.   Financial
Covenants.


 


(a)  
Net Indebtedness to Value Ratio. 
Parent shall not permit the Net Indebtedness to Value Ratio as of the
last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31,
2011, to exceed the correlative ratio indicated:


 


	
  Fiscal Quarter

  	
   

  	
  Net Indebtedness to Value

  Ratio

  
	
  March 31, 2011

  	
   

  	
  0.750:1.00

  
	
  June 30, 2011

  	
   

  	
  0.740:1.00

  
	
  September 30, 2011

  	
   

  	
  0.730:1.00

  
	
  December 31, 2011

  	
   

  	
  0.725:1.00

  
	
  March 31, 2012

  	
   

  	
  0.715:1.00

  
	
  June 30, 2012

  	
   

  	
  0.705:1.00

  
	
  September 30, 2012

  	
   

  	
  0.695:1.00

  
	
  December 31, 2012

  	
   

  	
  0.675:1.00

  
	
  March 31, 2013 and each Fiscal Quarter
  ending thereafter prior to the Revolving Commitment Termination Date

  	
   

  	
  0.650:1.00

  



 


(b)  
Interest Coverage Ratio. 
Parent shall not permit the Interest Coverage Ratio as of the last day
of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31,
2011, to be less than the correlative ratio indicated:


 


	
  Fiscal Quarter

  	
   

  	
  Interest Coverage Ratio

  
	
  March 31, 2011

  	
   

  	
  1.500:1.00

  
	
  June 30, 2011

  	
   

  	
  1.500:1.00

  
	
  September 30, 2011

  	
   

  	
  1.500:1.00

  
	
  December 31, 2011

  	
   

  	
  1.500:1.00

  
	
  March 31, 2012

  	
   

  	
  1.500:1.00

  



 


90

















 


	
  Fiscal Quarter

  	
   

  	
  Interest Coverage Ratio

  
	
  June 30, 2012

  	
   

  	
  1.550:1.00

  
	
  September 30, 2012

  	
   

  	
  1.600:1.00

  
	
  December 31, 2012

  	
   

  	
  1.650:1.00

  
	
  March 31, 2013 and each Fiscal Quarter
  ending thereafter prior to the Revolving Commitment Termination Date

  	
   

  	
  1.750:1.00

  



 


(c)  
Leverage Ratio.  Parent
shall not permit the Leverage Ratio as of the last day of any Fiscal Quarter,
beginning with the Fiscal Quarter ending March 31, 2011, to exceed the
correlative ratio indicated:


 


	
  Fiscal Quarter

  	
   

  	
  Leverage Ratio

  
	
  March 31, 2011

  	
   

  	
  10.000:1.00

  
	
  June 30, 2011

  	
   

  	
  9.950:1.00

  
	
  September 30, 2011

  	
   

  	
  9.900:1.00

  
	
  December 31, 2011

  	
   

  	
  9.875:1.00

  
	
  March 31, 2012

  	
   

  	
  9.700:1.00

  
	
  June 30, 2012

  	
   

  	
  9.500:1.00

  
	
  September 30, 2012

  	
   

  	
  9.300:1.00

  
	
  December 31, 2012

  	
   

  	
  9.000:1.00

  
	
  March 31, 2013

  	
   

  	
  8.500:1.00

  
	
  June 30, 2013

  	
   

  	
  8.500:1.00

  
	
  September 30, 2013 and each Fiscal Quarter
  ending thereafter prior to the Revolving Commitment Termination Date

  	
   

  	
  8.250:1.00

  



 


(d)  
Certain Calculations.


 


(i)  
With respect to any period during which an Asset Sale has occurred
(each, a “Subject Transaction”),
for purposes of determining compliance with the financial covenants set forth
in Section 6.7(a) and 6.7(c), but not for purposes of 6.7(b),
Combined EBITDA shall be calculated with respect to such period on a pro forma
basis 


 


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(including pro forma adjustments arising out of
events which are directly attributable to a specific transaction, are factually
supportable and are expected to have a continuing impact, in each case
determined on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act and as interpreted by the staff of the
Securities and Exchange Commission, which would include cost savings resulting
from head count reduction, closure of facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the chief financial
officer of Parent)  using the historical
audited financial statements of any business so sold or to be sold and the
consolidated financial statements of Parent and its Subsidiaries which shall be
reformulated as if such Subject Transaction, and any Indebtedness repaid in
connection therewith, had been consummated or repaid at the beginning of such
period.


 


(ii)  
With respect to any period and for purposes of determining compliance
with the financial covenants set forth in this Section 6.7, the
Special Consideration Properties and any Person all or substantially all of
whose assets comprise Special Consideration Properties shall be excluded from
the calculation thereof.


 


(e)  
Equity Cure(f)   .  Notwithstanding anything to the
contrary contained in Section 6.7, for purposes of determining
compliance with the financial covenants set forth in this Section 6.7,
a cash equity contribution in Parent (in the form of a cash contribution or in
exchange for Qualified Capital Stock) made after the commencement of the
applicable Fiscal Quarter and on or prior to the day that is ten days after the
day on which financial statements are required to be delivered for such Fiscal
Quarter will, at the request of Parent, which request will be made at the time
of contribution, be included in the calculation of Combined EBITDA for the
purposes of determining the Leverage Ratio and the Interest Coverage Ratio and
as Cash and Cash Equivalents in the definition of Value for purposes of
determining the Net Indebtedness to Value Ratio, in each case solely for
purposes of determining compliance with such financial covenants at the end of
such Fiscal Quarter and applicable subsequent periods that include such Fiscal
Quarter (any such equity contribution so included in the calculation of
Combined EBITDA or Value, as the case may be, a “Specified Equity Contribution”); provided that (a)(i) Parent
shall not be permitted to so request that a Specified Equity Contribution be
included in the calculation of Combined EBITDA or as Cash and Cash Equivalents
as described above with respect to any Fiscal Quarter unless, after giving
effect to such requested Specified Equity Contribution, there will be a period
of at least two consecutive Fiscal Quarters in the Relevant Four Fiscal Quarter
Period (as defined below) in which no Specified Equity Contribution has been
made, and (ii) only three Specified Equity Contributions may be made
during the term of this Agreement, (b) the amount of any Specified Equity
Contribution shall be no greater than the amount required to cause Parent to be
in compliance with such financial covenant(s) and (c) all Specified
Equity Contributions will be disregarded for purposes of determining the
availability of any baskets with respect to the covenants contained in the
Credit Documents.  To the extent that the
proceeds of the Specified Equity Contribution are used to repay Indebtedness,
such Indebtedness shall not be deemed to have been repaid for purposes of
calculating any financial covenant set forth in Section 6.7 for the
Relevant Four Fiscal Quarter Period.  For
purposes of this paragraph, the term “Relevant
Four Fiscal Quarter Period” shall mean, with respect to any
requested Specified Equity Contribution, the four Fiscal Quarter period ending
on (and including) the Fiscal Quarter in 


 


92

















 


which Combined EBITDA or Cash and Cash Equivalents,
as the case may be, will be increased as a result of such Specified Equity
Contribution.


 


6.8.   Fundamental
Changes; Disposition of Assets.  No Credit Party shall, nor shall it permit
any of its Subsidiaries to, enter into (i) any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or (ii) any Asset Sale, except:


 


(a)  
Asset Sales of inventory;


 


(b)  
Asset Sales of Cash and Cash Equivalents;


 


(c)  
Asset Sales of obsolete or worn out personal property and fixtures;


 


(d)  
Asset Sales in connection with (or as a result of) Investments made in
accordance with Section 6.6;


 


(e)  
Asset Sales of the Special Consideration Properties and the other
Specified Properties;


 


(f)  
Asset Sales for Fair Market Value, so long as (x) Borrowers shall
be in compliance with the financial covenants set forth in Section 6.7
on a pro forma basis after giving effect to such Asset Sale as of the last day
of the Fiscal Quarter most recently ended and (y) if such Asset Sale is
with respect to Collateral, the ratio of (i) the Value of all remaining
Collateral to (ii) the aggregate Revolving Commitments of all Lenders
shall be at least 4:00 to 1:00;


 


(g)  
amalgamations, mergers, liquidations, dissolutions and consolidations
among Parent and/or its Subsidiaries or with any Person the purpose of which is
to effect an Investment otherwise permitted under Section 6.6 so
long as (w) a Borrower is the survivor of any such transaction involving a
Borrower, (x) one or more Credit Parties is the survivor of any such
transaction involving a Credit Party or the survivor shall expressly assume the
Obligations of such Credit Party under the Credit Documents in a manner
reasonably acceptable to Administrative Agent, (y) Parent is the survivor
of any such transaction involving Parent or, if Parent is not the survivor, (A) the
survivor shall expressly assume the Obligations of Parent under the Credit
Documents in a manner reasonably acceptable to Administrative Agent, (B) no
Default or Event of Default shall occur after giving effect to such transaction
and (C) Credit Parties shall be in compliance with the financial covenants
set forth in Section 6.7 on a pro forma basis after giving effect
to such transaction as of the last day of the Fiscal Quarter most recently
ended for which financial statements are available and shall provide a
certificate to Administrative Agent demonstrating the same, and (z) in the
case of a transaction involving any non-Wholly Owned Subsidiary of Borrowers,
either a Wholly Owned Subsidiary shall be the survivor of any such transaction
or the transaction shall constitute an Investment permitted under Section 6.6;


 


(h)  
Asset Sales of Capital Stock by any REIT Subsidiary to individuals of
preferred equity with a base liquidation preference of no more than $180,000 in
the aggregate for any such REIT Subsidiary;


 


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(i)  
Asset Sales as a result of the exercise of (i) a buy/sell provision
with respect to any non-Wholly Owned Subsidiary or Joint Venture and (ii) any
options to purchase or lease, rights of first offer, rights of first refusal
and executed agreements with respect to pending Asset Sales existing as of the
Closing Date;


 


(j)  
spin-off of Spinco Inc., as contemplated in the Plan and other
transactions specifically contemplated by the Investment Agreements or the
Plan;


 


(k)  
Asset Sales of property as a result of (x) any condemnation
proceeding (or credible threat thereof) or Asset Sale in lieu thereof or (y) a
casualty;


 


(l)  
amalgamations, mergers, liquidations, dissolutions and consolidations
the purpose of which is to effect any Asset Sale otherwise permitted under the
Credit Documents;


 


(m)  
Asset Sales of personal property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Asset Sales are promptly
applied to the purchase price of such replacement property;


 


(n)  
Asset Sales or discounts of accounts receivable or notes in connection
with the collection or compromise thereof;


 


(o)  
Asset Sales in the ordinary course of business consisting of the
abandonment of intellectual property rights which, in the reasonable good faith
determination of the Credit Parties are not material to the conduct of the
business of Parent or its Subsidiaries;


 


(p)  
the expiration of any option agreement in respect of real or personal
property;


 


(q)  
to the extent constituting an Asset Sale, the granting of any Lien permitted
by Section 6.2, and the making of any Restricted Junior Payment
permitted by Section 6.4;


 


(r)  
Asset Sales of Capital Stock in order to qualify members of the board of
directors (or similar governing body) of any Credit Party or any of their
Subsidiaries if required by applicable law or contract;


 


(s)  
(i) any involuntary terminations of Hedge Agreements not resulting
in an Event of Default under Section 8.1(b), (ii) any
voluntary terminations of Hedge Agreements that do not require payment of any termination
fee by Parent or any of its Subsidiaries and (iii) any voluntary
terminations of Hedge Agreements that require payment of a termination fee so
long as Parent is in pro forma compliance with the financial covenant set forth
in Section 6.7(b) after giving effect thereto;


 


(t)  
Asset Sales to any Credit Party or any Wholly Owned Subsidiary of a
Credit Party or, in the case of any non-Wholly Owned Subsidiary of a Credit
Party, to a Credit Party, a Wholly Owned Subsidiary of a Credit Party or to the
owners of such non-Wholly Owned Subsidiary on a pro rata basis;


 


94

















 


(u)  
any lease, license, easement or other occupancy agreement entered into
in the ordinary course of business; and


 


(v)  
Asset Sales as a result of any transaction solely in connection with the
mortgage or other transfer of property for Permitted Project Level Financing.


 


6.9.   Transactions
with Shareholders and Affiliates.


 


No
Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any officer, director, employee or Affiliate of Parent or any of
its Subsidiaries; provided, the foregoing restriction shall not apply to
(a) any such transaction that is for fair market value and on fair and
reasonable terms no less favorable to such Credit Party or such Subsidiary than
it would obtain in a comparable arm’s length transaction with a Person that is
not an Affiliate, (b) any transaction between Parent and its Subsidiaries
and Joint Ventures to the extent permitted under the Credit Documents;
(c) reasonable and customary fees and expenses, indemnification, incentive
plans and similar items paid to members of the board of directors (or similar
governing body) of Parent and its Subsidiaries; (d) employment and
compensation arrangements for officers and other employees of Parent and its
Subsidiaries entered into in the ordinary course of business (including base
salary and incentives); (e) transactions in existence on the Closing Date;
(f) transactions contemplated by the Plan, including arrangements with
Spinco, Inc. and in connection with the spin-off thereof; (g) transactions
in the ordinary course of business in accordance with the Consolidated Cash
Management System of Parent and its Subsidiaries; (h) reimbursement of
travel, moving and similar expenses in the ordinary course of business; (i) loans
and advances to directors, officers and employees in the ordinary course of
business or otherwise permitted hereunder; (j) (A) guarantees of the
Indebtedness and other obligations not otherwise prohibited under the Credit
Documents and (B) other customary guarantees in the ordinary course of
business; (k) Restricted Junior Payments permitted under Section 6.4;
and (l) Asset Sales of Capital Stock in order to qualify members of the
board of directors (or similar governing body) of any Credit Party or any of
their Subsidiaries if required by applicable law or contract.


 


6.10.   Conduct
of Business.  From and after the Closing Date, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, make any material
changes in the nature of the business conducted by Parent and its Subsidiaries
on and as of the Closing Date, except for Asset Sales, mergers, consolidations,
liquidations and amalgamations permitted by Section 6.8 and any
business reasonably related or ancillary thereto.


 


6.11.   Amendments
or Waivers of Organizational Documents
and Certain Related Agreements.  After the Closing Date, no Credit Party shall
nor shall it permit any of its Subsidiaries to, agree to any amendment,
restatement, supplement or other modification to, or waiver of, (a) any of
its Organizational Documents or (b) any of its rights under any Material
Contract (except as could not reasonably be expected to have a Material Adverse
Effect), in each case, other than such amendments, restatements, supplements or
other modifications or waivers (i) that are not materially adverse to
Administrative Agent or Lenders or their respective interests in and under the
Loans, the Collateral, or the Loan Documents in the case of Organizational
Documents or (ii) as required in connection with the Plan (including the
spin-off of Spinco, Inc. as contemplated by the Plan).


 


95

















 


6.12.   Amendments
or Waivers and Prepayments with respect to Certain Indebtedness.  No Credit Party shall, nor shall
it permit any of its Subsidiaries to, (a) amend the subordination
provisions of any Subordinated Indebtedness in a manner that is materially
adverse to such Person or the Lenders or (b) make any payment or
prepayment of principal of, premium, if any, or interest on, or redeem, purchase,
retire, defease (including in substance or legal defeasance), establish a
sinking fund or similar payment with respect to, any Subordinated Indebtedness
(including payment on the maturity date thereof), other than the payment of
regularly scheduled payments in respect of any Subordinated Indebtedness in
accordance with the terms of, and only to the extent required by, and subject
to any subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Indebtedness was issued; provided
that (i) Borrowers may pay, prepay, redeem, purchase, retire, defease,
establish a sinking fund or similar payment for Subordinated Indebtedness
(A) with the proceeds of Capital Stock or other Subordinated Indebtedness,
(B) as a result of the conversion to or in exchange for Capital Stock and (C) in
an amount not to exceed $100,000,000 over the term of this Agreement and (ii) Borrowers
may pay, prepay, redeem, purchase, retire, defease, establish a sinking fund or
similar payment for the TRUPS Notes.


 


6.13.   Fiscal
Year.  No Credit Party shall, nor shall it permit
any of its Subsidiaries to, change its Fiscal Year without the consent of
Administrative Agent.


 


6.14.   Limitation on
Hedge Agreements.  No Credit
Party shall, nor shall it permit any of its Subsidiaries to, enter into any
Hedge Agreement other than Hedge Agreements entered into in the ordinary course
of business, and not for speculative purposes, to protect against changes in
interest rates or foreign exchange rates; provided, that in the case of
interest rate Hedge Agreements, such agreements shall only provide for
floating-to-fixed rates.


 


SECTION 7.  
GUARANTY


 


7.1.   Guaranty
of the Obligations.  Subject to the provisions of Section 7.2,
Guarantors jointly and severally hereby irrevocably and unconditionally
guaranty to Administrative Agent for the ratable benefit of the Beneficiaries
the due and punctual payment in full of all Secured Obligations when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code) (collectively, the “Guaranteed Obligations”).


 


7.2.   Contribution
by Guarantors.  All Guarantors desire to allocate among
themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their Secured Obligations arising
under this Guaranty.  Accordingly, in the
event any payment or distribution is made on any date by a Guarantor (a “Funding
Guarantor”) under this Guaranty such
that its Aggregate Payments exceeds its Fair Share as of such date, such
Funding Guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date.  “Fair Share” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of (i) the Fair Share
Contribution Amount with respect to such Contributing Guarantor to (ii) the
aggregate of the Fair Share Contribution 


 


96

















 


Amounts
with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the Secured Obligations
guaranteed.  “Fair
Share Contribution Amount”
means, with respect to a Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the Secured Obligations of such
Contributing Guarantor under this Guaranty that would not render its Secured
Obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code or any comparable
applicable provisions of state law; provided, solely for purposes of
calculating the Fair Share Contribution Amount with respect to any Contributing Guarantor
for purposes of this Section 7.2, any assets or liabilities of such
Contributing Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor.  “Aggregate Payments”
means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments
and distributions made on or before such date by such Contributing Guarantor in
respect of this Guaranty (including in respect of this Section 7.2),
minus (2) the aggregate amount of all payments received on or
before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 7.2.  The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor.  The allocation among Contributing Guarantors
of their Secured Obligations as set forth in this Section 7.2 shall
not be construed in any way to limit the liability of any Contributing
Guarantor hereunder.  Each Guarantor is a
third party beneficiary to the contribution agreement set forth in this Section 7.2.


 


7.3.   Payment
by Guarantors.  Subject to Section 7.2,
Guarantors hereby jointly and severally agree, in furtherance of the foregoing
and not in limitation of any other right which any Beneficiary may have at law
or in equity against any Guarantor by virtue hereof, that upon the failure of
Borrowers to pay any of the Guaranteed Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code), Guarantors will upon written demand pay, or cause to be paid,
in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an
amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including interest which, but for any Borrower becoming
the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed
Obligations, whether or not a claim is allowed against Borrowers for such
interest in the related bankruptcy case) and all other Guaranteed Obligations
then owed to Beneficiaries as aforesaid.


 


7.4.   Liability
of Guarantors Absolute.  Each Guarantor agrees that its obligations
hereunder are irrevocable, absolute, independent and unconditional and shall
not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than payment in full of the Guaranteed
Obligations.  In furtherance of the
foregoing and without limiting the generality thereof, each Guarantor agrees,
to the maximum extent permitted by applicable law, as follows:


 


97

















 


(a)  
this Guaranty is a guaranty of payment when due and not of
collectability.  This Guaranty is a
primary obligation of each Guarantor and not merely a contract of surety;


 


(b)  
Administrative Agent may enforce this Guaranty upon the occurrence of an
Event of Default notwithstanding the existence of any dispute between any
Borrower and any Beneficiary with respect to the existence of such Event of
Default;


 


(c)  
the obligations of each Guarantor hereunder are independent of the
obligations of Borrowers and the obligations of any other guarantor (including
any other Guarantor) of the obligations of Borrowers, and a separate action or
actions may be brought and prosecuted against such Guarantor whether or not any
action is brought against any Borrower or any of such other guarantors and
whether or not any Borrower is joined in any such action or actions;


 


(d)  
payment by any Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge any Guarantor’s
liability for any portion of the Guaranteed Obligations which has not been
paid.  Without limiting the generality of
the foregoing, if Administrative Agent is awarded a judgment in any suit
brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed
Obligations, such judgment shall not be deemed to release such Guarantor from
its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other
Guarantor’s liability hereunder in respect of the Guaranteed Obligations;


 


(e)  
any Beneficiary, upon such terms as it deems appropriate, without notice
or demand and without affecting the validity or enforceability hereof or giving
rise to any reduction, limitation, impairment, discharge or termination of any
Guarantor’s liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the
payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guaranteed
Obligations, any other guaranties of the Guaranteed Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to the
Guaranteed Obligations; (v) enforce and apply any security now or
hereafter held by or for the benefit of such Beneficiary in respect hereof or
the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its reasonable discretion
may determine consistent herewith, the applicable Secured Hedge Agreement or
the applicable Secured Bank Product Agreement and any applicable security
agreement, including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy
of any Guarantor against any other


 


98














 


Credit Party or any security for the Guaranteed
Obligations; and (vi) exercise any other rights available to it under the
Credit Documents, any Secured Hedge Agreements or any Secured Bank Product
Agreement, as applicable; and


 


(f)  
this Guaranty and the obligations of Guarantors hereunder shall be valid
and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Guaranteed Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce or agreement
or election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Credit
Documents, any Secured Hedge Agreements, any Secured Bank Product Agreement, at
law, in equity or otherwise) with respect to the Guaranteed Obligations or any
agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guaranteed Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to departure
from, any of the terms or provisions (including provisions relating to events
of default) hereof, any of the other Credit Documents, any of the Secured Hedge
Agreements, any Secured Bank Product Agreement or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document, such Secured Hedge Agreement, such
Secured Bank Product Agreement or any agreement relating to such other guaranty
or security; (iii) the Guaranteed Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source (other
than payments received pursuant to the other Credit Documents, any of the
Secured Hedge Agreements, any Secured Bank Product Agreement or from the
proceeds of any security for the Guaranteed Obligations, except to the extent
such security also serves as collateral for indebtedness other than the
Guaranteed Obligations) to the payment of indebtedness other than the
Guaranteed Obligations, even though any Beneficiary might have elected to apply
such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary’s consent to the change, reorganization or termination of the
corporate structure or existence of Parent or any of its Subsidiaries and to
any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any
collateral which secures any of the Guaranteed Obligations; (vii) any
defenses, set-offs or counterclaims which any Borrower may allege or assert
against any Beneficiary in respect of the Guaranteed Obligations, including
failure of consideration, breach of warranty, payment, statute of frauds,
statute of limitations, accord and satisfaction and usury; and (viii) any
other act or thing or omission, or delay to do any other act or thing, which
may or might in any manner or to any extent vary the risk of any Guarantor as
an obligor in respect of the Guaranteed Obligations.


 


7.5.   Waivers
by Guarantors.  Each Guarantor hereby waives, for the benefit
of Beneficiaries, to the maximum extent permitted by applicable law: (a) any
right to require any Beneficiary, as a condition of payment or performance by
such Guarantor, to (i) proceed against any Borrower, any other guarantor
(including any other Guarantor) of the Guaranteed Obligations or any other
Person, (ii) proceed against or exhaust any security held from any
Borrower, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any Deposit Account or credit on the
books of any Beneficiary in favor of any 


 


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Credit
Party or any other Person, or (iv) pursue any other remedy in the power of
any Beneficiary whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of any
Borrower or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations
or any agreement or instrument relating thereto or by reason of the cessation
of the liability of any Borrower or any other Guarantor from any cause other
than payment in full of the Guaranteed Obligations; (c) any defense based
upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon any Beneficiary’s
errors or omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to gross negligence, willful misconduct or bad faith or
failure to duly credit to Borrowers payments actually received by Lenders in
full satisfaction of the Guaranteed Obligations (and which payments are not
being contested or subject to ongoing proceedings for or an order directing
disgorgement or reimbursement to any Credit Party); (e) (i) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims
(except after payment in full of the Guaranteed Obligations, which payments are
not being contested or subject to ongoing proceedings for or an order directing
disgorgement or reimbursement to any Credit Party), and (iv) promptness,
diligence and any requirement that any Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default under this Agreement, the Secured Hedge Agreements, any Secured Bank
Product Agreement or any agreement or instrument related thereto, notices of
any renewal, extension or modification of the Guaranteed Obligations or any
agreement related thereto, notices of any extension of credit to Borrowers and
notices of any of the matters referred to in Section 7.4 and any
right to consent to any thereof; and (g) any defenses or benefits that may
be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof (other than
payment in full of the Guaranteed Obligations, except after payment in full of
the Guaranteed Obligations, which payments are not being contested or subject
to ongoing proceedings for or an order directing disgorgement or reimbursement
to any Credit Party).


 


7.6.   Guarantors’
Rights of Subrogation, Contribution, Etc.  Until the Guaranteed Obligations (other than
contingent obligations for which no claim has been made) shall have been paid
in full and the Revolving Commitments shall have terminated and all Letters of
Credit shall have expired or been cancelled or Cash collateralized in
accordance with Section 2.4(i), each Guarantor hereby waives any
claim, right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against any Borrower or any other Guarantor or any of its assets
in connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise and
including (a) any right of subrogation, reimbursement or indemnification
that such Guarantor now has or may hereafter have against any Borrower with
respect to the Guaranteed Obligations, (b) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or may
hereafter have against any Borrower, and (c) any benefit of, and any right
to participate in, any collateral or 


 


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security
now or hereafter held by any Beneficiary. 
In addition, until the Guaranteed Obligations (other than contingent
obligations for which no claim has been made) shall have been paid in full and
the Revolving Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled or Cash collateralized in accordance with Section 2.4(i),
each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor (including any other Guarantor)
of the Guaranteed Obligations, including any such right of contribution as
contemplated by Section 7.2. 
Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
any Borrower or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights any Beneficiary may have against any
Borrower, to all right, title and interest any Beneficiary may have in any such
collateral or security, and to any right any Beneficiary may have against such
other guarantor.  If any amount shall be
paid to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guaranteed
Obligations (other than contingent obligations for which no claim has been
made) shall not have been finally paid in full, such amount shall be held in
trust for Administrative Agent on behalf of Beneficiaries and shall forthwith
be paid over to Administrative Agent for the benefit of Beneficiaries to be
credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.


 


7.7.   Subordination
of Other Obligations.  Any Indebtedness of Borrowers or any
Guarantor permitted under Section 6.1(b)(y) now or hereafter
held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such Indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be
held in trust for Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries
to be credited and applied against the Guaranteed Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee
Guarantor under any other provision hereof, it being understood that absent an
Event of Default, the Credit Parties may make payments (whether of principal,
interest or otherwise) to the Obligee Guarantor.


 


7.8.   Continuing
Guaranty.  This Guaranty is a continuing guaranty and
shall remain in effect until all of the Guaranteed Obligations shall have been
paid in full and the Revolving Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled or Cash collateralized
in accordance with Section 2.4(i). 
Each Guarantor hereby irrevocably waives any right to revoke this
Guaranty as to future transactions giving rise to any Guaranteed Obligations.


 


7.9.   Authority
of Guarantors or Borrowers.  It is not necessary for any Beneficiary to
inquire into the capacity or powers of any Guarantor or any Borrower or the
officers, directors or any agents acting or purporting to act on behalf of any
of them.


 


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7.10.   Financial
Condition of Borrowers.  Any Credit Extension may be made to Borrowers
or continued from time to time, and any Secured Hedge Agreements and Secured
Bank Product Agreements may be entered into from time to time, in each case
without notice to or authorization from any Guarantor regardless of the
financial or other condition of Borrowers at the time of any such grant or
continuation or at the time such Secured Hedge Agreement or such Secured Bank
Product Agreement, as applicable, is entered into, as the case may be.  No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s
assessment, of the financial condition of Borrowers.  Each Guarantor has adequate means to obtain
information from Borrowers on a continuing basis concerning the financial
condition of Borrowers and their ability to perform their Secured Obligations
under the Credit Documents, the Secured Hedge Agreements and the Secured Bank
Product Agreements, and each Guarantor assumes the responsibility for being and
keeping informed of the financial condition of Borrowers and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations.  Each Guarantor hereby waives and relinquishes
any duty on the part of any Beneficiary to disclose any matter, fact or thing
relating to the business, operations or conditions of Borrowers now known or
hereafter known by any Beneficiary.


 


7.11.   Bankruptcy, Etc.   (a)  So long as any
Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency case or proceeding of
or against any Borrower or any other Guarantor. 
The obligations of Guarantors hereunder shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any case or
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of any Borrower or any
other Guarantor or by any defense which any Borrower or any other Guarantor may
have by reason of the order, decree or decision of any court or administrative
body resulting from any such proceeding.


 


(b)  
Each Guarantor acknowledges and agrees that any interest on any portion
of the Guaranteed Obligations which accrues after the commencement of any case
or proceeding referred to in clause (a) above (or, if interest
on any portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of such case or proceeding, such interest as
would have accrued on such portion of the Guaranteed Obligations if such case
or proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that
the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto
should be determined without regard to any rule of law or order which may
relieve Borrowers of any portion of such Guaranteed Obligations.  Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar Person to pay Administrative Agent, or allow the claim of
Administrative Agent in respect of, any such interest accruing after the date
on which such case or proceeding is commenced.


 


(c)  
In the event that all or any portion of the Guaranteed Obligations are
paid by Borrowers, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or 


 


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recovered shall constitute Guaranteed Obligations
for all purposes hereunder; provided, that interest or fees on any such
reinstated Guaranteed Obligations shall not be payable for the period during
which the Beneficiaries were paid such funds until the date such funds were
disgorged by such Beneficiaries.


 


7.12.   Discharge
of Guaranty Upon Sale of Guarantor.  If all of the Capital Stock of any Guarantor
or any of its successors in interest hereunder shall be the subject of a Permitted
Asset Sale, merger, consolidation, liquidation, winding up or dissolution in
accordance with the terms and conditions hereof, the Guaranty of such Guarantor
or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such Asset Sale,
merger, consolidation, liquidation, winding up or dissolution.


 


7.13.   Mortgages;
Guarantor Obligations. 
Notwithstanding anything herein or in any other Credit Document to the
contrary, each Mortgage provided by a Guarantor or other Credit Party in
connection with this Agreement shall only secure the Secured Obligations of
such Guarantor or other Credit Party, as applicable, and not any other Secured
Obligations.


 


SECTION 8.  
EVENTS OF DEFAULT


 


8.1.   Events
of Default.  If any one or more of the following
conditions or events shall occur:


 


(a)  
Failure to Make Payments When Due.  Failure by Borrowers to pay (i) when due
any installment of principal of any Loan, whether at stated maturity, by
acceleration, by notice of voluntary prepayment or otherwise; (ii) when
due any amount payable to Issuing Bank in reimbursement of any drawing under a
Letter of Credit; or (iii) any interest on any Loan or any fee or any
other amount due hereunder within five days after the date due; or


 


(b)  
Default in Other Agreements. 
(i) Failure of any Credit Party or any of their respective
Subsidiaries to pay when due any principal of or interest on or any other
amount, including any payment in settlement, payable in respect of one or more
items of Indebtedness (other than Indebtedness referred to in Section 8.1(a))
(A) in the case of Recourse Indebtedness, in an aggregate amount in excess
of $50,000,000 and (B) in the case of Non- Recourse Indebtedness,
involving properties of entities having an aggregate net equity value in an
amount after the Closing Date in excess of $200,000,000 (in each case,
excluding such defaults solely relating to any Specified Property or any
Subsidiary or Subsidiaries all or substantially all of whose assets comprise
Special Consideration Properties or Capital Stock of a Person all or
substantially all of whose assets comprise any Specified Property) or (ii) the
occurrence of an event of default or equivalent condition (which has not been
permanently waived) with respect to Indebtedness of any Credit Party or any of
their respective Subsidiaries with respect to one or more items of Recourse
Indebtedness or Non-Recourse Indebtedness in the aggregate amount or with
respect to properties or entities having an aggregate net equity value after
the Closing Date in the amount set forth in clauses (i)(A) and (i)(B) above,
respectively, in the case of each of clauses (i) and (ii),
beyond the applicable grace period, if any, provided therefor, if the effect of
such event of default or equivalent condition is to cause, 


 


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or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or subject to a
compulsory repurchase or redeemable) prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be (in each case,
excluding such events of default or equivalent conditions solely relating to
any Specified Property or any Subsidiary or Subsidiaries all or substantially
all of whose assets comprise Special Consideration Properties or Capital Stock
of a Person all or substantially all of whose assets comprise any Specified
Property); or


 


(c)  
Breach of Certain Covenants. 
Failure of any Credit Party to perform or comply with any term or
condition contained in Section 5.1(d)(i), Section 5.2
as it relates to the existence of any Borrower or Section 6; or


 


(d)  
Breach of Representations, Etc.  Any representation, warranty, certification
or other statement made or deemed made by any Credit Party in any Credit
Document or in any statement or certificate at any time given by any Credit
Party or any of its Subsidiaries in writing pursuant to the terms hereof or
thereof shall be false in any material respect as of the date made or deemed
made; or


 


(e)  
Other Defaults Under Credit Documents.  Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other
Credit Documents, other than any such term referred to in any other Section of
this Section 8.1 and such default shall not have been remedied or
waived within 30 days after the earlier of (i) an Authorized Officer of
Parent or any Borrower becoming aware of such default or (ii) receipt by
Parent or any Borrower of notice from Administrative Agent or any Lender of
such default ; or


 


(f)  
Involuntary Bankruptcy; Appointment of Receiver, Etc.  (i) A court of competent jurisdiction
shall enter a decree or order for relief in respect of Parent, any Borrower or
any Material Subsidiary of Parent (other than any Subsidiary or Subsidiaries
all or substantially all of whose assets comprise Specified Properties or
Capital Stock of a Person all or substantially all of whose assets comprise any
Specified Property) in an involuntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal or state law; (ii) an involuntary
case shall be commenced against Parent, any Borrower or any Material Subsidiary
of Parent (other than any Subsidiary or Subsidiaries all or substantially all
of whose assets comprise Specified Properties or Capital Stock of a Person all
or substantially all of whose assets comprise any Specified Property) under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; and any such event described in this clause (ii) shall
continue for 30 days without having been dismissed, bonded or discharged; or (iii) or
a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Parent, any Borrower or any Material
Subsidiary of Parent (other than any Subsidiary or Subsidiaries all or
substantially all of whose assets comprise Specified Properties or Capital
Stock of a Person all or substantially all of whose assets comprise any
Specified Property), or over all or a substantial part of its property, shall have
been entered; or there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of Parent, any 


 


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Borrower or any Material Subsidiary of Parent (other
than any Subsidiary or Subsidiaries all or substantially all of whose assets
comprise Specified Properties or Capital Stock of a Person all or substantially
all of whose assets comprise any Specified Property) for all or a substantial
part of its property, and any such receiver, liquidator, sequestrator, trustee,
custodian or other officer described in this clause (iii) shall not
have been removed within 90 days of appointment; or


 


(g)  
Voluntary Bankruptcy; Appointment of Receiver, Etc.  (i) Parent, any Borrower or any Material
Subsidiary of Parent (other than any Subsidiary or Subsidiaries all or
substantially all of whose assets comprise Specified Properties or Capital
Stock of a Person all or substantially all of whose assets comprise any
Specified Property) shall have an order for relief entered with respect to it
or shall commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
Parent, any Borrower or any Material Subsidiary of Parent (other than any
Subsidiary or Subsidiaries all or substantially all of whose assets comprise
Specified Properties or Capital Stock of a Person all or substantially all of
whose assets comprise any Specified Property) shall make any assignment for the
benefit of creditors; or (ii) Parent, any Borrower or any Material
Subsidiary (other than any Subsidiary or Subsidiaries all or substantially all
of whose assets comprise Specified Properties or Capital Stock of a Person all
or substantially all of whose assets comprise any Specified Property) shall be
unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; or the board of directors (or similar
governing body) of Parent, any Borrower or any Material Subsidiary of Parent
(other than any Subsidiary or Subsidiaries all or substantially all of whose
assets comprise Specified Properties or Capital Stock of a Person all or
substantially all of whose assets comprise any Specified Property) (or any
committee thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to herein or in Section 8.1(f);
or


 


(h)  
Judgments and Attachments. 
Any final money judgments or orders, in an aggregate amount in excess of
$50,000,000 in the case of judgments or orders not in respect of Non-Recourse
Indebtedness (and in the case of judgments or orders in respect of Non-Recourse
Indebtedness, with respect to any property having an aggregate net equity value
in an amount after the Closing Date in excess of $200,000,000) in each case, (i) excluding
judgments solely relating to any Specified Property or any Subsidiary or
Subsidiaries all or substantially all of whose assets comprise Special
Consideration Properties or Capital Stock of a Person all or substantially all
of whose assets comprise any Specified Property, and (ii) to the extent
not adequately covered by insurance as to which a solvent insurance company has
assumed defense of the claim or otherwise commenced settlement or adjustment of
such claim and has not denied coverage, shall be entered or filed against
Parent or any of its Subsidiaries or any of their respective assets and shall
remain unsatisfied, undischarged, unvacated, unstayed or unbonded pending
appeal for a period of 60 days; or


 


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(i)  
Employee Benefit Plans. 
There shall occur one or more ERISA Events that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
or


 


(j)  
Change of Control.  A
Change of Control shall occur; or


 


(k)  
Guaranties, Collateral Documents and other Credit Documents.  At any time after the execution and delivery
thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than
in accordance with its terms) or shall be declared to be null and void or any
Guarantor shall repudiate its obligations thereunder in writing, (ii) this
Agreement or any Collateral Document ceases to be in full force and effect
(other than by reason of a release of Collateral in accordance with the terms
hereof or thereof or the satisfaction in full of the Obligations in accordance
with the terms hereof) or shall be declared null and void, or Collateral Agent
shall not have or shall cease to have a valid and perfected first priority Lien
(subject to Permitted Liens) in any Collateral having, individually or in the
aggregate, a net equity value in excess of $25,000,000 purported to be covered
by the Collateral Documents, except to the extent (x) any such loss of
perfection or priority results from an act or omission of Administrative Agent,
(y) such loss is covered by a lender’s title insurance policy as to which
the insurer has been notified of such loss and does not deny coverage or (z) such
loss of perfected security interest may be remedied by the filing of
appropriate documentation without the loss of priority (other than
non-consensual Permitted Liens) or (iii) any Credit Party shall contest
the validity or enforceability of any Credit Document in writing or deny in
writing that it has any further liability, including with respect to future
advances by Lenders, under any Credit Document to which it is a party or shall
contest the validity or perfection of any Lien in any Collateral purported to
be covered by the Collateral Documents (other than with respect to releases of
such Liens in accordance with the terms of the Credit Documents); or


 


(l)  
Security Realization.  Any
third-party security realization occurs against property of Parent, any
Borrower or any of its Material Subsidiary having an aggregate net equity value
in an aggregate amount after the Closing Date in excess of $200,000,000, which
realization shall continue and not be released, discharged, vacated, stayed or
bonded within the lesser of 30 days and the period of time prescribed under
applicable laws for completion of such realization (excluding any Specified
Property or Capital Stock of a Person all or substantially all of whose assets
comprise any Specified Property); or


 


(m)  
Seizure of Property.  Any
third-party seizure occurs with respect to property of Parent, any Borrower or
any Material Subsidiary having an aggregate net equity value in an aggregate
amount after the Closing Date in excess of $200,000,000, which seizure shall
continue and not be released, discharged, vacated, stayed or bonded within the
lesser of 30 days and the period of time prescribed under applicable laws for
completion of the sale of or realization against the property subject to such
seizure (excluding any Specified Property or Capital Stock of a Person all or
substantially all of whose assets comprise any Specified Property);


 


THEN, (1) upon
the occurrence of any Event of Default described in Section 8.1(f) or
8.1(g), automatically, and (2) upon the occurrence and during the
continuance of any other Event of 


 


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Default, at the request of (or with the consent of)
Requisite Lenders, upon notice to Borrowers by Administrative Agent, (A) the
Revolving Commitments, if any, of each Lender having such Revolving Commitments
and the obligation of Issuing Bank to issue any Letter of Credit shall
immediately terminate; (B) each of the following shall immediately become
due and payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each
Credit Party: (I) the unpaid principal amount of and accrued interest on
the Loans, (II) an amount equal to the maximum amount that may at any time
be drawn under all Letters of Credit then outstanding (regardless of whether
any beneficiary under any such Letter of Credit shall have presented, or shall
be entitled at such time to present, the drafts or other documents or
certificates required to draw under such Letters of Credit), and (III) all
other Obligations; provided, the foregoing shall not affect in any way
the obligations of Lenders under Section 2.3(b)(v) or Section 2.4(e);
(C) Administrative Agent may cause Collateral Agent to enforce any and all
Liens created pursuant to Collateral Documents; and (D) Administrative
Agent shall direct Borrowers to pay (and Borrowers hereby agree upon receipt of
such notice, or upon the occurrence of any Event of Default specified in Sections
8.1(f) and (g) to pay) to Administrative Agent such
additional amounts of cash as reasonably requested by Issuing Bank, to be held
as security for Borrowers’ reimbursement Obligations in respect of Letters of
Credit then outstanding.


 


With respect to all Letters of Credit with respect to
which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this Section 8.1, the Borrowers shall at
such time Cash collateralize in accordance with Section 2.4(i) an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit.  Amounts held in such Cash
collateral account shall be applied by Administrative Agent to the payment of
drafts drawn under such Letters of Credit, and the unused portion thereof after
all such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of Borrowers hereunder and under
the other Credit Documents.  After all
such Letters of Credit shall have expired or been fully drawn upon, all
obligations of Borrowers to reimburse Issuing Bank pursuant to Section 2.4(i) for
amounts drawn under Letters of Credit shall have been satisfied and all other
Obligations of Borrowers hereunder and under the other Credit Documents shall
have been paid in full, the balance, if any, in such Cash collateral account
shall be returned to Borrowers (or such other Person as may be lawfully entitled
thereto).


 


8.2.   Application
of Proceeds.  Except as expressly provided elsewhere in
this Agreement, all proceeds received by Collateral Agent in respect of any
sale of, any collection from, or other realization upon all or any part of the
Collateral shall be applied, in full or in part, promptly by Collateral Agent
against the Secured Obligations in the following order of priority:


 


first, to the payment of all costs and expenses of such sale, collection or
other realization, including reasonable compensation to Collateral Agent and
its agents and counsel, and all other expenses, liabilities and advances made
or incurred by Collateral Agent in connection therewith, and all amounts for
which Collateral Agent is entitled to indemnification hereunder (in its
capacity as Collateral Agent and not as a Lender) or any other Credit Document
and all advances made by Collateral Agent hereunder or under any other Credit
Document for the account of the applicable Credit Party, and to the payment of
all costs and expenses paid or incurred by Collateral Agent 


 


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in connection with the exercise of any right or remedy
hereunder or under the other Credit Documents, all in accordance with the terms
hereof or thereof;


 


second, to the extent of any excess of such proceeds, to the payment of all
other costs and expenses of such sale, collection or other realization
including compensation to the other Secured Parties and their agents and
counsel and all expenses, liabilities and advances made or incurred by the
other Secured Parties in connection therewith;


 


third, to the extent of any excess of such proceeds and without duplication of
amounts applied pursuant to clauses first and second above, to the payment in full
in cash, pro rata, of interest
and other amounts constituting Secured Obligations (other than principal,
reimbursement Obligations with respect to Letters of Credit and obligations to
Cash collateralize Letters of Credit) and any fees, premiums and scheduled
periodic payments due under Secured Hedge Agreements or Secured Bank Product
Agreements and any interest accrued thereon, in each case equally and ratably
in accordance with the respective amounts thereof then due and owing;


 


fourth, to the extent of any excess of such proceeds, to the payment in full in
cash, pro rata, of the
principal amount of the Secured Obligations and any premium thereon (including
reimbursement Obligations with respect to Letters of Credit and obligations to
Cash collateralize Letters of Credit) and any breakage, termination or other
payments under Secured Hedge Agreements and Secured Bank Product Agreements;
and


 


fifth, the balance, if any, to the Person lawfully entitled thereto (including
the applicable Credit Party or its successors or assigns) or as a court of
competent jurisdiction may direct.


 


In
the event that any such proceeds are insufficient to pay in full the items
described in clauses first
through fifth of this Section 8.02,
the Credit Parties shall remain liable, jointly and severally, for any
deficiency.


 


SECTION 9.  
AGENTS


 


9.1.   Appointment
of Agents.


 


Wells
Fargo Bank, N.A. and RBC Capital Markets Corporation are hereby appointed
Syndication Agents hereunder, and each Lender hereby authorizes Wells Fargo
Bank, N.A. and RBC Capital Markets Corporation to act as Syndication Agents in
accordance with the terms hereof and the other Credit Documents.  DBTCA is hereby appointed Administrative
Agent and Collateral Agent hereunder and under the other Credit Documents and
each Lender hereby authorizes DBTCA to act as Administrative Agent and
Collateral Agent in accordance with the terms hereof and the other Credit
Documents.  Each of the Documentation
Agents listed in the definition thereof is hereby appointed as a Documentation
Agent hereunder, and each Lender hereby authorizes such Documentation Agents to
act as Documentation Agents in accordance with the terms hereof and the other
Credit Documents.  Each Agent hereby
agrees to act in its capacity as such upon the express conditions contained
herein and the other Credit Documents, as applicable.  Except as set forth in Section 9.7(a),
(b) and (d) and 9.8, the provisions of this Section 9
are solely for the benefit of Agents


 


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and
Lenders and no Credit Party shall have any rights as a third party beneficiary
of any of the provisions thereof.  In
performing its functions and duties hereunder, each Agent shall act solely as
an agent of Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for Parent or
any of its Subsidiaries (other than with respect to the maintenance of the
Register as set forth in Section 2.7(b)).  Each Syndication Agent and each Documentation
Agent, without consent of or notice to any party hereto, may assign any and all
of its rights or obligations hereunder to any of its Affiliates.  As of the Closing Date, neither any
Syndication Agent, in its capacity as a Syndication Agent, nor any
Documentation Agent, in its capacity as a Documentation Agent, shall have any
obligations but shall be entitled to all benefits of this Section 9.  Each of Syndication Agent, each Documentation
Agent and any Agent described in clause (e) of the definition
thereof may resign from such role at any time, with immediate effect, by giving
prior written notice thereof to Administrative Agent and Borrowers.


 


9.2.   Powers
and Duties.  Each Lender irrevocably
authorizes each Agent to take such action on such Lender’s behalf and to
exercise such powers, rights and remedies hereunder and under the other Credit
Documents as are specifically delegated or granted to such Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are reasonably
incidental thereto.  Each Agent shall
have only those duties and responsibilities that are expressly specified herein
and the other Credit Documents.  Each
Agent may exercise such powers, rights and remedies and perform such duties by
or through its agents or employees.  No
Agent shall have, by reason hereof or any of the other Credit Documents, a
fiduciary relationship in respect of any Lender; and nothing herein or any of
the other Credit Documents, expressed or implied, is intended to or shall be so
construed as to impose upon any Agent any obligations in respect hereof or any
of the other Credit Documents except as expressly set forth herein or therein.


 


9.3.   General
Immunity.


 


(a)   No Responsibility for Certain Matters.  No Agent shall be responsible to any Lender
for the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency hereof or any other Credit Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made
by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or
any Lender in connection with the Credit Documents and the transactions
contemplated thereby or for the financial condition or business affairs of any
Credit Party or any other Person liable for the payment of any Obligations, nor
shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of the proceeds of
the Loans or as to the existence or possible existence of any Event of Default
or Default or to make any disclosures with respect to the foregoing.  Anything contained herein to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.


 


(b)   Exculpatory Provisions.  No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by any 


 


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Agent under or in connection with any of the
Credit Documents except to the extent caused by such Agent’s gross negligence,
bad faith or willful misconduct, as determined by a final, non-appealable
judgment of a court of competent jurisdiction. 
Each Agent shall be entitled to refrain from any act or the taking of
any action (including the failure to take an action) in connection herewith or
any of the other Credit Documents or from the exercise of any power, discretion
or authority vested in it hereunder or thereunder unless and until such Agent
shall have received instructions in respect thereof from Requisite Lenders (or
such other Lenders as may be required to give such instructions under Section 10.5)
and, upon receipt of such instructions from Requisite Lenders (or such other
Lenders, as the case may be), such Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions.  Without prejudice to the generality of the
foregoing, (i) each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed
by it to be genuine and correct and to have been signed or sent by the proper
Person or Persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for Parent
and its Subsidiaries), accountants, experts and other professional advisors selected
by it; and (ii) no Lender shall have any right of action whatsoever
against any Agent as a result of such Agent acting or (where so instructed)
refraining from acting hereunder or any of the other Credit Documents in
accordance with the instructions of Requisite Lenders (or such other Lenders as
may be required to give such instructions under Section 10.5).


 


(c)   Delegation of Duties. Administrative
Agent may perform any and all of its duties and exercise its rights and powers
under this Agreement or under any other Credit Document by or through any one
or more sub-agents appointed by Administrative Agent. Administrative Agent and
any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Affiliates. The exculpatory,
indemnification and other provisions of this Section 9.3 and of Section 9.6
shall apply to any Affiliates of Administrative Agent and shall apply to their
respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.  All of the rights, benefits, and privileges
(including the exculpatory and indemnification provisions) of this Section 9.3
and of Section 9.6 shall apply to any such sub-agent and to the
Affiliates of any such sub-agent, and shall apply to their respective
activities as sub-agent as if such sub-agent and Affiliates were named
herein.  Notwithstanding anything herein
to the contrary, with respect to each sub-agent appointed by Administrative
Agent, (i) such sub-agent shall be a third party beneficiary under this
Agreement with respect to all such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) and shall have all of the
rights and benefits of a third party beneficiary, including an independent
right of action to enforce such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) directly, without the consent
or joinder of any other Person, against any or all of Credit Parties and the
Lenders, (ii) such rights, benefits and privileges (including exculpatory
rights and rights to indemnification) shall not be modified or amended without
the consent of such sub-agent, and (iii) such sub-agent shall only have
obligations to Administrative Agent and not to any Credit Party, Lender or any
other Person and no Credit Party, Lender or any other Person shall have any
rights, directly or indirectly, as a third party beneficiary or otherwise,
against such sub-agent.


 


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9.4.   Agents
Entitled to Act as Lender.  The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender
hereunder.  With respect to its
participation in the Loans and the Letters of Credit, each Agent shall have the
same rights and powers hereunder as any other Lender and may exercise the same
as if it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity.  Any Agent and its Affiliates may accept
deposits from, lend money to, own securities of, and generally engage in any
kind of banking, trust, financial advisory or other business with Parent or any
of its Affiliates as if it were not performing the duties specified herein, and
may accept fees and other consideration from Borrowers for services in connection
herewith and otherwise without having to account for the same to Lenders.


 


9.5.   Lenders’
Representations, Warranties and Acknowledgment.


 


(a)   Each Lender represents and warrants that it
has made its own independent investigation of the financial condition and
affairs of Parent and its Subsidiaries in connection with Credit Extensions
hereunder and that it has made and shall continue to make its own appraisal of
the creditworthiness of Parent and its Subsidiaries.  No Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter, and no Agent shall have any responsibility with respect to
the accuracy of or the completeness of any information provided to Lenders.


 


(b)   Each Lender, by delivering its signature page to
this Agreement or  an Assignment
Agreement and funding its Revolving Loans, if any, on the Closing Date, shall
be deemed to have acknowledged receipt of, and consented to and approved, each
Credit Document and each other document required to be approved by any Agent,
Requisite Lenders or Lenders, as applicable on the Closing Date.


 


9.6.   Right
to Indemnity.  Each Lender, in proportion to its Pro Rata
Share, severally agrees to indemnify each Agent, to the extent that such Agent
shall not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in exercising its powers, rights and
remedies or performing its duties hereunder or under the other Credit Documents
or otherwise in its capacity as such Agent in any way relating to or arising
out of this Agreement or the other Credit Documents; provided, no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s gross negligence, bad faith or willful misconduct,
as determined by a final, non-appealable judgment of a court of competent
jurisdiction.  If any indemnity furnished
to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this
sentence require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, 


 


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suit, cost, expense or disbursement in excess of
such Lender’s Pro Rata Share thereof; and provided  further, this
sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence.


 


9.7.   Successor Administrative Agent,
Collateral Agent and Swing Line Lender.  
(a) Administrative Agent shall have the
right to resign at any time by giving prior written notice thereof to Lenders
and Borrowers and, from and after the date, if any, that Administrative Agent
ceases to be a Lender with Revolving Commitments hereunder, Administrative
Agent may be removed with or without cause by an instrument or concurrent
instruments in writing delivered to Borrowers and Administrative Agent and
signed by Requisite Lenders.  Administrative
Agent shall have the right to appoint a financial institution to act as
Administrative Agent and/or Collateral Agent hereunder and Administrative Agent’s
resignation (but not removal) shall become effective on the earliest of (i) 30
days after delivery of the notice of resignation, (ii) the acceptance of
such successor Administrative Agent by Borrowers and Requisite Lenders or (iii) such
other date, if any, agreed to by Requisite Lenders.  Administrative Agent’s removal shall become
effective only upon appointment of a successor Administrative Agent by
Requisite Lenders with consent of Borrowers in accordance with Section 9.7(d).  Upon any such notice of resignation, if a
successor Administrative Agent has not already been appointed by the retiring
Administrative Agent, Requisite Lenders shall have the right, upon five
Business Days’ notice to Borrowers, to appoint a successor Administrative
Agent.  If neither Requisite Lenders nor
Administrative Agent have appointed a successor Administrative Agent, from and
after the time such resignation becomes effective, Requisite Lenders shall be
deemed to have succeeded to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent; provided
that, until a successor Administrative Agent is so appointed by Requisite
Lenders or Administrative Agent, any collateral security held by Administrative
Agent in its role as Collateral Agent on behalf of Lenders or Issuing Bank
under any of the Credit Documents shall continue to be held by the retiring
Collateral Agent as nominee until such time as a successor Collateral Agent is
appointed.  Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent,
that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and the retiring or removed Administrative Agent
shall promptly (i) transfer to such successor Administrative Agent all
sums, Capital Stock and other items of Collateral held under the Collateral
Documents, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Administrative Agent under the Credit Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Administrative Agent of the
security interests created under the Collateral Documents, whereupon such
retiring or removed Administrative Agent shall be discharged from its duties
and obligations hereunder.  Except as
provided above, any resignation or removal of DBTCA or its successor as
Administrative Agent pursuant to this Section shall also constitute the
resignation or removal of DBTCA or its successor as Collateral Agent.  After any retiring or removed Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
hereunder.  Any successor 


 


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Administrative Agent appointed pursuant to
this Section shall, upon its acceptance of such appointment, become the
successor Collateral Agent for all purposes hereunder.


 


(b)   In addition to the foregoing, Collateral
Agent may resign at any time by giving prior written notice thereof to Lenders
and the Pledgors and, from and after the date, if any, that Collateral Agent
ceases to be a Lender with Revolving Commitments hereunder, Collateral Agent
may be removed with or without cause by an instrument or concurrent instruments
in writing delivered to the Pledgors and Collateral Agent signed by Requisite
Lenders.  Administrative Agent shall have
the right to appoint a financial institution as Collateral Agent hereunder, and
Collateral Agent’s resignation (but not removal) shall become effective on the
earliest of (i) 30 days after delivery of the notice of resignation, (ii) the
acceptance of such successor Collateral Agent by Borrowers and Requisite
Lenders or (iii) such other date, if any, agreed to by Requisite Lenders.  Collateral Agent’s removal shall become
effective only upon appointment of a successor Collateral Agent by Requisite
Lenders with reasonable consent of Borrowers in accordance with Section 9.7(d).  Upon any such notice of resignation, if a
successor Collateral Agent has not already been appointed by Administrative
Agent, Requisite Lenders shall have the right to appoint a successor Collateral
Agent.  Until a successor Collateral
Agent is so appointed by Requisite Lenders or Administrative Agent, any
collateral security held by Collateral Agent on behalf of the Lenders or the
Issuing Bank under any of the Credit Documents shall continue to be held by the
retiring Collateral Agent as nominee until such time as a successor Collateral
Agent is appointed.  Upon the acceptance
of any appointment as Collateral Agent hereunder by a successor Collateral
Agent, that successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Collateral Agent under this Agreement and the Collateral Documents, and
the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer
to such successor Collateral Agent all sums, Capital Stock and other items of
Collateral held hereunder or under the Collateral Documents, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Collateral Agent under this
Agreement and the Collateral Documents, and (ii) execute and deliver to
such successor Collateral Agent or otherwise authorize the filing of such
amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor
Collateral Agent of the security interests created under the Collateral
Documents, whereupon such retiring or removed Collateral Agent shall be
discharged from its duties and obligations under this Agreement and the
Collateral Documents.  After any retiring
or removed Collateral Agent’s resignation or removal hereunder as the
Collateral Agent, the provisions of this Agreement and the Collateral Documents
shall inure to its benefit as to any actions taken or omitted to be taken by it
under this Agreement or the Collateral Documents while it was the Collateral
Agent hereunder.


 


(c)   Any resignation or removal of DBTCA or its
successor as Administrative Agent pursuant to this Section shall also
constitute the resignation or removal of DBTCA or its successor as Swing Line
Lender, and any successor Administrative Agent appointed pursuant to this Section shall,
upon its acceptance of such appointment, become the successor Swing Line Lender
for all purposes hereunder.  In such
event (a) Borrowers shall prepay any outstanding Swing Line Loans made by
the retiring or removed Administrative Agent in its capacity as Swing Line
Lender, (b) upon such prepayment, the retiring or removed 


 


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Administrative Agent and Swing Line Lender
shall surrender any Swing Line Note held by it to Borrowers for cancellation,
and (c) Borrowers shall issue, if so requested by successor Administrative
Agent and Swing Line Loan Lender, a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender, in the principal amount of the
Swing Line Sublimit then in effect and with other appropriate insertions.


 


(d)   Notwithstanding anything in this Section 9.7
to the contrary, Borrowers shall have the right to consent (such consent not to
be unreasonably withheld) to the identity of any successor Agent appointed
pursuant to this Section 9.7 so long as no Event of Default
described in Section 8.1(f) or 8.1(g) has occurred
and is continuing, and any appointment, replacement or substitution of any
Agent in the absence of such consent shall be null and void.


 


9.8.   Collateral
Documents and Guaranty.


 


(a)   Agents under Collateral Documents and
Guaranty.  Each Secured Party hereby
further authorizes Administrative Agent or Collateral Agent, as applicable, on
behalf of and for the benefit of Secured Parties, to be the agent for and
representative of Secured Parties with respect to the Guaranty, the Collateral
and the Collateral Documents; provided that neither Administrative Agent
nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of
care, duty of disclosure or any other obligation whatsoever to any holder of
Obligations with respect to any Secured Hedge Agreement or any Secured Bank
Product Agreement.  Subject to Section 10.5,
without further written consent or authorization from any Secured Party,
Administrative Agent or Collateral Agent, as applicable, shall, promptly upon
the request of any Borrower, (i) in connection with any Asset Sale
permitted by this Agreement, execute any documents or instruments necessary or
reasonably desirable to release any Lien encumbering any item of Collateral
that is the subject of such Asset Sale or to which Requisite Lenders (or such
other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented, (ii) execute any documents or instruments
necessary or reasonably desirable to release any Guarantor from the Guaranty
pursuant to Section 7.12 or with respect to which Requisite Lenders
(or such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented, (iii) execute any documents or instruments
necessary or reasonably desirable to subordinate any Lien on any Mortgaged
Properties to any ordinary course Lien permitted under Section 6.2(e) or
(iv) enter into a subordination, non-disturbance and attornment agreement
(substantially in the form attached hereto as Exhibit L with
respect to any lease, sublease, license, sublicense or other occupancy
agreement in respect of any of the Mortgaged Properties permitted pursuant to Section 6.2(q).


 


(b)   Right to Realize on Collateral and Enforce
Guaranty.  Anything contained in any
of the Credit Documents to the contrary notwithstanding, Borrowers,
Administrative Agent, Collateral Agent and each Secured Party hereby agree that
(i) no Secured Party shall have any right individually to realize upon any
of the Collateral or to enforce the Guaranty, it being understood and agreed
that all powers, rights and remedies hereunder may be exercised solely by
Administrative Agent, on behalf of the Secured Parties in accordance with the
terms hereof and all powers, rights and remedies under the Collateral Documents
may be exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public
or private sale or other disposition, Collateral Agent or any Lender may be the
purchaser or licensor of any or all of such Collateral at any such sale or 


 


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other disposition and Collateral Agent, as
agent for and representative of Secured Parties (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or any portion of
the Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral
payable by Collateral Agent at such sale or other disposition.


 


(c)   Rights under Hedge Agreements and Secured
Bank Product Agreements.  No Secured
Hedge Agreement or Secured Bank Product Agreement will create (or be deemed to
create)  in favor of any Lender
Counterparty or Lender Bank Product Provider, as applicable, that is a party
thereto any rights in connection with the management or release of any
Collateral or of the obligations of any Guarantor under the Credit Documents
except as expressly provided in Section 10.5(c)(v) of this
Agreement.  By accepting the benefits of
the Collateral, such Lender Counterparty or such Lender Bank Product Provider,
as applicable, shall be deemed to have appointed Collateral Agent as its agent
and agreed to be bound by the Credit Documents as a Secured Party, subject to
the limitations set forth in this clause (c).


 


(d)   Release of Collateral and Guarantees,
Termination of Credit Documents. 
Notwithstanding anything to the contrary contained herein or any other
Credit Document, when all Secured Obligations (other than contingent
Obligations for which no claim has been made and obligations in respect of any
Secured Hedge Agreement or any Secured Bank Product Agreement) have been paid
in full, all Commitments have terminated or expired and all Letters of Credit
shall have expired or been cancelled or Cash collateralized in accordance with Section 2.4(i),
upon request of Borrowers, Administrative Agent shall (without notice to, or
vote or consent of, any Lender, or any affiliate of any Lender that is a party
to any Secured Hedge Agreement or Secured Bank Product Agreement) take such
actions as shall be required to release its security interest in all
Collateral, and to release all guarantee obligations provided for in any Credit
Document, whether or not on the date of such release there may be outstanding
Secured Obligations in respect of Secured Hedge Agreements with Lender
Counterparties and/or in respect of Secured Bank Product Agreements with Lender
Bank Product Providers.  Any such release
of guarantee obligations shall be deemed subject to the provision that such
guarantee obligations shall be reinstated if after such release any portion of
any payment in respect of the Obligations guaranteed thereby shall be rescinded
or must otherwise be restored or returned upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, any Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payment had
not been made.


 


9.9.  
Withholding Taxes.  To the extent
required by any applicable law, Administrative Agent may withhold from any
payment to any Lender an amount equivalent to any applicable withholding
Tax.  If the Internal Revenue Service or
any other Governmental Authority asserts a claim that Administrative Agent did
not properly withhold Tax from amounts paid to or for the account of any Lender
because the appropriate form was not delivered or was not properly executed or
because such Lender failed to notify Administrative Agent of a change in
circumstance which rendered the exemption from, or reduction of, withholding
Tax ineffective or for any other reason, or if Administrative Agent reasonably
determines that a payment was 


 


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made
to a Lender pursuant to this Agreement without deduction of applicable withholding
taax from such payment, such Lender shall indemnify Administrative Agent fully
for all amounts paid, directly or indirectly, by Administrative Agent as Tax or
otherwise, including any penalties or interest and together with all expenses
(including legal expenses, allocated internal costs and out-of-pocket expenses)
incurred.


 


SECTION 10.  
MISCELLANEOUS


 


10.1.   Notices.


 


(a)   Notices Generally.  Any notice or other communication herein
required or permitted to be given to any Credit Party, any Syndication Agent,
Collateral Agent, Administrative Agent, Swing Line Lender, Issuing Bank or
any Documentation Agent, shall be sent to such Person’s address as set forth on
Appendix B or in the other relevant Credit Document, and in the case of
any Lender, the address as indicated on Appendix B or otherwise
indicated to Administrative Agent in writing. 
Except as otherwise set forth in Section 3.2(b) or clause
(b) below, each notice hereunder shall be in writing and may be
personally served or sent by facsimile or electronic mail or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon
receipt of facsimile or electronic mail, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed; provided, no notice to any Agent shall be effective until
received by such Agent; provided  further, any such notice or
other communication shall at the request of Administrative Agent be provided to
any sub-agent appointed pursuant to Section 9.3(c) hereto as
designated in writing by Administrative Agent from time to time.


 


(b)  
Electronic Communications.


 


(i)   Notices and other communications to any
Agent, Lenders, Swing Line Lender and Issuing Bank hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or
intranet websites, including the Platform) pursuant to procedures reasonably
prescribed by Administrative Agent, provided that the foregoing shall
not apply to notices to any Agent, any Lender, Swing Line Lender or any
applicable Issuing Bank pursuant to Section 2 if such Person has
notified Administrative Agent that it is incapable of receiving notices under
such Section by electronic communication. 
Administrative Agent or any Borrower shall accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures reasonably prescribed by such Person, provided that such
procedures may be limited to particular notices or communications.  Unless Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided
that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been sent at the opening of business on the next Business Day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet 


 


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website shall be deemed received on the date (x) on
which Borrowers post such notices, communications or documents, or provide a
link thereto on the website of the Securities and Exchange Commission at
http://www.sec.gov or on the website of Parent at www.ggp.com or (y) on
which such notices are posted on Borrowers’ behalf on the Platform or another
website to which each Lender and Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by Administrative Agent); provided
that Borrowers shall notify Administrative Agent of any such communications
(which notice may be by facsimile or electronic mail as described in the
foregoing clause (i)).


 


(ii)   Each Credit Party understands that the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution and agrees and assumes the risks associated with such electronic
distribution, except to the extent caused by the willful misconduct, bad faith
or gross negligence of Administrative Agent, as determined by a final,
non-appealable judgment of a court of competent jurisdiction.


 


(iii)   The Platform and any Approved Electronic
Communications are provided “as is” and “as available”.  None of the Agents nor any of their
respective officers, directors, employees, agents, advisors or representatives
(the “Agent Affiliates”) warrant
the accuracy, adequacy, or completeness of the Approved Electronic
Communications or the Platform and each expressly disclaims liability for
errors or omissions in the Platform and the Approved Electronic
Communications.  No warranty of any kind,
express, implied or statutory, including any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects is made by the Agent Affiliates in
connection with the Platform or the Approved Electronic Communications.


 


(iv)   Each Credit Party, each Lender, each Issuing
Bank and each Agent agrees that Administrative Agent may, but shall not be
obligated to, store any Approved Electronic Communications on the Platform in
accordance with Administrative Agent’s customary document retention procedures
and policies.


 


(c)  
 Private Side Information Contacts.  Each Public Lender agrees to cause at least
one individual at or on behalf of such Public Lender to at all times have
selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its
delegate, in accordance with such Public Lender’s compliance procedures and
applicable law, including United States federal and state securities laws, to
make reference to information that is not made available through the “Public
Side Information” portion of the Platform and that may contain Non-Public
Information with respect to Parent, its Subsidiaries or their securities for
purposes of United States federal or state securities laws.  In the event that any Public Lender has determined
for itself to not access any information disclosed through the Platform or
otherwise, such Public Lender acknowledges that (i) other Lenders may have
availed themselves of such information and (ii) neither any Borrower nor
Administrative Agent has any responsibility for such Public Lender’s decision
to limit the scope of the information it has obtained in connection with this
Agreement and the other Credit Documents.


 


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10.2.   Expenses.  Whether or not the transactions
contemplated hereby shall be consummated, Borrowers agree to pay promptly on
written demand (a) to the extent set forth in the Fee Letter, all the
reasonable and documented out-of-pocket costs and expenses incurred in
connection with the negotiation, preparation and execution of the Credit
Documents; (b) all the costs of furnishing all opinions by counsel for
Borrowers and the other Credit Parties; (c) the reasonable and documented
fees, expenses and disbursements of Administrative Agent in connection with the
negotiation, preparation, execution and administration of the Credit Documents
and any consents, amendments, waivers, supplements or other modifications
thereto and any other documents or matters requested by Borrowers, and the
consummation and administration of the transactions contemplated hereby and
thereby, limited, in the case of attorneys’ fees, to one primary outside
counsel to Agents, taken as a whole, in the performance of their role as Agents
acting on behalf of the Lenders, and one local counsel to Agents in each
material relevant jurisdiction, if necessary; provided that if counsel
for Administrative Agent determines in good faith that there is an actual or
potential conflict of interest that requires separate representation for
Agents, Borrowers shall be required to pay for additional counsel for such
Agents and in all cases, the total legal fees for all counsel representing
Agents is reasonable taken as a whole, taking into account the nature of the
matter involved and, in the case of multiple counsel, the necessity of same; (d) all
the actual costs and reasonable and documented expenses incurred by Collateral
Agent in connection with creating, perfecting, recording, maintaining and
preserving Liens in favor of Collateral Agent, for the benefit of Secured
Parties, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and reasonable fees,
expenses and disbursements of one primary outside counsel to each Agent and of
counsel providing any opinions that any Agent or Requisite Lenders may
reasonably request in respect of the Collateral or the Liens created pursuant
to the Collateral Documents; (e) all other actual and reasonable costs and
expenses incurred by each Agent in connection with the syndication of the Loans
and Commitments and the transactions contemplated by the Credit Documents and
any consents, amendments, waivers or other modifications thereto and (f) after
the occurrence and during the continuation of an Event of Default, all costs
and expenses, including reasonable attorneys’ fees and costs of settlement,
incurred by any Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other
Credit Documents by reason of such Event of Default (including in connection
with the sale, lease or license of, collection from, or other realization upon
any of the Collateral or the enforcement of the Guaranty) or in connection with
any refinancing or restructuring of the credit arrangements provided hereunder
in the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases
or proceedings.


 


10.3.   Indemnity.


 


(a)   In addition to the payment of expenses
pursuant to Section 10.2, whether or not the transactions
contemplated hereby shall be consummated, each Credit Party agrees to defend
(subject to Indemnitees’ selection of counsel; provided, however,
that the Indemnitees shall use their reasonable efforts to use a single outside
counsel for all such Indemnitees taken as a whole (and, if reasonably
necessary, one local counsel in any relevant material jurisdiction) to
represent them, with exceptions in the case of conflicts of interest and in all
cases the total legal fees for all counsel representing the Indemnitees must be
reasonable taken as a whole, taking into account the nature of the
investigative, administrative or judicial proceeding or hearing involved and,
in the case of multiple counsel, the necessity of same),


 


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indemnify, pay and hold harmless, each Agent
and Lender and each of their respective officers, partners, members, directors,
trustees, advisors, employees, agents, sub-agents and affiliates (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided,
no Credit Party shall have any obligation to any Indemnitee hereunder (i) with
respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise from the gross negligence, bad faith or willful misconduct
of, or breach of the Credit Documents by, such Indemnitee, in each case, as
determined by a final, non-appealable judgment of a court of competent
jurisdiction, (ii) with respect to any investigative, administrative or
judicial proceeding or hearing that is brought by an Indemnitee against any
other Indemnitee that does not also include a claim against any Credit Party or
any of their respective Subsidiaries; provided, that Administrative Agent shall
remain indemnified in respect of such disputes to the extent otherwise entitled
to be so indemnified hereunder, (iii) to the extent that such Indemnified
Liabilities relate to Hazardous Materials Activities, Releases or violations of
Environmental Laws that first occur at any property after such property is
transferred to an Indemnitee or any successor or assign by foreclosure,
deed-in-lieu of foreclosure or similar transfer, or (iv) to the extent such
Indemnified Liabilities relate to Taxes (and any liabilities relating thereto)
addressed in Section 2.20, the indemnity for which shall be subject to
the provisions of Section 2.20. 
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this Section 10.3 may be unenforceable in whole or
in part because they are violative of any law or public policy, the applicable
Credit Party shall contribute the maximum portion that it is permitted to pay
and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by Indemnitees or any of them.


 


(b)   To the extent permitted by applicable law,
no party hereto shall assert, and each party hereto hereby waives, any claim
against any other party hereto, each Joint Lead Arranger and their respective
Affiliates, directors, employees, attorneys, agents and sub-agents, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) (whether or not the claim therefor is
based on contract, tort or duty imposed by any applicable legal requirement)
arising out of, in connection with, as a result of, or in any way related to,
this Agreement or any Credit Document or any agreement or instrument
contemplated hereby or thereby or referred to herein or therein, the
transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof or any act or omission or event occurring in connection
therewith, and each party hereto hereby waives, releases and agrees not to sue
upon any such claim or any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor, except, in the case of the Credit
Parties, to the extent otherwise subject to indemnification pursuant to this Section
10.3.


 


10.4.   Set-Off.  In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, upon the occurrence of any Event of Default each Lender and Issuing
Bank is hereby authorized by each Credit Party at any time or from time to time
subject to the consent of Requisite Lenders (such consent not to be
unreasonably withheld or delayed), without notice to any Credit Party or to any
other Person (other than Administrative Agent), any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by such Lender or Issuing Bank
to or for the credit or the account of any Credit Party against and on account
of the Obligations 


 


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and liabilities of any Credit Party to such Lender
or Issuing Bank hereunder, the Letters of Credit and participations therein and
under the other Credit Documents, including all claims of any nature or
description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of
whether or not (a) such Lender or Issuing Bank shall have made any demand
hereunder or (b) the principal of or the interest on the Loans or any amounts
in respect of the Letters of Credit or any other amounts due hereunder shall
have become due and payable pursuant to Section 2 and although such
Obligations and liabilities, or any of them, may be contingent or unmatured.


 


10.5.   Amendments
and Waivers.


 


(a)   Requisite Lenders’ Consent.  Subject to the additional requirements of Sections
10.5(b) and 10.5(c), no amendment, modification, termination or
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders; provided that Administrative Agent
may, with the consent of Borrowers only, amend, modify or supplement this
Agreement to cure any ambiguity, omission, defect or inconsistency, so long as
such amendment, modification or supplement does not adversely affect the rights
of any Lender or Issuing Bank; provided  further that the written
concurrence of Requisite Lenders shall not be required for any amendment,
modification, termination, or consent set forth in Section 10.5(b)(ii), 10.5(b)(iv),
10.5(b)(v) or 10.5(b)(vi) that is consented to by each Lender
that would be directly and adversely affected thereby.


 


(b)   Affected Lenders’ Consent.  Without the written consent of each Lender
that would be directly and adversely affected thereby, no amendment,
modification, termination, or consent shall be effective if the effect thereof
would:


 


(i)   extend the scheduled final maturity of any
Loan or Note;


 


(ii)   intentionally omitted;


 


(iii)   extend the Revolving Commitment Termination
Date or, other than as expressly set forth in Section 2.4(a), the stated
expiration date of any Letter of Credit beyond the Revolving Commitment
Termination Date;


 


(iv)   reduce the rate of interest on any Loan
(other than any waiver of any increase in the interest rate applicable to any
Loan pursuant to Section 2.10) or any fee or any premium payable
hereunder;


 


(v)   extend the time for payment of any such
interest or fees;


 


(vi)   reduce the principal amount of any Loan or
any reimbursement obligation in respect of any Letter of Credit;


 


(vii)   amend, modify, terminate or waive this Section
10.5(b), Section 10.5(c) or, to the extent provided in any amendment, waiver,
or modification of a Credit Document, any other provision that expressly
provides that the consent of all Lenders is required as provided therein, as
applicable;


 


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(viii)   amend the definition of “Requisite
Lenders” or “Pro
Rata Share”;  provided, with the consent solely of Requisite Lenders, (x) additional extensions
of credit pursuant hereto (which may or may not be new money tranches) may be
included in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis as the
Revolving Commitments and the Revolving Loans are included on the Closing Date,
(y) such terms and any provisions in any Credit Document requiring pro rata
payments, distributions or commitment reductions may be amended on customary
terms in connection with (I) such additional extension of credit referred to in
clause (x) or (II) “amend and extend” transactions;


 


(ix)   release all or substantially all of the
Collateral or all or substantially all of value of the Guaranty except as
expressly provided in the Credit Documents; or


 


(x)   consent to the assignment or transfer by any
Borrower of any of its rights and Obligations under any Credit Document except
as expressly provided in the Credit Documents;


 


provided
that, for the avoidance of doubt, all Lenders shall be deemed directly affected
thereby with respect to any amendment described in clauses (vii), (viii)
and (ix).


 


(c)   Other Consents.  No amendment, modification, termination or
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall:


 


(i)   increase any Revolving Commitment of any
Lender over the amount thereof then in effect without the consent of such
Lender; provided, no amendment, modification or waiver of any condition
precedent, covenant, Default or Event of Default shall constitute an increase
in any Revolving Commitment of any Lender;


 


(ii)   amend, modify, terminate or waive any
provision hereof relating to the Swing Line Sublimit or the Swing Line Loans
without the consent of Swing Line Lender;


 


(iii)   amend, modify, terminate or waive any
obligation of Lenders relating to the purchase of participations in Letters of
Credit as provided in Section 2.4(e) without the written consent of
Administrative Agent and of Issuing Bank;


 


(iv)   amend, modify or waive this Agreement or the
Pledge Agreement so as to alter the ratable treatment of Obligations arising
under the Credit Documents, Secured Obligations arising under Secured Hedge
Agreements and Secured Obligations arising under Secured Bank Product
Agreements or the definition of “Lender
Counterparty,” “Hedge Agreement,”
“Secured Hedge Agreement,” “Lender Bank Product Provider,”  “Bank
Product,” “Secured Bank Product Agreement,” “Obligations”
or “Secured Obligations” (as
defined in any applicable Collateral Document) in each case in a manner
materially adverse to any Lender Counterparty with Obligations then outstanding
without the written consent of any such Lender Counterparty; or


 


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(v)   amend, modify, terminate or waive any
provision of Section 9 as the same applies to any Agent, or any other
provision hereof as the same applies to the rights or obligations of any Agent,
in each case without the consent of such Agent.


 


(d)   Intentionally Omitted.


 


(e)   Execution of Amendments, Etc.  Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances.  Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.5 shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by a Credit Party, on such Credit Party.


 


10.6.   Successors
and Assigns; Participations.


 


(a)   Generally.  This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns of
Lenders.  No Credit Party’s rights or
obligations hereunder nor any interest therein may be assigned or delegated by
any Credit Party without the prior written consent of all Lenders.  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, Affiliates of each of the Agents and
Lenders and other Indemnitees) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


 


(b)   Register.  Borrowers, Administrative Agent and Lenders
shall deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed therein
for all purposes hereof, and no assignment or transfer of any such Commitment
or Loan shall be effective, in each case, unless and until recorded in the
Register following receipt of a fully executed Assignment Agreement effecting
the assignment or transfer thereof, together with the required forms and
certificates regarding tax matters and any fees payable in connection with such
assignment, in each case, as provided in Section 10.6(d).  Each assignment shall be recorded in the
Register promptly following receipt by the Administrative Agent of the fully
executed Assignment Agreement and all other necessary documents and approvals,
prompt notice thereof shall be provided to Borrowers and a copy of such
Assignment Agreement shall be maintained by Administrative Agent.  The date of such recordation of a transfer
shall be referred to herein as the “Assignment Effective Date.”  Any request, authority or consent
of any Person who, at the time of making such request or giving such authority
or consent, is listed in the Register as a Lender shall be conclusive and
binding on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.


 


(c)   Right to Assign.  Each Lender shall have the right at any time
to sell, assign or transfer all or a portion of its rights and obligations
under this Agreement, including all or a 


 


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portion of its Commitment or Loans owing to
it or other Obligations (provided, however, that pro rata
assignments shall not be required and each assignment shall be of a uniform,
and not varying, percentage of all rights and obligations under and in respect
of any applicable Loan and any related Commitments):


 


(i)   to any Person meeting the criteria of clause
(a) of the definition of the term of “Eligible Assignee” upon the giving of
notice to Borrowers and Administrative Agent but with no consent required of
any of them (other than in the case of an assignment to any such Person that is
not already a Lender, in which case, clause (ii) below shall apply); and


 


(ii)   to any Person meeting the criteria of clause
(b) of the definition of the term of “Eligible Assignee” (or clause (a)
in the case of an assignment to any such Person that is not already a Lender)
upon giving of notice to Borrowers and Administrative Agent and, in the case of
assignments of Loans or Revolving Commitments to any such Person, consented to
by each Borrower and Administrative Agent (such consent not to be (x)
unreasonably withheld or delayed or, (y) in the case of Borrower, required at
any time an Event of Default with respect to any Borrower under Sections
8.1(a), 8.1(f) or 8.1(g) shall have occurred and then be
continuing); provided, further, that each such assignment
pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of
not less than $5,000,000 (or such lesser amount as may be agreed to by
Borrowers and Administrative Agent or as shall constitute the aggregate amount
of the Revolving Commitments and Revolving Loans of the assigning Lender).


 


(d)   Mechanics.  Assignments and assumptions of Loans and
Commitments by Lenders shall be effected by manual execution and delivery to
Administrative Agent of an Assignment Agreement.  Assignments made pursuant to the foregoing
provision shall be effective as of the Assignment Effective Date.  In connection with all assignments there
shall be delivered to Administrative Agent such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding
matters as the assignee under such Assignment Agreement may be required to
deliver pursuant to Section 2.20(c), together with payment to the
Administrative Agent of a registration and processing fee of $3,500 (except
that no such registration and processing fee shall be payable in the case of an
assignee which is already a Lender or is an affiliate or Related Fund of a
Lender or a Person under common management with a Lender) unless waived by
Administrative Agent.


 


(e)   Representations and Warranties of
Assignee.  Each Lender, upon
execution and delivery hereof or upon succeeding to an interest in the
Commitments and Loans, as the case may be, represents and warrants as of the
Closing Date or as of the Assignment Effective Date that (i) it is an Eligible
Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case
may be; and (iii) it will make or invest in, as the case may be, its
Commitments or Loans for its own account in the ordinary course and without a
view to distribution of such Commitments or Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this Section 10.6, the
disposition of such Commitments or Loans or any interests therein shall at all
times remain within its exclusive control).


 


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(f)   Effect of Assignment.  Subject to the terms and conditions of this Section
10.6, as of the “Assignment Effective Date” (i) the assignee thereunder
shall have the rights and obligations of a “Lender” hereunder to the extent of
its interest in the Loans and Commitments as reflected in the Register and
shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii)
the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned to the assignee, relinquish its rights
(other than any rights which survive the termination hereof under Section
10.8) and be released from its obligations hereunder (and, in the case of
an assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto
on the Assignment Effective Date; provided, anything contained in any of
the Credit Documents to the contrary notwithstanding, (y) Issuing Bank shall
continue to have all rights and obligations thereof with respect to all Letters
of Credit issued by it until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereunder and (z) such
assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out
of the prior involvement of such assigning Lender as a Lender hereunder); (iii)
the Commitments shall be modified to reflect any Commitment of such assignee
and any Revolving Commitment of such assigning Lender, if any; and (iv) if any
such assignment occurs after the issuance of any Note hereunder, the assigning
Lender shall, upon the effectiveness of such assignment or as promptly
thereafter as practicable, surrender its applicable Notes to Administrative
Agent for cancellation, and thereupon Borrowers shall issue and deliver new
Notes, if so requested by the assignee and/or assigning Lender, to such assignee
and/or to such assigning Lender, with appropriate insertions, to reflect the
new Revolving Commitments and/or outstanding Loans of the assignee and/or the
assigning Lender.


 


(g)   Participations.


 


(i)   Each Lender shall have the right at any time
to sell one or more participations to any Person (other than any Disqualified
Institution, Parent or any of its Subsidiaries or any of their Affiliates) in
all or any part of its Commitments, Loans or in any other Obligation. Each
Lender that sells a participation pursuant to this Section 10.6(g) shall
maintain a register on which it records the name and address of each
participant and the principal amounts of each participant’s participation
interest (each, a “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register to Borrowers, Administrative Agent or any
other Person (including the identity of any Participant or any information
relating to a participant’s interest in the Commitments, Loans or other
Obligations) except to the extent necessary to establish that such Commitments,
Loans or other Obligations are in registered form under Section 5f.103-1(c) of
the United States Treasury Regulations and/or to establish that any such
Participant is not a Disqualified Institution. 
The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each Person whose name is recorded
in the Participant Register as the owner of a participation for all purposes
under this Agreement, notwithstanding any notice to the contrary.


 


(ii)    The holder of any such participation shall
not be entitled to require such Lender to take or omit to take any action
hereunder except with respect to any 


 


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amendment, modification or waiver pursuant to
Section 10.5(b) or (c)(i) that would require the consent of such
Lender.


 


(iii)     Borrowers agree that each participant
shall be entitled to the benefits of Sections 2.18(c), 2.19 and 2.20
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to clause (c) of this Section; provided, (x)
a participant shall not be entitled to receive any greater payment under Section
2.19 or 2.20 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such participant, unless the
sale of the participation to such participant is made with Borrowers’ explicit
prior written consent to such entitlement to receive greater payments and (y) a
participant that would be a Non-US Lender if it were a Lender shall not be
entitled to the benefits of Section 2.20 unless Borrowers are notified
of the participation sold to such participant and such participant agrees, for
the benefit of Borrowers, to comply, and does comply, with Section 2.20
as though it were a Lender; provided further that, except as
specifically set forth in clauses (x) and (y) of this sentence,
nothing herein shall require any notice to Borrowers or any other Person in
connection with the sale of any participation. 
To the extent permitted by law, each participant also shall be entitled
to the benefits of Section 10.4 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.17 as though it were
a Lender.


 


(h)   Certain Other Assignments and
Participations.  In addition to any
other assignment or participation permitted pursuant to this Section 10.6
any Lender may assign, pledge and/or grant a security interest in all or any
portion of its Loans, the other Obligations owed by or to such Lender, and its
Notes, if any, to secure obligations of such Lender including any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board
of Governors and any operating circular issued by such Federal Reserve Bank; provided,
that no Lender, as between Borrowers and such Lender, shall be relieved of any
of its obligations hereunder as a result of any such assignment and pledge, and
provided  further, that in no event shall the applicable Federal
Reserve Bank, pledgee or trustee, be considered to be a “Lender” or be entitled
to require the assigning Lender to take or omit to take any action hereunder.


 


10.7.   Independence
of Covenants.  All covenants hereunder shall be given independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or
would otherwise be within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
condition exists.


 


10.8.   Survival
of Representations, Warranties and Agreements.  All representations, warranties and
agreements made herein shall survive the execution and delivery hereof and the
making of any Credit Extension. 
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19,
2.20, 10.2, 10.3 and 10.4 and the agreements of
Lenders set forth in Sections 2.17, 9.3(b) and 9.6
shall survive the payment of the Loans, the cancellation or expiration of the
Letters of Credit and the reimbursement of any amounts drawn thereunder, and
the termination hereof.


 


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10.9.   No
Waiver; Remedies Cumulative.  No failure or delay on the part of any Agent
or any Lender or, in the case of Sections 2.22 and 2.23, any
Credit Party, in the exercise of any power, right or privilege hereunder or
under any other Credit Document shall impair such power, right or privilege or
be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or
privilege.  The rights, powers and
remedies given to (a) each Agent and each Lender hereby and (b) the Credit
Parties under Sections 2.22 and 2.23, in each case are cumulative
and shall be in addition to and independent of all rights, powers and remedies
existing by virtue of any statute or rule of law or in any of the other Credit
Documents, any of the Secured Hedge Agreements or any of the Secured Bank
Product Agreements.  Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to
be a waiver thereof, nor shall it preclude the further exercise of any such
right, power or remedy.


 


10.10.   Marshalling;
Payments Set Aside.  Neither any Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Credit Party or any
other Person or against or in payment of any or all of the Obligations.  To the extent that any Credit Party makes a
payment or payments to Administrative Agent, Issuing Bank or Lenders (or to
Administrative Agent, on behalf of Lenders or Issuing Bank), or any Agent,
Issuing Bank or Lender enforces any security interests or exercises any right
of setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state
or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be
revived and continued in full force and effect as if such payment or payments
had not been made or such enforcement or setoff had not occurred; provided,
that with respect to calculating interest on any Obligation that is so
reinstated, interest shall accrue from the date that such Obligation is first
reinstated and not from the previous date of payment.


 


10.11.   Severability.  In case any provision herein or
obligation hereunder or under any other Credit Document shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.


 


10.12.   Obligations
Several; Independent Nature of Lenders’ Rights.  The obligations of Lenders hereunder are
several and no Lender shall be responsible for the obligations or Commitment of
any other Lender hereunder.  Nothing
contained herein or in any other Credit Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and, subject to Section 9.8(b), each Lender shall be
entitled to protect and enforce its rights arising out hereof and it shall not
be necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.


 


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10.13.   Headings.  Section headings herein are
included herein for convenience of reference only and shall not constitute a
part hereof for any other purpose or be given any substantive effect.


 


10.14.   APPLICABLE
LAW.  THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT
OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO
POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF
ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.


 


10.15.   CONSENT
TO JURISDICTION.  SUBJECT TO CLAUSE (E) OF
THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENTS, OR ANY OF THE
OBLIGATIONS, SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.  BY EXECUTING AND
DELIVERING THIS AGREEMENT OR AN ASSIGNMENT AGREEMENT, EACH PARTY HERETO, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY
AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER
THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY
COLLATERAL DOCUMENT GOVERNED BY LAWS OTHER THAN THE LAWS OF THE STATE OF NEW
YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE
OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE
(C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE
PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES, SUBJECT TO SECTION
9.8(b), THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY
IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY
RIGHTS UNDER ANY CREDIT DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.


 


10.16.   WAIVER
OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION
OR THE 


 


127

















 


LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. 
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY HERETO ACKNOWLEDGES THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS.  EACH PARTY HERETO FURTHER
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.  THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.


 


10.17.   Confidentiality.  Each Agent (which term shall for the purposes
of this Section 10.17 include the Joint Lead Arrangers), and each Lender
(which term shall for the purposes of this Section 10.17 include the
Issuing Bank) shall hold confidential all non-public information regarding
Parent and its Subsidiaries and their businesses, it being understood and
agreed by Borrowers that, in any event, Administrative Agent may disclose such
information to the Lenders (other than Public Lenders) and each Agent and each
such Lender may make (a) disclosures of such information to Affiliates of such
Lender or Agent and to such Lender’s, Agent’s or Affiliate’s agents, advisors,
directors, officers and employees (and to other Persons authorized by a Lender
or Agent to organize, present or disseminate such information in connection
with disclosures otherwise made in accordance with this Section 10.17)
solely in connection with the transactions contemplated by this Agreement (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such information and directed to keep
such information confidential), (b) disclosures of such information reasonably
required by (i) any bona fide or potential assignee, transferee or participant
in connection with the contemplated assignment, transfer or participation of
any Loans or any participations therein or (ii) any swap or derivative
agreements, or by any contractual counterparties to such swap or derivative
agreements (or the professional advisors thereto) relating to any Borrower and
its obligations (provided, that in the case of clauses (i) and (ii),
such assignees, transferees, participants, counterparties and advisors are
advised of and agree to be bound by either the provisions of this Section
10.17 or other provisions at least as restrictive as this Section 10.17),
(c) disclosure to any nationally recognized rating agency when required by it, provided
that, prior to any disclosure, such rating agency shall undertake in writing to
preserve the confidentiality of any confidential information relating to Credit
Parties


 


128














 


received
by it from any Agent or any Lender, (d) disclosures required in connection
with the exercise of any remedies hereunder or under any other Credit Document
and (e) disclosures required or requested by any Governmental Authority or
representative thereof or by the NAIC or pursuant to legal or judicial process;
provided, unless specifically prohibited by applicable law or court
order and to the extent practicable, each Lender and each Agent shall make
reasonable efforts to notify Borrowers of any request by any Governmental
Authority or representative thereof (other than any such request in connection
with any examination of the financial condition or other routine examination of
such Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information. Notwithstanding anything
to the contrary set forth herein, each party (and each of their respective
employees, representatives or other agents) may disclose to any and all persons
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions and other tax analyses) that are provided to any such party
relating to such tax treatment and tax structure.  However, any information relating to the tax
treatment or tax structure shall remain subject to the confidentiality
provisions hereof (and the foregoing sentence shall not apply) to the extent
reasonably necessary to enable the parties hereto, their respective Affiliates,
and their and their respective Affiliates’ directors and employees to comply
with applicable securities laws.  For
this purpose, “tax structure” means any facts relevant to the federal income
tax treatment of the transactions contemplated by this Agreement but does not
include information relating to the identity of any of the parties hereto or
any of their respective Affiliates.


 


10.18.   Usury
Savings Clause.  Notwithstanding any other provision herein,
the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate.  If the rate of interest (determined without
regard to the preceding sentence) under this Agreement at any time exceeds the
Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall
bear interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect.  In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, Borrowers shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect.  Notwithstanding
the foregoing, it is the intention of Lenders and Borrowers to conform strictly
to any applicable usury laws. 
Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender’s option be applied to the outstanding amount of the Loans
made hereunder or be refunded to Borrowers.


 


10.19.   Counterparts.  This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.


 


129

















 


10.20.   Effectiveness;
Entire Agreement.  This Agreement shall become effective upon
the execution of a counterpart hereof by each of the parties hereto or receipt
by Borrowers and Administrative Agent of written notification of such execution
and authorization of delivery thereof.  With the exception of the Surviving Provisions
(as defined in the Commitment Letter, dated September 21, 2010, among the
Lender Commitment Parties (as defined therein) signatory thereto, the
Partnership, the LLC and Existing GGPI (the “Commitment
Letter”)), which by the terms of the Commitment Letter remain in
full force and effect for the periods set forth therein, all of the Lender
Commitment Parties’ obligations under the Commitment Letter shall terminate and
be superseded by the Credit Documents and the Lender Commitment Parties shall
be released from all liability in connection therewith, including any claim for
injury or damages, whether consequential, special, direct, indirect, punitive
or otherwise.


 


10.21.   PATRIOT Act.  Each Lender and Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies each Credit
Party that pursuant to the requirements of the PATRIOT Act, it is required to
obtain, verify and record information that identifies each Credit Party, which
information includes the name and address of each Credit Party and other
information that will allow such Lender or Administrative Agent, as applicable,
to identify such Credit Party in accordance with the PATRIOT Act.


 


10.22.   Electronic Execution of Assignments.  The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment Agreement shall be deemed to include electronic signatures or the
keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


 


10.23.   No Fiduciary
Duty.  Each Agent, each Lender and
their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with
those of the Credit Parties, their stockholders and/or their Affiliates.  Each Credit Party agrees that nothing in the
Credit Documents or otherwise will be deemed to create an advisory, fiduciary
or agency relationship or fiduciary or other implied duty between any Lender,
on the one hand, and such Credit Party, its stockholders or its Affiliates, on
the other.  The Credit Parties
acknowledge and agree that (a) the transactions contemplated by the Credit
Documents (including the exercise of rights and remedies hereunder and
thereunder) are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Credit Parties, on the other, and (b) in connection
with the transactions contemplated by the Credit Documents and with the process
leading thereto, (i) no Lender has assumed an advisory or fiduciary
responsibility in favor of any Credit Party, its stockholders or its Affiliates
with respect to the transactions contemplated by the Credit Documents (or the
exercise of rights or remedies with respect thereto) or the process leading
thereto (irrespective of whether any Lender has advised, is currently advising
or will advise any Credit Party, its stockholders or its Affiliates on other
matters) or any other obligation to any Credit Party in connection therewith
except the obligations expressly set forth in the Credit Documents and (ii) each
Lender is acting solely as principal and not as the agent or fiduciary of any
Credit Party, its management, stockholders, creditors or any other Person.  Each Credit Party acknowledges and agrees
that it has consulted


 


130

















 


its own legal and financial
advisors to the extent it deemed appropriate and that it is responsible for
making its own independent judgment with respect to such transactions and the
process leading thereto.  Each Credit
Party agrees that it will not claim that any Lender has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to such
Credit Party, in connection with such transaction or the process leading
thereto.


 


10.24.   Disclosure of
Information Relating to Agreement.  Each Agent and each Lender may disclose the
existence of this Agreement, the size of the credit facilities hereunder, the
number and nature of tranches (i.e., revolver, term loan, etc.) hereunder,
the Revolving Commitment Termination Date, the names and title of the Agents
hereunder and the number of Lenders to market data collectors, similar services
providers to the lending industry, and service providers to the Agents and the
Lenders in connection with the administration and management of this Agreement
and the other Credit Documents.


 


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131

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the date first
written above.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  GGP
  LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  GGP, Inc.,
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGPLP
  L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  GGP
  Limited Partnership,

  
	
   

  	
   

  	
  its
  managing member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  GGP, Inc.,
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGPLPLLC
  2010 LOAN PLEDGOR HOLDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGPLP
  2010 LOAN PLEDGOR HOLDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
						



 


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Agreement


 


132

















 


	
   

  	
  GGPLP
  REAL ESTATE 2010 LOAN PLEDGOR HOLDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
  OTHER
  CREDIT PARTIES:

  
	
   

  	
   

  
	
   

  	
  GGP, INC.
  (f/k/a General Growth Properties, Inc.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGP
  LIMITED PARTNERSHIP II

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    GGP, Inc.,
  its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
    By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGP
  REAL ESTATE HOLDING I, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GGP
  REAL ESTATE HOLDING II, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
						



 


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Agreement


 


133

















 


	
   

  	
  GENERAL
  GROWTH PROPERTIES, INC. (f/k/a New GGP, Inc.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BAILEY
  HILLS VILLAGE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BENSON
  PARK BUSINESS TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  10
  CCC BUSINESS TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  20
  CCC BUSINESS TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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Agreement


 


134

















 


	
   

  	
  30
  CCC BUSINESS TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FORTY
  COLUMBIA CORPORATE CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIFTY
  COLUMBIA CORPORATE CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIXTY
  COLUMBIA CORPORATE CENTER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RUNNING
  BROOK BUSINESS TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Signature Page to Credit and Guaranty Agreement


 


135

















 


	
   

  	
  FREMONT
  PLAZA L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BR-STCR,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  ROUSE COMPANY OF FLORIDA, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGP
  SAVANNAH L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PLAZA
  9400, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROVO
  DEVELOPMENT LAND, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


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Agreement


 


136

















 


	
   

  	
  RED
  CLIFFS PLAZA, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CANYON POINTE VILLAGE CENTER,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  YELLOWSTONE
  SQUARE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TWIN
  FALLS CROSSING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEWPARK
  ANCHOR ACQUISITION, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Signature Page to Credit and Guaranty
Agreement


 


137

















 


	
   

  	
  WEST
  OAKS ANCHOR ACQUISITION, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GGPLP
  REAL ESTATE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Heath
  Fear

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


138














 


	
   

  	
  DEUTSCHE BANK TRUST COMPANY AMERICAS,

  
	
   

  	
  as Administrative Agent, Collateral Agent, Swing Line
  Lender, Issuing Bank and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


139

















 


	
   

  	
  WELLS FARGO BANK, N.A.,

  
	
   

  	
  as a Lender and as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


140

















 


	
   

  	
  BARCLAYS BANK PLC,

  
	
   

  	
  as a Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


141

















 


	
   

  	
  GOLDMAN SACHS LENDING PARTNERS LLC,

  
	
   

  	
  as Documentation Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


Signature Page to Credit and Guaranty Agreement


 


142

















 


	
   

  	
  MIHI LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MACQUARIE CAPITAL (USA) INC.,

  
	
   

  	
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


143

















 


	
   

  	
  RBC CAPITAL MARKETS CORPORATION,

  
	
   

  	
  as a Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


144

















 


	
   

  	
  TORONTO DOMINION (NEW YORK) LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TD SECURITIES (USA) LLC,

  
	
   

  	
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


145

















 


	
   

  	
  UBS LOAN FINANCE LLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UBS SECURITIES LLC,

  
	
   

  	
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to Credit and Guaranty Agreement


 


146

















 


APPENDIX A


TO CREDIT AND GUARANTY AGREEMENT


 


Revolving Commitments


 


	
  Lender

  	
   

  	
  Revolving Commitment

  	
   

  	
  Pro

  Rata Share

  	
   

  
	
  Deutsche Bank Trust Company
  Americas

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  Wells Fargo Bank, N.A.

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  Royal Bank of Canada

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  Barclays Bank plc

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  Goldman Sachs Lending
  Partners LLC

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  MIHI LLC

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  Toronto Dominion (New York)
  LLC

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  UBS Loan Finance LLC

  	
   

  	
  $

  	
  37,500,000.00

  	
   

  	
  12.5

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  300,000,000.00

  	
   

  	
  100

  	
  %

  



 


APPENDIX A-2-1

















 


APPENDIX B


TO CREDIT AND GUARANTY AGREEMENT


 


Notice Addresses


 


All Credit Parties


c/o General Growth Properties, Inc.


110 N. Wacker Drive


Chicago, Illinois 60606


Attention: Heath R. Fear


Telephone: 312-960-5024


Facsimile: 312-442-6371


E-mail: heath.fear@ggp.com


 


in each case, with a copy to:


 


c/o General Growth Properties, Inc.


110 N. Wacker Drive


Chicago, Illinois 60606


Attention: Pamela Kain


Telephone: 312-960-5767


Facsimile: 312-442-6371


E-mail: pamela.kain@ggp.com


 


and


 


Weil, Gotshal & Manges LLP


200 Crescent Court, Suite 300


Dallas, Texas 75201


Attention: Angela L. Fontana


Telephone: 214-746-7895


Facsimile: 214-746-7777


E-mail: angela.fontana@weil.com


 


APPENDIX B-1














 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


as Administrative Agent, Collateral Agent,


Swing Line Lender, Issuing Bank and a Lender


 


Administrative Agent’s and Swing Line Lenders’ Principal
Office:


 


Deutsche Bank Trust Company Americas


c/o Deutsche Bank Securities Inc.


Real Estate


200 Crescent Court, Suite 550


Dallas, Texas 75201


Attention: Scott Speer, Vice President, Loan Syndication
and Structuring


Telephone: 214-740-7903


Facsimile: 214-740-7910


E-mail: scott.p.speer@db.com


 


Issuing Bank’s Principal Office:


 


Deutsche Bank


Global Loan Operations, Standby L/C Unit


MS: NYC60-0926


60 Wall Street


New York, New York 10005


Attention: Charles P. Ferris


Telephone: 212-250-1214


Facsimile: 212-797-0403


E-mail: charles.ferris@db.com


 


in each case, with a copy to:


 


James
G. Rolison


Managing
Director


Deutsche
Bank Securities Inc.


Commercial
Real Estate


MS:
NYC60-1005


60
Wall Street


New
York, New York 10005


Telephone:
212-250-3352


Facsimile:
212-797-4496


E-mail:
james.rolison@db.com


 


George
Reynolds


Director


Deutsche
Bank Securities Inc.


Commercial
Real Estate


MS:
NYC60-1005


 


APPENDIX B-2

















 


60
Wall Street, 10th Floor


New
York, NY 10005


Telephone:
212-250-2362


Facsimile:
212-797-4496


E-mail:
george.r.reynolds@db.com


 


Anita
Cheung


Vice
President


Deutsche
Bank


Commercial
Real Estate


MS
NYC60-1008


60
Wall Street, 10th Floor


New
York, New York 10005


Telephone:
212-250-6293


Facsimile:
212-797-4940


E-mail:
anita.cheung@db.com


 


APPENDIX B-3

















 


WELLS FARGO  BANK, N.A.,


as a Lender and as a Syndication Agent


 


Wells Fargo Bank, N.A.


MN Loan Center


608 2nd Avenue, 11th Floor


Minneapolis, MN 55402-1916


Attention: Michael K. Burns, Loan Servicing Specialist


Telephone: 612-667-6333


Facsimile: 888-595-7868


E-mail: Michael.k.burns@wellsfargo.com


 


with a copy to:


 


Wells Fargo Bank, N.A.


123 North Wacker Drive, Suite 1900


Chicago, Illinois 60606


Attention: Winita Lau


Telephone: 312-269-4848


Facsimile: 312-782-0969


E-mail: Winita.V.Lau@wellsfargo.com


 


APPENDIX B-4

















 


BARCLAYS BANK PLC,


as a Documentation Agent and a Lender


 


Barclays Capital


70 Hudson Street


Jersey City, New Jersey 07302


Attention: Vincent Cangiano


Telephone: 201-499-2710


Facsimile: 212-412-7401


E-mail: xrausloanops1@barclayscapital.com


 


with a copy to:


 


Barclays Capital


745 7th Avenue, 26th Floor


New York, New York 10119


Attention: Noam Azachi


Telephone: 212-526-1957


Facsimile: 212-526-5115


E-mail: noam.azachi@barcap.com


 


APPENDIX B-5

















 


GOLDMAN
SACHS LENDING PARTNERS LLC, 


as
a Documentation Agent and a Lender:


 


Goldman Sachs & Co.


30 Hudson Street, 38th Floor


Jersey City, New Jersey 07302


Attention: Lauren Day


Telephone: 212-934-3921


E-mail: gsd.link@gs.com


 


APPENDIX B-6

















 


MIHI LLC,


as a Lender


 


MIHI LLC


125 West 55th Street


New York, New York 1019


Attention: Arvind Admal


Telephone: 212-231-2099


Attention: David Anekstein


Telephone:212-231-6187


Facsimile: 212-231-0629


E-mail: loan.admin@macquarie.com


 


 


MACQUARIE CAPITAL (USA) INC.,


as a Documentation Agent


 


 


 


Attention:


E-mail:


 


 


with a copy to:


 


 


 


Attention:


E-mail:


 


APPENDIX B-7

















 


RBC CAPITAL MARKETS CORPORATION,


as a Syndication Agent


 


 


 


Attention:


E-mail:


 


 


with a copy to:


 


 


 


Attention:


E-mail:


 


ROYAL BANK OF CANADA,


as a Lender


 


Royal Bank of Canada


One Liberty Plaza, 3rd Floor


165 Broadway


New York, New York 10006-1404


Attention: Dan LePage


Telephone: 212-428-6605


Facsimile: 212-428-6459


E-mail: Dan.LePage@rbccm.com


 


 


with a copy to:


 


Royal Bank of Canada


One Liberty Plaza, 3rd Floor


165 Broadway


New York, New York 10006-1404


Attention: Daniel Lin


Telephone: 212-428-6950


Facsimile: 212-428-6459


E-mail: Daniel.Lin@rbccm.com


 


APPENDIX B-8

















 


TORONTO DOMINION (NEW YORK) LLC,


as a Lender


 


TD SECURITIES (USA) LLC,


as a Documentation Agent


 


Toronto Dominion (New York) LLC


c/o TD Securities


Royal Trust Tower, 18th Floor


77 King Street West


Toronto Ontario M5K 1A2


Attention:  Brian
Pirotta


Telephone: 416-590-4340


Facsimile: 416-590-4335


E-mail: Brian.Pirotta@TDSecurities.com


 


 


with a copy to:


 


Toronto Dominion (New York) LLC


c/o TD Securities


Royal Trust Tower, 18th Floor


77 King Street West


Toronto Ontario M5K 1A2


Attention:  Ruth
Bengo


Telephone: 416-590-4350


Facsimile: 416-590-4335


E-mail: Ruth.Bengo@TDSecurities.com


 


APPENDIX B-9

















 


UBS LOAN FINANCE LLC,


as a Lender


 


UBS Loan Finance LLC


677 Washington Boulevard


Stamford, Connecticut 06901


Attention: Rayad Yadali, Loan Administrator


Telephone: 203-719-3937


Facsimile: 203-719-3888


E-mail: rayad.yadali@ubs.com


 


 


UBS SECURITIES LLC,


as a Documentation Agent


 


 


 


Attention:


E-mail:


 


 


with a copy to:


 


 


 


Attention:


E-mail:


 


APPENDIX B-10