Exhibit 10.49


 


EXECUTION VERSION


 


 




 





 


SECOND AMENDED AND RESTATED


 


REVOLVING CREDIT AND TERM LOAN
AGREEMENT


 


Dated as of December 17,
2004


 


among


 


THE MILLS LIMITED PARTNERSHIP,

as Borrower


 


THE INSTITUTIONS FROM TIME TO
TIME

PARTY HERETO,

as Lenders


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


 


and


 


BANC OF AMERICA SECURITIES LLC
and J.P. MORGAN SECURITIES INC.,

as Co-Lead Arrangers and Joint Bookrunners


 


and


 


BANK OF AMERICA, N.A. and


EUROHYPO AG, NEW YORK BRANCH


 


as Co-Syndication Agents


 


and


 


KEYBANK, NATIONAL ASSOCIATION
and


WACHOVIA BANK, NATIONAL
ASSOCIATION,


 


as Co-Documentation Agents


 




 





 


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS

  	
   

  
	
  1.1.  Certain Defined Terms

  	
   

  
	
  1.2.  Computation of Time Periods

  	
   

  
	
  1.3.  Accounting Terms

  	
   

  
	
  1.4.  Other Terms

  	
   

  
	
   

  	
   

  
	
  ARTICLE II. AMOUNTS AND TERMS OF LOANS

  	
   

  
	
  2.1.  Loans

  	
   

  
	
  2.2.  Use of Proceeds of Loans

  	
   

  
	
  2.3.  Termination, Maturity and
  Extensions

  	
   

  
	
  2.4.  Letters of Credit

  	
   

  
	
  2.5.  Maximum Credit Facility

  	
   

  
	
  2.6.  Authorized Agents

  	
   

  
	
  2.7.  Negotiated Rate Procedure

  	
   

  
	
  2.8.  Sharing Event

  	
   

  
	
  2.9.  Increase of Revolving Credit
  Commitment

  	
   

  
	
   

  	
   

  
	
  ARTICLE III. PAYMENTS AND PREPAYMENTS

  	
   

  
	
  3.1.  Prepayments; Reductions in
  Revolving Credit Commitments

  	
   

  
	
  3.2.  Payments

  	
   

  
	
  3.3.  Promise to Repay; Evidence of
  Indebtedness

  	
   

  
	
  3.4.  Currency Matters

  	
   

  
	
   

  	
   

  
	
  ARTICLE IV. INTEREST AND FEES

  	
   

  
	
  4.1.  Interest on the Loans and other
  Obligations

  	
   

  
	
  4.2.  Special Provisions Governing
  Eurocurrency Rate Loans

  	
   

  
	
  4.3.  Fees

  	
   

  
	
   

  	
   

  
	
  ARTICLE V. CONDITIONS TO LOANS AND ISSUANCE
  OF LETTERS OF CREDIT

  	
   

  
	
  5.1.  Conditions Precedent to the
  Initial Loans and Letters of Credit

  	
   

  
	
  5.2.  Conditions Precedent to All
  Subsequent Loans and Letters of Credit

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI. REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  6.1.  Representations and Warranties
  of the Borrower

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII. REPORTING COVENANTS

  	
   

  
	
  7.1.  Borrower
  Accounting Practices

  	
   

  
	
  7.2.  Financial
  Reports

  	
   

  
	
  7.3.  Events
  of Default

  	
   

  
	
  7.4.  Lawsuits

  	
   

  
	
  7.5.  Insurance

  	
   

  
	
  7.6.  ERISA
  Notices

  	
   

  
	
  7.7.  Environmental
  Notices

  	
   

  
	
  7.8.  Labor
  Matters

  	
   

  
	
  7.9.  Notices
  of Asset Sales and/or Acquisitions

  	
   

  



 


i





















 


	
  7.10.  Tenant Notifications

  	
   

  
	
  7.11.  Other Reports

  	
   

  
	
  7.12.  Other
  Information

  	
   

  
	
  7.13.  Credit
  Rating

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII. AFFIRMATIVE COVENANTS

  	
   

  
	
  8.1.  Existence,
  Etc

  	
   

  
	
  8.2.  Powers;
  Conduct of Business

  	
   

  
	
  8.3.  Compliance
  with Laws, Etc

  	
   

  
	
  8.4.  Payment
  of Taxes and Claims

  	
   

  
	
  8.5.  Insurance

  	
   

  
	
  8.6.  Inspection
  of Property; Books and Records; Discussion

  	
   

  
	
  8.7.  ERISA
  Compliance

  	
   

  
	
  8.8.  Maintenance
  of Property

  	
   

  
	
  8.9.  Company
  Status

  	
   

  
	
  8.10.  Distributions
  of Income to the Borrower

  	
   

  
	
  8.11.  Variable
  Rate Debt

  	
   

  
	
  8.12.  Property
  Management

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX. NEGATIVE COVENANTS

  	
   

  
	
  9.1.  Sales
  of Assets

  	
   

  
	
  9.2.  Liens

  	
   

  
	
  9.3.  Conduct
  of Business

  	
   

  
	
  9.4.  Transactions
  with Partners and Affiliates

  	
   

  
	
  9.5.  Restriction
  on Fundamental Changes

  	
   

  
	
  9.6.  Margin
  Regulations; Securities Laws

  	
   

  
	
  9.7.  ERISA

  	
   

  
	
  9.8.  Organizational
  Documents

  	
   

  
	
  9.9.  Fiscal
  Year

  	
   

  
	
  9.10.  Indebtedness

  	
   

  
	
  9.11.  Investments

  	
   

  
	
  9.12.  Other
  Financial Covenants

  	
   

  
	
  9.13.  Stock
  Repurchase

  	
   

  
	
  9.14.  Negative
  Pledge Clauses

  	
   

  
	
  9.15.  Restriction
  on Prepayment of Indebtedness

  	
   

  
	
   

  	
   

  
	
  ARTICLE X. EVENTS OF DEFAULT; RIGHTS AND
  REMEDIES

  	
   

  
	
  10.1.  Events
  of Default

  	
   

  
	
  10.2.  Rights
  and Remedies

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI. THE AGENT

  	
   

  
	
  11.1.  Appointment

  	
   

  
	
  11.2.  Nature
  of Duties

  	
   

  
	
  11.3.  Right
  to Request Instructions

  	
   

  
	
  11.4.  Reliance

  	
   

  
	
  11.5.  Indemnification

  	
   

  
	
  11.6.  Administrative
  Agent Individually

  	
   

  



 


ii





















 


	
  11.7.  Successor Administrative Agent

  	
   

  
	
  11.8.  Relations
  Among the Lenders

  	
   

  
	
  11.9.  Notices

  	
   

  
	
  11.10.  No Representations

  	
   

  
	
  11.11.  Co-Agents

  	
   

  
	
   

  	
   

  
	
  ARTICLE XII. YIELD PROTECTION

  	
   

  
	
  12.1.  Taxes

  	
   

  
	
  12.2.  Increased
  Capital

  	
   

  
	
  12.3.  Change
  in Legal Restrictions

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIII. MISCELLANEOUS

  	
   

  
	
  13.1.  Assignments

  	
   

  
	
  13.2.  Expenses

  	
   

  
	
  13.3.  Indemnity

  	
   

  
	
  13.4.  Change
  in Accounting Principles

  	
   

  
	
  13.5.  Setoff

  	
   

  
	
  13.6.  Ratable
  Sharing

  	
   

  
	
  13.7.  Amendments
  and Waivers

  	
   

  
	
  13.8.  Notices

  	
   

  
	
  13.9.  Survival
  of Warranties and Agreements

  	
   

  
	
  13.10.  Failure or Indulgence Not Waiver; Remedies Cumulative

  	
   

  
	
  13.11.  Marshaling;
  Payments Set Aside

  	
   

  
	
  13.12.  Severability

  	
   

  
	
  13.13.  Headings

  	
   

  
	
  13.14.  Governing
  Law

  	
   

  
	
  13.15.  Limitation
  of Liability

  	
   

  
	
  13.16.  Successors
  and Assigns

  	
   

  
	
  13.17.  Certain
  Consents and Waivers

  	
   

  
	
  13.18.  Counterparts; Effectiveness; Inconsistencies

  	
   

  
	
  13.19.  Limitation
  on Agreements

  	
   

  
	
  13.20.  Confidentiality

  	
   

  
	
  13.21.  Disclaimers

  	
   

  
	
  13.22.  Entire
  Agreement

  	
   

  
	
  13.23.  Replacement
  Notes

  	
   

  
	
  13.24.  USA
  Patriot Act

  	
   

  
	
  13.25.  Transitional Arrangements

  	
   

  



 


iii





















 


LIST OF EXHIBITS AND
SCHEDULES


 


	
  Exhibit A

  	
  —

  	
  Form of Assignment and Acceptance

  
	
  Exhibit B-1

  	
  —

  	
  Form of Revolving Credit Note

  
	
  Exhibit B-2

  	
  —

  	
  Form of Term Loan Note

  
	
  Exhibit C

  	
  —

  	
  Form of Notice of Borrowing

  
	
  Exhibit D

  	
  —

  	
  Form of Notice of
  Conversion/Continuation

  
	
  Exhibit E

  	
  —

  	
  Form of Letter of Credit Request

  
	
  Exhibit F

  	
  —

  	
  Form of Negotiated Rate Quote Request

  
	
  Exhibit G

  	
  —

  	
  Form of Negotiated Rate Quote

  
	
  Exhibit H

  	
  —

  	
  Form of Second Amended and Restated
  Guaranty

  
	
  Exhibit I

  	
  —

  	
  Form of Designated Bank Note

  
	
  Exhibit J

  	
  —

  	
  Form of Designation Agreement

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1-A

  	
  —

  	
  Revolving Credit Commitments, Term Loan
  Commitments and Pro Rata Shares

  
	
  Schedule 1.1-B

  	
  —

  	
  CVS Portfolio

  
	
  Schedule 1.1-C

  	
  —

  	
  Regional Mall Assets

  
	
  Schedule 2.4

  	
  —

  	
  Outstanding Letters of Credit

  
	
  Schedule 5.1(a)

  	
  —

  	
  List of Closing Documents

  
	
  Schedule 6.1-C

  	
  —

  	
  Structure

  
	
  Schedule 6.1-H

  	
  —

  	
  Indebtedness for Borrowed Money

  
	
  Schedule 6.1-I

  	
  —

  	
  Pending Actions

  
	
  Schedule 6.1-P

  	
  —

  	
  Environmental Matters

  
	
  Schedule 6.1-Q

  	
  —

  	
  ERISA Matters

  
	
  Schedule 6.1-T

  	
  —

  	
  Insurance Policies

  
	
  Schedule 7.2

  	
  —

  	
  Sample Calculation of Financial Covenants

  



 


 


iv





















 


SECOND AMENDED AND
RESTATED


REVOLVING CREDIT AND TERM
LOAN AGREEMENT


 


THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT, dated as of December 17, 2004 (as amended, supplemented or
modified from time to time, the “Agreement”), is entered into among THE
MILLS LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”),
the institutions from time to time parties hereto as Lenders (as defined
herein), whether by execution of this Agreement or an Assignment and
Acceptance, and JP MORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase
Bank) (“JPMCB”), as the administrative agent (the “Administrative
Agent”).


 


WHEREAS, the Borrower, Fleet National Bank, as administrative
agent, JPMCB and certain other lenders are party to that certain Amended and
Restated Revolving Credit Agreement, dated as of June 26, 2003, as amended
by Amendment No. 1 to Amended and Restated Revolving Credit Agreement,
dated as of October 15, 2004 (as so amended, the “Existing Revolving Agreement”),
pursuant to which such lenders extended credit to the Borrower on the terms set
forth therein;


 


WHEREAS, the Borrower and JPMCB are parties to that certain
Term Loan Agreement, dated as of October 15, 2004 (the “Original Term
Loan Agreement”), pursuant to which JPMCB loaned $200,000,000 to the
Borrower on the terms set forth therein; and


 


WHEREAS, the Borrower, JPMCB and the Lenders party hereto
have agreed to enter into this Agreement to amend and restate each of the
Existing Revolving Agreement and the Original Term Loan Agreement in its
entirety as set forth herein;


 


NOW, THEREFORE, in
consideration of the foregoing and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend and restate the Existing Revolving Agreement and the Original
Term Loan Agreement as follows:


 


ARTICLE I.

DEFINITIONS


 


1.1.  Certain Defined Terms.  The following terms
used in this Agreement shall have the following meanings, applicable both to the
singular and the plural forms of the terms defined:


 


“Acquisition Asset” means any Property owned
for a period of eighteen (18) months or less. 
For all purposes of this Agreement, an Acquisition Asset shall not cease
to be an Acquisition Asset until the beginning of the first fiscal quarter
immediately following the expiration of such eighteen (18) month period.


 


“Acquisition Asset Under Redevelopment” means
any Property that, except for being an Acquisition Asset, otherwise satisfies
the requirements of a Redevelopment Asset.


 


“Acquisition Assets at Cost” means, with
respect to any Acquisition Asset, the (i) lower of cost or market price of
such Acquisition Asset, in accordance with GAAP, plus (ii) the
transaction costs associated with the acquisition of such Acquisition Asset plus
(iii), without duplication, the aggregate sum expended on construction of
improvements after the initial acquisition, including the costs of any
subsequent land acquisitions relating to such Acquisition Asset; provided
that, for the purposes of making any calculation under this Agreement, “Acquisition
Assets at Cost” of Acquisition Assets held by Minority Holdings that are not
Consolidated in accordance with GAAP (such as those held in a joint


 


5





















 


venture format) will be
equal to (without duplication) the sum of (a) the Borrower’s contributed
equity, (b) the Borrower’s pro-rata share of debt from items that are not
Consolidated in accordance with GAAP, (c) the Borrower’s Contingent
Obligations related to items that are not Consolidated in accordance with GAAP,
to the extent not redundant with (b), plus (d) any (non-Borrower)
co-venturer’s equity in such items that are not Consolidated in accordance with
GAAP to the extent that such co-venturer’s share of debt was included in the
calculation of the Borrower’s Total Adjusted Outstanding Indebtedness.


 


“Act” is defined in Section 13.24.


 


“Adjusted Combined EBITDA” means an amount
equal to (i) Combined EBITDA for any period, minus (ii) to the
extent included in Combined EBITDA, Recurring Land Sales of the Borrower and
its wholly owned subsidiaries for the same period as
Combined EBITDA is measured, minus (iii) to the extent included in
Combined EBITDA, the portion of Recurring Land Sales of Minority Holdings
allocable to the Borrower for the same period as Combined EBITDA is measured, minus
(iv) to the extent included in Combined EBITDA, Service Revenues of the
Borrower and its wholly owned subsidiaries for the same period as Combined EBITDA
is measured, minus (v) to the extent included in Combined EBITDA,
the portion of Service Revenues of Minority Holdings allocable to the Borrower
for the same period as Combined EBITDA is measured, plus (vi) to
the extent any debt is actually outstanding under a construction loan made to a
Minority Holding which is guaranteed by Borrower, the EBITDA or total revenues
less total expenses for the same period as Combined EBITDA is measured, as
applicable, allocable to non-Investment Grade rated partners or members with
Borrower in such Minority Holdings, from such time as any of such debt shall be
outstanding until such time as the guaranty of payment has been reduced to the
percentage of such loan equal to the percentage ownership of the Borrower in
such Minority Holding.


 


“Administrative Agent” means, initially as is
defined in the preamble, or any successor administrative agent appointed
in accordance with Section 11.7 hereof.


 


“Administrative Agent’s Head Office” means
Administrative Agent’s head office located at 1111 Fannin Street, 10th
Floor, Houston, Texas 77002, or at such other location as the Administrative
Agent may designate from time to time by notice to the Borrower and the
Lenders.


 


“Affiliate”, as applied to any Person, means
any other Person that directly or indirectly controls, is controlled by, or is
under common control with, that Person. 
For 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 to vote fifteen percent (15.0%) or more of the equity Securities having
voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting equity Securities or by contract or
otherwise; provided, however, notwithstanding any of the
aforementioned, KanAm shall not be considered an “Affiliate” of the Borrower or
TMC.


 


“Agreement” is defined in the preamble.


 


“Amended Agreements” means the Existing
Revolving Agreement and the Original Term Loan Agreement.


 


“Annual EBITDA” means, with respect to any
Property, for the immediately preceding consecutive four (4) fiscal
quarters, an amount equal to (i) total revenues relating to such Property
for such period, less (ii) total operating expenses relating to
such Property for such period (it being understood that the foregoing
calculation shall exclude interest, income taxes (but not real estate taxes),


 


6





















 


depreciation,
amortization and other non-cash charges as determined in accordance with GAAP
and shall be adjusted for non-recurring items such as sales of Properties or
sales of Minority Holdings (but allowing for Recurring Land Sales, subject to
the limitations described in the definition of Combined EBITDA)); provided,
that (a) in the case of (x) an Acquisition Asset (other than an
Acquisition Asset Under Redevelopment) owned by the Borrower, a Consolidated
Business or a Minority Holding for a period of less than the immediately
preceding consecutive four (4) fiscal quarters or (y) a Property that has
been open for business for a period of less than the immediately preceding
consecutive four (4) fiscal quarters following such asset ceasing to be a
Construction Asset or Redevelopment Asset, Annual EBITDA shall be calculated on
the basis set forth above, but determined by annualizing the results of
operations from the immediately preceding consecutive one, two or three fiscal
quarters, as applicable, with respect to the length of such ownership (in the
case of an Acquisition Asset (other than an Acquisition Asset Under
Redevelopment)) or the time the project has been operating since ceasing to be
a Construction Asset or a Redevelopment Asset, as applicable and (b) in
the case of any Property that is a Redevelopment Asset or an Acquisition Asset
Under Redevelopment, the Annual EBITDA for such Property shall be equal to the
lesser of (x) Annual EBITDA determined as set forth above for the period of
four (4) consecutive fiscal quarters ending immediately prior the
Redevelopment Commencement Date (or, in the case of a Property owned for a
period of less than the immediately preceding consecutive four (4) fiscal
quarters prior to the Redevelopment Commencement Date, by annualizing the
results of operations from the immediately preceding consecutive one, two, or
three fiscal quarters, as applicable, with respect to the length of such
ownership prior to the Redevelopment Commencement Date) and (y) 85% of the
pro-forma, projected Annual EBITDA of such Redevelopment Asset or Acquisition
Asset Under Redevelopment for the period of four (4) consecutive fiscal
quarters ending after such Property ceases to be a Redevelopment Asset or
Acquisition Asset Under Redevelopment; provided  further, that for
each (a) Acquisition Asset which has been owned by the Borrower, a
Consolidated Business or a Minority Holding for a period of less than one (1) full
fiscal quarter and (b) Property that has been open for business for a
period of less than one (1) full fiscal quarter after ceasing to be a
Construction Asset or Redevelopment Asset, no amount shall be included in  calculating “Annual EBITDA”.  Annual EBITDA shall not include revenues or
expenses attributable to the CVS Portfolio.


 


“Applicable Lending Office” means, with respect
to a particular Lender, (i) its Eurocurrency Lending Office in respect of
provisions relating to Eurocurrency Rate Loans and  (ii) its Domestic Lending office in
respect of provisions relating to Base Rate Loans or Fixed Rate Loans.


 


“Applicable Margin” means, with respect to each
Loan other than a Negotiated Rate Loan, the respective percentages per annum
determined at any time based on the range into which the Leverage Ratio, as
evidenced by the most recent Compliance Certificate delivered pursuant to Section 5.1
or Section 7.2, as applicable, then falls, in accordance with the
following table.  Any change in the Applicable
Margin shall be effective on the first Business Day after the receipt by
Administrative Agent of the Compliance Certificate required to be delivered to
Administrative Agent pursuant to Section 7.2; provided that
if a Compliance Certificate required in Section 7.2 hereof has not
been delivered by the date such certificates are required to be delivered to
Administrative Agent, then from the date the applicable information is required
until the date the applicable information has been duly delivered, the greatest
Applicable Margin set forth below shall be deemed to apply.


 


	
  Leverage Ratio

  	
   

  	
  Applicable Margin for

  Eurocurrency Rate Loans

  (% per annum)

  	
   

  	
  Applicable Margin for

  Base Rate Loans

  (% per annum)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  less than
  50%

  	
   

  	
  0.950%

  	
   

  	
  0.000%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  50% to less
  than 55%

  	
   

  	
  1.025%

  	
   

  	
  0.000%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  55% to less
  than 60%

  	
   

  	
  1.175%

  	
   

  	
  0.150%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  60% or
  greater

  	
   

  	
  1.450%

  	
   

  	
  0.450%

  	
   

  



 


7





















 


“Approved Fund” means (a) a CLO and (b) with
respect to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.


 


“Assignment and Acceptance” means an Assignment
and Acceptance in substantially the form of Exhibit A
attached hereto and made a part hereof (with blanks appropriately completed)
delivered to the Administrative Agent in connection with an assignment of a
Lender’s interest under this Agreement in accordance with the provisions of Section 13.1.


 


“Authorized Financial Officer” means a chief
executive officer, chief operating officer, chief financial officer, treasurer,
president, chief accounting officer or other qualified senior officer
acceptable to the Administrative Agent.


 


“Base Rate” means, for any period, a
fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the higher of:


 


(i)                                      the rate of interest designated by the
Administrative Agent at the Administrative Agent’s principal office in New York
City from time to time, as Administrative Agent’s “prime rate”; and


 


(ii)                                   the sum of (A) one-half of one
percent (0.50%) per annum plus (B) the Federal Funds Rate in effect
from time to time during such period (rounded upwards, if necessary, to the
next one-eighth of one percent).


 


The Base Rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to any customer.  Any change in the rate of interest payable
hereunder resulting from a change in the Base Rate shall become effective as of
the opening of business on the day on which such change in the Base Rate
becomes effective, without notice or demand of any kind.


 


“Base Rate Loan” means a Loan which bears
interest at a rate determined by reference to the Base Rate and the Applicable
Margin as provided in Section 4.1(a).


 


“Benefit Plan” means a “defined benefit plan”
as defined in Section 3(35) of ERISA and any other “pension plan” as
defined in Section 3(2) of ERISA subject to Section 302 of ERISA
(other than a Multiemployer Plan) in respect of which the Borrower or any ERISA
Affiliate is, or within the immediately preceding six (6) years was, an “employer”
as defined in Section 3(5) of ERISA or in respect of which the
Borrower or any ERISA Affiliate has assumed any liability.


 


“Borrower” is defined in the preamble.


 


“Borrowing” means (a) Negotiated Rate
Loans, Revolving Credit Tranche A Loans or Revolving Credit Tranche B Loans of
the same type made, continued or converted on the same day and in the case


 


8





















 


of Eurocurrency Rate
Loans or Negotiated Rate Loans, as to which a single Interest Period is in
effect, or (b) each portion of the Term Loan of the same type made,
converted or continued on the same day.


 


“Business” means the business of acquiring,
developing, re-developing, leasing and managing predominantly retail Real
Properties with entertainment and mixed-use components and portfolios of like
Real Properties and providing complementary ancillary services to retail Real
Properties, including the acquisition or disposition of significant non-real
estate assets or portfolio assets.


 


“Business Day” means (i) a day, in the
applicable local time, which is not a Saturday or Sunday or a legal holiday and
on which banks are not required or permitted by law or other governmental
action to close in the city and state of the Administrative Agent’s Head Office
are located, or in New York, New York, (ii) in the case of LIBOR Rate
Loans, a LIBOR Business Day, and (iii) in the case of Eurocurrency Rate
Loans denominated in Optional Currency, a day qualifying under clause (i) above
and which is also a day on which (a) dealings and exchanges in Dollars and
in the relevant Optional Currency are carried on in the Eurocurrency Interbank
Market (and, if the Eurocurrency Rate Loans that are the subject of a
borrowing, payment or rate selection are denominated in Euros, a day on which
such clearing systems as are determined by the Administrative Agent to be
suitable for clearing or settlement of the Euro are open for business) and (b) such
Optional Currency and Dollar settlements of such dealings may be effected in
New York, New York or London, England.


 


“Capital Expenditures” means, for any period,
the aggregate of all expenditures (whether payable in cash or other Property or
accrued as a liability (but without duplication)) during such period that, in
conformity with GAAP, are required to be included in or reflected by the
Borrower’s or any of its Subsidiaries’ fixed asset accounts as reflected in any
of their respective balance sheets; provided, however, (i) Capital
Expenditures shall include, whether or not such a designation would be in conformity
with GAAP, (a) that portion of payments under Capital Leases which is
capitalized on the Consolidated balance sheet of the Borrower and its
Subsidiaries and (b) expenditures for Equipment which is purchased
simultaneously with the trade-in of existing Equipment owned by the Borrower or
any of its Subsidiaries, to the extent the gross purchase price of the
purchased Equipment exceeds the book value of the Equipment being traded in at
such time; and (ii) Capital Expenditures shall exclude, whether or not
such a designation would be in conformity with GAAP, expenditures made in
connection with the restoration of Property, to the extent reimbursed or
financed from insurance or condemnation proceeds.


 


“Capital Lease” means 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.


 


“Capital Stock” means, with respect to any
Person, any capital stock of such Person, regardless of class or designation,
and all warrants, options, purchase rights, conversion or exchange rights,
voting rights, calls or claims of any character with respect thereto.


 


“Capitalization Value” means, as of any date of
determination, the sum, without duplication, of (i) the Adjusted Combined
EBITDA (excluding the Regional Mall Assets, Acquisition Assets, Construction
Assets, Other Assets and Redevelopment Assets) for the immediately preceding
consecutive four (4) fiscal quarters divided by 8.25%, (ii) Service
Revenues for such period divided by 15.00%, (iii) Cash and Cash
Equivalents of the Borrower and its Subsidiaries (including the Borrower’s pro
rata share of the Minority Holdings’ Cash and Cash Equivalents), (iv) Other
Assets at Cost, (v) the Adjusted Combined EBITDA of the Regional Mall
Assets for the immediately preceding consecutive four (4) fiscal quarters
divided by 8.0%, (vi) Acquisition Assets at Cost, including Acquisition
Assets Under Redevelopment and (vii) for each Redevelopment Asset, the sum
of (I) the Adjusted Combined EBITDA of such Redevelopment Asset for the period
of four (4) consecutive fiscal quarters ending immediately


 


9





















 


prior to the
Redevelopment Commencement Date divided by 8.00% (if a Regional Mall Asset) or
8.25% (if a Property other than a Regional Mall Asset) (“Redevelopment
EBITDA”) plus (II) the Redevelopment Cost of such Redevelopment Asset from
and after the Redevelopment Commencement Date; provided, however,
that for purposes of calculating Capitalization Value, (A) the value of
Other Assets at Cost and Redevelopment Costs shall be included only to the
extent that the aggregate amount thereof included in the sum of clauses (i),
(ii), (iii), (iv), (v), (vi) and (vii), (1) with respect to the value
of all Other Assets at Cost and Redevelopment Costs, does not exceed
twenty-five percent (25%) of such sum, (2) with respect to the value of
Construction Assets at Cost and Redevelopment Costs, does not exceed twenty-two
and one-half percent (22.5%) of such sum, and (3) with respect to the
value of Other Assets at Cost (not including Construction Assets at Cost), does
not exceed five percent (5%) of such sum; and (B) the sum of the
Redevelopment EBITDA plus the Redevelopment Cost for any Redevelopment Asset
shall be limited to 85% of its pro-forma, projected Capitalization Value after
completion of redevelopment improvements.


 


“Cash and Cash Equivalents” means (i) unrestricted
cash, (ii) Securities issued or directly or fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof (provided,
that the full faith and credit of the United States of America is pledged in
support thereof); and (iii) unrestricted domestic and LIBOR certificates
of deposit and time deposits, bankers’ acceptances and floating rate
certificates of deposit issued by any commercial bank organized under the laws
of the United States, any state thereof, the District of Columbia, any foreign
bank, or its branches or agencies (fully protected against currency
fluctuations), which, at the time of acquisition, are rated A-1 (or
better) by S&P or P-1 (or better) by Moody’s (any such bank an “Approved
Bank”), maturing within one year from the date of acquisition, (iv) commercial
paper issued by any Approved Bank or by the parent company of any Approved Bank
and commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof
by Moody’s, or guaranteed by any industrial company with a long term unsecured
debt rating of at least A or A2, or the equivalent of each thereof, from
S&P or Moody’s, as the case may be, and in each case maturing within one
year after the date of acquisition, (v) marketable direct obligations
issued by the District of Columbia or any state of the United States of America
or any political subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition thereof and, at
the time of acquisition, having one of the two highest ratings obtainable from
either S&P or Moody’s and (vi) investments in money market funds
substantially all the assets of which are comprised of securities of the any
type described in any one or more of clauses (i) through (vi) above,
but without regard to the maturity date of the underlying assets of any such
money market fund.


 


“CERCLA” means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et
seq., any amendments thereto, any successor statutes, and any
regulations or guidance having the force of law promulgated thereunder.


 


“Change in Control” shall exist upon the
occurrence of any of the following:


 


(a)                                  TMC shall cease to be the sole general
partner of Borrower; or


 


(b)                                 TMC shall cease to own at least fifty
percent (50%) of the economic interest of the Borrower; or


 


(c)                                  any Person (including a Person’s
Affiliates and associates) or group (as that term is understood under Section 13(d) of
the Securities Exchange Act and the rules and regulations thereunder),
other than TMC or any wholly-owned Subsidiary of TMC, shall have acquired after
the Closing Date beneficial ownership (within the meaning of Rule 13d-3
under the Securities Exchange Act) of a


 


10





















 


percentage (based on voting power, in the event
different classes of stock shall have different voting powers) of the voting
stock of TMC equal to at least forty percent (40%); or


 


(d)                                 during any twelve-month period on or
after the Closing Date, individuals who at the beginning of such period
constituted the Board of Directors of TMC (together with any new directors
whose election by the Board of Directors or whose nomination for election by
the shareholders of TMC was approved by a vote of at least a majority of the
members of the Board of Directors then in office who either were members of the
Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) ceased for any reason to
constitute a majority of the members of the Board of Directors of TMC then in
office.


 


“Claim” means any claim or demand, by any
Person, of whatsoever kind or nature for any alleged Liabilities and Costs,
whether based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute, Permit, ordinance or regulation, common law or
otherwise.


 


“CLO” means any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or
an Affiliate of such Lender.


 


“Closing Date” means December 17, 2004.


 


“Co-Arrangers” means Banc of America Securities
LLC and J.P. Morgan Securities Inc.


 


“Co-Documentation Agents” means KeyBank,
National Association and Wachovia Bank, National Association.


 


“Combined EBITDA” means the sum of (i) 100%
of the Annual EBITDA, Other Operations, Management Fees, Service Revenues and
Recurring Land Sales of the Borrower and its wholly-owned Subsidiaries with
respect to the Properties and entities wholly-owned by the Borrower or any such
Subsidiary; and (ii) the portion of the Annual EBITDA, the Other
Operations, Management Fees, the Service Revenues and Recurring Land Sales of
the Minority Holdings allocable to the Borrower in accordance with GAAP, provided,
however, that (a) Combined EBITDA shall include Annual EBITDA
allocable to the Recurring Land Sales (whether of the Borrower, its
wholly-owned Subsidiaries or any Minority Holdings) only to the extent that
Annual EBITDA allocable to the Recurring Land Sales does not exceed seven
percent (7.00%) of Combined EBITDA, and (b) Combined EBITDA shall include
Combined EBITDA allocable to the Service Revenues (whether of the Borrower, its
wholly-owned Subsidiaries or any Minority Holdings) only to the extent that
Annual EBITDA allocable to the Service Revenues does not exceed ten percent
(10.00%) of Combined EBITDA; and provided, further, Combined
EBITDA shall not include Annual EBITDA allocable to the Real Property known as
the CVS Portfolio.  The Other Operations,
Management Fees, Service Revenues and Recurring Land Sales shall be measured
for the same period as the Annual EBITDA.


 


“Combined Equity Value” means Capitalization
Value minus Total Adjusted Outstanding Indebtedness.


 


“Combined Interest Expense” means, for any
period, the sum of (i) interest expense of the Consolidated Businesses
paid or accrued in accordance with GAAP during such period and (ii) the
portion of the interest expense of Minority Holdings allocable to the Borrower
paid or accrued in accordance with GAAP during such period, in each case
excluding extraordinary interest expense and prepayment fees, premiums or
penalties and net of amortization of deferred costs associated with new


 


11





















 


financings or
refinancings of existing Indebtedness; provided, that (a) with
respect to Properties that are included in the calculation of Annual EBITDA
pursuant to clauses (a) and (b) of the first proviso of the
definition thereof, the interest expense with respect thereto (incurred in
connection with any Loans made in connection with the acquisition and/or
construction of such Property or in connection with any mortgage loans entered
into or assumed in connection therewith) shall be the interest expense paid or
accrued in accordance with GAAP during the same period over which results of
operations are measured (and annualized, if applicable) to determine Annual
EBITDA of such Property, and (b) with respect to Properties that are not
included in the calculation of Annual EBITDA, the interest expense with respect
thereto (incurred in connection with any Loans made in connection with the
acquisition and/or construction of such Property or in connection with any
mortgage loans entered into or assumed in connection therewith) shall be
excluded; provided further that Combined Interest Expense shall not
include any dividends payable by Borrower or TMC on the Series A Preferred
Interests prior to the sale, waiver, release, termination or other cancellation
by the holders of the Series A Preferred Interests of their option to
convert the Series A Preferred Interests to common equity of TMC or
Borrower.


 


“Commission” means the Securities and Exchange
Commission and any Person succeeding to the functions thereof.


 


“Compliance Certificate” is defined in Section 7.2(b).


 


“Consolidated” means consolidated in accordance
with GAAP.


 


“Consolidated Businesses” means TMC, the
Borrower and their respective wholly-owned Subsidiaries.


 


“Construction Assets” means (i) any
Property which is raw land, vacant out-parcels, or Property on which
construction of material improvements has commenced and is continuing to be
performed (such commencement evidenced by foundation excavation) but has not
yet been (a) completed (as evidenced by a certificate of occupancy
permitting use of such Property by the general public) and (b) opened for
business for one (1) full fiscal quarter, and (ii) any other
non-income producing real estate investment, but excluding any Redevelopment
Assets or Acquisition Assets.


 


“Construction Assets at Cost” means, with
respect to all Construction Assets, the aggregate sums expended on the
construction of such improvements including land acquisition costs; provided
that, for purposes of making any calculation under this Agreement, “Construction
Assets at Cost” of Construction Assets held by Minority Holdings that are not
Consolidated in accordance with GAAP (such as those held in a joint venture
format) will be equal to (without duplication) the sum of (a) the Borrower’s
contributed equity, (b) the Borrower’s pro-rata share of debt from items
that are not Consolidated in accordance with GAAP, (c) the Borrower’s
Contingent Obligations related to items that are not Consolidated in accordance
with GAAP, to the extent not redundant with (b), plus (d) any
(non-Borrower) co-venturer’s equity in such items that are not Consolidated in
accordance with GAAP to the extent that such co-venturer’s share of debt was
included in the calculation of the Borrower’s Total Adjusted Outstanding
Indebtedness.


 


“Contaminant” means any waste, pollutant,
hazardous substance, toxic substance, hazardous waste, special waste, petroleum
or petroleum-derived substance or waste, radioactive materials, asbestos (in
any form or condition), polychlorinated biphenyls (PCBs), or any constituent of
any such substance or waste, and includes, but is not limited to, these terms
as defined in federal, state or local laws or regulations; provided, however,
that “Contaminant” shall not include the foregoing items to the extent (i) the
same exist on the applicable Property in negligible or customary amounts and
are stored and used in accordance with all Environmental, Health or Safety
Requirements of Law or (ii) are used in connection


 


12





















 


with a tire or battery
retail store provided the same are stored, sold and used in accordance with all
Environmental, Health or Safety Requirements of Law.


 


“Contingent Obligations” means as to any Person
(the “guaranteeing person”), without duplication, (i) the amount of
any contingent obligation of such Person required to be shown on such Person’s
balance sheet in accordance with GAAP, and (ii) the amount of any
obligation required to be disclosed in the footnotes to such Person’s financial
statements in accordance with GAAP, which obligation guarantees or in effect
guarantees any Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (a)  to purchase
any such primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation, (d) to reimburse, indemnify or otherwise
protect any other person for any advance of funds, issuance of a letter of
credit or undertaking of other obligations by such person for the benefit of
the primary obligor, or (e) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include
(x) endorsements of instruments for deposit or collection in the ordinary
course of business, or (y) guarantees or indemnification given to a lender
in connection with any non-recourse Indebtedness of Borrower, its Subsidiaries
or Minority Holdings, with respect to claims that (A) are based on fraud,
intentional misrepresentation, misapplication of funds, gross negligence or
willful misconduct, (B) result from intentional mismanagement of or waste
at such Real Property securing such non-recourse Indebtedness, (C) arise
from the presence of any Contaminant on such Real Property securing such
non-recourse Indebtedness, (D) are the result of any unpaid real estate
taxes and assessments relating to the Real Property securing such non-recourse
Indebtedness, (E) arise as a result of a voluntary bankruptcy filing, or (F) are
based on any usual and customary exclusions for non-recourse limitations
governing any non-recourse Indebtedness of Borrower, its Subsidiaries and
Minority Holdings, in each case, until such claim is made with respect thereto,
and then only to the extent of the amount of such claim.  Notwithstanding anything contained herein to
the contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion shall be deemed to be a Contingent
Obligation in an amount equal to any such claim.  Subject to the above provisions, in the case
of a joint and several guaranty given by such Person and another Person (but
only to the extent such guaranty is not non-recourse debt, directly or
indirectly to the applicable guarantor), the amount of the guaranty shall be
deemed to be 100% thereof; provided that (i) so long as such other
Person holds an Investment Grade Credit Rating, the amount of such Person’s
guaranty to be included in Contingent Obligations shall be reduced by an amount
equal to the Contingent Obligation Amount, or (ii) in the event such other
Person does not hold an Investment Grade Credit Rating, the amount of such
Person’s guaranty to be included as Contingent Obligations may be reduced by an
amount based on the creditworthiness of such other Person, as such amount is
approved by the Requisite Lenders.


 


“Contingent Obligation Amount” means the sum of
(i) the total amount of the obligations guaranteed pursuant to any joint
and several guaranty multiplied by a fraction the numerator of which is the
amount of the guaranteed obligations attributable (pursuant to an agreement among
the guarantors) to the guarantors (other than such guaranteeing person) holding
an Investment Grade Credit Rating and the denominator of which is the total
amount of the obligations guaranteed pursuant to such joint and several
guaranty and (ii) the total amount of the obligations guaranteed
multiplied by the product of (a) a fraction the numerator of which is the
amount of  such guaranteed obligations
attributable (pursuant to an


 


13





















 


agreement among the guarantors)
to the guarantors (other than such guaranteeing person) not holding an
Investment Grade Credit Rating and the denominator of which is the total amount
of the obligations guaranteed pursuant to such joint and several guaranty times
(b) a fraction the numerator of which is the amount of  such guaranteed obligations attributable
(pursuant to an agreement among the guarantors) to the guarantors (other than
such guaranteeing person) holding an Investment Grade Credit Rating and the
denominator of which is the amount of such guaranteed obligations attributable
(pursuant to an agreement among the guarantors) to the guarantors (including
such guaranteeing person) holding an Investment Grade Credit Rating.


 


“Contractual Obligation”, as applied to any
Person, means any provision of any Securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or 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.


 


“Co-Syndication Agents” means Bank of America,
N.A. and Eurohypo AG, New York Branch.


 


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


 


“Cure Loans” is defined in Section 3.2(b)(v)(C).


 


“Customary Permitted Liens” means


 


(i)                                      Liens (other than Environmental Liens and
Liens in favor of the PBGC) with respect to the payment of taxes, assessments
or utility or governmental charges in all cases which are not yet overdue or
which are being contested in good faith by appropriate proceedings in
accordance with Section 8.4 and with respect to which adequate
reserves or other appropriate provisions, if any, are being maintained in
accordance with GAAP;


 


(ii)                                   statutory Liens of landlords or Equipment
lessors against any Property of the Borrower or any of its Subsidiaries and
Liens against any Property in favor of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other Liens against any Property
imposed by law created in the ordinary course of business for amounts which are
being contested in good faith by appropriate proceedings in accordance with Section 8.4
and with respect to which adequate reserves or other appropriate provisions, if
any, are being maintained in accordance with GAAP;


 


(iii)                                Liens (other than any Lien in favor of the PBGC)
incurred or deposits made in the ordinary course of business in connection with
worker’s compensation, unemployment insurance or other types of social security
benefits or to secure the performance of bids, tenders, sales, contracts (other
than for the repayment of borrowed money), surety, appeal, indemnity, judgment
or award and performance bonds; provided  that (A) all such
Liens do not in the aggregate materially detract from the value of the Group’s
assets or Property (taken as a whole) or materially impair the use thereof in
the operation of their respective businesses, and (B) with respect to any
Liens of attachment or judgment and Liens securing bonds to stay judgments or
in connection with appeals , the judgment to which such Lien relates does not
constitute an Event of Default;


 


(iv)                               Liens against any Property arising with
respect to zoning restrictions, easements, operating agreements, licenses,
reservations, covenants, rights-of-way, utility easements, building
restrictions and other similar charges or encumbrances on the use of Real
Property which do not


 


14





















 


materially interfere with
the ordinary conduct of the business of the Borrower or any of its
Subsidiaries, and do not secure the payment of borrowed money, or materially
affect the value thereof or, taken together, to the extent they would not be
likely to result in a Material Adverse Effect;


 


(v)                                  Restrictions under applicable federal and
state securities laws on the transfer of securities;


 


(vi)                              Federal, state, local or foreign tax
Liens filed against the Borrower or TMC which are discharged of record, bonded
over or otherwise secured to the satisfaction of the Administrative Agent
within thirty (30) days after the later of the filing thereof or the date upon
which the Borrower receives
actual knowledge of the filing thereof, the aggregate of which at any time equals
less than $30,000,000; and


 


(vii)                           Environmental Liens filed against any Real Property
with respect to Claims which in the aggregate equal less than $30,000,000.


 


“CVS Portfolio” means the single tenant net
lease properties owned by the Subsidiaries of the Borrower that are operated by
third parties as CVS pharmacies as indicated on Schedule 1.1-B
hereto.


 


“Designated Bank” means a special purpose corporation that (i) shall
have become a party to this Agreement pursuant to Section 13.1(h),
and (ii) is not otherwise a Lender.


 


“Designated Bank Notes” means promissory notes of the
Borrower, substantially in the form of Exhibit I
hereto, evidencing the obligation of the Borrower to repay Negotiated Rate
Loans made by Designated Banks, as the same may be amended, supplemented,
modified or restated from time to time, and “Designated Bank Note” means any
one of such promissory notes issued under Section 13.1(h).


 


“Designating Lender” shall have the meaning set forth in Section 13.1(h).


 


“Designation Agreement” means a designation agreement,
substantially in the form of Exhibit J,
entered into by a Lender and a Designated Bank and accepted by the
Administrative Agent.


 


“DOL” means the United States Department of
Labor and any Person succeeding to the functions thereof.


 


“Dollar Equivalent” means, on any particular
date, with respect to any amount denominated in Dollars, such amount in
Dollars, and with respect to any amount denominated in any Optional Currency,
the amount (as conclusively ascertained by the Administrative Agent absent
manifest error) of Dollars which could be purchased by the Administrative Agent
(in accordance with its normal banking practices) in the London foreign
currency deposit market with such amount of currency at the spot rate of
exchange prevailing at or about 11:00 a.m. (London time) on such date.


 


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


 


“Domestic Lending Office” means, with respect
to any Lender, such Lender’s office specified as the “Domestic Lending Office,”
under its name on the signature pages hereof or on the Assignment and
Acceptance by which it became a Lender or such other United States office of
such Lender as it may from time to time specify by written notice to the
Borrower and the Administrative Agent.


 


15





















 


“EBITDA” means, for any period of
determination, earnings before interest, taxes, depreciation and amortization
(positive or negative), net of any gains or losses from any foreign currency
contracts.


 


“Eligible Assignee” means (i) a Lender or
any Affiliate thereof; (ii) a commercial bank having total assets in
excess of $5,000,000,000; (iii) the central bank of any country which is a
member of the Organization for Economic Cooperation and Development; or (iv) a
finance company or other financial institution reasonably acceptable to the
Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $500,000,000 or is
otherwise acceptable to the Administrative Agent.


 


“Environmental, Health or Safety Requirements of
Law” means all Requirements of Law derived from or relating to any federal,
state or local law, ordinance, rule, regulation, Permit, license or other
binding determination of any Governmental Authority relating to, imposing
liability or standards concerning, or otherwise addressing the environment,
health and/or safety, including, but not limited to the Clean Air Act, the
Clean Water Act, CERCLA, RCRA, any so-called “Superfund” or “Superlien” law,
the Toxic Substances Control Act and OSHA, and public health codes, each as
from time to time in effect, in each case as applicable to the Borrower or its
Property.


 


“Environmental Lien” means a Lien in favor of
any Governmental Authority for any (i) liabilities under any
Environmental, Health or Safety Requirement of Law, or (ii) damages
arising from, or costs incurred by such Governmental Authority in response to,
a Release or threatened Release of a Contaminant into the environment.


 


“Environmental Property Transfer Act” means any
applicable Requirement of Law that conditions, restricts, prohibits or requires
any notification or disclosure triggered by the transfer, sale, lease or
closure of any Property or deed or title for any Property for environmental
reasons, including, but not limited to, any so-called “Environmental Cleanup
Responsibility Act” or “Responsible Property Transfer Act”.


 


“Equipment” means equipment which is personal
property used in connection with the maintenance of Properties.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, 29 U.S.C. §§ 1000 et  seq., any
amendments thereto, any successor statutes, and any regulations or guidance
having the force of law promulgated thereunder.


 


“ERISA Affiliate” means (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Internal Revenue Code)
as the Borrower; (ii) a partnership or other trade or business (whether or
not incorporated) which is under common control (within the meaning of Section 414(c) of
the Internal Revenue Code) with the Borrower; and (iii) a member of the
same affiliated service group (within the meaning of Section 414(m) of the
Internal Revenue Code) as the Borrower, any corporation described in clause (i) above
or any partnership or trade or business described in clause (ii) above.


 


“ERISA Termination Event” means (i) a
Reportable Event with respect to any Benefit Plan; (ii) the withdrawal of
the Borrower or any ERISA Affiliate from a Benefit Plan during a plan year in
which the Borrower or such ERISA Affiliate was a “substantial employer” as
defined in Section 4001(a)(2) of ERISA or the cessation of operations
which results in the termination of employment of 20% of Benefit Plan
participants who are employees of the Borrower or TMC or any ERISA Affiliate; (iii) the
imposition of an obligation on the Borrower or TMC or any ERISA Affiliate under
Section 4041 of ERISA to provide affected parties written notice of intent
to terminate a Benefit Plan in a distress termination


 


16





















 


described in Section 4041(c) of
ERISA; (iv) the institution by the PBGC of proceedings to terminate a
Benefit Plan; (v) any event or condition which constitutes grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Benefit Plan; or (vi) the partial or complete withdrawal of the
Borrower or TMC or any ERISA Affiliate from a Multiemployer Plan.


 


“EURIBOR Rate” means, as applicable to any
Interest Period for any Eurocurrency Rate Loan denominated in Euros, the rate
of interest equal to (a) the per annum rate as determined by the
Administrative Agent on the basis of offered rates for deposits in Euros for
the period of time comparable to such Interest Period that appears on the
Reuters Screen EURIBOR01 as of 11:00 a.m. (Brussels time) on the date that
is two (2) TARGET Settlement Days preceding the first day of such Interest
Period; provided, however, if such
rate described above does not appear on the Reuters Screen EURIBOR01 on any
applicable determination date, the EURIBOR Rate shall be the rate equal to the
arithmetic mean determined by the Administrative Agent (rounded upwards to the
nearest 0.01%) of the rates per annum at which deposits in Euros are offered by
three (3) major banks in the Eurocurrency Interbank Market at
approximately 11:00 a.m. (London time) on the day that is two (2) TARGET
Settlement Days preceding the first day of such Interest Period to other
leading banks in the Eurocurrency Interbank Market at which deposits in Euros
are offered, adjusted for reserves, divided by
(b) a number equal to 1.00 minus the
Reserve Percentage, if applicable.


 


“Euro” or “€” means the euro referred to
in the Council Regulation (EC) No. 1103/97 dated 17 June 1997 passed
by the Council of the European Union, or, if different, the then lawful
currency of the member states of the European Union that participate in the
third stage of the Economic and Monetary Union.


 


“Eurocurrency Affiliate” means, with respect to
each Lender, the Affiliate of such Lender (if any) set forth below such Lender’s
name under the heading “Eurocurrency Affiliate” on the signature pages hereof
or on the Assignment and Acceptance by which it became a Lender or such
Affiliate of a Lender as it may from time to time specify by written notice to
the Borrower and the Administrative Agent.


 


“Eurocurrency Interbank Market” means any
lawful recognized market in which deposits of Dollars and the relevant Optional
Currency are offered by international banking units of United States banking
institutions and by foreign banking institutions to each other and in which
foreign currency and exchange operations or eurocurrency funding operations are
customarily conducted.


 


“Eurocurrency Lending Office” means, with
respect to any Lender, such Lender’s office (if any) specified as the “Eurocurrency
Lending Office” under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other office or
offices of such Lender as it may from time to time specify by written notice to
the Borrower and the Administrative Agent.


 


“Eurocurrency Negotiated Rate Loan” means a
Negotiated Rate Loan bearing interest calculated by reference to the
Eurocurrency Rate.


 


“Eurocurrency Rate” means (a) with respect
to amounts denominated in Dollars, the LIBOR Rate, (b) with respect to
amounts denominated in Euros, the EURIBOR Rate, and (c) with respect to
amounts denominated in any other Optional Currency other than the Euro, the
International Eurocurrency Rate.


 


“Eurocurrency Rate Loan” means a Loan
(including a Eurocurrency Negotiated Rate Loan) bearing interest calculated by
reference to the Eurocurrency Rate.


 


17





















 


“Eurocurrency Revolving Credit Loan” means a
Revolving Credit Loan bearing interest calculated by reference to the
Eurocurrency Rate.


 


“Eurocurrency Term Loan” means a Term Loan (or
portion thereof) bearing interest calculated by reference to the Eurocurrency
Rate.


 


“Event of Default” means any of the occurrences
set forth in Section 10.1 after the expiration of any applicable
grace period and the giving of any applicable notice, in each case as expressly
provided in Section 10.1.


 


“Existing Revolving Agreement” is defined in
the recitals.


 


“Existing Term Loan Agreement” means the Credit
Agreement, dated as of May 20, 2002, among the Borrower, Bayerische Hypo-
Und Vereinsbank, AG, acting by and through its New York Branch, as agent,
co-lead arranger and bookrunner, and Commerzbank AG, New York Branch, as
documentation agent and co-lead arranger, and the other lenders party thereto,
as the same may be amended, modified or restated.


 


“Facility Fee” is defined in Section 4.3(a).


 


“Facility Fee Rate” means the respective
percentages per annum determined based on the range into which the Leverage
Ratio, as evidenced by the most recent Compliance Certificate delivered
pursuant to Section 5.1 or Section 7.2, as applicable,
then falls, in accordance with the following table.  If a Compliance Certificate required in Section 7.2
hereof has not been delivered by the date such certificates are required to be
delivered to Administrative Agent, then from the date the applicable
information is required until the date the applicable information has been duly
delivered, the greatest Facility Fee Rate set forth below shall be deemed to
apply.


 


	
  Leverage Ratio

  	
   

  	
  Facility Fee Rate

  (% per annum)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  less than
  50%

  	
   

  	
  0.200%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  50% to less
  than 55%

  	
   

  	
  0.225%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  55% to less
  than 60%

  	
   

  	
  0.225%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  60% or
  greater

  	
   

  	
  0.250%

  	
   

  



 


“Federal Funds Rate” means, for any day, the
rate per annum 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, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent.


 


18





















 


“Federal Reserve Board” means the Board of
Governors of the Federal Reserve System or any Governmental Authority
succeeding to its functions.


 


“Fee Letter” means the Fee Letter, dated as of December 14,
2004, between the Borrower, JPMCB and J.P. Morgan Securities Inc.


 


“FFO” means net income, as determined in
accordance with GAAP, excluding gains (or losses) from debt restructuring,
sales of property (except Recurring Land Sales) and foreign currency exchange
rate changes (whether or not associated with a foreign currency contract), plus
depreciation and amortization, and after adjustments for unconsolidated
partnerships and joint ventures (which will be calculated to reflect funds from
operations on the same basis).


 


“Financial Statements” means (i) quarterly
and annual Consolidated statements of income and retained earnings, statements
of cash flow, and balance sheets, (ii) such other financial statements as
the Borrower shall routinely and regularly prepare and publish on a quarterly
or annual basis, and (iii) such other regularly prepared financial
statements of the Consolidated Businesses or Minority Holdings as the
Administrative Agent or the Requisite Lenders may from time to time reasonably
specify; provided, however, that the Financial Statements
referenced in clauses (i) and (ii) above shall be prepared in form
reasonably satisfactory to the Administrative Agent.


 


“Fiscal Year” means the fiscal year of the
Borrower for accounting and tax purposes, which shall be the 12-month
period ending on December 31 of each calendar year.


 


“Fixed Charges” means, for the immediately
preceding consecutive four fiscal quarters, the sum of (a) Combined
Interest Expense and (b) the aggregate of all scheduled principal payments
on Total Adjusted Outstanding Indebtedness according to GAAP made or required
to be made during such fiscal period for the Consolidated Businesses and
Minority Holdings (but excluding balloon payments of principal due upon the
stated maturity of an Indebtedness), and (c) the aggregate of all
dividends payable on the preferred stock of the Consolidated Businesses not
owned by the Borrower or any of its Affiliates.


 


“Fixed Rate” means, with respect to any
Negotiated Rate Loan (other than a Eurocurrency Negotiated Rate Loan), the
fixed rate of interest per annum specified by the Lender making such Negotiated
Rate Loan in its related Negotiated Rate Quote.


 


“Fixed Rate Loan” means a Negotiated Rate Loan
bearing interest at a Fixed Rate.


 


“Fleet” means Fleet National Bank or any
successor thereto.


 


“Fleet Letters of Credit” is defined in Section 2.4(a).


 


“Funding Date” means, with respect to any Loan,
the date of funding of such Loan.


 


“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the American
Institute of Certified Public Accountants’ Accounting Principles Board and
Financial Accounting Standards Board or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession as in effect on the Closing Date (unless otherwise specified herein
as in effect on another date or dates).


 


“Governmental Approval” means all right, title
and interest in any existing or future certificates, licenses, permits,
variances, authorizations and approvals issued by any Governmental Authority
having jurisdiction with respect to any Property.


 


19





















 


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


 


“Group” means TMC, the Borrower and/or their
Subsidiaries.


 


“Guaranty” means that certain Second Amended
and Restated Guaranty, dated as of even date herewith, made by TMC in favor of
the Administrative Agent, as agent for the Lenders, guaranteeing the payment
and performance of the Obligations of the Borrower hereunder, substantially in
the form of Exhibit H attached hereto
and made a part hereof .


 


“Holder” means any Person entitled to enforce
any of the Obligations, whether or not such Person holds any evidence of
Indebtedness, including, without limitation, the Administrative Agent and each
other Lender.


 


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


 


“Indebtedness” means, as applied to any Person
at any time without duplication, (a) all indebtedness, obligations or
other liabilities of such Person (whether consolidated or representing the
proportionate interest in any other Person) (i) for borrowed money
(including construction loans) or evidenced by debt securities, debentures,
acceptances, notes or other similar instruments, and any accrued interest, fees
and charges relating thereto, (ii) under profit payment agreements that
are not contingent or in respect of obligations to redeem, repurchase or
exchange any Securities of such Person or agreements to pay dividends in
respect of any stock (excluding any ordinary declaration of a dividend or
exchange of Securities for replacement Securities), (iii) with respect to
letters of credit or bankers’ acceptances issued for such Person’s account, (iv) to
pay the deferred purchase price of acquired property or rendered services,
except accounts payable and accrued expenses arising in the ordinary course of
business, (v) in respect of Capital Leases or “synthetic leases”, or (vi) which
are Contingent Obligations; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are
assumed by such Person; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts, foreign
exchange contracts and derivatives contracts (but excluding interest rate and
foreign exchange contracts entered into in the ordinary course of business for
the purpose of hedging or locking interest rates or foreign currency exchange
rates with respect to outstanding project-related financings that are (1) non-recourse
to the Borrower, TMC or the Consolidated Businesses, or (2) recourse to
the Borrower, TMC or the Consolidated Businesses, to the extent that such
recourse obligations in the aggregate do not exceed two percent (2%) of the
then outstanding Indebtedness of the Borrower, TMC and the Consolidated
Businesses), net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any
contingency or otherwise) to mandatory redemption, excluding any Series A Preferred Interests prior to the sale,
waiver, release, termination or other cancellation by the holders of the Series A
Preferred Interests of their option to convert the Series A Preferred
Interests to common equity of TMC or Borrower; and (e) all
Contingent Obligations with respect to any of the foregoing; provided, however,
that Indebtedness shall not include any indebtedness attributable to the CVS
Portfolio; and provided further that Indebtedness shall not include any
obligation of TMC or Borrower to redeem any interest of KanAm in any Minority
Holding until such time as such obligation is triggered.


 


20





















 


“Indemnified Matters” is defined in Section 13.3.


 


“Indemnitees” is defined in Section 13.3.


 


“Initial Funding Date” means the date on or
after the Closing Date, but in no event after January 15, 2005, on which
all of the conditions described in Section 5.1 have been satisfied
(or waived) in a manner satisfactory to the Administrative Agent and on which
the initial Loans under this Agreement are made by the Lenders to the Borrower.


 


“Internal Revenue Code” means the Internal
Revenue Code of 1986, as amended to the date hereof and from time to time
hereafter, any successor statute and any regulations or guidance having the
force of law promulgated thereunder.


 


“Interest Period” means, (a) with respect
to any Negotiated Rate Loan, the period commencing on the Funding Date of such
Loan and ending on the last day of one of the following periods, as selected by
the Borrower in an accepted Negotiated Rate Quote or as otherwise required by
the terms of this Agreement, 1, 2, 3, or 6 months, and (b) with respect to
each Eurocurrency Rate Loan (other than a Eurocurrency Negotiated Rate Loan), (i) initially,
the period commencing on the Funding Date of such Loan and ending on the last
day of one of the following periods, as selected by the Borrower in a Notice of
Borrowing or as otherwise required by the terms of this Agreement (A) for
any Eurocurrency Rate Loan other than a LIBOR Rate Loan, 1, 2, or 3 months, or
6 months if approved by and available from all Lenders with Revolving Credit
Tranche B Commitments; or (B) for any LIBOR Rate Loan, 1, 2, 3, or 6
months, one week with the approval of all Lenders, or one year if available
from all Lenders; provided that the Borrower may, on up to five (5) occasions
per year without the approval of the Lenders, request an Interest Period of one
week for Revolving Credit Loans or the Term Loan in order to consolidate LIBOR
Rate Loans; and (ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Loan and ending on the
last day of one of the periods set forth above, as selected by the Borrower in
a Notice of Conversion/Continuation; provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:


 


(1)                                   if any Interest Period with respect to a
Eurocurrency Rate Loan or Negotiated Rate Loan would otherwise end on a day
that is not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;


 


(2)                                   any Interest Period relating to any
Eurocurrency Rate Loan (other than one (1) week LIBOR Rate Loans) or to
any Negotiated Rate Loan 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 end on the last
Business Day of a calendar month; and


 


(3)                                   the Borrower may not select an Interest
Period that terminates beyond (x) the Revolving Credit Termination Date with
respect to Revolving Credit Loans and (y) the Term Loan Maturity Date with
respect to the Term Loan.


 


“Interest Rate Determination Date” is defined
in Section 4.2(c).


 


“International Eurocurrency
Rate” means, as
applicable to any Interest Period for a Eurocurrency Rate Loan denominated in
any Optional Currency other than Euros, the rate of interest equal to (a) the
rate per annum as determined by the Administrative Agent on the basis of
offered rates for deposits in


 


21





















 


such Optional Currency
other than Euros for the period of the time comparable to such Interest Period
that appears on Reuters Screen FRBD or the applicable Reuters Screen for such
Optional Currency as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period, and having a maturity
equal to such Interest Period, provided,
however, (i) if Reuters Screen FRBD or the applicable Reuters Screen
for such Optional Currency is not available to the Administrative Agent for any
reason, the applicable International Eurocurrency Rate for the relevant
Eurocurrency Interest Period shall instead be the applicable British Bankers’
Association Interest Settlement Rate for deposits in the applicable Optional
Currency as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, and (ii) if no such British Bankers’ Association Interest
Settlement Rate is available, the applicable International Eurocurrency Rate
for the relevant Interest Period shall be the rate determined by the
Administrative Agent, as the rate at which the Administrative Agent offers to
place deposits in the applicable Optional Currency with other major banks in the
London interbank market at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of such Interest Period, in the approximate amount
of JPMCB’s relevant Eurocurrency Rate Loan and having a maturity equal to such
Eurocurrency Interest Period, divided by (b) a number equal to 1.00 minus
the Reserve Percentage, if applicable.


 


“Investment” means, with respect to any Person,
(i) any purchase or other acquisition by such Person of Securities, or of
a beneficial interest in Securities, issued by any other Person, (ii) any
purchase by such Person of all or substantially all of the assets of a business
conducted by another Person, and (iii) any loan, advance (other than
deposits with financial institutions available for withdrawal on demand,
prepaid expenses, accounts receivable, advances to employees and similar items
made or incurred in the ordinary course of business) or capital contribution by
such Person to any other Person, including all Indebtedness to such Person
arising from a sale of property by such Person other than in the ordinary
course of its business.  The amount of
any Investment shall be the original cost of such Investment, plus the cost of
all additions thereto less the amount of any return of capital or principal to
the extent such return is in cash with respect to such Investment without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.


 


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


 


“IRS” means the Internal Revenue Service and
any Person succeeding to the functions thereof.


 


“Issuing Lender” means, as the context may
require (i) Fleet, in its capacity as the issuer of the Fleet Letters of
Credit or (ii) JPMCB, in its capacity as the Lender with a commitment to
issue Letters of Credit hereunder.  In
the event that the credit rating of JPMCB shall not be sufficient to satisfy
the credit requirements of the beneficiary of a Letter of Credit,
Administrative Agent and Borrower may request that a Co-Syndication Agent or a
Co-Documentation Agent having the required credit rating issue such Letter of
Credit, and any such Person, if it elects to issue such Letter of Credit, shall
also be an Issuing Lender.


 


“KanAm” means KanAm US, Inc. and all of
its Subsidiaries and Affiliates.


 


“knowledge” with reference to any member of the
Group, means the actual knowledge of an executive officer of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Borrower or such
Subsidiary of the Borrower, as applicable, deems reasonably necessary).


 


22





















 


“Lease” means a lease, license, concession
agreement or other agreement providing for the use or occupancy of any portion
of any Real Property, including all amendments, supplements, modifications and
assignments, thereof and all side letters or side agreements relating thereto.


 


“Lender” means each of Administrative Agent and
each financial institution a signatory hereto as a Lender as of the Closing
Date and, at any other given time, each financial institution which is a party
hereto as a Lender, whether as a signatory hereto or pursuant to an Assignment
and Acceptance, and regardless of the capacity in which such entity is acting
(i.e. whether as Administrative Agent or Lender).  The Issuing Lender and the Swing Lender shall
each be a Lender, as applicable.


 


“Letter of Credit” means any standby letter of
credit issued at the request of the Borrower and for the account of the
Borrower in accordance with Section 2.4 hereof, including the
letters of credit listed on Schedule 2.4.


 


“Letter of Credit Obligations” means the sum,
as of any date of determination, of the Tranche A Letter of Credit Obligations
and the Tranche B Letter of Credit Obligations.


 


“Letter of Credit Request” means a request
substantially in the form of Exhibit E
attached hereto and made a part hereof.


 


“Leverage Ratio” means the ratio, expressed as
a percentage, of the Total Adjusted Outstanding Indebtedness to the
Capitalization Value.


 


“Liabilities and Costs” means all liabilities,
obligations, responsibilities, losses, damages, personal injury, death,
punitive damages, economic damages, consequential damages, treble damages,
intentional, willful or wanton injury, damage or threat to the environment,
natural resources or public health or welfare, costs and expenses (including,
without limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or Remedial Action studies), fines, penalties and
monetary sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.


 


“LIBOR Business Day” means a day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in the London Interbank Market.


 


“LIBOR Rate” means, with respect to any LIBOR
Rate Loan for any Interest Period, the rate appearing on “Telerate Page 3750”
(or on any successor or substitute page of such service, or any successor
to or substitute for such service, providing rate quotations comparable to
those currently provided on such page, as determined by the Administrative
Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period.  In the event that
such rate is not available at such time for any reason, then the “LIBOR Rate”
with respect to such LIBOR Rate Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000, and for a maturity comparable to
such Interest Period, are offered by the principal London offices of the
Administrative Agent and Bank of America, N.A. in immediately available funds in
the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period (determined by
requesting quotes from both such banks and taking the arithmetic average of
such quotes; provided that if the Bank of America, N.A. quote is
unavailable to the Administrative Agent, then the “LIBOR Rate” shall be the
rate offered by the principal London office of the Administrative Agent).  In the event that the Board of Governors of
the Federal Reserve System shall impose a Reserve Percentage with respect to
LIBOR deposits of the Administrative Agent, then for any


 


23





















 


period during which such
Reserve Percentage shall apply, the LIBOR Rate shall be equal to the amount
determined above divided by an amount equal to 1 minus the Reserve Percentage.


 


“LIBOR Rate Loan” means a Loan which bears
interest at a rate determined by reference to the LIBOR Rate and the Applicable
Margin for Eurocurrency Rate Loans, as provided in Section 4.1(a).


 


“Lien” means any mortgage, deed of trust,
pledge, hypothecation, assignment, conditional sale agreement, deposit
arrangement, security interest, encumbrance, lien (statutory or other and
including, without limitation, any Environmental Lien), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever in respect of any property of a Person (that has the practical
effect of creating a security interest in respect of such asset), whether
granted voluntarily or imposed by law, and includes the interest of a lessor
under a Capital Lease or under any financing lease having substantially the
same economic effect as any of the foregoing.


 


“Limited Minority Holdings” means Minority
Holdings in which (i) the Borrower, individually or together with its
Affiliates, has less than a 25% economic interest or (ii) the Borrower,
individually or together with its Affiliates, has not less than a 25%, nor more
than a 50%, economic interest and does not control or share with its Affiliates
or other Person by contract control of 
the management of such Minority Holdings, whether as the general partner
or managing member of such Minority Holding, or otherwise.  As used in this definition only, the term “control”
shall mean, in accordance with GAAP, the authority to make major management
decisions or the management of day-to-day operations of such entity and shall
include instances in which the Borrower manages the day-to-day leasing,
management, control or development of the Properties of such Minority Holding
pursuant to the terms of a management agreement.


 


“Limited Partners” means those Persons who from
time to time are limited partners of the Borrower; and “Limited Partner”
means each of the Limited Partners, individually.


 


“Loan” means (a) a Revolving Credit Loan,
a Swing Loan or the Term Loan made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Conversion/Continuation, the
term “Loan” shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be, or (b) a Negotiated Rate Loan made by a
Lender pursuant to Section 2.7.


 


“Loan Account” is defined in Section 3.3(b).


 


“Loan Documents” means this Agreement, the
Notes, the Guaranty, any Letter of Credit Requests, any Negotiated Rate Quote
Requests, any Notices of Borrowing and all other instruments, agreements and
written Contractual Obligations between the Borrower and any of the Lenders
pursuant to or in connection with the transactions contemplated hereby.


 


“Management Fees” means for a specified period,
all amounts recorded by the Group, or its pro-rata share received through
Minority Holdings (which are not consolidated in accordance with GAAP), as
management fees.


 


“Mandatory Costs” means, with respect to any
Lender or the Administrative Agent, any cost of compliance by such Lender or
the Administrative Agent with (a) the requirements of the Bank of England
and/or the Financial Services Authority, the independent financial services
regulatory agency of the United Kingdom, (or, in either case, any other
authority which replaces all or any of its functions) and/or (b) the
requirements of the European Central Bank.


 


24





















 


“Margin” means, with respect to any
Eurocurrency Negotiated Rate Loan, the marginal rate of interest, if any, to be
added to or subtracted from the applicable Eurocurrency Rate to determine the
rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Negotiated Rate Quote.


 


“Margin Stock” means “margin stock” as such
term is defined in Regulation U.


 


“Material Adverse Effect” means a material
adverse effect upon (i) the financial condition or assets of TMC, the
Borrower and their respective Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the ability of the Lenders or the Administrative Agent to enforce
any of the Loan Documents.


 


“Maximum Revolving Credit Amount” means, at any
particular time, the aggregate amount of the Revolving Credit Commitments at
such time.


 


“Minority Holdings” means partnerships, joint
ventures, corporations, limited liability companies or other business
associations held or owned directly or indirectly by the Borrower which are not
directly or indirectly wholly-owned by the Borrower.


 


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


 


“Multiemployer Plan” means a “multiemployer
plan” as defined in Section 3(37) of ERISA which is, or within the
immediately preceding six (6) years was, contributed to by either the
Borrower or any ERISA Affiliate or in respect of which the Borrower or any
ERISA Affiliate has assumed any liability.


 


“Negotiated Rate” means, with respect to any
Negotiated Rate Quote, the Margin or the Fixed Rate, as applicable, offered by
the Lender making such Negotiated Rate Quote.


 


“Negotiated Rate Loan” means a Loan made
pursuant to Section 2.7.


 


“Negotiated Rate Quote” means an offer by a
Lender to make a Negotiated Rate Loan in accordance with Section 2.7,
substantially in the form of Exhibit G.


 


“Negotiated Rate Quote Request” means a request
by the Borrower for Negotiated Rate Quotes in accordance with Section 2.7,
substantially in the form of Exhibit F.


 


“Non Pro Rata Loan” is defined in Section 3.2(b)(v).


 


“Note” or “Notes” means the Revolving
Credit Notes, the Term Loan Notes, any promissory notes issued to the Lenders
to evidence Negotiated Rate Loans made by Lenders, the Designated Bank Notes,
and any promissory notes issued to the Swing Lender, individually or
collectively, as appropriate.


 


“Notice of Borrowing” means a notice substantially
in the form of Exhibit C
attached hereto and made a part hereof.


 


“Notice of Conversion/Continuation” means a
notice substantially in the form of Exhibit D
attached hereto and made a part hereof with respect to a proposed conversion or
continuation of a Loan pursuant to Section 4.l(c).


 


25





















 


“Obligations” means all Loans, advances, debts,
liabilities, obligations, reimbursement obligations relating to Letters of
Credit, covenants and duties owing by the Borrower to the Administrative Agent,
any other Lender, any Affiliate of the Administrative Agent, any other Lender,
or any Person entitled to indemnification pursuant to Section 13.3
of this Agreement, of any kind or nature, arising under this Agreement, the
Notes or any other Loan Document.  The
term includes, without limitation, all interest, charges, expenses, fees,
reasonable attorneys’ fees and disbursements and any other sum chargeable to
the Borrower under this Agreement or any other Loan Document.


 


“Officer’s Certificate” means, as to a
corporation, a certificate executed on behalf of such corporation by the
chairman of its board of directors (if an officer of such corporation) or its
chief executive officer, president, any of its vice-presidents, its chief
financial officer, its chief operating officer, its chief accounting officer,
or its treasurer and, as to a partnership, a certificate executed on behalf of
such partnership by the chairman of the board of directors (if an officer of
such corporation) or chief executive officer, president, any vice-president,
chief financial officer, chief operating officer, chief accounting officer, or
treasurer of the general partner of such partnership.


 


“OP Units” means any class or series of
partnership interests of the Borrower now or hereafter authorized, issued or
outstanding.


 


“Optional  Currency” means Euros or
Sterling, so long as (a) (i) such currency is readily available to
all Lenders and is freely transferable and freely convertible to Dollars and (ii) Telerate
(or any successor thereto) reports Eurocurrency interbank rates for such
currency for the relevant Interest Period, and (b) such currency is
requested by the Borrower.


 


“Original Agreement” is defined in the
recitals.


 


“Original Term Loan Agreement” is defined in
the recitals.


 


“Organizational Documents” means, with respect
to any corporation, limited liability company, or partnership (i) the
articles/certificate of incorporation, formation or limited partnership (or the
equivalent organizational documents) of such corporation or limited liability
company or limited partnership, (ii) the operating agreement executed by
the members in the limited liability company or the partnership agreement
executed by the partners in the partnership, (iii) the by-laws (or the
equivalent governing documents) of the corporation, limited liability company
or partnership, and (iv) any document setting forth the designation,
amount and/or relative rights, limitations and preferences of any class or
series of such corporation’s Capital Stock or such limited liability company’s
or partnership’s equity or ownership interests.


 


“OSHA” means the Occupational Safety and Health
Act of 1970, 29 U.S.C. §§ 651 et  seq., any amendments
thereto, any successor statutes and any regulations or guidance having the
force of law promulgated thereunder.


 


“Other Asset” means for any member of the
Group, (i) any other asset (but without duplication of other assets
included in Capitalization Value) which is included in the Consolidated balance
sheet of the Group and is not a Construction Asset, a Redevelopment Asset, an
Acquisition Asset, a Regional Mall Asset, or an income producing real estate
asset and (ii) the Borrower’s pro-rata share (determined in accordance
with GAAP) of any other assets that are not on the Consolidated balance sheet
of the Group, such as those owned through Minority Holdings which are not
Consolidated in accordance with GAAP and are not a Construction Asset, a
Redevelopment Asset, an Acquisition Asset, a Regional Mall Asset, or an income
producing real estate asset.


 


26





















 


“Other Assets at Cost” means, individually or
in the aggregate, the book value or historical cost of Other Assets plus
Construction Assets at Cost.


 


“Other Operations” means, for a specified
period, (i) all amounts recorded by the Group as EBITDA for such period in
accordance with GAAP, or the Group’s pro-rata share of EBITDA for such period
received through Minority Holdings (which are not consolidated in accordance
with GAAP), minus (without duplication) (ii) the
aggregate amounts of Service Revenues, Annual EBITDA, Recurring Land Sales, and
Management Fees that are included in such amounts of EBITDA for such period.


 


“PBGC” means the Pension Benefit Guaranty
Corporation and any Person succeeding to the functions thereof.


 


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


 


“Permitted Disposition” means the sale of any
direct or indirect beneficial interest in a Subsidiary or Minority Holding so
long as (i) no Event of Default shall have occurred and be continuing, (ii) such
transfer (or series of transfers) of partnership or membership interests in any
Subsidiary or Minority Holding shall not result in Borrower owning less than
25% of the interest held by Borrower in such Person as of the Closing Date, (iii) such
transfer (or series of transfers) shall not result in Borrower transferring
more than 49% of its general partner or managing member interest in any
Subsidiary or Minority Holding, and (iv) Borrower shall maintain control
over all material decisions with respect to such Subsidiary or Minority
Holding.  For purposes of this
definition, Borrower shall be deemed to control a Subsidiary or Minority
Holding if Borrower has the ability to exercise a buy-sell right in the event
of a disagreement regarding the sale, financing of or other material decision
with respect to, the Property owned by such Subsidiary or Minority Holding.


 


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


 


“Person” means any natural person, corporation,
limited liability company, limited partnership, general partnership, joint
stock company, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, and any Governmental Authority.


 


“Plan” means an “employee benefit” plan defined
in Section 3(3) of ERISA (other than a Multiemployer Plan) in respect
of which the Borrower or any ERISA Affiliate is, or within the immediately
preceding six (6) years was, an “employer” as defined in Section 3(5) of
ERISA or the Borrower or any ERISA Affiliate has assumed any liability.


 


“Potential Event of Default” means an event
which, with the giving of notice or the lapse of time, or both, would
constitute an Event of Default.


 


“Prepayment Date” is defined in Section 3.1(d).


 


“Process Agent” is defined in Section 13.17(a).


 


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


 


27





















 


“Pro Rata Share” means, with respect to any Lender,
the percentage obtained by dividing (a) with respect to Revolving Credit
Loans, (i) such Lender’s Revolving Credit Commitments, Revolving Credit
Tranche A Commitments or Revolving Credit Tranche B Commitments, as applicable
(in each case, as adjusted from time to time in accordance with the provisions
of this Agreement or any Assignment and Acceptance to which such Lender is a
party) by (ii) the aggregate amount of all of the Lenders’ Revolving
Credit Commitments, Revolving Credit Tranche A Commitments or Revolving Credit
Tranche B Commitments, as applicable or (b) with respect to the Term Loan
(x) prior to the making of the Term Loan or the expiration of the Term Loan
Commitments, the percentage set forth on Schedule 1.1-A
and (y) after the Initial Funding Date, the percentage obtained by dividing (A) the
aggregate amount of such Lender’s Term Loans (as may be adjusted from time to
time in accordance with the provisions of this Agreement or any Assignment and
Acceptance to which such Lender is a party), by (B) the aggregate amount
of all of the Lenders’ Term Loans.


 


“RCRA” means the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. §§ 6901 et  seq., any
amendments thereto, any successor statutes, and any regulations or guidance
having the force of law promulgated thereunder.


 


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


 


“Recurring Land Sales” means sales of
outparcels and/or pad sales.


 


“Redevelopment Asset” means any Property (other
than an Acquisition Asset) that is being redeveloped if the expected cost of
redevelopment improvements exceeds 25% of the Capitalization Value of such
Property immediately prior to such redevelopment.  A Redevelopment Asset shall cease to be a
Redevelopment Asset at the beginning of the fiscal quarter immediately
following the earliest to occur of (i) eighteen (18) months from the date
of completion (as evidenced by a certificate of occupancy permitting use of
such Property by the general public), (ii) such Property achieving a 90%
occupancy rate (determined on the basis of square footage after redevelopment
improvements leased to tenants paying rent) and (iii) the Borrower
notifying the Administrative Agent of its election to no longer treat such
Property as a Redevelopment Asset.


 


“Redevelopment Commencement Date” means, with
respect to any Redevelopment Asset or Acquisition Asset Under Redevelopment,
the date on which construction of redevelopment improvements to the subject
Property has commenced.


 


“Redevelopment Cost” means, with respect to any
Redevelopment Asset, the aggregate sums expended on the construction of such
improvements including land acquisition costs; provided that for
purposes of making any calculation under this Agreement, “Redevelopment Cost”
of Redevelopment Assets held by Minority Holdings that are not Consolidated in
accordance with GAAP (such as those held in a joint venture format) will be
equal to (without duplication) the sum of (a) the Borrower’s contributed


 


28





















 


equity, (b) the
Borrower’s pro-rata share of debt from items that are not Consolidated in
accordance with GAAP, (c) the Borrower’s Contingent Obligations related to
items that are not Consolidated in accordance with GAAP, to the extent not
redundant with clause (b), plus (d) any (non-Borrower) co-venturer’s
equity in such items that are not Consolidated in accordance with GAAP to the
extent that such co-venturer’s share of debt was included in the calculation of
the Borrower’s Total Adjusted Outstanding Indebtedness.


 


“Redevelopment EBITDA” is defined in the
definition of Capitalization Value.


 


“Refunded Swing Loans” has the meaning set
forth in Section 2.1(c)(iii).


 


“Refunding Date” has the meaning as set forth
in Section 2.1(c)(iv).


 


“Regional Mall Assets” means the Properties set
forth on Schedule 1.1-C
attached hereto and other similar properties with (i) two or more
traditional anchor tenants, each of which has a long term lease or is the owner
of the site upon which the anchor tenant is located and (ii) gross
leaseable space in excess of 500,000 square feet; provided, that for the
purposes of calculating Capitialization Value hereunder, such other assets must
be approved as Regional Mall Assets by the Administrative Agent.


 


“Register” is defined in Section 13.1(c).


 


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


 


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


 


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


 


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


 


“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.


 


“Release” means any release, spill, emission,
leaking, pumping, pouring, dumping, injection, deposit, disposal, abandonment,
or discarding of barrels, containers or other receptacles, discharge, emptying,
escape, dispersal, leaching or migration into the indoor or outdoor environment
or into or out of any Property, including the movement of Contaminants through
or in the air, soil, surface water, groundwater or Property.


 


“Remedial Action” means actions required to (i) clean
up, remove, treat or in any other way address Contaminants in the indoor or
outdoor environment; (ii) prevent the Release or threat of Release or
minimize the further Release of Contaminants; or (iii) investigate and
determine if a remedial response is needed and to design such a response and
post-remedial investigation, monitoring, operation and maintenance and care.


 


“Reportable Event” means any of the events
described in Section 4043(c) of ERISA and the regulations having the
force of law promulgated thereunder as in effect from time to time but not
including any such event as to which the thirty (30) day notice requirement has
been waived by applicable PBGC regulations.


 


“Requirements of Law” means, as to any Person,
the Organizational Documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental


 


29





















 


Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject including, without limitation,
the Securities Act, the Securities Exchange Act, Regulations T, U and X, ERISA,
the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification
Act, Americans with Disabilities Act of 1990, and any certificate of occupancy,
zoning ordinance, building, environmental or land use requirement or Permit and
Environmental, Health or Safety Requirement of Law.


 


“Requisite Lenders” means Lenders whose
aggregate Revolving Credit Commitments and outstanding principal amount of the
Term Loan are equal to or greater than sixty-six and two thirds percent (66-2/3%)
of the Revolving Credit Commitments and outstanding principal amount of the
Term Loan of all Lenders; provided, however, that, in the event
any of the Lenders shall have failed to fund its Pro Rata Share of any Loan
requested by the Borrower or acquire its Pro Rata Share of any Letter of Credit
Obligations which such Lenders are obligated
to fund or acquire under the terms of this Agreement and any such failure has
not been cured as provided in Section 3.2(b)(v)(B), then for so
long as such failure continues, “Requisite Lenders” means Lenders
(excluding all Lenders whose failure to fund their respective Pro Rata Shares
of such Loans or acquire their respective Pro Rata Shares of such Letter of
Credit Obligations have not been so cured) whose aggregate Revolving Credit
Commitments and outstanding principal amount of the Term Loan, are equal to or
greater than sixty-six and two thirds percent (66-2/3%) of the Revolving
Credit Commitments and outstanding principal amount of the Term Loan of such
Lenders; provided, further, however, that, in the event
that the Revolving Credit Commitments have been terminated pursuant to the
terms of this Agreement, “Requisite Lenders” means Lenders (without
regard to such Lenders’ performance of their respective obligations hereunder)
holding at least sixty-six and two-thirds percent (66-2/3%) of the
aggregate outstanding principal balance of all Loans (including Negotiated Rate
Loans) and Letter of Credit Obligations.


 


“Reserve Percentage” means for any day with
respect to a Eurocurrency Rate Loan, the maximum rate (expressed as a decimal)
at which any Lender subject thereto would be required to maintain reserves
(including, without limitation, all base, supplemental, marginal and other
reserves) under Regulation D of the Board of Governors of the Federal Reserve
System (or any successor or similar regulations relating to such reserve
requirements) against “Eurocurrency Liabilities” (as that term is used in
Regulation D or any successor or similar regulation), if such liabilities were
outstanding.  The Reserve Percentage
shall be adjusted automatically on and as of the effective date of any change
in the Reserve Percentage.


 


“Revolving Credit Availability” means, at any
particular time, the amount by which the Maximum Revolving Credit Amount at
such time exceeds the sum of the Revolving Credit Obligations plus the Letter
of Credit Obligations at such time.


 


“Revolving Credit Borrowing” means a Borrowing
of Revolving Credit Tranche A Loans or Revolving Credit Tranche B Loans.


 


“Revolving Credit Commitment” means, with
respect to any Lender, the sum of such Lender’s Revolving Credit Tranche A
Commitment and Revolving Credit Tranche B Commitment and “Revolving Credit
Commitments” means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum amount of which shall be
$1,000,000,000, as increased from time to time pursuant to Section 2.9
or as reduced from time to time pursuant to Section 3.1.


 


“Revolving Credit Loans” means, collectively,
the Revolving Credit Tranche A Loans and the Revolving Credit Tranche B Loans.


 


30





















 


“Revolving Credit Note” means a promissory note
substantially in the form attached hereto as Exhibit B-1
payable to a Lender, evidencing certain of the Revolving Credit Obligations of
the Borrower and executed by the Borrower as required by Section 3.3(a),
as the same may be amended, supplemented, modified or restated from time to
time; “Revolving Credit Notes” means, collectively, all of such
Revolving Credit Notes outstanding at any given time.


 


“Revolving Credit Obligations” means, at any
particular time, the sum of the Dollar Equivalent of outstanding principal
amount of the Revolving Credit Tranche A Obligations and the Revolving Credit
Tranche B Obligations at such time.


 


“Revolving Credit Period” means the period from
the Initial Funding Date to the Business Day next preceding the Revolving
Credit Termination Date.


 


“Revolving Credit Termination Date” means the
earlier to occur of (i) December 15, 2007 (or, if extended by the
Borrower pursuant to Section 2.3, December 15, 2008); provided,
that if the date set forth in this clause (i) is not a Business Day, then
the preceding Business Day); and (ii) the date of termination of the
Revolving Credit Commitments pursuant to the terms of this Agreement.


 


“Revolving Credit Tranche A Availability”
means, at any particular time, the amount by which the Revolving Credit Tranche
A Commitments at such time exceeds the sum of the Revolving Credit Tranche A
Obligations and the Tranche A Letter of Credit Obligations at such time.


 


“Revolving Credit Tranche A Commitment” means,
with respect to any Lender, the obligation of such Lender to make Revolving
Credit Tranche A Loans and participate in Tranche A Letters of Credit pursuant
to the terms and conditions of this Agreement, and which shall not exceed the
principal amounts set forth on Schedule 1.1-A
attached hereto and made a part hereof or the signature page of the
Assignment and Acceptance by which it became a Lender, as modified from time to
time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment and Acceptance, and “Revolving Credit Tranche A
Commitments” means the aggregate principal amount of the Revolving Credit
Tranche A Commitments of all the Lenders, the maximum amount of which shall be
$825,000,000, as increased from time to time pursuant to Section 2.9
or as reduced from time to time pursuant to Section 3.1.


 


“Revolving Credit Tranche A Loans” means Loans
(including Swing Loans) made by the Lenders pursuant to Sections 2.1(a) and
2.1(c), to the extent that such loans are deemed, pursuant to Sections
2.1(a) and 2.1(c)(i), as applicable, to be a use of the
Revolving Credit Tranche A Commitment.


 


“Revolving Credit Tranche A Obligations” means,
at any particular time, the sum of the outstanding principal amount of the
Revolving Credit Tranche A Loans at such time, plus the portion (if any)
of the outstanding principal amount of the Negotiated Rate Loans that are
deemed, pursuant to Section 2.7, to be a use of the Revolving
Credit Tranche A Commitments.


 


“Revolving Credit Tranche B Availability”
means, at any particular time, the amount by which the Revolving Credit Tranche
B Commitments at such time exceeds the sum of the Revolving Credit Tranche B
Obligations and the Tranche B Letter of Credit Obligations at such time.


 


“Revolving Credit Tranche B Commitment” means,
with respect to any Lender, the obligation of such Lender to make Revolving
Credit Tranche B Loans and participate in Tranche B Letters of Credit pursuant
to the terms and conditions of this Agreement, and which shall not exceed the
principal amounts set forth on Schedule 1.1-A
attached  hereto and made a part hereof
or the signature page of the Assignment and Acceptance by which it became
a Lender, as modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable Assignment and Acceptance, and “Revolving


 


31





















 


Credit Tranche B
Commitments”
means the aggregate principal amount of the Revolving Credit Tranche B
Commitments of all the Lenders, the maximum amount of which shall be
$175,000,000, as reduced from time to time pursuant to Section 3.1.


 


“Revolving Credit Tranche B Loans” means Loans
(including Swing Loans) made by the Lenders pursuant to Sections 2.1(b) and
2.1(c), to the extent that such loans are deemed, pursuant to Sections
2.1(a) and 2.1(c)(i), as applicable, to be a use of the
Revolving Credit Tranche B Commitment.


 


“Revolving Credit Tranche B Obligations” means,
at any particular time, the Dollar Equivalent of the sum of the outstanding
principal amount of the Revolving Credit Tranche B Loans at such time, plus
the portion (if any) of the outstanding principal amount of the Negotiated Rate
Loans that are deemed, pursuant to Section 2.7, to be a use of the
Revolving Credit Tranche B Commitments.


 


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


 


“Secured Indebtedness” means any Indebtedness
secured by a Lien on Property of the Borrower and any Subsidiary of the
Borrower (other than Indebtedness secured by a pari passu Lien granted in
accordance with Section 9.2(b)). 
Secured Indebtedness shall also include Borrower’s pro rata share of any
Indebtedness of Minority Holdings that is secured by a Lien on Property of
Minority Holdings.


 


“Secured Leverage Ratio” means the ratio,
expressed as a percentage, of the Total Adjusted Outstanding Indebtedness that
consists of Secured Indebtedness to the Capitalization Value.


 


“Securities” means any stock, shares, voting
trust certificates, partnership or limited liability company interests, bonds,
debentures, notes or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities”,
including, without limitation, any “security” as such term is defined in Section 8-102
of the Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.


 


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


 


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


 


“Series A Preferred Interests” means the
outstanding Series A Cumulative Convertible Preferred Stock of TMC and the
underlying Series A Preferred OP Units of Borrower.


 


“Service Revenues” means for a specified period
all amounts recorded in accordance with GAAP by the Group, or its pro-rata
share received through Minority Holdings (which are not consolidated in
accordance with GAAP) as leasing commissions and/or development fees.


 


“Sharing Event” shall mean (i) the
occurrence of an Event of Default with respect to the Borrower or TMC pursuant
to clauses (f) or (g) of Section 10.1, (ii) the
termination of the Revolving Credit Commitments pursuant to Section 10.2
or (iii) the acceleration of the Loans pursuant to Section 10.2.


 


“Solvent”, when used with respect to any
Person, means that at the time of determination:


 


32










 













 


(i)                                      the
fair saleable value of its assets is in excess of the total amount of its
liabilities (including, without limitation, contingent liabilities); and


 


(ii)                                   the
present fair saleable value of its assets is greater than its probable
liability on its existing debts as such debts become absolute and matured; and


 


(iii)                                it is then able and
expects to be able to pay its debts (including, without limitation, contingent
debts and other commitments) as they mature; and


 


(iv)                               it
has capital sufficient to carry on its business as conducted and as proposed to
be conducted.


 


“Sterling” or “£” means the lawful money
of the United Kingdom.


 


“Subsidiary” of a Person means any corporation,
limited liability company, general or limited partnership, or other entity of
which Securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by such
Person, one or more of the other Subsidiaries of such Person or any combination
thereof.


 


“Swing Lender” means JPMCB or, if requested by
the Borrower, another Lender designated by the Borrower from among those
institutions identified by the Administrative Agent as permissible Swing
Lenders.


 


“Swing Loan” means a Loan made by the Swing
Lender pursuant to Section 2.1(c).


 


“Swing Loan Commitment” means the lesser of (i) $60,000,000
and (ii) the Revolving Credit Availability.


 


“Swing Loan Refund Amount” has the meaning set
forth in Section 2.1(c)(iii).


 


“TARGET Settlement Day”  Any day on which the Trans-European Automated
Real-Time Gross Settlement Transfer (TARGET) System is open.


 


“Taxes” is defined in Section 12.1(a) hereof.


 


“Tenant Allowance” means a cash allowance paid
to a tenant by the landlord pursuant to a Lease.


 


“Term Loan” means the Loan made pursuant to Section 2.1(d),
the aggregate amount of which shall equal $200,000,000.


 


“Term Loan Commitment” means, with respect to
any Lender, the obligation of such Lender to make, convert or continue a
portion of the Term Loan pursuant to the terms and conditions of this Agreement
as set forth on Schedule 1.1-A
attached hereto and made a part hereof or the signature page of the
Assignment and Acceptance by which it became a Lender, as modified from time to
time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment and Acceptance, and “Term Loan Commitments” means
the aggregate principal amount of the Term Loan Commitments of all the Lenders,
the maximum amount of which shall be $200,000,000.


 


33





















 


“Term Loan Maturity Date” means December 15,
2007 (or, if extended by the Borrower pursuant to Section 2.3, December 15,
2008); provided, that if such date shall fall on a day that is not a
Business Day, then the Term Loan Maturity Date shall be the preceding Business
Day).


 


“Term Loan Note” means a promissory note
substantially in the form attached hereto as Exhibit B-2
payable to a Lender, evidencing certain of the Term Loan Obligations of the
Borrower and executed by the Borrower as required by Section 3.3(a),
as the same may be amended, supplemented, modified or restated from time to
time; “Term Loan Notes” means, collectively, all of such Term Loan Notes
outstanding at any given time.


 


“Term Loan Obligations” means, at any
particular time, the sum of the outstanding principal amount of the Term Loan
at such time.


 


“TIF Guarantee” means, collectively, any
guarantees now or hereafter entered into by TMC, Borrower or any of their
respective Subsidiaries or Minority Holdings that are related to or associated
with a public financing.


 


“TI Work” means any construction or other “buildout”
of tenant leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant’s furniture, fixtures and equipment) performed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.


 


“TMC” means The Mills Corporation, a Delaware
corporation, which is the General Partner of the Borrower.


 


“TMLP Partnership Agreement” means that certain
Limited Partnership Agreement of the Borrower dated April 21, 1994, as
such agreement has been heretofore amended, restated, modified and supplemented
and as such agreement hereafter may be amended, restated, modified or
supplemented from time to time with the consent of the Administrative Agent or
as permitted under Section 9.8.


 


“Total Adjusted Outstanding Indebtedness” means,
for any period, the sum (without duplication) of (i) the amount of
Indebtedness of the Consolidated Businesses set forth or required to be set
forth on the then most recent quarterly financial statements of TMC, the
Borrower and its wholly-owned Subsidiaries (without duplication), (ii) the
outstanding amount of Indebtedness of Minority Holdings pro rata allocable to
the Borrower as of the date of the financial statements described in clause
(i), and (iii) without duplication, the Contingent Obligations of the
Consolidated Businesses and, to the extent allocable to the Consolidated
Businesses in accordance with GAAP, of the Minority Holdings as of the date of
the financial statements described in clause (i); provided, however,
that in no event shall Total Outstanding Adjusted Indebtedness include (1) Indebtedness
attributed to any TIF Guarantee (provided that the exclusion for the TIF
Guarantee shall not exceed 2% of Capitalization Value), (2) for purposes
of avoiding double counting relating to the same underlying obligations,
Indebtedness with respect to the letters of credit issued to support guaranties
of interest or interest and principal, (3) operating income guaranties or
other performance guaranty or completion guaranty obligations, or (4) Contingent
Obligations relating to the obligations of any Investment Grade rated, or as
otherwise approved by the Lenders, co-venturer.


 


“Tranche A Letter of Credit” shall mean any
standby letter of credit issued at the request of the Borrower and for the
account of the Borrower against the Revolving Credit Tranche A Commitment in
accordance with Section 2.4.


 


34





















 


“Tranche A Letter of Credit Obligations” shall
mean the sum, as of any date of determination, of (i) the maximum amount
which the Issuing Lender may be required to pay on such date or at any future
time under Tranche A Letters of Credit, plus (ii) the aggregate amount of
all payments that have been made by Issuing Lender with respect to the Tranche
A Letters of Credit but have not been reimbursed by the Borrower or converted
into Loans pursuant to Section 2.4 hereof.


 


“Tranche B Letter of Credit” shall mean any
standby letter of credit issued at the request of the Borrower and for the
account of the Borrower against the Revolving Credit Tranche B Commitment in
accordance with Section 2.4.


 


“Tranche B Letter of Credit Obligations” shall
mean the sum, as of any date of determination, of the Dollar Equivalents of (i) the
maximum amount which the Issuing Lender may be required to pay on such date or
at any future time under Tranche B Letters of Credit, plus (ii) the
aggregate amount of all payments that have been made by Issuing Lender with
respect to the Tranche B Letters of Credit but have not been reimbursed by the
Borrower or converted into Loans pursuant to Section 2.4 hereof.


 


“Uniform Commercial Code” means the Uniform
Commercial Code as enacted in the State of New York, as it may be amended from
time to time.


 


1.2.  Computation of Time
Periods.  In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from but excluding” and the words “to” and “until” each
mean “to and including.”  Periods of days
referred to in this Agreement shall be counted in calendar days unless Business
Days are expressly prescribed.  Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, on the date numerically corresponding to the first day of such
period, provided, that if such period commences on the last day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month during which such period is to end), such period shall,
unless otherwise expressly required by the other provisions of this Agreement,
end on the last day of the calendar month.


 


1.3.  Accounting Terms.  Subject to Section 13.4,
for purposes of this Agreement, all accounting terms not otherwise defined
herein shall have the meanings assigned to them in conformity with GAAP.


 


1.4.  Other Terms.  All other terms
contained in this Agreement shall, unless the context indicates otherwise, have
the meanings assigned to such terms by the Uniform Commercial Code to the
extent the same are defined therein.


 


35





















 


ARTICLE II.

AMOUNTS AND TERMS OF LOANS


 


2.1.  Loans.


 


(a)                                  Revolving
Credit Tranche A Loans.  Subject to
the terms and conditions set forth in this Agreement (including, without
limitation, Section 2.5), each Lender with a Revolving Credit
Tranche A Commitment hereby severally and not jointly agrees to make revolving
loans, in Dollars (each individually, a “Revolving Credit Tranche A Loan”
and, collectively, the “Revolving Credit Tranche A Loans”) to the
Borrower from time to time during the Revolving Credit Period, in an amount not
to exceed such Lender’s Pro Rata Share of the Revolving Credit Tranche A
Availability at such time.  All Revolving
Credit Tranche A Loans comprising the same Borrowing under this Agreement shall
be made by the Lenders with a Revolving Credit Tranche A Commitment
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Revolving Credit Tranche A
Loan hereunder nor shall the Revolving Credit Tranche A Commitment of any
Lender be increased or decreased as a result of any such failure. Subject to
the provisions of this Agreement, the Borrower may repay any outstanding
Revolving Credit Tranche A Loan on any day which is a Business Day and any
amounts so repaid may be reborrowed, up to the amount available under this Section 2.1(a) at
the time of such Borrowing, until the Business Day next preceding the Revolving
Credit Termination Date.  Each requested
Borrowing of Revolving Credit Tranche A Loans funded on any Funding Date shall
be in a principal amount of at least $2,000,000 in the case of a LIBOR Rate
Loan or $1,000,000 in the case of any other Loan and in integral multiples of
$500,000 in excess of such amount; provided, however, that if the
aggregate Revolving Credit Tranche A Availability at the time of such requested
Borrowing is less than $2,000,000 in the case of a LIBOR Rate Loan or
$1,000,000 in the case of any other Loan, then the requested Borrowing shall be
for the total amount of the Revolving Credit Tranche A Availability.
Notwithstanding any other provision of this Agreement to the contrary, (a) each
Revolving Credit Borrowing denominated in Dollars (whether bearing interest at
the LIBOR Rate or the Base Rate) shall be a Revolving Credit Tranche A Loan and
shall be deemed to use the Revolving Credit Tranche A Commitments, unless the
Revolving Credit Tranche A Commitments have been fully used and are not
available at such time for such Borrowing, in which case such Borrowing
denominated in Dollars shall be a Revolving Credit Tranche B Loan and shall be
deemed to use the Revolving Credit Tranche B Commitments, if such Revolving
Credit Tranche B Commitments are available, and (b) each Revolving Credit
Borrowing denominated in an Optional Currency shall be a Revolving Credit
Tranche B Loan and shall be deemed to use the Revolving Credit Tranche B
Commitments, if such Revolving Credit Tranche B Commitments are available.


 


(b)                                 Revolving Credit
Tranche B Loans.  Subject to the
terms and conditions set forth in this Agreement (including, without
limitation, Section 2.5), each Lender with a Revolving Credit
Tranche B Commitment hereby severally and not jointly agrees to make revolving
loans, in Dollars and/or, at the Borrower’s option from time to time, subject
to Section 4.2 hereof, in an Optional Currency (each individually,
a “Revolving Credit Tranche B Loan” and, collectively, the “Revolving
Credit Tranche B Loans”) to the Borrower from time to time during the
Revolving Credit Period, in an amount the Dollar Equivalent of which does not
exceed such Lender’s Pro Rata Share of the Revolving Credit Tranche B
Availability at such time.  All Revolving
Credit Tranche B Loans comprising the same Borrowing under this Agreement shall
be made by the Lenders with a Revolving Credit Tranche B Commitment simultaneously
and proportionately to their then respective Pro Rata Shares, it being
understood that no Lender shall be responsible for any failure by any other
Lender to perform its obligation to make a Revolving Credit Tranche B Loan
hereunder nor shall the Revolving Credit Tranche B Commitment of any Lender be
increased or decreased as a result of any such failure. Subject to the
provisions of this


 


36





















 


Agreement, the Borrower may repay any outstanding Revolving Credit
Tranche B Loan on any day which is a Business Day and any amounts so repaid may
be reborrowed, up to the amount available under this Section 2.1(b) at
the time of such Borrowing, until the Business Day next preceding the Revolving
Credit Termination Date.  Each requested
Borrowing of Revolving Credit Tranche B Loans funded on any Funding Date shall
be in a principal amount of at least $2,000,000 in the case of a LIBOR Rate
Loan denominated in Dollars or the Dollar Equivalent of $1,000,000 in the case
of any other Loan (including a Loan made in an Optional Currency) and in
integral multiples of the Dollar Equivalent of $500,000 in excess of such
amount; provided, however, that if the aggregate Revolving Credit
Tranche B Availability at the time of such requested Borrowing is less than $2,000,000
in the case of a LIBOR Rate Loan denominated in Dollars or $1,000,000 in the
case of any other Loan, then the requested Borrowing shall be for the total
amount of the aggregate Revolving Credit Tranche B Availability.


 


(c)                                  Swing
Loans.


 


(i)                                     Basic Terms.  During
the term of this Agreement, the Swing Lender agrees, on the terms and
conditions set forth in this Agreement, to make loans in Dollars to the
Borrower pursuant to this Section 2.1(c)(i) from time to time
in amounts such that the requested Swing Loan does not exceed the Revolving
Credit Availability and, after giving effect to the Borrowing of such Swing
Loan, the aggregate principal amount of Swing Loans does not at any time exceed
the Swing Loan Commitment.  Each
Borrowing under this Section 2.1(c)(i) shall be in an
aggregate principal amount of at least $2,000,000 and in integral multiples of
$1,000,000 in excess of such amount. 
Within the foregoing limits, the Borrower may borrow under this Section 2.1(c)(i),
repay or, to the extent permitted by Section 3.1, prepay Swing
Loans and reborrow at any time during the term of this Agreement under this Section 2.1(c)(i);
provided, that the Swing Lender shall not be required to make a Swing
Loan to refinance an outstanding Swing Loan. 
Notwithstanding anything to the contrary contained herein, the Swing
Lender shall not make a Swing Loan without the consent of the Requisite Lenders
after the occurrence and during the continuance of a Potential Event of Default
or without the consent of all of the Lenders after the occurrence and during
the continuance of an Event of Default. 
Notwithstanding any other provision of this Agreement to the contrary,
each Swing Loan shall be a Revolving Credit Tranche A Loan and shall be deemed
to use the Revolving Credit Tranche A Commitments, unless the Revolving Credit
Tranche A Commitments have been fully used and are not available at such time
for such Borrowing, in which case such Swing Loan shall be a Revolving Credit
Tranche B Loan and shall be deemed to use the Revolving Credit Tranche B
Commitments, if such Revolving Credit Tranche B Commitments are available.


 


(ii)                                  Repayment and Interest. 
Each Swing Loan is due and payable on the earliest to occur of (a) four
(4) Business Days after the date of the making of such Swing Loan, (b) the
date of the next Borrowing under the Revolving Credit Commitments that is not a
Swing Loan, (c) the Revolving Credit Termination Date, and (d) the
last day of any calendar quarter.  Except
as otherwise provided in Section 4.1(d), Swing Loans shall bear
interest at a rate per annum equal to the Federal Funds Rate plus the
Applicable Margin for Base Rate Loans.


 


(iii)                               Conversion
of Swing Loans to Committed Loans. 
The Swing Lender (A) may, at any time in its sole discretion with
respect to any outstanding Swing Loans or (B) shall, on any of the dates
set forth in clauses (a) – (d) of Section 2.1(c)(ii), on
behalf of the Borrower (which hereby irrevocably directs the Swing Lender to
act on its behalf), request each Lender to make, and each Lender hereby agrees
to make, a Base Rate Loan,


 


37





















 


in an amount (with
respect to each Lender, its “Swing Loan Refund Amount”) equal to such
Lender’s Pro Rata Share of the applicable Revolving Credit Commitments with
respect to the aggregate principal amount of the Swing Loans (the “Refunded
Swing Loans”) outstanding on the date of such notice, to repay the Swing
Lender.  Unless any of the events
described in clause (f) or (g) of Section 10.1 with
respect to the Borrower or TMC shall have occurred and be continuing (in which
case the procedures of Section 2.1(c)(iv) shall apply), each
Lender shall make such Base Rate Loan available to the Administrative Agent at
the Administrative Agent’s Head Office, in immediately available funds, not
later than 12:00 noon (New York time), on the Business Day immediately
following the date of such request.  The
Administrative Agent shall pay the proceeds of such Base Rate Loans to the Swing
Lender, which shall immediately apply such proceeds to repay Refunded Swing
Loans.  Effective on the day such Base
Rate Loans are made, the portion of the Swing Loans so paid shall no longer be
outstanding as Swing Loans, shall no longer be due as Swing Loans under the
Note held by the Swing Lender, and shall be due as Base Rate Loans under the
respective Notes issued to the Lenders (including the Swing Lender) in
accordance with their Pro Rata Share of the applicable Revolving Credit
Commitments.  The Borrower authorizes the
Swing Lender to charge the Borrower’s accounts with the Administrative Agent
(up to the amount available in each such account) in order to immediately pay
the amount of such Refunded Swing Loans to the extent amounts received from the
Lenders are not sufficient to repay in full such Refunded Swing Loans.


 


(iv)                              Purchase of Participations in Swing Loans.  If, prior to the time Loans would have
otherwise been made pursuant to Section 2.1(c)(iii), one of the
events described in clause (f) or (g) of Section 10.1
with respect to the Borrower or TMC shall have occurred and be continuing, each
Lender shall, on the date such Loans were to have been made pursuant to the
request referred to in Section 2.1(c)(iii) (the “Refunding
Date”), purchase an undivided participating interest in the Swing Loans in
an amount equal to such Lender’s Swing Loan Refund Amount.  On the Refunding Date, each Lender shall
transfer to the Swing Lender, in immediately available funds, such Lender’s
Swing Loan Refund Amount, and upon receipt thereof the Swing Lender shall
deliver to such Lender a Swing Loan participation certificate dated the date of
the Swing Lender’s receipt of such funds and in the Swing Loan Refund Amount of
such Lender.


 


(v)                                 Payments on Participated Swing Loans.  Whenever, at any time after the Swing Lender
has received from any Lender such Lender’s Swing Loan Refund Amount pursuant to
Section 2.1(c)(iii), the Swing Lender receives any payment on
account of the Swing Loans in which the Lenders have purchased participations
pursuant to Section 2.1(c)(iv), the Swing Lender will promptly
distribute to each such Lender its ratable share (determined on the basis of
the Swing Loan Refund Amounts of all of the Lenders) of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was
outstanding and funded); provided, however, that in the event
that such payment received by the Swing Lender is required to be returned, such
Lender will return to the Swing Lender any portion thereof previously
distributed to it by the Swing Lender.


 


(vi)                              Obligations to Refund or Purchase Participations in Swing Loans
Absolute.  Each Lender’s
obligation to transfer the amount of a Loan to the Swing Lender as provided in Section 2.1(c)(iii) or
to purchase a participating interest pursuant to Section 2.1(c)(iv) shall
be absolute and unconditional and shall not be affected by any


 


38





















 


circumstance, including,
without limitation, (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender, the Borrower or any other Person may have
against the Swing Lender or any other Person, other than the Swing Lender’s
gross negligence or willful misconduct in connection with making any such Swing
Loan, (B) the occurrence or continuance of a Potential Event of Default or
an Event of Default or the termination or reduction of the Revolving Credit
Commitments, (C) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Person, (D) any breach of this
Agreement by the Borrower, any other Lender or any other Person, or (E) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.


 


(d)                                 Term
Loan.  Subject to the terms and
conditions set forth in this Agreement, each Lender hereby severally and not
jointly agrees to lend such Lender’s Pro Rata Share of the Term Loan, in
Dollars to the Borrower on the Initial Funding Date.  The Term Loan shall be made by the Lenders
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make its portion of the Term Loan
hereunder nor shall the Term Loan Commitment of any Lender be increased or
decreased as a result of any such failure. 
The Term Loan, or any portion thereof, may be either a Base Rate Loan or
a LIBOR Rate Loan, as determined by the Borrower in the Notice of Borrowing
related thereto, any Notice of Conversion/Continuation or as otherwise provided
in this Agreement.


 


(e)                                  Notice
of Borrowing.  When the Borrower
desires to borrow under this Section 2.1, it shall deliver to the
Administrative Agent a Notice of Borrowing, signed by it (i) no later than
11:00 a.m. (New York time) on the Business Day immediately preceding the
proposed Funding Date, in the case of a Borrowing of Base Rate Loans, (ii) no
later than 11:00 a.m. (New York time) at least three (3) Business
Days in advance of the proposed Funding Date, in the case of a Borrowing of
Eurocurrency Rate Loans denominated in Dollars, (iii) no later than 11:00 a.m.
(New York time) at least four (4) Business Days in advance of the proposed
Funding Date, in the case of a Borrowing of Eurocurrency Rate Loans denominated
in an Optional Currency and (iv) no later than 10:00 a.m. (New York
time) on the proposed Funding Date, in the case of a Borrowing of Swing
Loans.  Such Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a Business Day), (ii) the
type and amount of the proposed Borrowing in the requested currency, (iii) the
Revolving Credit Tranche A Availability, or Revolving Credit Tranche B
Availability, as and if applicable, as of the date of such Notice of Borrowing,
(iv) whether the proposed Borrowing will be of Base Rate Loans or
Eurocurrency Rate Loans, (v) in the case of Eurocurrency Revolving Credit
Loans, the currency of the requested Loan and whether it is a Loan using the
LIBOR Rate, the EURIBOR Rate or the International Eurocurrency Rate, (vi) in
the case of Eurocurrency Rate Loans, the requested Interest Period, and (vii) instructions
for the disbursement of the proceeds of the proposed Borrowing.  In lieu of delivering such a Notice of Borrowing
(except with respect to a Borrowing of Loans on the Initial Funding Date), the
Borrower may give the Administrative Agent telephonic notice of any proposed
Borrowing by the time required under this Section 2.1(e), if the
Borrower confirms such notice by delivery of the Notice of Borrowing to the
Administrative Agent by facsimile transmission promptly, but in no event later
than 12:00 noon (New York time) on the same day.  Any Notice of Borrowing (or telephonic notice
in lieu thereof, when properly confirmed in accordance with this Section 2.1(e))
given pursuant to this Section 2.1(e) shall be irrevocable.


 


(f)                                    Making
of Loans.


 


(i)                                     Promptly
after receipt of a Notice of Borrowing under Section 2.1(e) (or
telephonic notice in lieu thereof), the Administrative Agent shall notify each
Lender (or the Swing Lender in the case of Notice of Borrowing for a Swing
Loan) by facsimile transmission, or other similar form of transmission, of the
proposed Borrowing (which notice to the Lenders, in


 


39





















 


the case of a Borrowing of Eurocurrency Rate Loans,
shall be at least three (3) (for such Loans denominated in Dollars) or
four (4) (for such Loans denominated in Optional Currency) Business Days
in advance of the proposed Funding Date for such Loans).  Each Lender (or in the case of a Swing Loan
Borrowing, the Swing Lender) shall deposit an amount in the requested currency
equal to its Pro Rata Share of the Borrowing requested by the Borrower with the
Administrative Agent at the Administrative Agent’s Head Office, in immediately
available funds, not later than 12:00 noon (New York time) on the respective
Funding Date therefor.  Subject to the
fulfillment of the conditions precedent set forth in Section 5.1 or
Section 5.2, as applicable, the Administrative Agent shall make the
proceeds of such amounts received by it available to the Borrower at the
Administrative Agent’s Head Office on such Funding Date (or on the date
received if later than such Funding Date) and shall disburse such proceeds in
accordance with the Borrower’s disbursement instructions set forth in the
applicable Notice of Borrowing.  The
failure of any Lender to deposit the amount described above with the
Administrative Agent on the applicable Funding Date shall not relieve any other
Lender of its obligations hereunder to make its Loan on such Funding Date.  In the event the conditions precedent set
forth in Section 5.1 or 5.2 are not fulfilled as of the
proposed Funding Date for any Borrowing, the Administrative Agent shall
promptly return, by wire transfer of immediately available funds, the amount
deposited by each Lender to such Lender.


 


(ii)                                  Unless
the Administrative Agent shall have been notified by any Lender on the Business
Day immediately preceding the applicable Funding Date in respect of any
Borrowing that such Lender does not intend to fund its Loan requested to be
made on such Funding Date, the Administrative Agent may assume that each Lender
has funded its Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date therefor, and the Administrative Agent
in its sole discretion may, but shall not be obligated to, disburse a
corresponding amount to the Borrower on the applicable Funding Date. If the
Loan proceeds corresponding to that amount are advanced to the Borrower by the
Administrative Agent but are not in fact deposited with the Administrative
Agent by such Lender on or prior to the applicable Funding Date, such Lender
agrees to pay, and if not paid by such Lender on demand, in addition the
Borrower agrees to repay, to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the
date such amount is disbursed to or for the benefit of the Borrower until the
date such amount is paid or repaid to the Administrative Agent if paid by the
Borrower, at the interest rate applicable to such Borrowing and if paid by such
Lender at the Federal Funds Rate.  If
such Lender shall pay to the Administrative Agent the corresponding amount, the
amount so paid shall constitute such Lender’s Loan, and if both such Lender and
Borrower shall pay and repay such corresponding amount of Administrative Agent’s
Loan, the Administrative Agent shall promptly pay the Borrower such corresponding
amount.  This Section 2.1(f)(ii) does
not relieve any Lender of its obligation to make its Loan on any applicable
Funding Date.


 


2.2.  Use of Proceeds of Loans.  The proceeds of the
Loans to the Borrower hereunder may be used for the purposes of:


 


(a)                                  acquisition
of Real Properties, directly or through a Subsidiary or Minority Holding, by
the Borrower;


 


(b)                                 development
of Real Properties owned and operated, directly or indirectly, by the Borrower
(including Minority Holdings);


 


(c)                                  investments
permitted in accordance with Section 9.11; and


 


40





















 


(d)                                 other
general and working capital needs of the Borrower, inclusive of repayment of
Indebtedness for borrowed money;


 


each of which purposes described in clauses (a) through (d) above
shall be lawful working capital purposes of the Borrower. The proceeds of the
Loans shall not be used directly or indirectly to repurchase stock of TMC or OP
Units if such repurchase would cause the Lenders to be in violation of Regulation
U or Regulation X or if a Potential Event of Default or Event of Default has
occurred and is continuing or would occur as a result of such repurchase.


 


2.3.  Termination, Maturity and
Extensions.  (a) Revolving Credit
Termination Date.  (i)  The
Revolving Credit Commitments shall terminate, and all outstanding Revolving
Credit Obligations shall be paid in full, on the Revolving Credit Termination
Date.  Each Lender’s obligation to make
Revolving Credit Loans shall terminate on the Business Day immediately
preceding the Revolving Credit Termination Date.


 


(ii)  The Borrower may on one occasion, by notice to the
Administrative Agent no earlier than 180 days and no later than 90 days prior
to December 15, 2007, extend the Revolving Credit Termination Date for one
(1) year; provided, that (i) no Potential Event of Default or
Event of Default exists at the time of such request and at the time of such
extension, (ii) all of the representations and warranties of the Borrower
contained in Section 6.1 and in any other Loan Document (other than
representations and warranties which expressly speak as of a different date)
shall be true and correct in all material respects at the time of such request
and at the time of such extension, and (iii) the Borrower pays an
extension fee equal to 0.25% of the Revolving Credit Commitments to the
Administrative Agent for the ratable benefit of the Lenders at the time of such
extension.


 


(b) Term Loan Maturity Date.  (i)  All outstanding Term Loan
Obligations shall be paid in full on the Term Loan Maturity Date.


 


(ii)  The Borrower may on one occasion, by notice to the
Administrative Agent no earlier than 180 days and no later than 90 days prior
to December 15, 2007, extend the Term Loan Maturity Date for one (1) year
provided, that (i) no Potential Event of Default or Event of
Default exists at the time of such request and at the time of such extension, (ii) all
of the representations and warranties of the Borrower contained in Section 6.1
and in any other Loan Document (other than representations and warranties which
expressly speak as of a different date) shall be true and correct in all
material respects at the time of such request and at the time of such
extension, and (iii) the Borrower pays an extension fee equal to 0.25% of
the outstanding amount of the Term Loan to the Administrative Agent for the
ratable benefit of the Lenders at the time of such extension.


 


2.4.  Letters of Credit.


 


(a)                                  Letter
of Credit Commitment.  Subject to the
terms and conditions set forth in this Agreement (including, without
limitation, Section 2.5), at any time and from time to time from
the Initial Funding Date through the day that is thirty (30) days prior to the
Revolving Credit Termination Date, the Issuing Lender shall issue such Letters
of Credit in any amount, in Dollars or Optional Currency, as the Borrower may
request upon the delivery of a Letter of Credit Request to the Issuing Lender,
provided that (i) no Potential Event of Default or Event of Default shall
have occurred and be continuing, (ii) upon issuance of such Letter of
Credit, the Letter of Credit Obligations shall not exceed Two Hundred Million
Dollars ($200,000,000.00), (iii) in no event shall the sum of (A) the
Revolving Credit Obligations and (B) the amount of the Letter of Credit
Obligations (after giving effect to all Letters of Credit requested and


 


41





















 


any Letters of Credit accepted but unpaid) exceed the
Maximum Revolving Credit Amount, (iv) the conditions set forth in Sections
5.1 and 5.2, as applicable, shall have been satisfied, and (v) in
no event shall any amount drawn under a Letter of Credit be available for
reinstatement or a subsequent drawing under such Letter of Credit.  Each Letter of Credit Request shall be executed
by an Authorized Financial Officer of Borrower, or such other persons as are
identified pursuant to Section 2.6. 
The Issuing Lender shall be entitled to conclusively rely on such Person’s
authority to request a Letter of Credit on behalf of Borrower.  The Issuing Lender shall have no duty to
verify the authenticity of any signature appearing on a Letter of Credit
Request.  The Borrower assumes all risks
with respect to the use of the Letters of Credit.  Unless the Issuing Lender and the Requisite
Lenders otherwise consent, the term of any Letter of Credit shall not exceed a
period of time commencing on the issuance of the Letter of Credit and ending on
the date which is fifteen (15) days (thirty (30) days in the case of a Letter
of Credit denominated in Optional Currency) prior to the Revolving Credit
Termination Date; provided, that Letters of Credit denominated in
Dollars with a maximum aggregate amount of up to $20,000,000 may have a later
expiration date so long as (I) such expiration date is not later than 180 days
after the Revolving Credit Termination Date and (II) the Borrower (1) provides
cash collateral for each such Letter of Credit at least 100 days prior to the
Revolving Credit Termination Date or (2) provides a back-to-back letter of
credit or other credit support satisfactory to the Administrative Agent and the
Issuing Lender at least thirty (30) days prior to the Revolving Credit
Termination Date.  Any Letter of Credit
expiring after the Revolving Credit Termination Date shall be governed by the
terms of this Agreement, which shall survive the Revolving Credit Termination
Date for such purpose.  Unless a Letter
of Credit denominated in Optional Currency is requested, each Letter of Credit
issued hereunder shall be a Tranche A Letter of Credit and shall be deemed to
use the Revolving Credit Tranche A Commitments unless the Revolving Credit
Tranche A Commitments have been fully used (or partially used with the
remainder being inadequate to issue such requested Letter of Credit) and are
not available at such time for the issuance of such Letter of Credit, in which
case such Letter of Credit shall be a Tranche B Letter of Credit and shall be
deemed to use the Revolving Credit Tranche B Commitments, if available.  Each Letter of Credit denominated in Optional
Currency issued hereunder shall be a Tranche B Letter of Credit and shall be
deemed to use the Revolving Credit Tranche B Commitments, if available.  Each of the letters of credit described on Schedule 2.4 that have been (x)
issued by JPMCB on or after December 1, 2004, or (y) issued by Fleet as
the “Issuing Lender” under the Existing Revolving Agreement (the “Fleet Letters of Credit”)
(Bank of America, N.A.. having acquired a 100% interest in the Fleet Letters of
Credit), shall for all purposes be Letters of Credit hereunder.


 


(b)                                 Letter
of Credit Request.  Each Letter of
Credit Request shall be submitted to the Administrative Agent and the Issuing
Lender at least five (5) Business Days (or in the case of a Letter of
Credit denominated in Optional Currency at least ten (10) Business Days)
(or such shorter period as the Issuing Lender may approve) prior to the date
upon which the requested Letter of Credit is to be issued.  Each such Letter of Credit Request shall
contain (i) a statement as to the purpose for which such Letter of Credit
shall be used (which purpose shall be permitted by the terms of this
Agreement), and (ii) a certification by an Authorized Financial Officer of
Borrower that the Borrower and TMC are and will be in compliance with all
covenants under the Loan Documents after giving effect to the issuance of such
Letter of Credit.  The Borrower shall
further deliver to the Issuing Lender such additional applications and
documents as the Issuing Lender may require, in conformity with the then
standard practices of its letter of credit department, in connection with the
issuance of such Letter of Credit; provided that in the event of any conflict,
the terms of this Agreement shall control.


 


(c)                                  Issuance
of Letter of Credit.  The Issuing
Lender shall, if it approves of the content of the Letter of Credit Request
(which approval shall not be unreasonably withheld), and subject to the
conditions set forth in this Agreement, issue the Letter of Credit on or before
five (5) Business Days in the case of a Letter of Credit denominated in
Dollars (ten (10) Business Days in the case of a Letter of


 


42





















 


Credit denominated in Optional Currency) following
receipt of such Letter of Credit Request. 
Each Letter of Credit shall be in form and substance reasonably
satisfactory to the Issuing Lender.  Upon
issuance of a Letter of Credit, the Issuing Lender shall provide notice of the
issuance of such Letter of Credit to the Administrative Agent and the Lenders
with Revolving Credit Tranche A Commitments or Revolving Credit Tranche B
Commitments, as applicable, and shall provide a copy of such Letter of Credit
to Administrative Agent and to any Lender that requests a copy.


 


(d)                                 Letter
of Credit Participations.  Upon (i) the
issuance of a Letter of Credit or (ii) the Closing Date with respect to
the Letters of Credit listed on Schedule 2.4,
each Lender shall be deemed to have purchased a participation therein from the
Issuing Lender in an amount equal to its Pro Rata Share of the amount of such
Letter of Credit.  No Lender’s obligation
to participate in a Letter of Credit shall be affected by any other Lender’s
failure to perform as required herein with respect to such Letter of Credit or
any other Letter of Credit.


 


(e)                                  Letter
of Credit Fees.  With respect to each
Letter of Credit, the Borrower shall pay to the Administrative Agent (i) for
the account of the Issuing Bank, a fronting bank Letter of Credit fee
calculated at the rate of one-eighth of one percent (0.125%) per annum of the
Dollar Equivalent of the amount available to be drawn under such Letter of
Credit (which aggregate fee for any Letter of Credit shall not be less than
$1,000.00 in any event), and (ii) for the accounts of the Lenders in
accordance with their respective percentage shares of participation in such
Letter of Credit, a Letter of Credit fee calculated at the rate per annum equal
to the Applicable Margin then applicable to Eurocurrency Rate Loans (or two
percent (2%) per annum during the continuation of an Event of Default) on the
Dollar Equivalent of the amount available to be drawn under such Letter of
Credit.  Such fees shall be payable in
quarterly installments in arrears with respect to each Letter of Credit on the
first day of the calendar quarter following the date of issuance and shall
accrue thereafter from the date of issuance and continuing for each quarter or
portion thereof, as applicable, until the earliest date on which (x) the
Revolving Credit Commitments shall terminate, (y) the Letter of Credit shall
expire or (z) the Letter of Credit is returned marked “cancelled” along with a
letter from the Letter of Credit beneficiary on its letterhead acknowledging
such cancellation.  In addition, the
Borrower shall pay to the Issuing Lender for its own account within five (5) days
of demand of the Issuing Lender the standard issuance, documentation and
service charges for Letters of Credit issued from time to time by the Issuing
Lender.


 


(f)                                    Letter
of Credit Drawing; Reimbursement.  In
the event that any amount is drawn under a Letter of Credit by the beneficiary
thereof, the Issuing Lender shall promptly notify the Administrative Agent,
and, unless the Borrower shall have (i) notified the Administrative Agent
and the Issuing Lender prior to 11:00 a.m. (New York time) (A) in the
case of a Letter of Credit denominated in Dollars, on the Business day
immediately prior to the date of such drawing, that the Borrower intends to
reimburse such Issuing Lender for the amount of such drawing with funds other
than the proceeds of Revolving Credit Loans, or (B) in the case of a
Letter of Credit denominated in Optional Currency, at least two (2) Business
Days prior to the date of such drawing that the Borrower intends to reimburse
such Issuing Lender for the amount of such drawing in the applicable Optional
Currency, and (ii) repaid the full amount of such drawing on the date of
any such draw, the Borrower shall be deemed to have timely given a Notice of
Borrowing pursuant to Section 2.1(e) to the Administrative
Agent, requesting a Base Rate Loan on the date of such drawing in an amount
equal to the Dollar Equivalent of such drawing. 
The Administrative Agent shall promptly notify the Borrower and each
Lender of such drawing and deemed Notice of Borrowing by telex, telecopy,
telegram, telephone (confirmed in writing) or other similar means of
transmission, provided that failure to deliver such notice to the
Borrower shall not in any way relieve the Borrower of any of its Obligations
hereunder), and each Lender shall promptly and unconditionally pay to the
Administrative Agent, for the Issuing Lender’s own account, an amount equal to
such Lender’s Pro Rata Share of such Letter of Credit (to the extent of the
amount drawn).  If and to the extent any
Lender


 


43





















 


shall not make such amount available on the Business
Day on which such draw is funded, such Lender agrees to pay such amount to the
Administrative Agent forthwith on demand, together with interest thereon, for
each day from the date on which such draw was funded until the date on which
such amount is paid to the Administrative Agent, at the Federal Funds
Rate.  Further, such Lender shall be
deemed to have assigned any and all payments made by the Borrower of principal
and interest on its Loans, amounts due with respect to its participations in
Letters of Credit and any other amounts due to it hereunder to the
Administrative Agent to fund the amount of any drawn Letter of Credit which
such Lender was required to fund pursuant to this Section 2.4(f) until
such amount has been funded (as a result of such assignment or otherwise).  The failure of any Lender to make funds
available to the Administrative Agent in such amount shall not relieve any
other Lender of its obligation hereunder to make funds available to the
Administrative Agent pursuant to this Section 2.4(f).


 


(g)                                 Funding
of Letter of Credit Participations. 
If after the issuance of a Letter of Credit pursuant to Section 2.4(c) by
the Issuing Lender, but prior to the funding of any portion thereof by a Lender
in accordance with Section 2.4(f), one of the events described in Sections
10.1(f) or 10.1(g) shall have occurred, each Lender will,
on the date such Loan pursuant to Section 2.4 was to have been made,
purchase an undivided participation interest in the Letter of Credit in an
amount equal to its Pro Rata Share of the amount of such Letter of Credit.  Each Lender will immediately transfer to the
Issuing Lender in immediately available funds the amount of its participation
and upon receipt thereof the Issuing Lender will deliver to such Lender a
Letter of Credit participation certificate dated the date of receipt of such
funds and in such amount.


 


(h)                                 Distribution
of Borrower Reimbursement Payments. 
Whenever at any time after the Issuing Lender has received from any
Lender any such Lender’s payment of funds under a Letter of Credit and
thereafter the Issuing Lender receives any payment on account thereof, then the
Issuing Lender will distribute to such Lender its participation interest in
such amount (appropriately adjusted in the case of interest payments to reflect
the period of time during which such Lender’s participation interest was
outstanding and funded); provided, however, that in the event
that such payment received by the Issuing Lender is required to be returned,
such Lender will return to the Issuing Lender any portion thereof previously
distributed by the Issuing Lender to it.


 


(i)                                     Letter
of Credit Amendments.  For purposes
of this Section 2.4, Section 5.2, Section 6.1,
Section 10.2 and Section 12.2, the issuance of any
supplement, modification, amendment, renewal or extension to or of any Letter
of Credit (including any Letters of Credit listed on Schedule 2.4) shall be treated the
same as the issuance of a new Letter of Credit.


 


(j)                                     Nature
of Lender Obligations.  Borrower
assumes all risks of the acts, omissions, or misuse of any Letter of Credit by
the beneficiary thereof.  Neither
Administrative Agent, Issuing Lender nor any Lender will be responsible for (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the
issuance of any Letter of Credit, even if such document should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting to
transfer or assign any 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) absent gross negligence or willful
misconduct by the Issuing Lender, the failure of any beneficiary of any Letter
of Credit to comply fully with the conditions required in order to demand
payment under a Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document or draft
required by or from a beneficiary in order to make a disbursement under a
Letter of Credit or the proceeds thereof; (vii) for the misapplication by
the beneficiary of any Letter of Credit of the proceeds of


 


44





















 


any drawing under such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of Administrative Agent
or any Lender.  None of the foregoing
will affect, impair or prevent the vesting of any of the rights or powers
granted to Administrative Agent, Issuing Lender or the Lenders hereunder.  In furtherance and extension and not in
limitation or derogation of any of the foregoing, any act taken or omitted to
be taken by Administrative Agent, Issuing Lender or the other Lenders in good
faith and absent gross negligence or willful misconduct will be binding on
Borrower and will not put Administrative Agent, Issuing Lender or the other
Lenders under any resulting liability to Borrower.


 


2.5.  Maximum Credit Facility.  Notwithstanding
anything in this Agreement to the contrary, in no event shall (i) the sum
of the aggregate Revolving Credit Tranche A Obligations and the aggregate
Tranche A Letter of Credit Obligations exceed the Revolving Credit Tranche A
Commitments, (ii) the sum of the aggregate Revolving Credit Tranche B
Obligations and the aggregate Tranche B Letter of Credit Obligations exceed the
Revolving Credit Tranche B Commitments, (iii) the aggregate Term Loan
Obligations exceed the Term Loan Commitments, or (iv) the sum of the
aggregate Revolving Credit Obligations and the aggregate Letter of Credit
Obligations exceed the Maximum Revolving Credit Amount; provided, however,
that any excess that exists pursuant to the foregoing clauses (ii) and (iv) resulting
solely from changes in foreign currency exchange rates shall be deemed to not
violate this Section 2.5, so long as the Borrower complies with the
applicable requirements of Section 4.2(j)(iii).


 


2.6.  Authorized Agents.  On the Closing Date
and from time to time thereafter, the Borrower shall deliver to the
Administrative Agent an Officer’s Certificate setting forth the names of the
employees and agents authorized to request Loans or Letters of Credit and to
request a conversion/continuation of any Loan and containing a specimen
signature of each such employee or agent. 
The employees and agents so authorized shall also be authorized to act
for the Borrower in respect of all other matters relating to the Loan
Documents.  The Administrative Agent and
the Lenders shall be entitled to rely conclusively on such employee’s or agent’s
authority to request such Loan or Letter of Credit or such conversion/continuation
until the Administrative Agent receives written notice to the contrary.  The Administrative Agent shall have no duty
to verify the authenticity of the signature appearing on any written Notice of
Borrowing, Letter of Credit Request or Notice of Conversion/Continuation or any
other document, and, with respect to an oral request for such a Loan or a
Letter of Credit or such conversion/continuation, the Administrative Agent
shall have no duty to verify the identity of any person representing himself or
herself as one of the employees or agents authorized to make such request or
otherwise to act on behalf of the Borrower. 
None of the Administrative Agent or the Lenders shall incur any
liability to the Borrower or any other Person in acting upon any telephonic or
facsimile notice referred to above which the Administrative Agent or such
Lender reasonably believes to have been given by a person duly authorized to
act on behalf of the Borrower and the Borrower hereby indemnifies and holds
harmless the Administrative Agent and each other Lender from any loss or
expense the Administrative Agent or the Lenders incur in acting in good faith
as provided in this Section 2.6, provided, however,
that the Borrower shall not indemnify or hold harmless the Administrative Agent
or any other Lender from any loss or expense incurred as the result of the
Administrative Agent’s or such Lender’s gross negligence or willful misconduct.


 


45





















 


2.7.  Negotiated Rate Procedure.  (a)  Negotiated
Rate Loans.  Subject to the terms and
conditions set forth herein, from time to time the Borrower may request
Negotiated Rate Quotes in Dollars or an Optional Currency and may (but shall
not have any obligation to) accept Negotiated Rate Quotes and borrow Negotiated
Rate Loans; provided that (i) the Dollar Equivalent of the
aggregate principal amount of any requested Negotiated Rate Loan shall not
exceed the Revolving Credit Availability, (ii) after giving effect to the
borrowing of such Negotiated Rate Loans, the Dollar Equivalent of the aggregate
principal amount of the outstanding Negotiated Rate Loans shall not exceed
fifty percent (50%) of the Maximum Revolving Credit Amount and (iii) to
the extent that the requested Negotiated Rate Loan is to be denominated in an
Optional Currency, the Dollar Equivalent of the aggregate principal amount of
requested Negotiated Rate Loan shall not exceed the Revolving Credit Tranche B
Availability.  Notwithstanding any other
provision of this Agreement to the contrary, (A) each Negotiated Rate Loan
denominated in Dollars shall constitute Revolving Credit Tranche A Obligations
and shall be deemed to use the Revolving Credit Tranche A Commitments, except
to the extent that the Revolving Credit Tranche A Commitments have been fully
used and are not available at such time for such Borrowing, in which case the
portion of such Negotiated Rate Loan that can not be accommodated by the
Revolving Credit Tranche A Commitments shall constitute Revolving Credit Tranche
B Obligations and shall be deemed to use the Revolving Credit Tranche B
Commitments, if such Revolving Credit Tranche B Commitments are available, and (B) each
Negotiated Rate Loan denominated in an Optional Currency shall constitute
Revolving Credit Tranche B Obligations and shall be deemed to use the Revolving
Credit Tranche B Commitments, if such Revolving Credit Tranche B Commitments
are available.


 


(b)  Negotiated Rate Request.  To request Negotiated Rate Quotes, the
Borrower shall notify the Administrative Agent of such request by telephone, (i) in
the case of a Eurocurrency Negotiated Rate Loan denominated in Dollars, not
later than 11:00 a.m. (New York time) four (4) Business Days before
the date of the proposed Borrowing, (ii) in the case of a Eurocurrency
Negotiated Rate Loan denominated in an Optional Currency, not later than 11:00 a.m.(New
York time) five (5) Business Days before the date of the proposed
Borrowing, and (iii) in the case of a Fixed Rate Loan, not later than
10:00 a.m. (New York time) one Business Day before the date of the
proposed Borrowing; provided that the Borrower may submit up to (but not
more than) two (2) Negotiated Rate Quote Requests in any thirty (30) day
period, and provided further that each Negotiated Rate Quote Request may
solicit Negotiated Rate Quotes for up to three different Interest Periods.  Each such telephonic Negotiated Rate Quote
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Negotiated Rate Quote Request in the form of Exhibit F and signed by the
Borrower.  Each such Negotiated Rate
Quote Request shall be accompanied by the officer’s certificate required by Section 5.2(e).  Each such telephonic and written Negotiated
Rate Quote Request shall specify the following information in compliance with Section 2.1:


 


(i)                                     the
aggregate amount of the requested Borrowing in the requested currency;


 


(ii)                                  the
date of such Borrowing, which shall be a Business Day;


 


(iii)                               whether
such Borrowing is to be for a Eurocurrency Negotiated Rate Loan or a Fixed Rate
Loan;


 


(iv)                              the
Interest Period(s) to be applicable to such Borrowing, which shall be a period
contemplated by the definition of the term “Interest Period”; and


 


(v)                                 the
location and number of the Borrower’s account to which funds are to be
disbursed.


 


46





















 


Promptly following receipt of a Negotiated Rate Quote
Request in accordance with this Section 2.7(b), the Administrative
Agent shall notify the Lenders of the details thereof by telecopy, inviting the
Lenders to submit Negotiated Rate Quotes.


 


(c)                                  Negotiated
Rate Quotes.  Each Lender may (but
shall not have any obligation to) make one or more Negotiated Rate Quotes to
the Borrower in response to a Negotiated Rate Quote Request.  Each Negotiated Rate Quote by a Lender must
be substantially in the form of Exhibit G
and must be received by the Administrative Agent by telecopy, (i) in the
case of a Eurocurrency Negotiated Rate Loan denominated in Dollars, not later
than 9:30 a.m. (New York time) three (3) Business Days before the
proposed date of such Negotiated Rate Borrowing, (ii) in the case of a
Eurocurrency Negotiated Rate Loan denominated in Optional Currency, not later
than 9:30 a.m.(New York time) four (4) Business Days before the
proposed date of such Negotiated Rate Borrowing, and (iii) in the case of
a Fixed Rate Loan, not later than 9:30 a.m. (New York time) on the
proposed date of such Negotiated Rate Borrowing.  Negotiated Rate Quotes that do not conform
substantially to Exhibit G
may be rejected by the Administrative Agent, and the Administrative Agent shall
notify the applicable Lender as promptly as practicable.  Negotiated Rate Loans to be funded pursuant
to a Negotiated Rate Quote may, as provided in Section 13.1(h), be
funded by a Lender’s Designated Bank.  A
Lender making a Negotiated Rate Quote may, but shall not be required to,
specify in its Negotiated Rate Quote whether the related Negotiated Rate Loans
are intended to be funded by such Lender’s Designated Bank, as provided in Section 13.1(h).  Each Negotiated Rate Quote shall specify (1) the
identity of the Lender and the contact person at such Lender for such
Negotiated Rate Quote, (2) the currency and principal amount (which shall
be a minimum of the Dollar Equivalent of $5,000,000 and an integral multiple of
the Dollar Equivalent of $1,000,000 and which may equal the entire principal
amount of the Negotiated Rate Borrowing requested by the Borrower) of the
Negotiated Rate Loan or Loans that the Lender is willing to make, (3) the
Negotiated Rate or Rates at which the Lender is prepared to make such Loan or
Loans (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) and (4) the Interest Period applicable to
each such Loan and the last day thereof.


 


(d)                                 Transmission
of Quotes to Borrower.  The
Administrative Agent shall, promptly after the deadline for the receipt of
quotes in respect of any Negotiated Rate Quote Request, notify the Borrower by
telecopy of the Negotiated Rate and the principal amount specified in each
Negotiated Rate Quote and the identity of the Lender that shall have made such
Negotiated Rate Quote.


 


(e)                                  Borrower
Acceptance.  Subject only to the
provisions of this paragraph, the Borrower may accept or reject any Negotiated
Rate Quote.  The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in a form approved
by the Administrative Agent, whether and to what extent it has decided to
accept or reject each Negotiated Rate Quote, (i) in the case of a
Eurocurrency Negotiated Rate Loan denominated in Dollars, not later than 10:30 a.m.
(New York time) three (3) Business Days before the date of the proposed
Negotiated Rate Borrowing, (ii) in the case of a Eurocurrency Negotiated
Rate Loan denominated in an Optional Currency, not later than 10:30 a.m.(New
York time) four (4) Business Days before the date of the proposed
Negotiated Rate Borrowing, and (iii) in the case of a Fixed Rate Loan, not
later than 10:30 a.m. (New York time) on the proposed date of the
Negotiated Rate Borrowing; provided that (A) the failure of the
Borrower to give such notice shall be deemed to be a rejection of each
Negotiated Rate Quote, (B) the Borrower shall not accept a Negotiated Rate
Quote made at a particular Negotiated Rate for a particular Interest Period if
the Borrower rejects a Negotiated Rate Quote made at a lower Negotiated Rate
for the applicable Interest Period, (C) the aggregate amount of the
Negotiated Rate Quotes accepted by the Borrower shall not exceed the aggregate
amount of the requested Negotiated Rate Borrowing specified in the related
Negotiated Rate Quote Request, (D) to the extent necessary to comply with
clause (C) above, the Borrower may accept Negotiated Rate Quotes at the
same Negotiated Rate in part, which acceptance, in the case of multiple


 


47





















 


Negotiated Rate Quotes at such Negotiated Rate, shall
be made pro rata in accordance with the amount of each such Negotiated Rate
Quote, rounded to Dollar Equivalent of the nearest $1,000,000 increment, and (E) except
pursuant to clauses (C) and (D) above, no Negotiated Rate Quote shall
be accepted for a Negotiated Rate Loan unless such Negotiated Rate Loan is in a
minimum principal amount of the Dollar Equivalent of $5,000,000 and an integral
multiple of the Dollar Equivalent of $1,000,000; provided  further
that if a Negotiated Rate Loan must be in an amount less than the Dollar
Equivalent of $5,000,000 because of the provisions of clauses (C) and (D) above,
such Negotiated Rate Loan may be for a minimum of the Dollar Equivalent of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Negotiated Rate Quotes at a
particular Negotiated Rate pursuant to clause (D) the amounts shall be
rounded to integral multiples of the Dollar Equivalent of $1,000,000 in a
manner determined by the Borrower.  A
notice given by the Borrower pursuant to this paragraph shall be irrevocable.


 


(f)                                    Notice
of Borrower Acceptance.  The
Administrative Agent shall promptly notify each quoting Lender by telecopy
whether or not its Negotiated Rate Quote has been accepted (and, if so, the
amount and Negotiated Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Negotiated Rate Loan in respect of which its Negotiated Rate Quote has been
accepted.  A Lender who is notified that
it has been selected to make a Negotiated Rate Loan may designate its
Designated Bank (if any) to fund such Negotiated Rate Loan on its behalf, as
described in Section 13.1(h). 
Any Designated Bank which funds a Negotiated Rate Loan shall on and
after the time of such funding become the obligee in respect of such Negotiated
Rate Loan and be entitled to receive payment thereof when due.


 


(g)                                 Quotes
by the Administrative Agent.  If the
Administrative Agent shall elect to submit a Negotiated Rate Quote in its
capacity as a Lender, it shall submit such Negotiated Rate Quote directly to
the Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Negotiated Rate Quote to the
Administrative Agent pursuant to paragraph (c) of this Section.


 


(h)                                 Repayment
of Negotiated Rate Loans.  Negotiated Rate Loans may not be continued
and shall be repaid in full on the last day of the Interest Period
applicable thereto, including from the
proceeds of new Negotiated Rate Loans made in accordance with this Section 2.7,
or with proceeds of ratable Borrowings in accordance with Section 2.1.


 


(i)                                     Other
Terms.  Any Negotiated Rate Loan shall not reduce the Revolving Credit
Commitment of the Lender making such Negotiated Rate Loan, and each such Lender
shall continue to be obligated to fund its Pro Rata Share of all ratable
Borrowings under this Agreement.


 


2.8.  Sharing Event.  (a) Upon the
occurrence of a Sharing Event, automatically (and without the taking of any
action) (x) all then outstanding Eurocurrency Rate Loans denominated in an
Optional Currency (other than Negotiated Rate Loans) shall be automatically
converted into Loans denominated in Dollars (in an amount equal to the Dollar
Equivalent, as determined by the Administrative Agent on the date of such conversion,
of the aggregate principal amount of the such Eurocurrency Rate Loans on the
date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall
thereafter be deemed to be Base Rate Loans and (ii) unless the Sharing
Event resulted solely from a termination of the Revolving Credit Commitments,
shall be immediately due and payable on the date such Sharing Event has
occurred) and (y) unless the Sharing Event resulted solely from a termination
of the Revolving Credit Commitments, all accrued and unpaid interest and other
amounts owing with respect to such Eurocurrency Rate Loans shall be immediately
due and payable in Dollars, in an amount equal to the Dollar Equivalent of such
accrued and unpaid interest and other amounts.


 


48





















 


(b)                                 Upon
the occurrence of a Sharing Event, and after giving effect to any automatic
conversion pursuant to Section 2.8(a), each Lender shall (and
hereby unconditionally and irrevocably agrees to) purchase and sell (in each
case in Dollars) undivided participating interests in all Loans (other than
Negotiated Rate Loans) outstanding to, and any unpaid amounts the Issuing
Lender has disbursed under a Letter of Credit owing by, the Borrower in amounts
such that each Lender shall have a share of the outstanding Loans (other than
Negotiated Rate Loans) and unpaid amounts the Issuing Lender has disbursed
under a Letter of Credit then owing by the Borrower equal to its Pro Rata Share
of the Revolving Credit Commitments (although if because of fluctuations in
currency exchange rates any Lender would be required to purchase such
participations after giving effect to which such Lender’s Loans and Letter of
Credit participations under Section 2.4(d) (including
participations therein purchased pursuant to this Section 2.8)
would exceed such Lender’s Revolving Credit Commitment, then such
participations shall be in an amount after giving effect to which such Lender’s
Loans and Letter of Credit participations under Section 2.4(d) (including
participations therein purchased pursuant to this Section 2.8)
would equal such Lender’s Revolving Credit Commitment).  Upon any such occurrence, the Administrative
Agent shall notify each Lender and shall specify the amount of Dollars required
from such Lender in order to effect the purchases and sales by the various
Lenders of participating interests in the amounts required above (together with
accrued interest with respect to the period for the last interest payment date
through the date of the Sharing Event plus any additional amounts payable by
the Borrowers pursuant to Section 12.1 in respect of such accrued
but unpaid interest); provided, in the event that a Sharing Event shall
have occurred, each Lender shall be deemed to have purchased, automatically and
without request, such participating interests. 
Promptly upon receipt of such request, each Lender shall deliver to the
Administrative Agent (in immediately available funds in Dollars) the net amounts
as specified by the Administrative Agent. 
The Administrative Agent shall promptly deliver the amounts so received
to the various Lenders in such amounts as are needed to effect the purchases
and sales of participations as provided above. 
Promptly following receipt thereof, each Lender which has sold
participations in any of its Loans and Letter of Credit participations under Section 2.4(d) (through
the Administrative Agent) will deliver to each Lender (through the
Administrative Agent) which has so purchased a participating interest a participation
certificate dated the date of receipt of such funds and in such amount.  It is understood that the amount of funds
delivered by each Lender shall be calculated on a net basis, giving effect to
both the sales and purchases of participations by the various Lenders as
required above.


 


(c)                                  Upon
the occurrence of a Sharing Event (i) no further Loans shall be made, (ii) all
amounts from time to time accruing with respect to, and all amounts from time
to time payable on account of, any outstanding Eurocurrency Rate Loans
denominated in Optional Currency (including, without limitation, any interest
and other amounts which were accrued but unpaid on the date of such purchase)
shall be converted to Loans denominated in Dollars in accordance with Section 2.8(a) and
be payable immediately in Dollars as if such Eurocurrency Rate Loans had
originally been made in Dollars and shall be distributed by the relevant
Lenders (or their affiliates) to the Administrative Agent for the account of
the Lenders which made such Loans or are participating therein and (iii) the
Revolving Credit Commitments of the Lenders shall be automatically
terminated.  Notwithstanding anything to
the contrary contained above, the failure of any Lender to purchase its
participating interest in any Loans upon the occurrence of a Sharing Event
shall not relieve any other Lender of its obligation hereunder to purchase its
participating interests in a timely manner, but no Lender shall be responsible
for the failure of any other Lender to purchase the participating interest to
be purchased by such other Lender on any date.


 


(d)                                 If
any amount required to be paid by any Lender pursuant to Section 2.8(b) is
not paid to the Administrative Agent within one (1) Business Day following
the date upon which such Lender receives notice from the Administrative Agent
of the amount of its participations required to be purchased pursuant to said Section 2.8(b),
such Lender shall also pay to the Administrative Agent on demand an


 


49





















 


amount equal to the product of (i) the amount so required to be
paid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Rate during the
period from and including the date of request for payment to the date on which
such payment is immediately available to the Administrative Agent times (iii) a fraction the numerator of
which is the number of days that elapsed during such period and the denominator
of which is 360.  If any such amount
required to be paid by any Lender pursuant to Section 2.8(b) is
not in fact made available to the Administrative Agent within three (3) Business
Days following the date upon which such Lender receives notice from the
Administrative Agent as to the amount of participations required to be
purchased by it, the Administrative Agent shall be entitled to recover from
such Lender on demand, such amount with interest thereon calculated from such
request date at the rate per annum applicable to Base Rate Loans hereunder.  A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts payable by any Lender
pursuant to this Section 2.8 shall be deemed conclusive absent
manifest error.  Amounts payable under
this Section 2.8 shall be paid to the Administrative Agent for the
account of the relevant Lenders; provided
that, if the Administrative Agent (in its sole discretion) has elected to fund
on behalf of such Lender the amounts owing to such Lenders, then the amounts
shall be paid to the Administrative Agent for its own account.


 


(e)                                  Whenever, at any time
after the relevant Lenders have received from any Lenders purchases of
participations in any Loans pursuant to this Section 2.8, the
Lenders receive any payment on account thereof, such Lenders will distribute to
the Administrative Agent, for the account of the various Lenders participating
therein, such Lenders’ participating interests in such amounts (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such participations were outstanding) in like funds as received; provided, however,
that in the event that such payment received by any Lenders are required to be
returned, the Lenders who received previous distributions in respect of their
participating interests therein will return to the respective Lenders any
portion thereof previously so distributed to them in like funds as such payment
is required to be returned by the respective Lenders.


 


(f)                                    Each Lender’s
obligation to purchase participating interests pursuant to this Section 2.8
shall be absolute and unconditional and shall not be affected by any
circumstance including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against any other
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Potential Event of Default or an Event of
Default, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Person, (iv) any breach of this
Agreement by the Borrower, TMC, any of its Subsidiaries or any Lender or any
other Person, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.


 


(g)                                 Notwithstanding
anything to the contrary contained elsewhere in this Agreement, upon any
purchase of participations as required above, each Lender which has purchased
such participations shall be entitled to receive from the Borrower any
increased costs and indemnities directly from the Borrower to the same extent
as if it were the direct Lender as opposed to a participant therein.  The Borrower acknowledges and agrees that,
upon the occurrence of a Sharing Event and after giving effect to the
requirements of this Section 2.8, increased Taxes may be owing by
the Borrower pursuant to Section 12.1, which Taxes shall be paid
(to the extent provided in Section 12.1) by the Borrower, without
any claim that the increased Taxes are not payable because same resulted from
the participations effected as otherwise required by this Section 2.8.


 


2.9.  Increase of Revolving
Credit Commitment.  Unless a Potential Event of
Default or an Event of Default has occurred and is continuing, the Borrower, by
written notice to the Administrative


 


50





















 


Agent, may request on one occasion on or before the second anniversary
of the Closing Date that the Revolving Credit Tranche A Commitments be
increased by an amount not less than $25,000,000 and not more than $50,000,000
in the aggregate (such that the Revolving Credit Commitments after such
increase shall never exceed $1,050,000,000); provided that for any such
request (a) any Lender which is a party to this Agreement prior to such
request for increase, at its sole discretion, may elect to increase its
Revolving Credit Tranche A Commitment but shall not have any obligation to so
increase its Revolving Credit Tranche A Commitment, and (b) in the event
that a Lender does not elect to increase its Revolving Credit Tranche A
Commitment, the Administrative Agent shall use commercially reasonable efforts
to locate additional lenders willing to hold commitments for the requested
increase.  In the event that lenders
commit to any such increase, (i) the Revolving Credit Tranche A Commitment
of each such Lender shall be increased (or, in the case of a new lender not
previously party hereto, added to the Revolving Credit Tranche A Commitments), (ii) the
applicable Pro Rata Share of each of the Lenders shall be adjusted, (iii) if
requested by any Lender making an additional or new commitment, new Notes shall
be issued, (iv) the Borrower shall make such borrowings and repayments as
shall be necessary to effect the reallocation of the Revolving Credit Tranche A
Commitments, and (v) other changes shall be made by way of supplement,
amendment or restatement of any Loan Document as may be necessary or desirable
to reflect the aggregate amount, if any, by which Lenders have agreed to
increase their respective Revolving Credit Tranche A Commitments or any other
lenders have agreed to make new commitments pursuant to this Section 2.9,
in each case notwithstanding anything in Section 13.7 to the
contrary, without the consent of any Lender other than those Lenders
participating in the increase or increasing their Revolving Credit Tranche A
Commitments (it being understood that the Administrative Agent shall execute
any such supplement, amendment or restatement as maybe reasonably requested by
the Borrower and necessary or desirable in connection with an increase in the
Revolving Credit Commitment permitted pursuant to this Section 2.9).  The fees payable by the Borrower upon any
such increase in the Revolving Credit Tranche A Commitments shall be agreed
upon by the Administrative Agent and the Borrower at the time of such increase.


 


Notwithstanding the foregoing, nothing in this Section 2.9
shall constitute or be deemed to constitute an agreement by any Lender to
increase its Revolving Credit Commitment hereunder.


 


ARTICLE III.

PAYMENTS AND PREPAYMENTS


 


3.1.  Prepayments; Reductions in
Revolving Credit Commitments.


 


(a)                                  Voluntary
Prepayments.  The Borrower may, at
any time and from time to time, prepay the Loans, in part or in their entirety,
subject to the following limitations; provided that the Borrower shall
not have the right to prepay any Negotiated Rate Loan without the prior consent
of the Lender thereof.  The Borrower
shall give at least one (1) Business Day’s prior written notice in the
case of Loans denominated in Dollars and four (4) Business Days’ prior
written notice in the case of Loans denominated in Optional Currency to the
Administrative Agent (which the Administrative Agent shall promptly transmit to
each Lender) of any prepayment to be made prior to the occurrence of an Event
of Default, which notice of prepayment shall specify the date (which shall be a
Business Day) of prepayment.  When notice
of prepayment is delivered as provided herein, the outstanding principal amount
of the Loans to be prepaid on the prepayment date specified in the notice shall
become due and payable on such prepayment date. 
Each voluntary partial prepayment of the Loans shall be in a minimum
amount of the Dollar Equivalent of $1,000,000. 
Eurocurrency Rate Loans may be prepaid in part or in their entirety only
upon payment of the amounts described in Section 4.2(f).  Amounts prepaid with respect to the Term Loan
pursuant to this Section 3.1(a) may not be reborrowed.


 


51





















 


(b)                                 Voluntary
Reductions In Revolving Credit Commitments. 
The Borrower may, upon at least five (5) Business Days’ prior
written notice to the Administrative Agent (which the Administrative Agent
shall promptly transmit to each Lender), at any time and from time to time,
terminate in whole or permanently reduce in part the Revolving Credit
Commitments; provided that (i) the Borrower shall first have made
whatever payment may be required to reduce the sum of the Revolving Credit
Obligations and the Letter of Credit Obligations to an amount less than or
equal to the aggregate Revolving Credit Commitments as reduced or terminated,
which amount shall become due and payable on the date specified in such notice,
(ii) the Revolving Credit Tranche A Commitments as reduced or terminated
shall not be in an amount less than the sum of (A) the aggregate Revolving
Credit Tranche A Obligations and (B) the aggregate Tranche A Letter of
Credit Obligations, (iii) the Revolving Credit Tranche B Commitments as
reduced or terminated shall not be in an amount less than the sum of (A) the
aggregate Revolving Credit Tranche B Obligations and (B) the aggregate
Tranche B Letter of Credit Obligations and (iv) reductions to the
Revolving Credit Commitments shall be allocated on a pro rata basis between the
Revolving Credit Tranche A Commitments and the Revolving Credit Tranche B
Commitments.  Any partial reduction of
the Revolving Credit Commitments shall be in an aggregate minimum amount of
$1,000,000, and shall reduce the applicable Revolving Credit Commitment of each
Lender proportionately in accordance with its applicable Pro Rata Share; provided,
however, that without terminating the Revolving Credit Commitments, the
Revolving Credit Commitments in the aggregate shall not be reduced below
$150,000,000.  Any notice of termination
or reduction given to the Administrative Agent under this Section 3.1(b) shall
specify the date (which shall be a Business Day) of such termination or
reduction and, with respect to a partial reduction, the aggregate principal
amount thereof.  No reduction or
termination of the Revolving Credit Commitments may be reinstated.


 


(c)                                  No
Penalty.  The prepayments and
payments in respect of reductions and terminations described in clauses (a) and
(b) of this Section 3.1 may be made without premium or penalty
(except as provided in Section 4.2(f)).


 


(d)                                 Mandatory
Prepayment.  If at any time from and
after the Closing Date:  (i) the
Borrower merges or consolidates with another Person and the Borrower is not the
surviving entity, or (ii) the Borrower or any Consolidated Subsidiary or
any Minority Holding sells, transfers, assigns or conveys assets, the book
value (of the Borrower) of which (computed in accordance with GAAP but without
deduction for depreciation), in the aggregate of all such sales, transfers,
assignments, or conveyances would cause the Capitalization Value immediately
after such sale to be less than 75% of the Capitalization Value set forth in
the Compliance Certificate delivered pursuant to Section 5.1(j); provided,
that for purposes of this clause (ii) only, the phrase “sells, transfers,
assigns or conveys” shall not include (A) sales or conveyances among the
Borrower and any Consolidated Subsidiaries, (B) mortgages secured by Real
Property, or (C) sales or conveyances of Securities in the Borrower or TMC
or in newly-formed Subsidiaries or Minority Holdings in connection with the
acquisition of Real Property; (the date any such event in (i) or (ii) shall
occur being the “Prepayment Date”) the Revolving Credit Commitments and
Term Loan Commitments shall be terminated and the Borrower shall be required to
prepay the Loans in their entirety and return any outstanding Letters of Credit
as if the Prepayment Date were the Revolving Credit Termination Date and the
Term Loan Maturity Date.  The Borrower
shall make such prepayment on the Prepayment Date together with interest
accrued to the date of the prepayment on the principal amount prepaid.  In connection with the prepayment of any Loan
prior to the maturity thereof, the Borrower shall also pay any applicable
expenses pursuant to Section 4.2(f). Each such prepayment shall be
applied to prepay ratably the Loans of the Lenders.  Amounts prepaid pursuant to this Section 3.1(d) may
not be reborrowed.


 


52





















 


3.2.  Payments.


 


(a)                                  Manner
and Time of Payment.  All payments of
principal of and interest on the Loans and other obligations (including,
without limitation, fees and expenses) which are payable to the Administrative
Agent or any other Lender shall be made without setoff, counterclaim, condition
or reservation of right, in the currency in which such Loan was made (with
respect to Loans) or in lawful money of the United States (with respect to
other Obligations) in immediately available funds, transmitted to the
Administrative Agent not later than 11:00 a.m. (New York time) on the date
and at the place due, to such account of the Administrative Agent as it may
designate, for the account of the Administrative Agent or such other Lender, as
the case may be; and funds received by the Administrative Agent, including,
without limitation, funds in respect of any Loans to be made on that date, not
later than 11:00 a.m. (New York time) on any given Business Day shall be
credited against payment to be made that day and funds received by the
Administrative Agent after that time shall be deemed to have been paid on the
next succeeding Business Day.  Payments
actually received by the Administrative Agent for the account of the Lenders,
or any of them, shall be paid to them by the Administrative Agent in
immediately available funds promptly after receipt thereof.


 


(b)                                 Apportionment
of Payments. (i) Subject to the provisions of Section 3.2(b)(v),
all payments of principal and interest in respect of outstanding Loans, all
payments of fees and all other payments in respect of any other Obligations,
shall be allocated among such of the Lenders as are entitled thereto, in
proportion to their respective Pro Rata Shares or otherwise as provided herein.  Subject to the provisions of Section 3.2(b)(ii),
all such payments and any other amounts received by the Administrative Agent
from or for the benefit of the Borrower shall be applied in the following
order:


 


(A)                              first,
to pay all Obligations then due and payable, and


 


(B)                                second,
as the Borrower so designates.


 


In the event that the Administrative Agent (at its sole discretion, as
provided in Section 2.1(f)(ii) shall have advanced any Loan on
behalf of any Lender for which the Administrative Agent has not been reimbursed
by the Borrower or Lender, then any payment to be made to such Lender under
this Agreement shall first be paid to the Administrative Agent until the
Administrative Agent has received all principal of and interest on any portion
of the Loans which the Administrative Agent may have advanced on behalf of such
Lender.  Unless otherwise designated by
the Borrower, all principal payments in respect of Loans shall be applied first,
to repay outstanding Base Rate Loans, second, to repay outstanding
Eurocurrency Rate Loans, with those Eurocurrency Rate Loans which have earlier
expiring Interest Periods being repaid prior to those which have later expiring
Interest Periods and third, subject to Section 3.1(a), to
repay outstanding Negotiated Rate Loans, with those Negotiated Rate Loans which
have earlier expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods.


 


(ii)                                  After
the occurrence of an Event of Default and while the same is continuing, the
Administrative Agent shall apply all payments in respect of any Obligations in
the following order:


 


(A)                              first,
to pay Obligations in respect of any fees, expense reimbursements or
indemnities then due to the Administrative Agent in its capacity as
Administrative Agent and not as Lender hereunder;


 


(B)                                second,
to pay Obligations in respect of any fees, expense reimbursements or
indemnities then due to the Lenders;


 


(C)                                third,
to pay interest then due in respect of Loans;


 


53





















 


(D)                               fourth,
to the ratable payment or prepayment of principal outstanding on Loans; and


 


(E)                                 fifth,
to the ratable payment of all other Obligations.


 


In the event that the Administrative Agent (at its sole discretion, as
provided in Section 2.1(f)(ii)) shall have advanced any Loan on
behalf of any Lender for which the Administrative Agent has not been reimbursed
by the Borrower or Lender, then any payment to be made to such Lender under
this Agreement shall first be paid to the Administrative Agent until the
Administrative Agent has received all principal of and interest on any portion
of the Loans which the Administrative Agent may have advanced on behalf of such
Lender.  The order of priority set forth
in this Section 3.2(b)(ii) and the related provisions of this
Agreement are set forth solely to determine the rights and priorities of the
Administrative Agent, the other Lenders and other Holders as among
themselves.  The order of priority set
forth in clauses (B) through (E) of this Section 3.2(b)(ii) may
at any time and from time to time be changed by the Requisite Lenders without
necessity of notice to or consent of or approval by the Borrower, any Holder
which is not a Lender, or any other Person; provided, however, no
such change shall favor one Lender over any other Lender.  The order of priority as to payments due to
the Administrative Agent with respect to Loans made on behalf of another Lender
may be changed only with the prior written consent of the Administrative Agent.


 


(iii)                               Upon the occurrence and
during the continuation of an Event of Default, the Administrative Agent, in
its sole discretion subject only to the terms of this Section 3.2(b)(iii),
may pay from the proceeds of Loans made to the Borrower hereunder, whether made
following a request by the Borrower pursuant to Section 2.1 or a
deemed request as provided in this Section 3.2(b)(iii), all amounts
payable by the Borrower hereunder, including, without limitation, amounts
payable with respect to payments of principal, interest and fees, all
reimbursements for expenses pursuant to Section 13.2 and amounts
that may be drawn under Letters of Credit. 
The Borrower hereby irrevocably authorizes the Lenders, upon the
occurrence and during the continuation of an Event of Default, to make Loans,
which Loans shall be Base Rate Loans, in each case, upon notice from the
Administrative Agent as described in the following sentence for the purpose of
paying principal, interest and fees due from the Borrower, reimbursing expenses
pursuant to Section 13.2, paying amounts that are drawn under
Letters of Credit and paying any and all other amounts due and payable by the
Borrower hereunder or under the Notes, and agrees that all such Loans so made
shall be deemed to have been requested by it pursuant to Section 2.1
as of the date of the aforementioned notice. 
If demanded by Administrative Agent in its absolute and sole discretion
after the occurrence of an Event of Default, Borrower will deposit with and
pledge to Administrative Agent cash in an amount equal to the amount of all
Letter of Credit Obligations.  Such
amounts will be pledged to and held by Administrative Agent for the benefit of
the Lenders as security for any Letter of Credit Obligations and all other
Obligations.  Upon any draws under
Letters of Credit, at Administrative Agent’s sole discretion, Administrative
Agent may apply any such amounts to the repayment of amounts drawn thereunder
and upon the expiration of the Letters of Credit any remaining amounts will be
applied to the payment of all other Obligations or if there are no outstanding
Obligations and the Lenders have no further obligation to make Loans or issue
Letters of Credit, such proceeds deposited by Borrower will be released to
Borrower.  The Administrative Agent shall
request Loans on behalf of the Borrower as described in this section by
notifying the Lenders by facsimile transmission or other similar form of
transmission (which notice the Administrative Agent shall thereafter promptly
transmit to the Borrower), of the amount and Funding Date of the proposed Borrowing
and that such Borrowing is being requested on the Borrower’s behalf pursuant to
this Section 3.2(b)(iii).  On


 


54





















 


the proposed Funding
Date, the Lenders shall make the requested Loans in accordance with the
procedures and subject to the conditions specified in Section 2.1.


 


(iv)                              Subject
to Section 3.2(b)(v), the Administrative Agent shall promptly
distribute to each other Lender at its primary address set forth on the
appropriate signature page hereof or the signature page to the
Assignment and Acceptance by which it became a Lender, or at such other address
as a Lender or other Holder may request in writing, such funds as such Person
may be entitled to receive, subject to the provisions of Article XI;
provided that the Administrative Agent shall under no circumstances be
bound to inquire into or determine the validity, scope or priority of any
interest or entitlement of any Holder and may suspend all payments or seek
appropriate relief (including, without limitation, instructions from the
Requisite Lenders or an action in the nature of interpleader) in the event of
any doubt or dispute as to any apportionment or distribution contemplated
hereby.


 


(v)                                 In
the event that any Lender fails to fund its Pro Rata Share of any Loan
requested by the Borrower which such Lender is obligated to fund under the
terms of this Agreement (the funded portion of such Loan being hereinafter
referred to as a “Non Pro Rata Loan”), until the earlier of such Lender’s
cure of such failure and the termination of the Revolving Credit Commitments
and the Term Loan Commitments, the proceeds of all amounts thereafter repaid to
the Administrative Agent by the Borrower and otherwise required to be applied
to such Lender’s share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the Borrower by the Administrative Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. 
Notwithstanding anything in this Agreement to the contrary:


 


(A)                              the
foregoing provisions of this Section 3.2(b)(v) shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section 4.1(c);


 


(B)                                a
Lender shall be deemed to have cured its failure to fund its Pro Rata Share of
any Loan (without waiver by the Borrower of any claim against such Lender
arising as a consequence of such failure) at such time as an amount equal to
such Lender’s original Pro Rata Share of the requested principal portion of
such Loan (as reduced by such Lender’s Pro Rata Share of any principal
prepayments occurring after the date of such Non Pro Rata Loan) is fully funded
to the Borrower, whether made by such Lender itself or by operation of the
terms of this Section 3.2(b)(v), and whether or not the Non Pro
Rata Loan with respect thereto has been repaid, converted or continued;


 


(C)                                amounts
advanced to the Borrower to cure, in full or in part, any such Lender’s failure
to fund its Pro Rata Share of any Loan (“Cure Loans”) shall bear
interest at the same rate as, and for all other purposes of this Agreement
shall be treated as if they were Loans similar to, the advances that would have
been made had such Lender advanced its Pro Rata Share of the requested Loan;
and


 


(D)                               regardless
of whether or not an Event of Default has occurred or is continuing, and
notwithstanding the instructions of the Borrower as to its desired application,
all repayments of principal which, in accordance with the other terms of this Section 3.2,
would be applied to the outstanding Base Rate Loans shall be applied first,
ratably to all Base Rate Loans constituting Non Pro Rata Loans, second,
ratably to Base


 


55





















 


Rate Loans other than
those constituting Non Pro Rata Loans or Cure Loans and, third, ratably
to Base Rate Loans constituting Cure Loans.


 


Notwithstanding anything herein to the contrary, the provisions of this
Section 3.2(b)(v) shall not apply to Loans to be made pursuant
to Section 2.4(f) or to a failure of a Lender to fund its Pro
Rata Share of an advance under a Letter of Credit pursuant to Section 2.4(g).


 


(c)                                  Payments
on Non-Business Days.  Whenever any
payment to be made by the Borrower hereunder or under the Notes is stated to be
due on a day which is not a Business Day, the payment shall instead be due on
the next succeeding Business Day (or, in the case of certain Eurocurrency Rate
Loans, on the preceding Business Day as set forth in the definition of “Interest
Period”).


 


(d)                                 Obligations
Absolute.  The obligations of the
Borrower to the Lenders under this Agreement (and of the Lenders to make
payments to the Issuing Lender with respect to Letters of Credit) shall be
absolute, unconditional and irrevocable, and shall be paid and performed
strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including, without limitation, the following
circumstances:  (i) any lack of
validity or enforceability of this Agreement, any Letter of Credit or any of
the other Loan Documents; (ii) any improper use which may be made of any
Letter of Credit or any improper acts or omissions of any beneficiary or
transferee of any Letter of Credit in connection therewith; (iii) the
existence of any claim, set-off, defense or any right which the Borrower or any
of its Subsidiaries or Affiliates may have at any time against any beneficiary
or any transferee of any Letter of Credit (or persons or entities for whom any
such beneficiary or any such transferee may be acting) or the Lender (other
than the defense of payment to the Lenders in accordance with the terms of this
Agreement) or any other person, whether in connection with any Letter of
Credit, this Agreement, any other Loan Document, or any unrelated transaction; (iv) any
draft, demand, certificate, statement or any other documents presented under
any Letter of Credit proving to be insufficient, forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect whatsoever; (v) any breach of any agreement between Borrower or
any of its Subsidiaries or Affiliates and any beneficiary or transferee of any
Letter of Credit; (vi) any irregularity in the transaction with respect to
which any Letter of Credit is issued, including any fraud by the beneficiary or
any transferee of such Letter of Credit; (vii) payment by the Issuing
Lender under any Letter of Credit against presentation of a sight draft,
demand, certificate or other document which does not comply with the terms of
such Letter of Credit, provided that such payment shall not have constituted
gross negligence or willful misconduct on the part of the Issuing Lender; (viii) any
non-application or misapplication by the beneficiary of a Letter of Credit of
the proceeds of such Letter of Credit; (ix) the legality, validity, form,
regularity or enforceability of the Letter of Credit; (x) the failure of any
payment by Issuing Lender to conform to the terms of a Letter of Credit (if, in
Issuing Lender’s good faith judgment, such payment is determined to be
appropriate); (xi) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents;
(xii) the occurrence of any Event of Default or Potential Event of Default; and
(xiii) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, provided that such other circumstances or happenings
shall not have been the result of gross negligence or willful misconduct on the
part of the Issuing Lender.


 


(e)                                  Distribution
of Payments.  If in the opinion of
the Administrative Agent the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution until
its right to make distribution shall have been adjudicated by a court of
competent jurisdiction.  If a court of
competent jurisdiction shall adjudge that any amount received and distributed
by the Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be determined by
such court.


 


56





















 


3.3.  Promise to Repay; Evidence
of Indebtedness.


 


(a)                                  Promise
to Repay.  The Borrower hereby
unconditionally promises and agrees to pay (i) to the Administrative Agent
for the account of each Lender, the then unpaid principal amount of each
Revolving Credit Loan on the Revolving Credit Termination Date; (ii) to the
Administrative Agent for the account of each Lender, the then unpaid principal
amount of the Term Loan on the Term Loan Maturity Date, (iii) to the
Administrative Agent for the account of each Lender of an outstanding
Negotiated Rate Loan, the then unpaid principal amount of each Negotiated Rate
Loan on the last day of the Interest Period applicable to such Loan and (iv) to
the Swing Lender, the then unpaid principal amount of each Swing Loan on or
before the earlier of (x) the Revolving Credit Termination Date, (y) the last
day of any calendar quarter, and (z) the fourth Business Day after such Swing
Loan is made; provided that on each date that a Borrowing is made, the
Borrower shall repay all Swing Loans then outstanding.  The Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender and the Swing Lender, all
unpaid interest accrued thereon, in accordance with the terms of this Agreement
and the Notes.  The Borrower shall
execute and deliver to each Lender on the Closing Date, a Revolving Credit Note
and a Term Loan Note, evidencing the Loans to each Lender requesting a Note on
or prior to the Closing Date and thereafter shall execute and deliver such
other Notes as are requested to evidence (x) any Negotiated Rate Loans or Swing
Loans, as requested by the Administrative Agent or the Lender making such
Negotiated Rate Loan, or (y) the Loans owing to the Lenders after giving effect
to any assignment thereof pursuant to Section 13.1, all in form and
substance acceptable to the Administrative Agent and the parties to such
assignment (all such promissory notes and all amendments thereto, replacements
thereof and substitutions therefor being collectively referred to as the “Notes”;
and “Note” means any one of the Notes). 
In connection with the issuance of any Note that replaces, in whole or
in part, an existing Note, the existing replaced Note shall be returned to the
Borrower marked “Cancelled” or “Replaced” upon request by the Borrower.  In the event that such replaced Note is not
returned within twenty (20) days after the issuance of a replacement Note (or,
in the case of Note relating to a Negotiated Rate Loan, within twenty (20) days
after the repayment of such Negotiated Rate Loan) and the request for return is
made, the Borrower shall be entitled to receive an affidavit from the Lender
that was issued the Note, including an indemnity agreement, reasonably
satisfactory to the Borrower, with respect to such unreturned Note.


 


(b)                                 Loan
Account.  Each Lender shall maintain
in accordance with its usual practice an account or accounts (a “Loan
Account”) evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan owing to such Lender from time to time, including the
amount of principal and interest payable and paid to such Lender from time to
time hereunder and under the Notes.


 


(c)                                  Control
Account.  The Register maintained by
the Administrative Agent pursuant to Section 13.1(c) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the type of Loan comprising such Borrowing, any
Interest Period applicable thereto and the Negotiated Rate, if applicable, (ii) the
effective date and amount of each Assignment and Acceptance delivered to and
accepted by it and the parties thereto, (iii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder or under the Notes and (iv) the amount of any sum
received by the Administrative Agent from the Borrower hereunder and each
Lender’s share thereof.


 


(d)                                 Entries
Binding.  The entries made in the
Register and each Loan Account shall be conclusive and binding for all
purposes, absent manifest error.


 


57





















 


3.4.  Currency Matters.  Dollars are the
currency of account and payment for each and every sum at any time due from the
Borrower hereunder; provided that: 
(a) except as expressly provided in this Agreement, each repayment
of a Revolving Credit Tranche B Obligation, Tranche B Letter of Credit
Obligation or a part thereof shall be made in the currency in which such
Revolving Credit Tranche B Obligation or Tranche B Letter of Credit Obligation,
as the case may be, is denominated at the time of that repayment; (b) each
payment of interest shall be made in the currency in which the principal or
other sum in respect of which such interest is payable is denominated; (c) each
payment of any fees shall be in Dollars; (d) each payment in respect of
costs, expenses and indemnities shall be made in the currency in which the same
were incurred; and (e) any amount expressed to be payable in an Optional
Currency shall be paid in such Optional Currency.  No payment to the Administrative Agent or any
Lender (whether under any judgment or court order or otherwise) shall discharge
the obligation or liability in respect of which it was made unless and until
the Administrative Agent or such Lender shall have received payment in full in
the currency in which such obligation or liability was incurred, and to the
extent that the amount of any such payment shall, on actual conversion into
such currency, fall short of such obligation or liability, actual or contingent,
expressed in that currency, the Borrower agrees to indemnify and hold harmless
the Administrative Agent or such Lender, as the case may be, with respect to
the amount of the shortfall, with such indemnity surviving the termination of
this Agreement and any legal proceeding, judgment or court order pursuant to
which the original payment was made which resulted in the shortfall.  To the extent the Administrative Agent or any
Lender receives payment of any Obligation in a currency other than the currency
required to be paid hereunder, each of the Administrative Agent and such Lender
shall take all reasonable actions to convert such currency into the currency in
which the underlying liability was incurred, at the Administrative Agent’s or
such Lender’s spot rate of exchange, within one (1) Business Day after
receipt of payment by the Borrower, provided, if reasonable methods
and/or markets do not exist for making such exchange, then the Administrative
Agent or such Lender, as the case may be, will make such exchange within one (1) Business
Day of the date on which making such exchange is, in the Administrative Agent’s
or such Lender’s reasonable determination, commercially possible, and, provided further, nothing contained herein
shall in any manner limit the Borrower’s obligations to pay all Obligations in
the currency required under this Agreement, nor shall it be construed as the
Administrative Agent’s or any Lender’s consent to the Borrower paying any
Obligation in any currency other than as set forth in clauses (a) – (e) of
this Section 3.4.


 


ARTICLE IV.

INTEREST AND FEES


 


4.1.  Interest on the Loans and
other Obligations.


 


(a)                                  Rate
of Interest.  All Loans and the
outstanding principal balance of all other Obligations shall bear interest on
the unpaid principal amount thereof from the date such Loans are made and such
other Obligations are due and payable until paid in full, except as otherwise
provided in Section 4.1(d), as follows:


 


(i)                                     If
a Base Rate Loan or an Obligation other than a Eurocurrency Rate Loan or
Negotiated Rate Loan, at a rate per annum equal to the sum of (A) the Base
Rate, as in effect from time to time as interest accrues, plus (B) the
then Applicable Margin for Base Rate Loans;


 


(ii)                                  If
a Eurocurrency Revolving Credit Loan or a Eurocurrency Term Loan, at a rate per
annum equal to the sum of (A) the Eurocurrency Rate determined for the
applicable Interest Period, plus (B) the then Applicable Margin for
Eurocurrency Rate Loans;


 


58





















 


(iii)                               If a Negotiated Rate
Loan, at a rate per annum equal to either (x) in the case of a Fixed Rate Loan,
the Fixed Rate specified in such accepted Negotiated Rate Quote or (y) in the
case of a Eurocurrency Negotiated Rate Loan, the sum of the Margin specified in
such accepted Negotiated Rate Quote, plus the applicable Eurocurrency
Rate determined for the applicable Interest Period; and


 


(iv)                              If
a Swing Loan, at a rate per annum set forth in Section 2.1(c)(ii).


 


The applicable basis for determining the rate of interest on the Loans
shall be selected by the Borrower at the time a Notice of Borrowing or a Notice
of Conversion/Continuation is delivered by the Borrower to the Administrative
Agent or at the time of acceptance of one or more Negotiated Rate Quotes by the
Borrower; provided, however, that the Borrower may not select the
Eurocurrency Rate as the applicable basis for determining the rate of interest
on such a Loan if at the time of such selection an Event of Default or a
Potential Event of Default has occurred and is continuing and further  provided,
that from and after the occurrence of an Event of Default, each LIBOR Rate Loan
(other than a Negotiated Rate Loan) then outstanding may, at the Administrative
Agent’s option, convert to a Base Rate Loan. 
If on any day any Revolving Credit Loan or Term Loan is outstanding with
respect to which notice has not been timely delivered to the Administrative
Agent in accordance with the terms of this Agreement specifying the basis for
determining the rate of interest on that day, then the Borrower shall be deemed
to have submitted a Notice of Conversion/Continuation with respect to the full
amount of such LIBOR Loan requesting a Base Rate Loan.  From and after the occurrence of an Event of
Default, the Administrative Agent may, or upon request of the Requisite Lenders
holding Revolving Credit Tranche B Commitments shall, require that each
Revolving Credit Loan denominated in Optional Currency then outstanding be
repaid by means of a Base Rate Borrowing in the amount of the Dollar Equivalent
of such Revolving Credit Loan denominated in Optional Currency.


 


(b)                                 Interest
Payments. (i)                               Interest
accrued on the Loans shall be calculated and payable in arrears (A)(x) with
respect to Eurocurrency Rate Loans and Negotiated Rate Loans, on (1) the
last day of the Interest Period and (2) if such Interest Period is longer
than three (3) months in duration, the last day of each three (3) month
period following the Funding Date, and (y) with respect to Base Rate Loans, on
the first Business Day of each calendar month commencing on the first such day
following the Funding Date of such Loan, (B) upon the payment or
prepayment thereof, and (C) if not theretofore paid in full, at maturity
(whether by acceleration or otherwise) of such Loan.


 


(ii)                                  Interest
accrued on the principal balance of all other Obligations shall be calculated
and payable in arrears on the first Business Day of each calendar month,
commencing on the first such day following the incurrence of such Obligation
and if not theretofore paid in full, at the time such other Obligation becomes
due and payable (whether by acceleration or otherwise).


 


(c)                                  Conversion
or Continuation.  (i) The
Borrower shall have the option (A) to convert at any time all or any part
of outstanding Base Rate Loans to LIBOR Rate Loans; (B) to convert all or
any part of outstanding LIBOR Rate Loans having Interest Periods which expire
on the same date to Base Rate Loans on such expiration date; or (C) to
continue all or any part of outstanding Eurocurrency Rate Loans having Interest
Periods that expire on the same date, as Eurocurrency Rate Loans, and the
succeeding Interest Period of such continued Loans, shall commence on such
expiration date; provided, however, no such outstanding Loan may
be continued as a Eurocurrency Rate Loan, or be converted into, a LIBOR Rate
Loan (i) if the continuation of, or the conversion into, would violate any
of the provisions of Section 4.2 or (ii) if an Event of
Default or Potential Event of Default has occurred and is continuing.  Any conversion into a LIBOR Rate Loan or
continuation of Eurocurrency Rate Loans under this Section 4.1(c) shall
be in a minimum amount of $2,000,000 (the Dollar Equivalent of $1,000,000 in
the case of a Loan


 


59





















 


denominated in an Optional Currency) and in integral
multiples of $1,000,000 (the Dollar Equivalent of $500,000 in the case of a
Loan denominated in an Optional Currency) in excess of that amount, except in
the case of a conversion into or a continuation of an entire Borrowing of Non
Pro Rata Loans or the continuation of an entire Borrowing of an Optional
Currency Loan outstanding at any one time.


 


(ii)                                  To
convert or continue a Loan under Section 4.1(c)(i), the Borrower
shall deliver a Notice of Conversion/Continuation to the Administrative Agent
no later than 11:00 a.m. (New York time) at least three (3) (for
Loans denominated in Dollars) or four (4) (for Loans denominated in
Optional Currency) Business Days in advance of the proposed conversion/continuation
date.  A Notice of
Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the
principal amount of the Loan to be converted/continued, (C) whether such
Loan shall be converted and/or continued, and (D) in the case of a
conversion to a LIBOR Rate Loan or continuation of a Eurocurrency Rate Loan,
the requested Interest Period.  In lieu
of delivering a Notice of Conversion/Continuation, the Borrower may give the
Administrative Agent telephonic notice of any proposed conversion/continuation
by the time required under this Section 4.1(c)(ii), if the Borrower
confirms such notice by delivery of the Notice of Conversion/Continuation to
the Administrative Agent by facsimile transmission promptly, but in no event
later than 12:00 p.m. (New York time) on the same day.  Promptly after receipt of a Notice of
Conversion/Continuation under this Section 4.1(c)(ii) (or
telephonic notice in lieu thereof), the Administrative Agent shall notify each Lender
by facsimile transmission, or other similar form of transmission, of the
proposed conversion/continuation.  Any
Notice of Conversion/Continuation for conversion to, or continuation of, a Loan
(or telephonic notice in lieu thereof) given pursuant to this Section 4.1(c)(ii) shall
be irrevocable, and the Borrower shall be bound to convert or continue in
accordance therewith.  In the event no
Notice of Conversion/Continuation is delivered at least three (3) (for
Loans denominated in Dollars) or four (4) (for Loans denominated in
Optional Currency)  Business Days in
advance of the proposed conversion/continuation date with respect to
outstanding Eurocurrency Rate Loans, then (a) as to Eurocurrency Rate
Loans denominated in an Optional Currency, the Borrower shall repay such
Eurocurrency Rate Loans at the end of such Interest Period, and (b) as to
Eurocurrency Rate Loans denominated in Dollars, such Eurocurrency Rate Loan
shall be automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto. 
The Administrative Agent shall notify the Lenders promptly when any such
automatic conversion contemplated by this Section 4.1(c)(ii) is
scheduled to occur.


 


(iii)                               This Section 4.1(c) shall
not apply to Negotiated Rate Loans or Swing Loans, which may not be converted
or continued.


 


(d)                                 Default
Interest.  Notwithstanding the rates
of interest specified in Section 4.1(a) or elsewhere in this
Agreement, effective immediately upon the occurrence of an Event of Default,
and for as long thereafter as such Event of Default shall be continuing, the
principal balance of (i) all Base Rate Loans and other Obligations
denominated in Dollars (excluding Negotiated Rate Loans) shall bear interest at
a rate equal to the sum of (A) the Base Rate, as in effect from time to
time as interest accrues, plus (B) two percent (2.0%) per annum, (ii) all
Eurocurrency Rate Loans and Obligations denominated in Optional Currency
(excluding Negotiated Rate Loans) shall bear interest at a rate equal to the
sum of (A) the applicable Eurocurrency Rate with respect thereto, as in
effect from time to time as interest accrues, plus (B) two percent
(2.0%) per annum, and (iii) all Negotiated Rate Loans shall bear interest
at a rate equal to the sum of (A) the applicable Negotiated Rate with
respect thereto, as in effect from time to time as interest accrues, plus
(B) two percent (2.0%) per annum.


 


60





















 


(e)                                  Computation
of Interest.  Interest on all
Obligations shall be computed on the basis of the actual number of days elapsed
in the period during which interest accrues and a year of 360 days (for
Negotiated Rate Loans and Eurocurrency Rate Loans) or 365 or 366 days, as
applicable (for all other Obligations). 
In computing interest on any Loan, the date of the making of the Loan or
the first day of an Interest Period, as the case may be, shall be excluded and
the date of payment or the expiration date of an Interest Period, as the case
may be, shall be included; provided, however, if a Loan is repaid
on the same day on which it is made, one (1) day’s interest shall be paid
on such Loan.


 


(f)                                    Eurocurrency
Rate Information.  Upon the
reasonable request of the Borrower from time to time, the Administrative Agent
shall promptly provide to the Borrower such information with respect to the
applicable Eurocurrency Rate as may be so requested.


 


4.2.  Special Provisions
Governing Eurocurrency Rate Loans.


 


(a)                                  Amount
of Eurocurrency Rate Loans.  Each
Eurocurrency Rate Loan (excluding any Negotiated Rate Loans) shall be in a
minimum principal amount of the Dollar Equivalent of $2,000,000 (or the Dollar
Equivalent of $1,000,000 in the case of any Eurocurrency Rate Loan denominated
in an Optional Currency) and in integral multiples of the Dollar Equivalent of
$1,000,000 (or the Dollar Equivalent of $500,000 in the case of any
Eurocurrency Rate Loan denominated in an Optional Currency) in excess of that
amount. There shall be no more than fifteen (15) Eurocurrency Rate Borrowings
denominated in Dollars (exclusive of Negotiated Rate Loans) and five (5) Eurocurrency
Rate Borrowings (exclusive of Negotiated Rate Loans) denominated in Optional
Currency outstanding at any one time.


 


(b)                                 Determination
of Eurocurrency Interest Period.  By
giving notice as set forth in Section 2.1(e) (with respect to
a Borrowing of Eurocurrency Rate Loans) or Section 4.1(c) (with
respect to a conversion into or continuation of Eurocurrency Rate Loans), the
Borrower shall have the option, subject to the other provisions of this Section 4.2,
to select an Interest Period to apply to the Loans described in such notice.


 


(c)                                  Determination
of Eurocurrency Interest Rate.  As
soon as practicable on the second LIBOR Business Day or the second TARGET
Settlement Date, as the case may be, prior to the first day of each Interest
Period (the “Interest Rate Determination Date”), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition
of “Eurocurrency Rate”) the interest rate which shall apply to the Eurocurrency
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 the Borrower and to each Lender.  The Administrative Agent’s determination
shall be presumed to be correct, absent manifest error, and shall be binding
upon the Borrower.


 


(d)                                 Interest
Rate Unascertainable, Inadequate or Unfair. 
In the event that at least one (1) Business Day before the Interest
Rate Determination Date:


 


(i)                                     the
Administrative Agent determines that deposits in Dollars or Optional Currency
(in the applicable amounts) are not being offered to the Administrative Agent
in the Eurocurrency Interbank Market for such Interest Period; or


 


(ii)                                  the
Administrative Agent determines that adequate and fair means do not exist for
ascertaining the applicable interest rates by reference to which the applicable
Eurocurrency Rate then being determined is to be fixed; or


 


(iii)                               the Requisite Lenders
advise the Administrative Agent that the applicable Eurocurrency Rate for
Eurocurrency Rate Loans comprising such Borrowing will not adequately


 


61





















 


reflect the cost to such
Requisite Lenders of obtaining funds in Dollars or Optional Currency in
Eurocurrency Interbank Market in the amount substantially equal to such Lenders’
Eurocurrency Rate Loans in Dollars or Optional Currency and for a period equal
to such Interest Period;


 


then the Administrative Agent shall forthwith give notice thereof to
the Borrower, whereupon (until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist) the
right of the Borrower to elect to have Loans bear interest based upon the applicable
Eurocurrency Rate shall be suspended and each outstanding Revolving Credit Loan
or Term Loan bearing interest at a rate based on such Eurocurrency Rate shall,
if such Eurocurrency Rate is the LIBOR Rate, be converted into a Base Rate Loan
on the last day of the then current Interest Period therefor, and each such
outstanding Revolving Credit Loan denominated in Optional Currency or
Eurocurrency Negotiated Rate Loan shall be repaid on the last day of the
current Interest Period, notwithstanding any prior election by the Borrower to
the contrary.


 


(e)                                  Illegality.  (i)                              If
at any time any Lender determines (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties) that the making or
continuation of any Eurocurrency Rate Loan has become unlawful or impermissible
by compliance by that Lender with any law, governmental rule, regulation or
order of any Governmental Authority (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful or would result in
costs or penalties), then, and in any such event, such Lender may give notice
of that determination, in writing, to the Borrower and the Administrative
Agent, and the Administrative Agent shall promptly transmit the notice to each
other Lender.


 


(ii)                                  When
notice is given by a Lender under Section 4.2(e)(i), (A) the
Borrower’s right to request from such Lender and such Lender’s obligation, if
any, to make applicable Eurocurrency Rate Loans shall be immediately suspended,
and such Lender shall make a Base Rate Loan as part of any requested Borrowing
of applicable Eurocurrency Rate Loans and (B) if the affected Eurocurrency
Rate Loan or Loans are then outstanding, the Borrower shall immediately, or if
permitted by applicable law, no later than the date permitted thereby, upon at
least one (1) Business Day’s prior written notice to the Administrative
Agent and the affected Lender, convert each such Loan dominated in Dollars into
a Base Rate Loan and each such Loan denominated in Optional Currency or
Eurocurrency Negotiated Rate Loan held by such Lender shall be repaid on the
last day of the current Interest Period.


 


(iii)                               If at any time after a
Lender gives notice under Section 4.2(e)(i) such Lender
determines that it may lawfully make Eurocurrency Rate Loans, such Lender shall
promptly give notice of that determination, in writing, to the Borrower and the
Administrative Agent, and the Administrative Agent shall promptly transmit the
notice to each other Lender.  The
Borrower’s right to request, and such Lender’s obligation, if any, to make
Eurocurrency Rate Loans shall thereupon be restored.


 


(iv)                              Notwithstanding
the foregoing, in the event that any Lender gives such a notice, at the
Borrower’s sole election, the Borrower may identify an Eligible Assignee not
giving such a notice to whom the Lender which has given such a notice shall
assign its interest in the Loans at par pursuant to the terms of an Assignment
and Acceptance substantially in the form attached as Exhibit A, subject to the consent of the
Administrative Agent and the Issuing Lender (such consent not to be
unreasonably withheld or delayed).


 


(f)                                    Compensation.  In addition to all amounts required to be
paid by the Borrower pursuant to Section 4.1 and Article XII,
the Borrower shall compensate each Lender, upon demand, for all losses,
expenses and liabilities (including, without limitation, any loss or expense
incurred by reason of the


 


62










 













 


liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain such Lender’s Eurocurrency Rate
Loans or Negotiated Rate Loan to the Borrower but excluding losses or expenses
incurred as the result of such Lender’s gross negligence or willful misconduct)
which such Lender may sustain (i) if for any reason a Borrowing,
conversion into LIBOR Rate Loans or continuation of Eurocurrency Rate Loans
does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion/Continuation given by, or a Negotiated Rate Quote accepted
by, the Borrower or in a telephonic request by it for borrowing or
conversion/continuation or a successive Interest Period does not commence after
notice therefor is given pursuant to Section 4.1(c), including,
without limitation, pursuant to Section 4.2(d), (ii) if for
any reason any Eurocurrency Rate Loan or Negotiated Rate Loan is prepaid
(including, without limitation, mandatorily pursuant to Section 3.1(d))
on a date which is not the last day of the applicable Interest Period, (iii) as
a consequence of a required conversion of a LIBOR Rate Loan to a Base Rate Loan
as a result of any of the events indicated in Section 4.2(d), or (iv) as
a consequence of any failure by the Borrower to repay a Eurocurrency Rate Loan
or Negotiated Rate Loan when required by the terms of this Agreement,
including, without limitation, an amount equal to daily interest for the
unexpired portion of such Interest Period on the Eurocurrency Rate Loan or portion
thereof so repaid or converted at a per annum rate equal to the excess, if any,
of (A) the interest rate calculated on the basis of the Eurocurrency Rate
applicable to such Eurocurrency Rate Loan minus (B) the Eurocurrency Rate
in effect as of such repayment or conversion which has a maturity date most
closely approximating the last day of such existing Interest Period.  Such amount shall be reduced to present value
by using the Eurocurrency Rate for the new interest period and the number of
days remaining in the unexpired portion of the Interest Period in
question.  The Lender making demand for
such compensation shall deliver to Administrative Agent who shall forward to
the Borrower, concurrently with such demand, a written statement setting forth
in reasonable detail such losses, expenses and liabilities, and such statement
shall be conclusive as to the amount of compensation due to that Lender, absent
manifest error.


 


(g)                                 Booking of Eurocurrency Rate Loans. 
Any Lender may make, carry or transfer Eurocurrency Rate Loans at, to,
or for the account of, its Eurocurrency Lending Office or Eurocurrency
Affiliate or its other offices or Affiliates. 
No Lender shall be entitled, however, to receive any greater amount under
Sections 3.2 or 4.2(f) or Article XII as a
result of the transfer of any such Eurocurrency Rate Loan to any office (other
than such Eurocurrency Lending office) or any Affiliate (other than such
Eurocurrency Affiliate) than such Lender would have been entitled to receive
immediately prior thereto, unless (i) the transfer occurred at a time when
circumstances giving rise to the claim for such greater amount did not exist
and (ii) such claim would have arisen even if such transfer had not
occurred.


 


(h)                                 Affiliates Not Obligated. 
No Eurocurrency Affiliate or other Affiliate of any Lender shall be
deemed a party to this Agreement or shall have any liability or obligation
under this Agreement unless such Eurocurrency Affiliate or other Affiliate,
itself, is a Lender.


 


(i)                                     Adjusted Eurocurrency Rate. 
Any failure by Administrative Agent to take into account the Reserve
Percentage when calculating interest due on Eurocurrency Rate Loans shall not
constitute, whether by course of dealing or otherwise, a waiver by
Administrative Agent or the Lenders of their right to collect such amount for
any future period.


 


(j)                                     Optional Currencies.


 


(i)                                     Request for Optional Currencies. 
In the event that the Borrower requests any Revolving Credit Tranche B
Loans be made as Eurocurrency Rate Loans in an Optional Currency pursuant to Section 2.1(e),
the Revolving Credit Tranche B Loan proposed to be made under Section 2.1(e) shall
be in an amount not less than the applicable Optional Currency’s Dollar
Equivalent of the minimum borrowing amounts


 


63





















 


set forth in Section 2.1(b); provided,
that after giving effect to the making of such Loan, the sum of (a) the
aggregate Revolving Credit Tranche B Obligations and (b) the aggregate
Tranche B Letter of Credit Obligations shall not exceed the Revolving Credit
Tranche B Commitments at the time of such Loan. 
Subject to the foregoing and to the satisfaction of the terms and
conditions of Article V, each Revolving Credit Tranche B Loan
requested to be made in an Optional Currency will be made on the date specified
therefor in the Notice of Borrowing and, upon being so made, will have the
Interest Period requested in the Notice of Borrowing.  Each Loan denominated in an Optional Currency
shall be a Eurocurrency Rate Loan.


 


(ii)                                  Denominations. 
In the event that any portion of the funds available under the terms of
this Agreement is denominated in an Optional Currency, the Dollar Equivalent of
such portion of the funds shall be calculated pursuant to the definition of “Dollar Equivalent.” The amount so determined
shall then be added to the amount already outstanding in Dollars for the
purpose of determining the remaining availability of funds under Sections
2.1 and 4.2(j)(i) and any required repayments under Section 4.2(j)(iii).


 


(iii)                               Repayment.  The Administrative Agent shall, on the
fifth Business Day of each calendar month, each date of a Sharing Event, and
each date that is two (2) days prior to any Funding Date of a Borrowing of
Optional Currency, calculate the Dollar Equivalent of all Borrowings
denominated in Optional Currency.  If at
any such time the Dollar Equivalent of the aggregate principal amount
outstanding of the sum of (A) all Revolving Credit Tranche B Obligations
and (B) all Tranche B Letter of Credit Obligations shall exceed the lesser
of $175,000,000 or the Revolving Credit Tranche B Commitments due to currency
fluctuations, the Borrower shall, upon demand by the Administrative Agent, pay
or cause to be paid within two (2) Business Days of any such demand made
by the Administrative Agent, such amounts as are sufficient to eliminate such
excess and to reduce the Dollar Equivalent of the aggregate principal amount
outstanding of the sum of (I) the Revolving Credit Tranche B Obligations and
(II) the Tranche B Letters of Credit Obligations to an amount equal to the
lesser of $175,000,000 or the amount of the Revolving Credit Tranche B
Commitments.


 


(iv)                              Funding. 
Each Lender may make any Eurocurrency Rate Loan denominated in an
Optional Currency by causing any of its domestic or foreign branches or foreign
affiliates to make such Eurocurrency Rate Loan (whether or not such branch or
affiliate is named as a lending office on the signature pages hereof); provided that in such event the obligation of
the Borrower to repay such Eurocurrency Rate Loan shall nevertheless be to such
Lender and shall, for all purposes of this Agreement (including without
limitation for purposes of the definition of “Requisite
Lenders”) be deemed made by such Lender, to the extent of such Eurocurrency
Rate Loan, for the account of such branch or affiliate.


 


4.3.  Fees.


 


(a)                                  Facility Fee. 
The Borrower shall pay to the Administrative Agent, for the account of
the Lenders based on their respective Pro Rata Shares, a fee (the “Facility
Fee”), equal to the Facility Fee Rate multiplied by the sum of the Maximum
Revolving Credit Amount plus the outstanding principal amount of the
Term Loan.  Such fee shall be payable
quarterly, in arrears, commencing on January 1, 2005 and on the first
Business Day of each calendar quarter thereafter.  The Facility Fee shall also be payable upon
any termination of the Revolving Credit Commitments and/or repayment in full of
the Term


 


64





















 


Loan, which payment shall be prorated for any partial
quarter during which termination of the Revolving Credit Commitments and/or
repayment in full of the Term Loan occurs. 
Notwithstanding the foregoing, in the event that any Lender fails to
fund its Pro Rata Share of any Loan requested by the Borrower which such Lender
is obligated to fund under the terms of this Agreement, (x) the portion of the
Facility Fee with respect to such Lender’s Revolving Credit Commitment shall
abate until such failure has been cured in accordance with Section 3.2(b)(v)(B) and
(y) until such time, the Facility Fee (as reduced by clause (x) of this Section 4.3(a))
shall accrue in favor of the Lenders which have funded their respective Pro
Rata Shares of such requested Loan, shall be allocated among such performing
Lenders ratably based upon their relative Revolving Credit Commitments.


 


(b)                                 Administrative Agent’s Fee. 
The Borrower shall pay to the Administrative Agent, for the
Administrative Agent’s own account, an annual Administrative Agent’s fee as
provided in the Fee Letter. The Administrative Agent’s fee shall be payable
quarterly in advance on the Closing Date and on the first day of each calendar
quarter after the Closing Date for the following calendar quarter or portion
thereof.  The Administrative Agent’s fee
for any partial calendar quarter shall be prorated.


 


(c)                                  Negotiated Rate Loan Fee. 
Simultaneously with the delivery of a Negotiated Rate Quote Request, the
Borrower shall pay to the Administrative Agent, for the Administrative Agent’s
own account, a fee of $2,500.


 


(d)                                 Calculation and Payment of Fees. 
All fees shall be calculated on the basis of the actual number of days
elapsed during the relevant period in a 360-day year.  All fees shall be payable in addition to, and
not in lieu of, interest, compensation, expense reimbursements, indemnification
and other Obligations.  Fees shall be
payable to the Administrative Agent at Administrative Agent’s Head Office in
immediately available funds.  All fees
shall be fully earned and nonrefundable when paid.  All fees due to any other Lender, including,
without limitation, those referred to in this Section 4.3, shall
bear interest, if not paid when due, at the interest rate specified in Section 4.1(d) and
shall constitute Obligations.


 


(e)                                  Limitation on Interest. 
Notwithstanding anything in this Agreement or the other Loan Documents
to the contrary, all agreements between or among the Borrower and the Lenders
and the Administrative Agent, whether now existing or hereafter arising and
whether written or oral, are hereby limited so that in no contingency, whether
by reason of acceleration of the maturity of any of the Obligations or
otherwise, shall the interest contracted for, charged or received by the
Lenders exceed the maximum amount permissible under applicable law.  If, from any circumstance whatsoever,
interest would otherwise be payable to the Lenders in excess of the maximum
lawful amount, the interest payable to the Lenders shall be reduced to the
maximum amount permitted under applicable law; and if from any circumstance the
Lenders shall ever receive anything of value deemed interest by applicable law
in excess of the maximum lawful amount, an amount equal to any excessive
interest shall be applied to the reduction of the principal balance of the
Obligations and to the payment of interest or, if such excessive interest
exceeds the unpaid balance of principal of the Obligations, such excess shall
be refunded to the Borrower.  All
interest paid or agreed to be paid to the Lenders shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full period until payment in full of the principal of the
Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law.  This section shall
control all agreements between the Borrower and the Lenders and the
Administrative Agent.


 


65





















 


ARTICLE V.

CONDITIONS TO LOANS AND ISSUANCE OF LETTERS OF CREDIT


 


5.1.  Conditions Precedent to the Initial Loans and
Letters of Credit.  The obligation of each Lender on the Initial Funding Date
to make the Term Loan and any other Loan requested to be made by it or of the
Issuing Lender on the Initial Funding Date to issue any Letter of Credit
requested of it shall be subject to the satisfaction or waiver of all of the
following conditions precedent:


 


(a)                                  Documents.  The
Administrative Agent shall have received on or before the Initial Funding Date
all of the following:


 


(i)                                     this Agreement, the Notes, the Guaranty
and, to the extent not otherwise specifically referenced in this Section 5.1(a),
all other Loan Documents and agreements, documents and instruments described in
the List of Closing Documents attached hereto as Schedule 5.1(a) and
made a part hereof, each duly executed and in form and substance satisfactory
to the Administrative Agent;


 


(ii)                                  a legal opinion from Hogan &
Hartson L.L.P., counsel to TMC and the Borrower, satisfactory in form and
substance to the Administrative Agent, and delivered to the Administrative
Agent and the Lenders; and


 


(iii)                               such additional documentation as the Administrative
Agent may reasonably request.


 


(b)                                 No Legal Impediments. 
No law, regulation, order, judgment or decree of any Governmental
Authority shall, and the Administrative Agent shall not have received any
notice that litigation is pending or threatened which is likely to (i) enjoin,
prohibit or restrain the making of the Loans or the issuance of any Letter of
Credit on the Initial Funding Date or (ii) impose or result in the
imposition of a Material Adverse Effect.


 


(c)                                  No Change in Condition. 
No change in the business, assets, management, operations, financial
condition or prospects of TMC, the Borrower or any of their respective
Properties or Subsidiaries shall have occurred since September 30, 2004
which change, in the judgment of the Administrative Agent, will have or is
reasonably likely to have a Material Adverse Effect.


 


(d)                                 Interim Liabilities and Equity. 
Except as disclosed to the Administrative Agent and the Lenders or as
permitted under the Existing Revolving Agreement and the Original Term Loan
Agreement, since September 30, 2004, Borrower shall not have (i) entered
into any material (as determined in good faith by the Administrative Agent)
commitment or transaction, including, without limitation, transactions for
borrowings and Capital Expenditures, which are not in the ordinary course of
the Borrower’s business, (ii) declared or paid any dividends or other
distributions which are not in the ordinary course of the Borrower’s business, (iii) established
any new compensation or employee benefit plans or made any change to any
existing compensation or employee benefit plan, in each case, that is material
to the Borrower’s financial condition or prospects, or (iv) redeemed any
equity Securities in the Borrower or TMC.


 


(e)                                  No Loss of Material Agreements and
Licenses.  Since September 30, 2004, no agreement
or license relating to the business, operations or employee relations of the
Borrower or any of its Properties shall have been terminated, modified,
revoked, breached or declared to be in default, the


 


66





















 


termination, modification, revocation, breach or
default under which, in the reasonable judgment of the Administrative Agent,
would result in a Material Adverse Effect.


 


(f)                                    No Default.  No Event of
Default or Potential Event of Default shall have occurred and be continuing or
would result from the making of the Loans or the issuance of such Letters of
Credit.


 


(g)                                 Representations and Warranties. 
All of the representations and warranties contained in Section 6.1
and in any of the other Loan Documents shall be true and correct in all material
respects on and as of the Initial Funding Date (except to the extent that such
representations and warranties expressly speak as to a different specific
date).


 


(h)                                 Fees and Expenses Paid. 
There shall have been paid to the Administrative Agent, for the accounts
of the Administrative Agent and the other Lenders, as applicable, all fees due
and payable on or before the Initial Funding Date and all expenses due and
payable on or before the Initial Funding Date, including, without limitation,
reasonable attorneys’ fees and expenses, and other costs and expenses incurred
in connection with the Loan Documents; provided that the Borrower shall not be
responsible for the fees and expenses of any law firm representing the
Administrative Agent or the Lenders other than Bingham McCutchen LLP.


 


(i)                                     Financial Statements. 
There shall have been delivered to the Administrative Agent, for each of
the Lenders, the Financial Statements and certificates with respect to the
Fiscal Year ending December 31, 2003 and with respect to the fiscal
quarter ended September 30, 2004 required pursuant to Section 7.2(a) and
Section 7.2(b) of the Existing Revolving Agreement, including
those required pursuant to Section 7.2(a)(ii) and Section 7.2(b)(ii) of
the Existing Revolving Agreement.


 


(j)                                     Compliance Certificate. 
A Compliance Certificate dated as of the Initial Funding Date
demonstrating compliance with each of the covenants calculated therein as of
the Closing Date, after giving effect to the making of the Term Loan, the other
Loans and the issuance of any Letters of Credit.


 


(k)                                  Existing Term Loan Agreement. 
The Borrower shall have provided evidence to the Administrative Agent
that the Existing Term Loan Agreement has been repaid in full, in form and
substance reasonably satisfactory to the Administrative Agent.


 


5.2.  Conditions Precedent to
All Subsequent Loans and Letters of Credit.  The obligation of each
Lender to make any Loan requested to be made by it and of the Issuing Lender to
issue any Letter of Credit requested to be issued by it on any date after the
Initial Funding Date is subject to the following conditions precedent as of
each such date:


 


(a)                                  Representations and Warranties. 
As of such date, both before and after giving effect to the Loans to be
made or the Letters of Credit to be issued on such date, all of the
representations and warranties of the Borrower contained in Section 6.1
and in any other Loan Document (other than representations and warranties which
expressly speak as of a different date) shall be true and correct in all
material respects.


 


(b)                                 No Defaults. 
No Event of Default or Potential Event of Default shall have occurred
and be continuing or would result from the making of the requested Loan.


 


(c)                                  No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received any notice that litigation is pending or threatened which is
likely to, (i) enjoin, prohibit or restrain the making of the


 


67





















 


requested Loan or the issuance of the requested Letter
of Credit or (ii) impose or result in the imposition of a Material Adverse
Effect.


 


(d)                                 No Material Adverse Effect. 
No event has occurred since the date of this Agreement which has had and
continues to have, or is reasonably likely to have, a Material Adverse Effect.


 


(e)                                  Compliance Certificate. 
Administrative Agent shall have received a certificate from an
Authorized Financial Officer that TMC and the Borrower are and will be in
compliance with all covenants under the Loan Documents  (including, without limitation, Section 9.10)
after giving effect to the making of such Loan or the issuance of such Letter
of Credit.


 


Each submission by the Borrower to the Administrative Agent of a Notice
of Borrowing, a Negotiated Rate Quote Request or a Letter of Credit Request and
each acceptance by the Borrower of the proceeds of each Loan made or the
acceptance of a Letter of Credit, shall constitute a representation and
warranty by the Borrower as of the Funding Date in respect of such Loan or the
issuance of such Letter of Credit, that all the conditions contained in this Section 5.2
have been satisfied or waived in accordance with Section 13.7.


 


ARTICLE VI.

REPRESENTATIONS AND WARRANTIES


 


6.1.  Representations and Warranties of the
Borrower.  In
order to induce the Lenders to enter into this Agreement and to issue the
Letters of Credit and make the Loans and the other financial accommodations to
the Borrower described herein, each of the Borrower and TMC hereby represents
and warrants to Administrative Agent and each Lender that the following
statements, insofar as such statements are applicable to it, its Subsidiaries
or its properties, are true, correct and complete:


 


(a)                                  Organization; Powers. (i) The Borrower (A) is a
limited partnership duly formed, validly existing and in good standing under
the laws of the State of Delaware, (B) is duly qualified to do business
and is in good standing under the laws of each jurisdiction in which failure to
be so qualified and in good standing will have or is reasonably likely to have
a Material Adverse Effect, (C) has all requisite partnership power and
authority to own, operate and encumber its Property and to conduct its business
as presently conducted and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated by this Agreement
and (D) is a partnership for federal income tax purposes.


 


(ii)                                  TMC (A) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, (B) is duly authorized and qualified to do business and is in
good standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing will have or is reasonably likely to have a
Material Adverse Effect, and (C) has all requisite corporate power and
authority to own and operate its interest in the Borrower and to conduct its
business as presently conducted.


 


(iii)                               True, correct and complete certified copies of the
Organizational Documents of the Borrower and TMC have been delivered to the
Administrative Agent, each of which is in full force and effect, has not been
modified or amended as of the Closing Date except to the extent indicated
therein and, to the best of the Borrower’s knowledge, there are no defaults
under such Organizational Documents and no events which, with the passage of
time or giving of notice or both, would constitute a default under such
Organizational Documents.


 


68





















 


(iv)                              The principal office, chief executive
office and principal place of business of TMC and the Borrower is 1300 Wilson
Boulevard, Suite 400, Arlington, Virginia 22209, or such other address
specified by the Borrower and TMC to the Administrative Agent in writing.  The Tax Identification Number of the Borrower
is 52-1873369 and the Tax Identification Number of TMC is 52-1802283.


 


(b)                                 Authority. (i)                          TMC, individually and in its capacity as the sole
general partner of the Borrower, has the requisite power and authority to
execute, deliver and perform this Agreement on behalf of the Borrower and each
of the other Loan Documents which are required to be executed by TMC
individually or on behalf of the Borrower as required by this Agreement.  TMC has executed this Agreement and such
other Loan Documents on behalf of the Borrower and is the sole general partner
of the Borrower.


 


(ii)                                  The execution, delivery and performance
of each of the Loan Documents which must be executed in connection with this
Agreement by the Borrower or TMC and to which the Borrower or TMC is a party
and the consummation of the transactions contemplated thereby are within the
Borrower’s partnership powers and TMC’s corporate powers, have been duly
authorized by all necessary partnership action (and, in the case of TMC acting
individually or on behalf of the Borrower in connection therewith, all
necessary corporate action thereof) and such authorization has not been
rescinded.  No other partnership or
corporate action or proceedings on the part of the Borrower or TMC is necessary
to consummate such transactions.


 


(iii)                               Each of the Loan Documents to which the Borrower or
TMC is a party has been duly executed and delivered on behalf of the Borrower
or TMC and constitutes the Borrower’s or TMC’s legal, valid and binding
obligation, enforceable against such Person in accordance with its terms except
to the extent that the enforcement thereof or the availability of equitable
remedies may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent transfer, fraudulent conveyance or similar laws now or
hereafter in effect relating to or affecting creditors rights generally or by
general principles of equity, or by the discretion of any court in awarding
equitable remedies, regardless of whether such enforcement is considered in a
preceding in equity or at law, is in full force and effect and all the terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by the Borrower and TMC on or before the Initial
Funding Date have been performed or complied with, and no Potential Event of
Default or Event of Default exists thereunder.


 


(c)                                  Subsidiaries; Ownership of Capital Stock
and Partnership Interests.  (i) Part I of Schedule 6.1-C
specifies, as of December 6, 2004, each Person in which the Borrower holds
a direct or indirect partnership, or other equity interest indicating the
nature and amount of such interest with respect to each person and accurately
sets forth the correct legal name of such Person and the jurisdiction of its
incorporation or formation.  There have
been no material changes to the information specified on Part I of Schedule 6.1-C from December 6,
2004 through the Closing Date other than changes disclosed in filings with the
Securities and Exchange Commission and changes resulting from internal
reorganizations.  Part II of Schedule 6.1-C sets
forth, as of September 30, 2004, the authorized, issued and outstanding
shares or interests of each class of Securities of the Borrower and TMC.  There have been no material changes to the
information specified on Part II of Schedule 6.1-C
from September 30, 2004 through the Closing Date other than changes
disclosed in filings with the Securities and Exchange Commission and changes
resulting from redemptions of OP Units for shares of common stock of TMC or the
issuance or vesting of shares of common stock of TMC pursuant to employee,
officer or director benefit plans.  As of
September 30, 2004, none of the issued and outstanding Securities of the
Borrower or TMC is subject to any vesting, redemption, or repurchase agreement,
and there are no warrants or options outstanding with respect to such
Securities, except as noted on Schedule 6.1-C.  The outstanding Capital Stock of TMC is duly


 


69





















 


authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of TMC and its Subsidiaries are
duly authorized and validly issued.  TMC
or the Borrower has delivered to the Administrative Agent a true, accurate and
complete copy of the TMLP Partnership Agreement as amended through and as in
effect on the Closing Date and, except in accordance with Section 9.8,
such TMLP Partnership Agreement has not been amended, supplemented, replaced,
restated or otherwise modified in any respect since the Closing Date.


 


(ii)                                  Except where failure would not have a
Material Adverse Effect on the Borrower or any Subsidiary, each of the Borrower
and its Subsidiaries listed on Schedule 6.1-C:
(A) is a corporation, limited liability company or partnership, as
indicated on Schedule 6.1-C, or
in the case of certain foreign subsidiaries, other type of entity, duly
organized or formed, validly existing and, if applicable, in good standing
under the laws of the jurisdiction of its organization, (B) if applicable,
is duly qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing would
limit its ability to use the courts of such jurisdiction to enforce Contractual
Obligations to which it is a party, and (C) has all requisite power and
authority to own, operate and encumber its Property and to conduct its business
as presently conducted and as proposed to be conducted hereafter.


 


(d)                                 No Conflict. 
The execution, delivery and performance of each of the Loan Documents to
which the Borrower or TMC is a party do not and will not (i) conflict with
the Organizational Documents of the Borrower or TMC, (ii) conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law or any material Contractual
Obligation of the Borrower or TMC, or require termination of any such
Contractual Obligation which may subject the Administrative Agent or any of the
other Lenders to any liability, (iii) result in or require the creation or
imposition of any Lien whatsoever upon any of the Property or assets of the
Borrower, TMC or any Subsidiary of the Borrower or TMC, or (iv) require
any approval of shareholders of TMC or partners of Borrower that has not been
obtained.


 


(e)                                  Governmental Consents. 
The execution, delivery and performance of each of the Loan Documents to
which the Borrower or TMC is a party 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 (i) filings, consents or
notices which have been made, obtained or given and (ii) filings with the
Securities and Exchange Commission that will be made in accordance with
applicable Requirements of Law.


 


(f)                                    Governmental Regulation. 
Neither Borrower nor TMC is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, or the Investment Company Act of 1940, or any other federal or
state statute or regulation which limits their respective ability to incur
indebtedness or their respective ability to consummate the transactions
contemplated by this Agreement.


 


(g)                                 Financial Position. 
Complete and accurate copies of the financial statements and materials
as described in Section 5.1(i) have been delivered to the
Administrative Agent.  All financial
statements included in such materials were prepared in all material respects in
conformity with GAAP, except as otherwise noted therein, and fairly present in
all material respects the respective Consolidated financial positions, and the
Consolidated results of operations and cash flows for each of the periods
covered thereby of TMC and the Borrower and its Consolidated Subsidiaries as at
the respective dates thereof.  Neither
Borrower nor any of its Consolidated Subsidiaries has any Contingent
Obligation, contingent liability or liability for any taxes, long-term leases
or commitments, not reflected in its audited financial statements delivered to
the Administrative Agent on or prior to the Closing Date or otherwise disclosed
to the Administrative Agent and the Lenders in writing, which will have or is reasonably
likely to have a Material Adverse Effect. 
As of the Closing Date, except for assets under capital leases and


 


70





















 


assets of joint ventures that are Consolidated as
variable interest entities in accordance with GAAP, TMC, Borrower and their
respective Subsidiaries own all of the assets reflected in the Consolidated
balance sheet of the Borrower as of September 30, 2004 or
acquired since that date except the minority interests reflected therein (except
property and assets sold or otherwise disposed of (x) in the ordinary course of
business since that date or (y) as permitted under the Existing Revolving
Agreement and the Original Term Loan Agreement), subject to no rights of
others, including any mortgages, leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Liens permitted by Section 9.2.  Without limiting the foregoing, Borrower and
its Subsidiaries have good and marketable fee simple title to all Real Property
reasonably necessary for the operation of its business in whole, free from all
liens or encumbrances of any nature whatsoever, except for Liens permitted by Section 9.2.  The Borrower or one of its Subsidiaries, as
the case may be, has, in each case, title insurance in such amounts and
coverages as are customarily carried by REITs substantially similar to the
Borrower and in any event no less than the amounts required by the applicable
lender(s) providing financing for such Real Property.


 


(h)                                 Indebtedness.  Schedule 6.1-H sets
forth, as of the Closing Date, all Indebtedness for borrowed money of the
Borrower and its respective Subsidiaries not disclosed in the financial
statements delivered pursuant to Section 5.1(i) and, except as
set forth on Schedule 6.1-H,
there are no defaults in the payment of principal or interest on any such
Indebtedness and no payments thereunder have been deferred or extended beyond
their stated maturity.


 


(i)                                     Litigation; Adverse Effects. 
Except as set forth in Schedule 6.1-I,
there is no action, suit, proceeding, Claim, investigation or arbitration
before or by any Governmental Authority or private arbitrator pending or, to
the knowledge of the Borrower, threatened against TMC, the Borrower, or any of
its respective Subsidiaries, or any Property of any of them (i) challenging
the validity or the enforceability of any of the Loan Documents, (ii) as
of the Closing Date, which will or is reasonably likely to result in any
Material Adverse Effect, or (iii) as of the Closing Date, under the
Racketeering Influenced and Corrupt Organizations Act or any similar federal or
state statute where such Person is a defendant in a criminal indictment that
provides for the forfeiture of assets to any Governmental Authority as a
potential criminal penalty.  There is no
material loss contingency within the meaning of GAAP which has not been
reflected in the Consolidated financial statements of the Borrower.  Neither the Borrower nor TMC or any
Subsidiary of the Borrower or TMC is (a) in violation of any applicable
Requirements of Law which violation will have or is reasonably likely to have a
Material Adverse Effect, or (B) subject to or in default with respect to
any final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which
will have or is reasonably likely to have a Material Adverse Effect.


 


(j)                                     No Material Adverse Effect. 
Since September 30, 2004, there has occurred no event which has had
or is reasonably likely to have a Material Adverse Effect.


 


(k)                                  Tax Examinations. 
All deficiencies which have been asserted against the Borrower or TMC as
a result of any federal, state, local or foreign tax examination for each
taxable year in respect of which an examination has been conducted have been
fully paid or finally settled or are being contested in good faith, and no
issue has been raised in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion of a material
deficiency for any other year not so examined which has not been reserved for
in the financial statements of the Borrower or TMC, as applicable, to the
extent, if any, required by GAAP. 
Neither Borrower nor TMC has taken any reporting positions for which it
does not have a reasonable basis nor anticipates any further material tax
liability with respect to the years which have not been closed pursuant to
applicable law.


 


(l)                                     Payment of Taxes. 
All tax returns, reports and similar statements or filings of the
Borrower, TMC and their respective Subsidiaries required to be filed have been
timely filed, and, except


 


71





















 


for Customary Permitted Liens, all taxes, assessments,
fees and other charges of Governmental Authorities thereupon and upon or
relating to their respective Properties, assets, receipts, sales, use, payroll,
employment, income, licenses and franchises which are shown in such returns or
reports to be due and payable have been paid, except to the extent (i) such
taxes, assessments, fees and other charges of Governmental Authorities are
being contested in good faith by an appropriate proceeding diligently pursued
as permitted by the terms of Section 8.4 or (ii) such taxes,
assessments, fees and other charges of Governmental Authorities pertain to
Property of the Borrower, TMC or their respective Subsidiaries and the
non-payment of the amounts thereof would not, individually or in the aggregate,
result in a Material Adverse Effect.  All
other taxes (including, without limitation, real estate taxes), assessments,
fees and other governmental charges upon or relating to the respective
Properties of the Borrower, TMC and their respective Subsidiaries which are due
and payable have been paid, except for Customary Permitted Liens and except to
the extent described in clauses (i) or (ii) hereinabove.  Neither Borrower nor TMC has any knowledge of
any proposed tax assessment against the Person, any of their respective
Subsidiaries, or any of the Properties that, if not paid, will have or is
reasonably likely to have a Material Adverse Effect.


 


(m)                               Performance. 
Neither the Borrower nor TMC nor any of their Subsidiaries has received
any notice, citation or allegation, nor has actual knowledge, that (i) it
is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, (ii) any of its Properties is in violation of any
Requirements of Law or (iii) any condition exists which, with the giving
of notice or the lapse of time or both, would constitute a default with respect
to any such Contractual Obligation, in each case, except where such default or
violation, if any, will not have or is not reasonably likely to have a Material
Adverse Effect.


 


(n)                                 Disclosure.  The
representations and warranties of the Borrower and TMC contained in the Loan
Documents, and all certificates and other documents delivered to the
Administrative Agent pursuant to the terms thereof, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not materially misleading.  Neither the Borrower nor TMC has
intentionally withheld any fact from the Administrative Agent or the other
Lenders in regard to any matter which will have or is reasonably likely to have
a Material Adverse Effect.  Notwithstanding
the foregoing, the Lenders acknowledge that neither the Borrower nor TMC shall
have liability under this clause (n) with respect to its projections of future
events.


 


(o)                                 Requirements of Law. 
The Borrower, TMC and each of their respective Subsidiaries are in
compliance in all material respects with all Requirements of Law applicable to
it and its respective businesses and Properties, in each case where the failure
to so comply individually or in the aggregate will have or is reasonably likely
to have a Material Adverse Effect.


 


(p)                                 Environmental Matters.


 


(i)                                     Except as disclosed on Schedule 6.1-P and
except where failure is not reasonably likely to have a Material Adverse
Effect:


 


(A)                              the operations of the Borrower, TMC, each
of their respective Subsidiaries, and their respective Properties comply in all
material respects with all applicable Environmental, Health or Safety
Requirements of Law;


 


(B)                                TMC, the Borrower and each of their
respective Subsidiaries have obtained all material environmental, health and
safety Permits necessary for their respective operations, and all such Permits
are in good standing and the holder of each


 


72





















 


such Permit is currently in compliance in all material
respects with all material terms and conditions of such Permits;


 


(C)                                none of the Borrower, TMC or any of their
Subsidiaries or any of their respective present or, to the Borrower’s
knowledge, past Property or operations is subject to or is the subject of any
investigation, judicial or administrative proceeding, order, judgment, decree,
dispute, negotiations, agreement or settlement by any Governmental Authority
respecting (I) any Environmental, Health or Safety Requirements of Law, (II)
any Remedial Action, (III) any Claims or Liabilities and Costs arising from the
Release or threatened Release of a Contaminant into the environment, or (IV)
any violation of or liability under any Environmental, Health or Safety
Requirement of Law;


 


(D)                               none of 
the Borrower, TMC or any of their respective Subsidiaries has filed any notice
under any applicable Requirement of Law (I) reporting a Release of a
Contaminant; (II) indicating past or present treatment, storage or disposal of
a hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent; or (III) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law;


 


(E)                                 none of 
the Borrower, TMC or any of their respective Subsidiaries present or, to
the Borrower’s knowledge, past Property presently is listed or proposed for listing
on the National Priorities List (“NPL”) pursuant to CERCLA or on the
Comprehensive Environmental Response Compensation Liability Information System
List (“CERCLIS”) or any similar state list of sites requiring Remedial
Action;


 


(F)                                 TMC, the Borrower nor any of their
Subsidiaries has sent or directly arranged for the transport of any Contaminant
to any site listed or proposed for listing on the NPL, CERCLIS or any similar
state list;


 


(G)                                to the best of the Borrower’s knowledge,
there is not now, and to the Borrower’s knowledge there has never been on or in
any Real Property (I) any treatment, recycling, storage or disposal of any
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent; (II) any landfill, waste pile, or surface impoundment; (III)
any underground storage tanks the presence or use of which is or, to the
Borrower’s knowledge, has been in violation of applicable Environmental, Health
or Safety Requirements of Law, (IV) any asbestos-containing material which such
Person has any reason to believe could subject such Person or its Property to
Liabilities and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect; or (V) any
polychlorinated biphenyls (PCB) used in hydraulic oils, electrical transformers
or other Equipment which such Person has any reason to believe could subject
such Person or its Property to Liabilities and Costs arising out of or relating
to environmental, health or safety matters that would result in a Material
Adverse Effect;


 


(H)                               neither the Borrower nor TMC nor any of
their respective Subsidiaries has received any notice or Claim to the effect
that any of such Persons is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the environment, except for
Claims that have been resolved;


 


73





















 


(I)                                    to the Borrower’s knowledge, neither the
Borrower nor TMC nor any of their respective Subsidiaries has any contingent
liability in connection with any Release or threatened Release of any
Contaminants into the environment;


 


(J)                                   no Environmental Lien is presently
recorded with respect to any Property of the Borrower or any Subsidiary of the
Borrower;


 


(K)                               no Property of the Borrower or any
Subsidiary of the Borrower is subject to any Environmental Property Transfer
Act, or to the extent such acts are applicable to any such Property, the
Borrower and/or such Subsidiary whose Property is subject thereto has fully
complied with the requirements of such acts; and


 


(L)                                 neither the Borrower nor any of its
Subsidiaries owns or operates any underground storage tank, the presence or use
of which is in violation of applicable Environmental, Health or Safety Requirements
of Law, at any Real Property.


 


(ii)                                  the Borrower and each of its Subsidiaries
are conducting and will continue to conduct their respective businesses and
operations and maintain each Real Property in compliance in all material
respects with applicable Environmental, Health or Safety Requirements of Law
and no such Person has been, and no such Person has any reason to believe that
it or any Property will be, subject to Liabilities and Costs arising out of or
relating to environmental, health or safety matters that would result in a
Material Adverse Effect.


 


(q)                                 ERISA.  As of the
Closing Date, neither the Borrower nor TMC nor any ERISA Affiliate maintains or
contributes to any Benefit Plan or Multiemployer Plan other than those listed
on Schedule 6.1-Q
hereto.  Each Plan which is intended to
be qualified under Section 401(a) of the Internal Revenue Code as
currently in effect: (i) has been determined by the IRS to be so qualified
or is entitled to rely on a favorable IRS opinion letter, (ii) has been
submitted to the IRS for such determination letter within the applicable
remedial amendment period under section 401(b) of the Internal
Revenue Code, or (iii) the applicable remedial amendment period has not
expired.  As of the Closing Date, except
as disclosed in Schedule 6.1-Q,
neither the Borrower nor TMC nor any of their respective Subsidiaries maintains
or contributes to any “employee welfare benefit plan” within the meaning of Section 3(l)
of ERISA which provides benefits to employees after termination of employment
other than as required by Section 601 of ERISA or a similar state
law.  Each of the Borrower, TMC and their
respective Subsidiaries is in compliance with the responsibilities, obligations
and duties imposed on it by ERISA, the Internal Revenue Code and regulations
promulgated thereunder with respect to all Plans, except where failure to so
comply would not be reasonably likely to result in liability to the Borrower or
any of its ERISA Affiliates of an amount in excess of $5,000,000.  No Benefit Plan has incurred any accumulated
funding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of
the Internal Revenue Code) whether or not waived.  Neither the Borrower nor TMC nor any ERISA
Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i) has
engaged in a nonexempt prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code with respect to which such Persons
are reasonably likely to be subject to any liability individually or in the
aggregate in excess of $5,000,000 or (ii) has taken or failed to take any
action which would constitute or result in an ERISA Termination Event that is
reasonably likely to result in liability to the Borrower or any ERISA Affiliate
of an amount in excess of $5,000,000. 
Neither the Borrower nor TMC nor any ERISA Affiliate is subject to any
liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA.  Neither the Borrower nor TMC nor any ERISA
Affiliate has incurred any liability to the PBGC which remains outstanding
other than the payment of premiums, and there are no premium payments which
have become due which are unpaid.  Schedule B
to the most recent annual report filed with the Department of Labor (i.e. Form 5500)
with respect to each Benefit Plan and furnished to the Administrative Agent is
complete and accurate in all


 


74





















 


material respects. 
Since the date of each such Schedule B, there has been no material
adverse change in the funding status or financial condition of the Benefit Plan
relating to such Schedule B. 
Neither the Borrower nor TMC nor any ERISA Affiliate has (i) failed
to make a required contribution or payment to a Multiemployer Plan or (ii) made
a complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a
Multiemployer Plan, in each case, where such failure or withdrawal could
reasonably be expected to result in liability to the Borrower or an ERISA
Affiliate of an amount in excess of $5,000,000. 
Neither the Borrower nor TMC nor any ERISA Affiliate has failed to make
a required installment or any other required payment under Section 412 of
the Internal Revenue Code on or before the due date for such installment or
other payment.  Neither the Borrower nor
TMC nor any ERISA Affiliate is required to provide security to a Benefit Plan
under Section 401(a)(29) of the Internal Revenue Code due to a Benefit
Plan amendment that results in an increase in current liability for the plan
year.  As of the Closing Date, except as
disclosed on Schedule 6.1-Q,
neither the Borrower nor TMC nor any of their respective Subsidiaries has,
solely by reason of the transactions contemplated hereby, any obligation to
make any payment to any employee pursuant to any Plan or existing contract or
arrangement.


 


(r)                                    Securities Activities. 
No member of the Group is engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock.  No portion of any Loan is to be used for the
purpose of purchasing or carrying any Margin Stock except to the extent
permitted by Section 2.2.


 


(s)                                  Solvency.  After giving
effect to the Loans to be made or Letters of Credit to be issued on the Initial
Funding Date or such other date as Loans or Letters of Credit requested
hereunder are made or issued, and the disbursement of the proceeds of such
Loans pursuant to the Borrower’s instructions, each of the Borrower and TMC is
Solvent.


 


(t)                                    Insurance.  Schedule 6.1-T
accurately sets forth as of the Closing Date all material insurance policies
and programs currently in effect with respect to the respective Property and
assets and business of the Borrower and its Subsidiaries, specifying for each
such policy and program, (i) the amount thereof, (ii) the risks
insured against thereby, (iii) the name of the insurer and each insured
party thereunder, (iv) the policy or other identification number thereof,
and (v) the expiration date thereof. 
Such insurance policies and programs are currently in full force and
effect, in compliance with the requirements of Section 8.5 hereof
and, together with payment by the insured of scheduled deductible payments, are
in amounts sufficient to cover the replacement value of the respective Property
and assets of the Borrower and/or its Subsidiaries.


 


(u)                                 REIT Status. 
TMC qualifies as a REIT under the Internal Revenue Code.


 


(v)                                 Franchises, Patents, Copyrights, Etc.  
TMC and Borrower and its Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, service marks, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known conflict with any rights of
others.


 


(w)                               Labor Matters. 
As of the Closing Date, there are no collective bargaining agreements covering
the employees of TMC, the Borrower or any of their Subsidiaries or Affiliates
and none of such businesses have suffered any strikes, walkouts, work stoppages or
other material labor difficulty within the last five (5) years.


 


ARTICLE VII.

REPORTING COVENANTS


 


Each of the Borrower and TMC covenants and agrees that
so long as any Revolving Credit Commitments, Loans or Letters of Credit are
outstanding and thereafter until payment in full of all of the


 


75





















 


Obligations (other than indemnities pursuant to Section 13.3
not yet due) and the return to Issuing Lender of any outstanding Letters of
Credit (other than any Letters of Credit collateralized pursuant to Section 2.4(a))
unless the Requisite Lenders shall otherwise give prior written consent
thereto:


 


7.1.  Borrower Accounting
Practices.  The Borrower shall maintain, and cause TMC
and each of their respective Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of Consolidated and Consolidating financial statements in conformity with GAAP, and
each of the financial statements and reports described below shall be prepared
from such system and records and in form reasonably satisfactory to the
Administrative Agent.


 


7.2.  Financial Reports.  TMC
shall deliver or cause to be delivered to the Administrative Agent (in
electronic format or hard copy; provided, that all signatures are to be
delivered in the original hard copy format), the following financial reports,
each prepared by a certified public accountant reasonably acceptable to the
Administrative Agent in accordance with generally accepted accounting
principles consistently applied except that the financial statement for the
Borrower may be in the form of an internally prepared adjustment statement
showing the necessary adjustment to derive the Borrower statement from the
audited TMC statement if accompanied by a certificate showing such adjustment
certified by an officer of the Borrower and TMC as fairly presenting such
information to the knowledge of such officer after due inquiry.  Each annual report shall be certified, to the
knowledge of such officer after due inquiry, as true, complete and correct in
all material respects by an officer of the Borrower and TMC.


 


(a)                                  Quarterly Reports.


 


(i)                                     Quarterly Financial Reports. 
As soon as practicable, and in any event within sixty (60) days after
the end of each fiscal quarter in each Fiscal Year (other than the last fiscal
quarter in each Fiscal Year), an unaudited Consolidated balance sheet of the
Borrower and the related Consolidated statements of income and cash flow of the
Borrower (to be prepared and delivered quarterly in conjunction with the other
reports delivered hereunder at the end of each fiscal quarter) for each such
fiscal quarter, in each case in form and substance satisfactory to the
Administrative Agent and, in comparative form, the corresponding figures for
the corresponding periods of the previous Fiscal Year, certified by an
Authorized Financial Officer of TMC as fairly presenting the Consolidated and
Consolidating financial position of TMC and the Borrower as of the dates
indicated and the results of its operations and cash flow for the months
indicated in accordance with GAAP, subject to normal quarterly adjustments.


 


(ii)                                  Quarterly Financial Reports. 
As soon as practicable, and in any event within sixty (60) days after
the end of each fiscal quarter in each Fiscal Year (other than the last fiscal
quarter in each Fiscal Year), the Financial Statements of TMC and its
Subsidiaries on Form l0-Q as at the end of such period and a report
setting forth in comparative form the corresponding figures for the
corresponding period of the previous Fiscal Year, certified by an Authorized
Financial Officer of TMC as fairly presenting the consolidated and
consolidating financial position of TMC and the Borrower and their Subsidiaries
as at the date indicated and the results of its operations and cash flow for
the period indicated in accordance with GAAP, subject to normal adjustments.


 


(iii)                               Quarterly Compliance Certificates. 
Together with each delivery of any quarterly report pursuant to
paragraph (a)(i) of this Section 7.2, the Borrower shall
deliver appropriate an Officer’s Certificate (the “Quarterly Compliance
Certificates”), signed by an Authorized Financial Officer of the Borrower
representing and certifying (1) that the Authorized Financial


 


76





















 


Officer signatory thereto has reviewed the terms of
the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the transactions and Consolidated
and Consolidating financial condition of the Borrower, TMC and their respective
Subsidiaries, during the fiscal quarter covered by such reports, that such
review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as of
the date of such Officer’s Certificate, of any condition or event which
constitutes an Event of Default or Potential Event of Default or mandatory
prepayment event as described in Section 3.1(d) of this
Agreement, or, if any such condition or event existed or exists, and specifying
the nature and period of existence thereof and what action the Borrower, TMC or
any of their Subsidiaries has taken, is taking and proposes to take with
respect thereto; (2) the calculations (in the form of Schedule 7.2
hereto or otherwise with such specificity as the Administrative Agent may
reasonably request) for the period then ended which demonstrate compliance with
the covenants and financial ratios set forth in Articles VIII and IX
and, when applicable, that no Event of Default described in Section 10.1
exists, (3) a schedule of changes, if any, in the Borrower’s
outstanding Indebtedness, including the amount, maturity, and interest rate, as
well as such other information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, since the last date on which such a schedule was
submitted, and (4) a schedule of Combined EBITDA.


 


(iv) Asset Sales, Acquisitions and Liens.  Together with each delivery of any quarterly
report pursuant to paragraph (a)(i) of this Section 7.2, the
information required pursuant to Section 7.9.


 


(b)                                 Annual Reports.


 


(i)                                     Borrower and TMC Financial Statements. 
As soon as practicable, and in any event within one hundred twenty (120)
days after the end of each Fiscal Year, (x) the Financial Statements of
Borrower and its Consolidated Subsidiaries as at the end of such Fiscal Year
and certified by an Authorized Financial Officer of the Borrower as fairly
presenting the Consolidated financial position of Borrower and its Subsidiaries
as of the dates indicated, (y) the Financial Statements of TMC and its
Consolidated Subsidiaries on Form 10-K as at the end of such Fiscal
Year, and (z) a report with respect thereto of Ernst & Young LLP
or other independent certified public accountants reasonably acceptable to the
Administrative Agent, which report shall be unqualified and shall state that
such financial statements fairly present the Consolidated and Consolidating
financial position of TMC and its Consolidating Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP applied on a basis consistent with prior
years (except for changes with which Ernst & Young LLP or any such
other independent certified public accountants, if applicable, shall concur and
which shall have been disclosed in the notes to the financial statements).  The Administrative Agent and each Lender
(through the Administrative Agent) may, with the consent of the Borrower (which
consent shall not be unreasonably withheld), communicate directly with such
accountants, with any such communication to occur together with a
representative of the Borrower, at the expense of the Administrative Agent (or
the Lender requesting such communication), upon reasonable notice and at
reasonable times during normal business hours.


 


(ii)                                  Annual Compliance Certificates. 
Together with each delivery of any annual report pursuant to clause (i) of
this Section 7.2(b), the Borrower shall deliver an Officer’s
Certificate of the Borrower (the “Annual Compliance Certificates” and,
collectively with the Quarterly Compliance Certificates, the “Compliance
Certificates”), signed by an Authorized Financial Officer of the Borrower,
representing and certifying (1) that the Authorized Financial Officer
signatory thereto has reviewed the terms of the Loan Documents, and has made,
or caused


 


77





















 


to be made under his/her supervision, a review in
reasonable detail of the transactions and Consolidated and Consolidating
financial condition of the Borrower, TMC and their respective Subsidiaries,
during the accounting period covered by such reports, that such review has not
disclosed the existence during or at the end of such accounting period, and
that such officer does not have knowledge of the existence as at the date of
such Officer’s Certificate, of any condition or event which constitutes an
Event of Default or Potential Event of Default or mandatory prepayment event as
described in Section 3.1(d) of this Agreement, or, if any such
condition or event existed or exists, and specifying the nature and period of
existence thereof and what action the Borrower, TMC or any of their
Subsidiaries has taken, is taking and proposes to take with respect thereto; (2) the
calculations (in the form of Schedule 7.2,
hereto or otherwise with such specificity as the Administrative Agent may
reasonably request) for the period then ended which demonstrate compliance with
the covenants and financial ratios set forth in Articles VIII and IX
and, when applicable, that no Event of Default described in Section 10.1
exists, (3) a schedule of the Borrower’s outstanding Indebtedness
including the amount, maturity and interest rate, as well as such other
information regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of Combined EBITDA, and (5) a
schedule of property sales and occupancy with respect to each Real
Property.


 


(iii)                               Tenant Bankruptcy Reports. 
As soon as practicable after the end of each Fiscal Year, and in any
event within ninety (90) days after the end of each Fiscal Year, the Borrower
shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against, or (to
Borrower’s knowledge) the cessation of business or operations of, any tenant of
any of the Real Properties, the base rent payments of which tenant account for
more than 5% of the Borrower’s share of consolidated minimum rent in the Real
Properties in the aggregate.


 


(iv) Asset Sales, Acquisitions and Liens.  Together with each delivery of any quarterly
or annual report pursuant to paragraphs (a)(i) and (b)(i) of this Section 7.2,
the information required pursuant to Section 7.9.


 


7.3.  Events of Default.  Promptly
upon the Borrower obtaining knowledge (a) of any condition or event which
constitutes an Event of Default or Potential Event of Default, or becoming
aware that any Lender or the Administrative Agent has given any notice with
respect to a claimed Event of Default or Potential Event of Default under this
Agreement; (b) that any Person has given any notice to the Borrower, TMC
or any Subsidiary of the Borrower or TMC or taken any other action with respect
to a claimed default or event or condition of the type referred to in Section 10.1(e);
or (c) of any condition or event which has or is reasonably likely to have
a Material Adverse Effect, the Borrower shall deliver to the Administrative
Agent an Officer’s Certificate specifying (i) the nature and period of
existence of any such claimed default, Event of Default, Potential Event of
Default, condition or event, (ii) the notice given or action taken by such
Person in connection therewith, and (iii) what action the Borrower has
taken, is taking and proposes to take with respect thereto.


 


7.4.  Lawsuits.  (i) Promptly
upon the Borrower’s obtaining knowledge of the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration against or affecting the Borrower, TMC or any of their respective
Subsidiaries of the type described in Section 6.l(i) of this
Agreement not previously disclosed pursuant to Section 6.1(i), the
Borrower shall give written notice thereof to the Administrative Agent and
provide such other information as may be reasonably available to enable each
Lender and the Administrative Agent and its counsel to evaluate such matters; (ii) as
soon as practicable and in any event within forty-five (45) days after the end
of each fiscal quarter of the Borrower, the Borrower shall provide a written
quarterly report to the Administrative Agent covering the institution of, or
written threat of, any action, suit, proceeding, governmental investigation or 


 


78





















 


arbitration of the type described in Section 6.1(i) of
this Agreement (not previously reported) and involving a Claim which is
uninsured against the Borrower, TMC or any of their respective Subsidiaries or
any Property of the Borrower, TMC or any of their respective Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably requested by Administrative Agent to enable each Lender and the Administrative
Agent and its counsel to evaluate such matters; and (iii) in addition to
the requirements set forth in clauses (i) and (ii) of this Section 7.4,
the Borrower upon request of the Administrative Agent or the Requisite Lenders
shall promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) or (ii) above and provide such other
information as may be reasonably requested by Administrative Agent to enable
each Lender and the Administrative Agent and its counsel to evaluate such
matters.


 


7.5.  Insurance.  As
soon as practicable following the end of the calendar year and in any event by February 15th
of the following calendar year, the Borrower shall deliver to the
Administrative Agent (i) a report in form and substance reasonably
satisfactory to the Administrative Agent outlining all material insurance
coverage maintained as of the date of such report by the Borrower, TMC and
their respective Subsidiaries and the duration of such coverage and (ii) the
certificate of an Authorized Financial Officer that all premiums with respect
to such coverage have been paid when due.


 


7.6.  ERISA Notices.  The
Borrower shall deliver or cause to be delivered to the Administrative Agent, at
the Borrower’s expense, the following information and notices as soon as
reasonably possible, and in any event:


 


(a)                                  within fifteen (15) Business Days after
the Borrower, TMC or any ERISA Affiliate knows or has reason to know that an
ERISA Termination Event has occurred, a written statement of the chief
financial officer of the Borrower describing such ERISA Termination Event and
the action, if any, which the Borrower or TMC or any ERISA Affiliate has taken,
is taking or proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto;


 


(b)                                 within fifteen (15) Business Days after
the Borrower knows or has reason to know that a material non-exempt prohibited
transaction (defined in Sections 406 of ERISA and 4975 of the Internal Revenue
Code) has occurred with respect to a Plan, a statement of the chief financial
officer of the Borrower describing such transaction and the action which the
Borrower or TMC or any ERISA Affiliate has taken, is taking or proposes to take
with respect thereto;


 


(c)                                  within fifteen (15) Business Days after
the filing of the same with the DOL, IRS or PBGC, copies of each annual report
(Form 5500 series), including Schedule B thereto, filed with respect
to each Benefit Plan;


 


(d)                                 within fifteen (15) Business Days after
receipt by the Borrower or TMC or any ERISA Affiliate of each actuarial report
for any Benefit Plan or Multiemployer Plan and each annual report for any
Multiemployer Plan (Form 5500), copies of each such report;


 


(e)                                  within fifteen (15) Business Days after
the filing of the same with the IRS, a copy of each funding waiver request
filed with respect to any Benefit Plan and all written communications received
by the Borrower or TMC or any ERISA Affiliate from the IRS with respect to such
request;


 


(f)                                    within fifteen (15) Business Days after
the occurrence of any material increase in the benefits of any existing Benefit
Plan or Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to
which the Borrower or TMC or any ERISA Affiliate was not previously
contributing, any of which is reasonably likely to


 


79





















 


result in a material increase in the liabilities of
the Borrower, TMC or any ERISA Affiliate, notification of such increase,
establishment or commencement;


 


(g)                                 within fifteen (15) Business Days after
the Borrower or TMC or any ERISA Affiliate receives notice of the PBGC’s
intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;


 


(h)                                 within fifteen (15) Business Days after
the Borrower or TMC or any of its Subsidiaries receives notice of any
unfavorable determination letter from the IRS regarding the qualification of a
Plan under Section 401(a) of the Internal Revenue Code, copies of
each such letter;


 


(i)                                     within fifteen (15) Business Days after
the Borrower or TMC or any ERISA Affiliate receives notice from a Multiemployer
Plan regarding the imposition of material withdrawal liability, copies of each
such notice;


 


(j)                                     within fifteen (15) Business Days after
the Borrower or TMC or any ERISA Affiliate fails to make a required installment
or any other required payment under Section 412 of the Internal Revenue
Code on or before the due date for such installment or payment, a notification
of such failure; and


 


(k)                                  within fifteen (15) Business Days after
the Borrower or TMC or any ERISA Affiliate knows (i) a Multiemployer Plan
has been terminated, (ii) the administrator or plan sponsor of a
Multiemployer Plan intends to terminate a Multiemployer Plan, or (iii) the
PBGC has instituted or will institute proceedings under Section 4042 of
ERISA to terminate a Multiemployer Plan, notification of such termination,
intention to terminate, or institution of proceedings.


 


For purposes of this Section 7.6, the Borrower, TMC and any
ERISA Affiliate shall be deemed to know all facts known by the “Administrator”
of any Plan of which the Borrower or TMC or any ERISA Affiliate is the plan
sponsor.


 


7.7.  Environmental Notices.  The
Borrower shall notify the Administrative Agent in writing, promptly upon any
senior employee of the Borrower or TMC responsible for the environmental
matters at any Property of the Borrower learning thereof, of any of the
following (together with any material documents and correspondence received or
sent in connection therewith):


 


(a)                                  notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person as a
result of the Release or threatened Release of any Contaminant into the
environment, if such liability would result in a Material Adverse Effect;


 


(b)                                 notice that the Borrower or any of its Subsidiaries
is subject to investigation by any Governmental Authority evaluating whether
any Remedial Action is needed to respond to the Release or threatened Release
of any Contaminant into the environment which is reasonably likely to result in
a Material Adverse Effect;


 


(c)                                  notice that any Property of the Borrower
or any of its Subsidiaries is subject to an Environmental Lien if the claim to
which such Environmental Lien relates would result in a Material Adverse
Effect;


 


(d)                                 notice of a material violation by the
Borrower or any of its Subsidiaries of any Environmental, Health or Safety
Requirement of Law which is reasonably likely to result in a Material Adverse
Effect;


 


80





















 


(e)                                  any condition which might reasonably
result in a violation by the Borrower or any Subsidiary of the Borrower of any
Environmental, Health or Safety Requirement of Law, which violation would
result in a Material Adverse Effect;


 


(f)                                    commencement or written notice of intent
to commence of any judicial or administrative proceeding alleging a violation
by the Borrower or any of its Subsidiaries of any Environmental, Health or
Safety Requirement of Law, which would result in a Material Adverse Effect;


 


(g)                                 new or proposed changes to any existing
Environmental, Health or Safety Requirement of Law that is reasonably likely to
result in a Material Adverse Effect; or


 


(h)                                 any proposed acquisition of stock,
assets, real estate, or leasing of Property, or any other action by the
Borrower or any of its Subsidiaries that is reasonably likely to subject the
Borrower or any of its Subsidiaries to environmental, health or safety
Liabilities and Costs which is reasonably likely to result in a Material
Adverse Effect.


 


7.8.  Labor Matters.  The
Borrower shall notify the Administrative Agent in writing, promptly upon the
Borrower’s learning thereof, of any labor dispute to which the Borrower or TMC
or any of their respective Subsidiaries may become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons and other facilities) which is reasonably likely to result in a
Material Adverse Effect.


 


7.9.  Notices of Asset Sales
and/or Acquisitions.  The Borrower shall deliver to
the Administrative Agent written notice of each of the following on a quarterly
basis for the quarter then ended, together with the quarterly or annual reports
delivered under Sections 7.2(a) or 7.2(b), as applicable: (a) a
sale, transfer or other disposition of assets, in a single transaction or
series of related transactions, for consideration in excess of $100,000,000, (b) an
acquisition of assets, in a single transaction or series of related
transactions, for consideration in excess of $100,000,000, and (c) the
grant of a Lien with respect to assets, in a single transaction or series of
related transactions, in connection with Indebtedness aggregating an amount in
excess of $100,000,000.


 


7.10.  Tenant Notifications.  The Borrower shall promptly
notify the Administrative Agent upon obtaining knowledge of the bankruptcy or
cessation of operations of any tenant to which greater than 5% of the Borrower’s
and its Subsidiaries’ share of consolidated minimum rent is attributable.


 


7.11.  Other Reports.  The Borrower shall deliver or
cause to be delivered to the Administrative Agent (i) within ten (10) days
of the filing or delivery to its shareholders, copies of all public financial
statements, proxy statements, reports, notices and other materials, if any,
sent or made available generally by the Borrower or TMC to its respective
Securities holders or filed with the Commission concerning material
developments in the business of the Borrower or TMC or any Subsidiary
(excluding any regular 10-Q or 10-K filings, but including any
revisions or amendments thereto), and (ii) within ten (10) days of
receipt thereof, all notifications received by the Borrower or TMC or their
Subsidiaries pursuant to the Securities Exchange Act and the rules promulgated
thereunder.


 


7.12.  Other Information.  Promptly
upon receiving a request therefor from the Administrative Agent, the Borrower
shall prepare and deliver to the Administrative Agent such other information
with respect to the Borrower, TMC and their respective Subsidiaries, on a
Consolidated basis (including without limitation, property operating
statements, cash flow statements and balance sheets), as from time to time may
be reasonably requested by the Administrative Agent.


 


81





















 


7.13.  Credit Rating.  If
at any time the Borrower or TMC shall receive a credit rating by S&P or
Moody’s, the Borrower shall notify the Administrative Agent promptly thereof,
and thereafter shall notify the Administrative Agent upon receiving notice of
any actual or proposed downward change in such credit rating.


 


ARTICLE VIII.

AFFIRMATIVE COVENANTS


 


The Borrower and TMC each covenants and agrees that so
long as any Revolving Credit Commitments or any Loans are outstanding and
thereafter until payment in full of all of the Obligations (other than
indemnities pursuant to Section 13.3 not yet due) and the return of
any outstanding Letters of Credit, (other than any Letters of Credit
collateralized pursuant to Section 2.4(a)) unless the Requisite
Lenders shall otherwise give prior written consent:


 


8.1.  Existence, Etc.  The
Borrower shall, and shall cause each of TMC and their respective Subsidiaries
to, at all times maintain its corporate existence or existence as a limited
liability company, limited partnership or joint venture, as applicable, and
preserve and keep, or cause to be preserved and kept, in full force and effect
its rights and franchises material to its businesses, except where the loss or
termination of such rights and franchises or the termination of existence of a
Subsidiary is not likely to have a Material Adverse Effect.


 


8.2.  Powers; Conduct of
Business.  The Borrower shall remain qualified, and
shall cause TMC and each of their respective Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction
in which the nature of its business and the ownership of its Property requires
it to be so qualified and in good standing, except where the failure to remain
so qualified or in good standing is not likely to have a Material Adverse
Effect.


 


8.3.  Compliance with Laws, Etc.  The
Borrower shall, and shall cause TMC and each of their respective Subsidiaries
to, (a) comply in all material respects with all Requirements of Law and
all restrictive covenants or Contractual Obligations affecting such Person or
the business, Property, assets or operations of such Person, and (b) obtain
and maintain as needed all Permits necessary for its operations (including,
without limitation, the operation of the Real Properties) and maintain such
Permits in good standing, except where noncompliance with either clause (a) or
(b) above is not reasonably likely to have a Material Adverse
Effect.


 


8.4.  Payment of Taxes
and Claims.  The
Borrower shall pay, and cause TMC and each of their respective Subsidiaries to
pay, (i) all taxes, assessments and other governmental charges imposed
upon it or on any of its Property or assets or in respect of any of its
franchises, licenses, receipts, sales, use, payroll, employment, business,
income or Property before any penalty or interest accrues thereon, and (ii) all
Claims (including, without limitation, claims for labor, services, materials
and supplies) for sums which have become due and payable and which by law have
or may become a Lien (other than a Lien permitted by Section 9.2)
upon any of the Borrower’s or any of the Borrower’s Subsidiaries, Property or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, however, that no such taxes,
assessments, fees and governmental charges referred to in clause (i) above
or Claims referred to in clause (ii) above need be paid if being contested
in good faith by appropriate proceedings diligently instituted and conducted
and if such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor.


 


8.5.  Insurance.  The Borrower shall maintain
for itself, TMC and its Subsidiaries, or shall cause each of its Subsidiaries
to maintain in full force and effect, with financially sound and reputable
insurance companies, the insurance policies and programs listed on Schedule 6.1-T or
substantially similar policies


 


82





















 


and programs or other policies and programs as are customarily
carried by companies engaged in similar businesses, and owning similar
properties in the same general areas where the Borrower engages in business or
owns property.  Without limiting the
foregoing, the Borrower shall maintain for itself, TMC and its Subsidiaries, or
cause each of its Subsidiaries to maintain, terrorism insurance, comparable to
the coverage that is described on Schedule 6.1-T,
to the extent such insurance is available at commercially reasonable rates.


 


8.6.  Inspection of
Property; Books and Records; Discussion.  The Borrower shall permit, and cause TMC
and each of their respective Subsidiaries to permit, upon no less than three (3) days
prior notice, any authorized representative(s) designated by either the
Administrative Agent or any other Lender, to visit and inspect any of the Real
Properties, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their Authorized Financial Officers and independent
certified public accountants, all with a representative of the Borrower
present, and at such reasonable times during normal business hours, as often as
may be reasonably requested, so long as such inspections do not unreasonably
interfere with the daily operations of the Borrower.  Each such visitation and inspection shall be
at such visitor’s expense.  The Borrower
shall keep and maintain, and cause TMC and their respective Subsidiaries to
keep and maintain, in all material respects proper books of record and account
in which entries in conformity with GAAP shall be made of all dealings and
transactions in relation to their respective businesses and activities.


 


8.7.  ERISA Compliance.  The Borrower shall, and
shall cause TMC and each of their respective ERISA Affiliates to, establish,
maintain and operate all Plans to comply in all material respects with the
provisions of ERISA, the Internal Revenue Code, all other applicable laws, and
the regulations and interpretations having the force of law thereunder and the
respective requirements of the governing documents for such Plans, except where
failure to do is not reasonably likely to result in liability to the Borrower
or an ERISA Affiliate of an amount in excess of $5,000,000.


 


8.8.  Maintenance of
Property.  The
Borrower shall, and shall cause each of its Subsidiaries to, maintain in all
material respects the condition of all of their respective owned and leased
Property in good, safe and insurable condition and repair, subject to damage
and destruction due to fires or other casualties, and not permit, commit or
suffer any waste or abandonment of any such Property and from time to time
shall make or cause to be made all material repairs, renewal and replacements
thereof, including, without limitation, any capital improvements which may be
required to maintain the same in good condition and repair; provided, however,
that such Property may be altered, renovated or otherwise improved in the
ordinary course of business of the Borrower or such applicable Subsidiary.  Without limiting the foregoing or limiting
the ability to make improvements to any Real Property, the Borrower shall
maintain the condition of the Real Property in a manner such that each Real
Property can be used in the manner and substantially for the purposes such Real
Property is used on the Closing Date, including, without limitation,
maintaining all utilities, access rights, zoning and necessary Permits for such
Real Property.


 


8.9.  Company Status.  TMC shall at all times (1) remain
a publicly traded company listed on the New York Stock Exchange or other
national stock exchange; (2) maintain its status as a REIT under the
Internal Revenue Code; (3) retain direct or indirect management and
control of the Borrower; and (4) cooperate in all cases where the Borrower
is required hereunder to cause TMC to take or refrain from taking any action
required under this Agreement.


 


83





















 


8.10.  Distributions of
Income to the Borrower.  The Borrower shall cause all of its
Subsidiaries to promptly distribute to the Borrower (but not less frequently
than once each fiscal quarter of the Borrower, unless otherwise approved by the
Administrative Agent), whether in the form of dividends, distributions or
otherwise, all profits, proceeds or other income relating to or arising from
its Subsidiaries’ use, operation, financing, refinancing, sale or other
disposition of their respective Properties after (a) the payment by each
Subsidiary of its debt service and operating expenses for such quarter and (b) the
establishment of reasonable reserves for the payment of operating expenses not
paid on at least a quarterly basis and capital improvements to be made to such
Subsidiary’s assets and properties approved by such Subsidiary in the ordinary
course of business consistent with its past practices.


 


8.11.  Variable Rate
Debt.  Borrower
shall cause fifty percent (50%) or more of Total Adjusted Outstanding
Indebtedness (excluding Contingent Obligations and the Revolving Credit
Obligations) to bear interest (i) by reference to a rate of interest that
is fixed until the earlier of the final maturity of such Indebtedness or the
Revolving Credit Termination Date, or (ii) by reference to a floating or
variable rate of interest which is hedged or otherwise capped pursuant to an
interest rate swap, cap or other agreement that has a tenor equal to the
earlier of the maturity date of such floating-rate Indebtedness or the
Revolving Credit Maturity Date, and contains other terms and conditions
customarily entered into by borrowers in order to provide protection against,
or minimize the impact of, increasing floating rates of interest.


 


8.12.  Property
Management.  The
Borrower and its Affiliates shall at all times provide property management
services to Real Properties to which at least 75% of the Capitalization Value
is attributable.


 


ARTICLE IX.

NEGATIVE COVENANTS


 


Each of the Borrower and TMC covenants and agrees that
it shall comply with the following covenants so long as any Revolving Credit
Commitments or any Loans are outstanding and thereafter until payment in full
of all of the Obligations (other than indemnities pursuant to Section 13.3
not yet due) and the return of any outstanding Letters of Credit (other than
any Letters of Credit collateralized pursuant to Section 2.4(a)),
unless the Requisite Lenders shall otherwise give prior written consent:


 


9.1.  Sales of Assets.  Except
for a Permitted Disposition or as otherwise provided in this Agreement, neither
Borrower nor TMC nor any of their respective Subsidiaries shall sell, assign,
transfer, lease, convey or otherwise dispose of any Property, directly or
indirectly, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so which would result in a
Material Adverse Effect or would cause an Event of Default or Potential Event
of Default.


 


9.2.  Liens.  Neither the Borrower nor TMC
nor any of their respective Subsidiaries shall directly or indirectly create,
incur, assume or permit to exist any Lien on or with respect to (i) any
Property, or (ii) any Securities held by TMC, the Borrower or any of their
respective Subsidiaries (to the extent the same constitutes a pledge or other
encumbrance of equity interests in the Borrower, the Consolidated Businesses,
any Minority Holding or any Subsidiary), or (iii) any direct or indirect
interest in any Consolidated Businesses or Subsidiaries, except:


 


(a)                      Liens consisting of pledges of the
Borrower’s or TMC’s direct or indirect equity interest in any Consolidated
Business, Minority Holding or Subsidiary (other than equity interests in TMC or
the Borrower); provided that in no event shall the aggregate principal
amount of all recourse Indebtedness of TMC or the Borrower that is secured by
such Liens at any time exceed an amount (excluding the principal amount of
Indebtedness securing any Liens permitted under clause (b) of this Section 9.2)
equal to ten percent (10%) of Total Adjusted Outstanding Indebtedness in the
aggregate;


 


84





















 


(b)                                 Liens consisting of pledges of the
Borrower’s or TMC’s direct or indirect equity interest in any Consolidated
Business, Minority Holding or Subsidiary (including equity interests in the
Borrower) to secure obligations with respect to such Consolidated Business,
Minority Holding or Subsidiary only, permitted by this Agreement; provided
that (i) the Borrower gives the Administrative Agent at least thirty (30)
days prior notice of any such pledge and (ii) the Obligations are secured
by such pledge on a pari passu basis with such other obligations (so long as
such obligations are outstanding) pursuant to a pledge agreement, an
intercreditor agreement or other arrangements to be entered into by the
Administrative Agent and in form and substance satisfactory to the
Administrative Agent;


 


(c)          Customary Permitted Liens; and


 


(d)         Liens encumbering the CVS Portfolio;


 


provided, however,
that none of the foregoing shall limit or prohibit the Borrower, TMC or their
respective Subsidiaries from granting Liens on any of its respective Real
Property or personal property (other than Liens subject to the requirements of
clauses (a), (b) and (c) of this Section 9.2) for the
purpose of securing Secured Indebtedness otherwise permitted hereunder (before
and after giving effect to such Lien).


 


9.3.  Conduct of
Business.  Except
as permitted under Section 9.11(a)(vii), neither the Borrower nor
TMC nor any of their respective Subsidiaries shall engage in any business,
enterprise or activity other than (a) the Business, and (b) any
business or activities which are substantially similar, related or incidental
thereto. In any event neither the Borrower nor TMC shall engage in any activity
that shall cause TMC to be disqualified as a REIT under the Internal Revenue
Code.


 


9.4.  Transactions with
Partners and Affiliates.  Neither Borrower nor any of its
Subsidiaries shall directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or exchange
of any Property or the rendering of any service) with any Affiliate of the
Borrower which is not its Subsidiary, on terms that are determined by the Board
of Directors (or its equivalent) of TMC (except in the case of non-material
transactions, in which case the determination shall be made by officers of such
entities engaging in such transaction) to be less favorable to the Borrower or
any of its Subsidiaries, as applicable, than those that might be obtained in an
arm’s-length transaction at the time from Persons who are not such an
Affiliate.  Nothing contained in this Section 9.4
shall prohibit (a) increases in compensation and benefits for officers and
employees of the Borrower or any of its Subsidiaries which are customary in the
industry or consistent with the past business practice of the Borrower or such
Subsidiary; provided, that no Event of Default or Potential Event of
Default has occurred and is continuing; (b) payment of customary partners’
indemnities; (c) performance of any obligations arising under the Loan
Documents or (d) dividends or other distributions to equity holders
permitted by the terms of this Agreement.


 


9.5.  Restriction on
Fundamental Changes.  Neither Borrower, TMC nor any of their respective
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of such Person’s business or Property, whether now or
hereafter acquired (other than a transfer by Borrower or a Subsidiary of
Borrower to another Subsidiary of Borrower) except in connection with issuance,
transfer, conversion or repurchase of limited partnership interests in the
Borrower or in connection with a sale of assets otherwise permitted under Section 9.1.  Notwithstanding the foregoing, the Borrower
or any Subsidiary of Borrower shall be permitted to merge with another Person
so long as, (a) in the case of a merger involving the Borrower, the
Borrower is the surviving Person following such merger, and (b) no Event
of Default or Potential Event of Default has


 


85





















 


occurred and is continuing or would occur after giving
effect thereto (including, without limitation, an Event of Default or Potential
Event of Default resulting from a breach of Sections 8.12, 9.1 or
9.11).


 


9.6.  Margin
Regulations; Securities Laws.  Neither Borrower nor any of its
Subsidiaries shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock, except to the
extent permitted by Section 2.2.


 


9.7.  ERISA.  Except as would not be
reasonably likely to subject the Borrower or any ERISA Affiliate to liability
in excess of $5,000,000, the Borrower and TMC shall not and shall not permit
any of their respective ERISA Affiliates to:


 


(a)                                  engage in any prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code for which
a statutory or class exemption is not available or a private exemption has not
been previously obtained from the DOL;


 


(b)                                 permit to exist any accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the Internal Revenue
Code), with respect to any Benefit Plan, whether or not waived;


 


(c)                                  fail to pay timely required contributions
or annual installments due with respect to any waived funding deficiency to any
Benefit Plan;


 


(d)                                 terminate any Benefit Plan which would
result in any liability of the Borrower, TMC or any ERISA Affiliate under Title
IV of ERISA;


 


(e)                                  fail to make any contribution or payment
to any Multiemployer Plan which the Borrower, TMC or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer Plan, or
any law pertaining thereto;


 


(f)                                    fail to pay any required installment or
any other payment required under Section 412 of the Internal Revenue Code
on or before the due date for such installment or other payment; or


 


(g)                                 amend a Benefit Plan resulting in an
increase in current liability for the plan year such that the Borrower or any
ERISA Affiliate is required to provide security to such Plan under Section 401(a)(29)
of the Internal Revenue Code.


 


9.8.  Organizational
Documents.  Neither
Borrower, TMC nor any of their respective Subsidiaries shall amend, modify or
otherwise change any of the terms or provisions in any of their respective
Organizational Documents as in effect on the Closing Date, except amendments to
effect (a) a change of name of the Borrower, TMC or a Subsidiary; provided,
that in the case of the Borrower or TMC, the Borrower shall have provided the
Administrative Agent with prior written notice of any such name change, (b) changes
to the TMLP Partnership Agreement relating to the acquisition of Real Property
or interests in an owner of Real Property with respect to which the
consideration paid to the seller thereof includes limited partnership interests
in the Borrower, or (c) changes that (x) are not otherwise prohibited
under, or would not otherwise violate, this Agreement or any other Loan
Document, and (y) would not reasonably be expected to have a Material Adverse
Effect.


 


9.9.  Fiscal Year.  Neither Borrower, TMC nor
any of their Consolidated Subsidiaries shall change their respective Fiscal
Year for accounting or tax purposes from a period consisting of the 12-month
period ending on December 31 of each calendar year.


 


86





















 


9.10.  Indebtedness.  None of the Borrower, TMC,
any of their respective Subsidiaries, or any Minority Holdings shall directly
or indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except Indebtedness which
would not cause the Leverage Ratio to exceed sixty-five percent (65%) as of the
date of incurrence of such Indebtedness. For purposes of this Section 9.10,
the Leverage Ratio as of the date of any incurrence of Indebtedness shall be
calculated by giving pro  forma effect to all acquisitions and
dispositions for consideration in excess of $50,000,000 or changes in Total
Adjusted Outstanding Indebtedness, occurring since the date of the then most
recent quarterly financial statements of TMC and the Borrower, including, without
limitation, by giving pro  forma effect to the application of the
proceeds of such incurrence of Indebtedness.


 


9.11.  Investments.


 


(a)                                  Permitted Investments. 
Neither Borrower, TMC nor any of their respective Subsidiaries shall
directly or indirectly make or own any Investment except:


 


(i)                                     Investments in Cash and Cash Equivalents;


 


(ii)                                  Investments by TMC in the Borrower and by
Borrower in the Borrower’s Subsidiaries and the Borrower’s Affiliates;


 


(iii)                               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;


 


(iv)                              Investments by Borrower and its
Subsidiaries (A) in any individual Real Property which, at the time made,
do not exceed seventeen and one-half percent (17.5%) of the Capitalization
Value after giving effect to such Investments, (B) in a single Person
owning, directly or indirectly, a portfolio of Properties which, at the time
made, do not exceed thirty percent (30%) of the Capitalization Value after
giving effect to such Investments, it being understood that no Investment in
any individual Person will be permitted if the Borrower’s allocable share of
the Investment of such Person in any individual Real Property would exceed the
limitation described in clause (A) hereinabove or (C) in any Limited
Minority Holdings that do not in the aggregate, together with all other
Investments in Limited Minority Holdings, cause the portion of Capitalization
Value attributable to Limited Minority Holdings of the Borrower and its
Consolidated Subsidiaries to exceed 25% of Capitalization Value (it being
understood that, in the case of clauses (A) and (B) above, any
increase in the value of an Investment or a decline in the Capitalization Value
following the consummation of such Investment shall be disregarded for purposes
of determining compliance with this clause (iv));


 


(v)                                 Investments held as of the Closing Date;


 


(vi)                              any Investment permitted under clause (b) of
this Section 9.11;


 


(vii)                           Investments (whether owned as of the Closing Date or
thereafter) either directly or in any Person primarily engaged in any business
unrelated to Borrower’s Business, which individually or in the aggregate do not
exceed five percent (5%) of Capitalization Value (it being understood that any
increase in the value of an Investment or a decline in the Capitalization Value
following the consummation of such Investment shall be disregarded for purposes
of determining compliance with this clause (vii)); and


 


87





















 


(viii)                        Investments in bonds, notes, debentures, and other
debt instruments which are not convertible into equity Securities and have
ratings of AAA by S&P or Aaa by Moody’s.


 


(b)                                 Unleased Construction Assets. At no time shall the aggregate amount
expended on unleased Construction Assets for improvements and land acquisition
costs exceed twenty-five percent (25%) of the Capitalization Value; provided,
that for purposes of this Section 9.11(b) only, the term “Construction
Asset” shall mean a Construction Asset (as otherwise defined in Section 1.1
of this Agreement) which is less than eighty percent (80%) leased and occupied
by tenants in compliance with their respective leases, and provided further
that for purposes of this Section 9.11(b), any portion of a
Construction Asset which is under a binding contract of sale to an anchor “tenant”,
shall be deemed to be leased.


 


9.12.  Other
Financial Covenants.


 


(a)                                  Minimum Combined Equity Value. 
The Combined Equity Value shall at no time be less than $1,750,000,000
plus 75% of the net cash proceeds and other assets (after payment of customary
costs, fees, expenses, commissions and discounts of issuance) received by the
Consolidated Businesses after the Closing Date as a result of the sale of
equity interests in any of the Consolidated Businesses (other than such net
proceeds of any equity which is issued and used to redeem outstanding equity).


 


(b)                                 Leverage Ratio. 
For the immediately preceding consecutive four fiscal quarters, the
Leverage Ratio shall not be greater than 65%.


 


(c)                                  Secured Leverage Ratio. 
For the immediately preceding consecutive four fiscal quarters, the
Secured Leverage Ratio shall not be greater than 60%.


 


(d)                                 Consolidated Interest Coverage Ratio. 
For the immediately preceding consecutive four fiscal quarters, the
ratio of (i) Combined EBITDA to (ii) Combined Interest Expense, shall
not be less than 1.8 to 1.0.


 


(e)                                  Distributions. 
Borrower will not pay any dividends or distributions, or perform any
transaction that has a substantially similar effect, except as follows:


 


(i)                                     Borrower may pay special capital gain
distributions, if any;


 


(ii)                                  So long as TMC qualifies, or has taken
all actions necessary to qualify as a REIT, during any fiscal year of TMC, the
Borrower may pay cash dividends to TMC and other holders of OP Units with
respect to any one (1) year period ending on the last day of a fiscal
quarter to the extent necessary for TMC to distribute, and TMC may so
distribute, cash dividends to its shareholders in an aggregate amount not to
exceed the greater of (A) Permitted REIT Distributions or (B) 85% of
FFO; and


 


(iii)                               Notwithstanding the foregoing, in the event that (A) an
Event of Default shall have occurred under Section 10.1(a), Section 10.1(f) (as
to Borrower or TMC) or Section 10.1(g) (as to Borrower or TMC)
or would exist immediately after giving effect thereto, (B) an Event of
Default shall have occurred with respect to this Section 9.12 or
would exist immediately after giving effect thereto, or (C) any other
Event of Default shall have occurred and the Obligations have been accelerated,
Borrower will not pay any dividends or distributions except so long as TMC
qualifies, or has taken all actions necessary to qualify as a REIT, during any
fiscal year of TMC, the Borrower may pay cash dividends to TMC and other
holders of the OP Units with respect to any period ending on a date set forth
above to the extent necessary for TMC to


 


88





















 


distribute, and TMC may so distribute, cash dividends
to its shareholders in an aggregate amount not to exceed the Permitted REIT
Distributions;


 


(iv)                              The Borrower and TMC may make share
repurchases permitted under Section 9.13.


 


(f)                                    Minimum Fixed Charge Coverage Ratio. 
For the immediately preceding fiscal quarter, the ratio of (i) Combined
EBITDA to (ii) Fixed Charges shall not be less than 1.5 to 1.0.


 


9.13.  Stock Repurchase.  None of Borrower, TMC or any
of their Subsidiaries shall effect an immediate, incidental or ultimate,
repurchase of shares of TMC or OP Units, or any transaction that has a
substantially similar effect, except for (a) repurchases consummated while
the Leverage Ratio is equal to or less than 55%, (b) repurchases relating
to any redemption of limited partnership interests in Borrower in exchange for
shares of common stock of TMC and (c) repurchases consummated while the
Leverage Ratio exceeds 55% that do not in the aggregate exceed $150,000,000 after
the Closing Date.


 


9.14.  Negative Pledge
Clauses.  From
and after the date hereof, except as set forth herein, neither the Borrower nor
TMC will, and will not permit any Subsidiary, to enter into any agreement (a) containing
any provision prohibiting the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired, (other
than with respect to (i) prohibitions on liens set forth (x) in a mortgage
on a particular property, or (y) in any document or instrument relating to a
Lien permitted under Section 9.2 to the extent such prohibition
relates only to the assets securing such Lien, (ii) customary restrictions
on the assignment of or granting a lien on a particular lease, sublease,
license or contract set forth in such lease, sublease, license or contract
entered into in the ordinary course of business, (iii) restrictions on the
pledge of interests in joint ventures contained in the applicable joint venture
agreement, (iv) restrictions on Liens set forth in other agreements for
unsecured Indebtedness so long as such restrictions are not materially more
restrictive than the provisions of this Agreement or (v) customary
restrictions and conditions relating to a sale of Property permitted under Section 9.1
pending the consummation of such sale), or (b) expressly restricting the
ability of the Borrower or TMC to amend or modify this Agreement or any of the
other Loan Documents.


 


9.15.  Restriction on
Prepayment of Indebtedness.  After the occurrence and during the
continuance of any Event of Default, neither TMC, Borrower nor any of their
respective Subsidiaries shall, without the prior written consent of the
Administrative Agent, prepay, redeem or purchase the principal amount, in whole
or in part, of any Indebtedness other than the Obligations; provided, however,
that this Section 9.15 shall not prohibit the prepayment of
Indebtedness which is financed solely from the proceeds of a new loan which
would otherwise be permitted by the terms of Section 9.10.


 


ARTICLE X.

EVENTS OF DEFAULT; RIGHTS AND REMEDIES


 


10.1.  Events of Default.  Each of the following
occurrences shall constitute an Event of Default under this Agreement:


 


(a)                                  Failure to Make Payments When Due. 
The Borrower shall fail to pay when due (i) any principal payment
of the Obligations or reimbursement obligations with respect to any Letter of
Credit, (ii) any interest payment on the Obligations or (iii) any
fees payable hereunder, and in the case of clauses (ii) and (iii) only,
such failure shall continue for a period of five days.


 


(b)                                 Breach of Certain Covenants. 
The Borrower shall fail duly and punctually to perform or observe or
cause the performance or observance of any agreement, covenant or obligation
binding on


 


89





















 


such Person under Sections 7.3, 8.1, 8.2,
8.3, 8.6, 8.9,  8.12, 9.1, 9.2, 9.3,
9.4, 9.5, 9.6, 9.9, 9.10, 9.13, 9.14,
or 9.15.


 


(c)                                  Breach of Representation or Warranty. 
Any representation or warranty made by the Borrower to the Administrative
Agent or any other Lender herein or by the Borrower, TMC or any of their
respective Subsidiaries in any of the other Loan Documents, in any Letter of
Credit Request, or in any statement or certificate at any time given by any
such Person pursuant to any of the Loan Documents shall be false or misleading
in any material respect on the date as of which made or repeated.


 


(d)                                 Other Defaults. 
The Borrower shall default in the performance of or compliance with any
term, covenant or agreement contained in this Agreement (other than as
identified in paragraphs (a), (b) or (c) of this Section 10.1),
or any default or event of default (other than as identified in paragraphs (a),
(b) or (c) of this Section 10.1) shall occur under any of
the other Loan Documents, and such default or event of default shall continue
for thirty (30) days after receipt of written notice from the Administrative
Agent thereof; provided, however, that if such default is
susceptible of cure but cannot reasonably be cured within such thirty (30) day
period and Borrower shall promptly commence to cure such default within such
thirty (30) day period and thereafter diligently and expeditiously proceed to
cure the same, such thirty (30) day period shall be extended for such time as
is reasonably necessary for Borrower in the exercise of due diligence to cure
such default, such additional period not to exceed thirty (30) days; provided
further that so long as Borrower has complied with the foregoing cure
provisions, an Event of Default shall not be deemed to have occurred with
respect to Section 9.12 if Borrower shall cure such default within
an additional period not to exceed thirty (30) days (such that for such
provision only Borrower shall have a maximum aggregate potential cure period of
ninety (90) days).


 


(e)                                  Defaults and Acceleration of Other
Indebtedness. (i) The
Borrower or TMC or their Subsidiaries shall fail to pay any principal or
interest due when and as the same shall become due and payable, or shall
default in any other monetary obligation or cause any other monetary default in
respect of (x) any recourse Indebtedness (other than the Obligations) of the
Borrower or TMC or their Subsidiaries aggregating $30,000,000 or more (subject
to any applicable grace period for such Indebtedness), or (y) any non-recourse
Indebtedness of the Borrower or TMC or their Subsidiaries aggregating
$300,000,000 or more (subject to any applicable grace period for such
Indebtedness); or (ii) any non-monetary breach, default or event of
default shall occur, or any other condition shall exist, under any instrument,
agreement or indenture pertaining to (1) any recourse Indebtedness (other
than the Obligations) of the Borrower or TMC or their Subsidiaries aggregating
$30,000,000 or more, or (2) any non-recourse Indebtedness of the Borrower
or TMC or their Subsidiaries aggregating $300,000,000 or more, and in the case
of either (1) or (2), such Indebtedness shall be declared to be due and
payable (by acceleration or otherwise) or required to be prepaid, redeemed or
otherwise repurchased by the Borrower or TMC or any of their Subsidiaries
(other than by a regularly scheduled required prepayment, non-default mandatory
prepayment, or a voluntary prepayment made at Borrower’s option) prior to the
stated maturity thereof.


 


(f)                                    Involuntary Bankruptcy; Appointment of
Receiver, Etc.


 


(i)                                     An involuntary case shall be commenced
against the Borrower or TMC or any of their Subsidiaries or Affiliates to which
individually or in the aggregate as to such Subsidiaries and Affiliates more
than $100,000,000 of the Capitalization Value is attributable, and the petition
shall not be dismissed, stayed or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Borrower or TMC or any of
their respective Subsidiaries or Affiliates in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any applicable
federal,


 


90





















 


state, local or foreign law; or the board of directors
of TMC or the partners of the Borrower or the board of directors, partners or
similar manager of any of TMC’s or the Borrower’s Subsidiaries or Affiliates to
which individually or in the aggregate as to such Subsidiaries and Affiliates
more than $100,000,000 of the Capitalization Value is attributable (or any
committee thereof) adopts any resolution or otherwise authorizes any action to
approve any of the foregoing.


 


(ii)                                  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
the Borrower or TMC or any of their respective Subsidiaries or Affiliates to
which individually or in the aggregate as to such Subsidiaries and Affiliates
more than $100,000,000 of the Capitalization Value is attributable, or over all
or a substantial part of the Property of any of TMC, the Borrower or any of
such Subsidiaries or Affiliates shall be entered; or an interim receiver,
trustee or other custodian of any of TMC, the Borrower or any of such
Subsidiaries or Affiliates or of all or a substantial part of the Property of
any of TMC, the Borrower or any of such Subsidiaries or Affiliates shall be
appointed or a warrant of attachment, execution or similar process against any
substantial part of the Property of any of TMC, the Borrower or any of such Subsidiaries
or Affiliates shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry, appointment
or issuance; or the respective board of directors of any of TMC, the Borrower
or partners of the Borrower or the board of directors, partners or similar
manager of TMC or any of the Borrowers’ or TMC’s Subsidiaries or Affiliates to
which individually or in the aggregate as to such Subsidiaries and Affiliates
more than $100,000,000 of the Capitalization Value is attributable (or any
committee thereof) adopts any resolution or otherwise authorizes any action to
approve any of the foregoing.


 


(g)                                 Voluntary Bankruptcy; Appointment of
Receiver, Etc.  Any of TMC, the Borrower, or any of their
respective Subsidiaries or Affiliates to which individually or in the aggregate
as to such Subsidiaries and Affiliates more than $100,000,000 of the
Capitalization Value is attributable, shall commence a voluntary case under any
applicable bankruptcy, insolvency or other 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 any of TMC, the Borrower or any of such Subsidiaries or Affiliates
to which individually or in the aggregate as to such Subsidiaries and
Affiliates more than $100,000,000 of the Capitalization Value is attributable
shall make any assignment for the benefit of creditors or shall be unable or
fail, or admit in writing its inability, to pay its debts as such debts become
due.


 


(h)                                 Judgments.  Any money
judgment (other than a money judgment covered by insurance as to which the
insurance company has acknowledged coverage), writ or warrant of attachment, or
similar process against the Borrower or TMC or any of their respective
Subsidiaries or any of their respective assets involving in any event an amount
individually or in the aggregate in excess of $30,000,000 (other than with
respect to Claims arising out of non-recourse Indebtedness) is entered and
shall remain undischarged, unvacated, unbonded or unstayed for a period of
sixty (60) days or in any event later than five (5) days prior to the date
of any proposed sale thereunder.


 


(i)                                     Dissolution. 
Any order, judgment or decree shall be entered against the Borrower or
TMC decreeing its involuntary dissolution or split up; or the Borrower or TMC
shall otherwise dissolve or cease to exist except as specifically permitted by
this Agreement.


 


(j)                                     Loan Documents. 
At any time, for any reason, any Loan Document ceases to be in full
force and effect or the Borrower or TMC seeks to repudiate its obligations
thereunder.


 


91





















 


(k)                                  ERISA Termination Event. 
Any ERISA Termination Event occurs that is reasonably likely to subject
either the Borrower or TMC or any ERISA Affiliate to liability in excess of
$5,000,000.


 


(l)                                     Waiver Application. 
The plan administrator of any Benefit Plan applies under Section 412(d) of
the Internal Revenue Code for a waiver of the minimum funding standards of Section 412(a) of
the Internal Revenue Code and that the substantial business hardship upon which
the application for the waiver is based could reasonably be expected to subject
either the Borrower or TMC or any ERISA Affiliate to liability in excess of
$5,000,000.


 


(m)                               Certain Defaults Pertaining to TMC. 
TMC shall fail to (i) maintain its status as a REIT for federal
income tax purposes, (ii) continue as the sole general partner of the
Borrower and control the management and direction of the Borrower, (iii) comply
in all material respects with all Requirements of Law applicable to it and its
businesses and Properties, in each case where the failure to so comply
individually or in the aggregate will have or is reasonably likely to have a
Material Adverse Effect, (iv) remain listed on the New York Stock Exchange
or other national stock exchange, or (v) file all tax returns and reports
required to be filed by it with any Governmental Authority as and when required
to be filed or to pay any taxes, assessments, fees or other governmental
charges upon it or its Property, assets, receipts, sales, use, payroll,
employment, licenses, income, or franchises which are shown in such returns,
reports or similar statements to be due and payable as and when due and
payable, except for taxes, assessments, fees and other governmental charges (A) that
are being contested by TMC in good faith by an appropriate proceeding
diligently pursued, (B) for which adequate reserves have been made on its
books and records, and (C) the amounts the non-payment of which would not,
individually or in the aggregate, result in a Material Adverse Effect.


 


(n)                                 Merger or Liquidation of the Borrower. 
Either the Borrower or TMC shall merge or liquidate with or into any
other Person other than an Affiliate and, as a result thereof and after giving
effect thereto, (i) the Borrower or TMC, as the case may be, is not the
surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person not otherwise permitted under the
terms of this Agreement.


 


(o)                                 Change in Control. 
The occurrence of a Change in Control.


 


An Event of Default shall be deemed “continuing” until cured or waived
in writing in accordance with Section 13.7.


 


10.2.  Rights and
Remedies.


 


(a)                                  Acceleration and Termination. 
Upon the occurrence of any Event of Default described in Sections
10.1(f) or 10.1(g), the Revolving Credit Commitments, the Term
Loan Commitments and the obligation to issue Letters of Credit shall
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations shall automatically become
immediately due and payable, without presentment, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the Borrower;
and upon the occurrence and during the continuance of any other Event of
Default, the Administrative Agent may, in the Administrative Agent’s reasonable
discretion, and shall, at the request of the Requisite Lenders, by written
notice to the Borrower, (i) declare that the Revolving Credit Commitments
and the Term Loan Commitments are terminated, whereupon the Revolving Credit
Commitments, the Term Loan Commitments and the obligation of each Lender to
make, convert or continue any Loan or issue any Letter of Credit hereunder
shall immediately terminate, and/or (ii) require the Borrower to provide
cash collateral in an amount equal to all Letter of Credit Obligations and/or (iii) declare
the unpaid principal


 


92










 













 


amount of and any and all accrued and unpaid interest
on the obligations to be, and the same shall thereupon be, immediately due and
payable, without any other presentment, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the
Borrower.  The Administrative Agent may
also exercise its rights and remedies pursuant to Section 3.2(b)(iii).  In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the
Administrative Agent or the Requisite Lenders shall have accelerated the
maturity of the Loans pursuant to this Section 10.2(a), the
Administrative Agent on behalf of the Lenders may, and upon direction from the
Requisite Lenders shall, proceed to protect and enforce their rights and
remedies under this Agreement, the Notes or any of the other Loan Documents by
suit in equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement
and the other Loan Documents or any instrument pursuant to which the
Obligations are evidenced, including to the full extent permitted by applicable
law the obtaining of the ex  parte appointment of a receiver, and,
if such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right.


 


(b)                                 Rescission.  If at any
time after termination of the Revolving Credit Commitments and the Term Loan
Commitments and/or acceleration of the maturity of the Loans, the Borrower
shall pay all arrears of interest and all payments on account of principal of
the Loans or with respect to Letters of Credit which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Potential Events of Default (other
than nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 13.7, then upon the written consent of the Requisite
Lenders and written notice to the Borrower, the termination of the Revolving
Credit Commitments and the Term Loan Commitments and/or the acceleration and
the consequences thereof may be rescinded and annulled; but such action shall
not affect any subsequent Event of Default or Potential Event of Default or
impair any right or remedy consequent thereon. 
The provisions of the preceding sentence are intended merely to bind the
Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.


 


(c)                                  Enforcement. 
The Borrower acknowledges that in the event the Borrower or TMC or any
of their respective Subsidiaries fails to perform, observe or discharge any of
their respective obligations or liabilities under this Agreement or any other
Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the other Lenders; therefore, the Borrower agrees that
the Administrative Agent and the other Lenders shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.


 


ARTICLE XI.

THE AGENT


 


11.1.  Appointment.  (a)                   Fleet hereby resigns as
administrative agent under the Existing Revolving Agreement and each Lender
hereby designates and appoints JPMCB as the Administrative Agent of such Lender
under this Agreement.  Each Lender hereby
irrevocably authorizes Administrative Agent to take such actions on its behalf
under the provisions of this Agreement and the Loan Documents and to exercise
such powers as are set forth herein or therein together with such other powers
as are reasonably incidental thereto. 
The Administrative Agent hereby agrees that it shall administer this
Agreement and the other Loan Documents and service the Loans with the same
degree of care as Administrative Agent would use in servicing a loan of similar
size and type for its own account.  The
Administrative Agent agrees to act as such on the express conditions contained
in this Article XI.  The


 


93





















 


Administrative Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents. The
Administrative Agent may utilize the services of such Persons as the
Administrative Agent may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Borrower.  Neither the Administrative Agent nor any of
its shareholders, directors, officers or employees nor any other Person
assisting them in their duties nor any agent, or employee thereof, shall be
liable to any of the Lenders for any waiver, consent or approval given or any
action taken, or omitted to be taken, in good faith by it or them hereunder or
under any of the other Loan Documents, or in connection herewith or therewith,
or be responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Administrative Agent or such other Person, as the
case may be, may be liable for losses due to its willful misconduct or gross
negligence.  For the purposes of carrying
out the provisions and exercising the rights, remedies, powers and privileges
granted by or referred to in this Agreement and the Loan Documents, each of the
Lenders, subject to the other terms of this Agreement and the Loan Documents,
hereby irrevocably constitutes and appoints the Administrative Agent to enforce
the Loan Documents and to exercise such powers, rights and remedies under this
Agreement and the Loan Documents as are delegated to Administrative Agent by
the terms hereof or thereof, together with all such powers, rights and remedies
as are reasonably incidental thereto, on behalf of and for the benefit of the
Lenders.


 


(b)                                 The provisions of this Article XI
are solely for the benefit of the Administrative Agent and the other Lenders,
and neither Borrower nor TMC nor any of their respective Subsidiaries shall
have any rights to rely on or enforce any of the provisions hereof (provided
that the Borrower may rely on the authority granted to the Administrative Agent
by each Lender pursuant to Section 11.1 and shall be entitled to
enforce Sections 11.7 and 11.8 of this Agreement).  In performing its respective functions and
duties under this Agreement, the Administrative Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency, trustee or fiduciary with or for the
Borrower or TMC or any of their respective Subsidiaries.  The Administrative Agent may perform any of
its duties hereunder, or under the Loan Documents, by or through agents or
employees.


 


11.2.  Nature of
Duties.  The
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement or in the Loan Documents.  The duties of the Administrative Agent shall
be mechanical and administrative in nature. 
The Administrative Agent shall not have by reason of this Agreement a
fiduciary, trustee or agency relationship in respect of any Holder.  Nothing in this Agreement or any of the Loan
Documents, expressed or implied, is intended to or shall be construed to impose
upon the Administrative Agent any obligations in respect of this Agreement or
any of the Loan Documents except as expressly set forth herein or therein.  The Administrative Agent hereby agrees that
its duties shall include (i) providing copies of documents received by the
Administrative Agent from the Borrower pursuant to this Agreement (a) which
reference or discuss a Potential Event of Default or an Event of Default and (b) any
other documents which are reasonably requested by any Lender and (ii) promptly
notifying each Lender upon its obtaining actual knowledge of the occurrence of
any Event of Default hereunder.


 


11.3.  Right to
Request Instructions.  The
Administrative Agent may at any time request instructions from the Lenders with
respect to any actions or approvals which by the terms of any of the Loan
Documents the Administrative Agent is permitted or required to take or to
grant, and, except where an action or approval is expressly required under this
Article XI or Section 10.2 hereof, such Administrative
Agent shall be absolutely entitled to refrain from taking any action or to withhold
any approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any of the Loan
Documents until it shall have received (or, pursuant to


 


94





















 


Section 13.7(d),
be deemed to have received) such instructions from those Lenders from whom
Administrative Agent is required to obtain such instructions for the pertinent
matter in accordance with the Loan Documents. 
Without limiting the generality of the foregoing, the Administrative
Agent shall take any action, or refrain from taking any action, which is
permitted by the terms of the Loan Documents upon receipt (or, pursuant to Section 13.7(d),
deemed receipt) of instructions from those Lenders from whom the Administrative
Agent is required to obtain such instructions for the pertinent matter in
accordance with the Loan Documents; provided, that no Holder shall have
any right of action whatsoever against the Administrative Agent as a result of
the Administrative Agent acting or refraining from acting under the Loan
Documents in accordance with the instructions (or deemed instructions) of the
Requisite Lenders or, where required by the express terms of this Agreement, a
greater proportion of the Lenders.


 


11.4.  Reliance.  The Administrative Agent shall be
entitled to rely upon any written notices, statements, certificates, orders or
other documents or any telephone message believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person,
and with respect to all matters pertaining to this Agreement or any of the Loan
Documents and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it.


 


11.5.  Indemnification.  To the extent that the
Administrative Agent is not reimbursed and indemnified by the Borrower, the
Lenders will reimburse and indemnify the Administrative Agent in its capacity as
Administrative Agent and not in its capacity as Lender hereunder, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, and reasonable costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by, or asserted
against it in any way relating to or arising out of the Loan Documents or any
action taken or omitted by such Administrative Agent under and in accordance
with the Loan Documents, in proportion to each Lender’s Pro Rata Share; provided,
however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements resulting from Administrative Agent’s
gross negligence or willful misconduct. 
The Administrative Agent agrees to refund to the Lenders any of the
foregoing amounts paid to it by the Lenders which amounts are subsequently
recovered by the Administrative Agent from the Borrower or any other Person on
behalf of the Borrower.  The obligations
of the Lenders under this Section 11.5 shall survive the payment in
full of the Loans and all other Obligations and the termination of this
Agreement.


 


11.6.  Administrative
Agent Individually.  With
respect to its Pro Rata Share of the Revolving Credit Commitments hereunder, if
any, and the Loans made by it or Letters of Credit issued by it, if any, the
Administrative Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. 
The terms “Lenders” or “Requisite Lenders” or any similar terms shall,
unless the context clearly otherwise indicates, include JPMCB in its individual
capacity as a Lender or as one of the Requisite Lenders.  JPMCB and each of its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust or other business with the Borrower, TMC or any of their respective
Subsidiaries as if JPMCB were not acting as the Administrative Agent pursuant
hereto.


 


11.7.  Successor Administrative
Agent.


 


(a)                                  Resignation and Removal. 
The Administrative Agent may resign from the performance of all its
functions and duties hereunder at any time by giving at least thirty (30)
Business Days’ prior written notice to the Borrower and the other Lenders,
unless applicable law requires a shorter notice period or that there be no
notice period, in which instance such applicable law shall control.  Any Administrative Agent may be removed at
the direction of the Requisite Lenders, in the event of the gross negligence or
willful misconduct of the Administrative Agent. 
Such resignation or removal shall take


 


95





















 


effect upon the acceptance by a successor
Administrative Agent of appointment pursuant to this Section 11.7.


 


(b)                                 Appointment by Requisite Lenders. 
Upon any such resignation becoming effective, the Lenders shall have the
right to appoint a successor Administrative Agent selected from among the
Lenders, which successor Administrative Agent, so long as no Event of Default
has occurred and is continuing, shall be subject to approval by the Borrower
(which approval shall not be unreasonably withheld).


 


(c)                                  Appointment by Retiring Administrative
Agent.  If a successor Administrative Agent shall not
have been appointed within the thirty (30) Business Day or shorter period
provided in paragraph (a) of this Section 11.7, the
retiring Administrative Agent shall then appoint a successor Administrative
Agent selected from among the Lenders who shall serve as Administrative Agent
until such time, if any, as the Lenders appoint, subject to the Borrower’s
approval, a successor Administrative Agent as provided in paragraph (b) of
this Section 11.7.


 


(d)                                 Rights of the Successor and Retiring
Administrative Agents.  Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations as Administrative Agent under this
Agreement.  After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article XI shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement.


 


11.8.  Relations
Among the Lenders.  No
Lender may (i) accelerate its portion of the Obligations, (ii) enforce
its portion of the Obligations prior to the maturity thereof, (iii) terminate
its Revolving Credit Commitment, or (iv) terminate its Term Loan Commitment,
except, in each case, in accordance with Section 10.2(a).


 


11.9.  Notices.  Promptly upon receipt,
Administrative Agent shall forward to each Lender (i) a copy of all
notices of default or other formal notices sent or received by Administrative Agent
in accordance with Section 13.8 hereof, (ii) copies of all
financial statements, certificates, notices, reports and other information sent
by Borrower pursuant to Article VII, and (iii) any other
document or notice received by Administrative Agent from Borrower or TMC
pursuant to this Agreement and requested in writing by any Lender.


 


11.10.  No
Representations.  The
Administrative Agent shall not be responsible for the execution, validity or
enforceability of this Agreement, the Notes, any of the other Loan Documents or
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrower or TMC or any of their respective Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any other of the Loan
Documents.  The Administrative Agent
shall not be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrower or TMC or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete.  Except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower,
TMC or any of their Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of


 


96





















 


the its Affiliates in any capacity. 
The Administrative Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Lenders, with respect to the creditworthiness or financial
condition of the Borrower, TMC or any of their respective Subsidiaries, or the
value of any assets of such Persons. 
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, based upon such information and documents as it deems appropriate at
the time, continue to make its own credit analysis and decisions in taking or
not taking action under this Agreement and the other Loan Documents.


 


11.11.  Co-Agents.  The Co-Documentation Agents, the
Co-Syndication Agents and the Co-Arrangers shall not have any additional rights
or obligations under the Loan Documents, except for those rights, if any, as a
Lender.


 


ARTICLE XII.

YIELD PROTECTION


 


12.1.  Taxes.


 


(a)                                  Payment of Taxes. 
Any and all payments by the Borrower hereunder or under any Note or
other document evidencing any Obligations shall be made, in accordance with Section 3.2,
free and clear of and without reduction for any and all present or future
taxes, levies, imposts, deductions, charges, withholdings, and all stamp or
documentary taxes, excise taxes, ad valorem taxes and other taxes imposed on
the value of the Property, charges or levies which arise from the execution,
delivery or registration, or from payment or performance under, or otherwise
with respect to, any of the Loan Documents or the Revolving Credit Commitments,
the Term Loan and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall
gross receipts and capital and franchise taxes imposed on it by (i) the
United States, (ii) the Governmental Authority of the jurisdiction in
which such Lender’s Applicable Lending Office is located or any political
subdivision thereof or (iii) the Governmental Authority in which such
Person is organized, managed and controlled or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges and
withholdings being hereinafter referred to as “Taxes”).  If the Borrower shall be required by law to
withhold or deduct any Taxes from or in respect of any sum payable hereunder or
under any such Note or document to any Lender, (x) the sum payable to such
Lender shall be increased as may be necessary so that after making all required
withholding or deductions (including withholding or deductions applicable to
additional sums payable under this Section 12.1) such Lender
receives an amount equal to the sum it would have received had no such
withholding or deductions been made, (y) the Borrower shall make such
withholding or deductions, and (z) the Borrower shall pay the full amount
withheld or deducted to the relevant taxation authority or other authority in
accordance with applicable law. 
Notwithstanding the foregoing, in the event that any Lender is or
becomes so subject to such Taxes, at the Borrower’s sole election, the Borrower
may identify an Eligible Assignee not so subject to such Taxes to whom the
Lender which is so subject shall assign its interest in the Loans at par
pursuant to the terms of an Assignment and Acceptance substantially in the form
attached as Exhibit A.


 


(b)                                 Indemnification. 
The Borrower will indemnify each Lender against, and reimburse each on
demand for, the full amount of all Taxes (including, without limitation, any
Taxes imposed by any Governmental Authority on amounts payable under this Section 12.1
resulting therefrom) incurred or paid by such Lender or any of their respective
Affiliates and any liability (including penalties, interest, and out-of-pocket
expenses paid to third parties) arising therefrom or with respect thereto,
whether or not such Taxes were lawfully payable.  A certificate as to any additional amount
payable to any Person under this


 


97





















 


Section 12.1 submitted by it to the Borrower shall,
absent manifest error, be final, conclusive and binding upon all parties
hereto.  Each Lender agrees to the extent
it is able, within a reasonable time after receiving a written request from the
Borrower, to provide the Borrower and the Administrative Agent with such
certificates as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or  deducted or withheld
pursuant to this Section 12.1 in respect of any payments under this
Agreement or under the Notes.


 


(c)                                  Receipts.  Within thirty
(30) days after the date of any payment of Taxes by the Borrower, it will
furnish to the Administrative Agent, at its address referred to in Section 13.8,
the original or a certified copy of a receipt evidencing payment thereof.


 


(d)                                 Foreign Bank Certifications. (i)  Each Lender that is not
created or organized under the laws of the United States or a political
subdivision thereof shall deliver to the Borrower and the Administrative Agent
on the Closing Date or the date on which such Lender becomes a Lender pursuant
to Section 13.1 hereof, to the extent it is legally able to do so,
a true and accurate certificate executed in duplicate by a duly authorized
officer of such Lender to the effect that such Lender is eligible to receive
payments hereunder and under the Notes without deduction or withholding of
United States federal income tax (I) under the provisions of an applicable tax
treaty concluded by the United States (in which case the certificate shall be
accompanied by two duly completed copies of IRS Form W-8BEN (or any
successor or substitute form or forms)) or (II) under Sections 1442(c)(1) and
1442(a) of the Internal Revenue Code (in which case the certificate shall
be accompanied by two duly completed copies of IRS Form W-8ECI (or
any successor or substitute form or forms)).


 


(ii)                                  Upon
written request of Administrative Agent or as otherwise required hereunder,
each Lender further agrees to deliver to the Borrower and the Administrative
Agent from time to time a true and accurate certificate executed in duplicate
by a duly authorized officer of such Lender before or promptly upon the
occurrence of any event requiring a change in the most recent certificate
previously delivered by it to the Borrower and the Administrative Agent
pursuant to this Section 12.1(d). Each certificate required to be
delivered pursuant to this Section 12.1(d)(ii) shall certify
as to one of the following:


 


(A)                              that
such Lender can continue to receive payments hereunder and under the Notes
without deduction or withholding of United States federal income tax;


 


(B)                                that
such Lender cannot continue to receive payments hereunder and under the Notes
without deduction or withholding of United States federal income tax as
specified therein but does not require additional payments pursuant to Section 12.1(a) because
it is entitled to recover the full amount of any such deduction or withholding
from a source other than the Borrower; or


 


(C)                                that
such Lender is no longer capable of receiving payments hereunder and under the
Notes without deduction or withholding of United States federal income tax as
specified therein and that it is not capable of recovering the full amount of
the same from a source other than the Borrower.


 


Each Lender agrees to deliver to the Borrower and the Administrative Agent
further duly completed copies of the above-mentioned IRS forms on or before the
earlier of (x) the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding from United States federal income tax and (y)
fifteen (15) days after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender


 


98





















 


to the Borrower and Administrative Agent, unless any change in treaty,
law, regulation, or official interpretation thereof which would render such
form inapplicable or which would prevent the Lender from duly completing and
delivering such form has occurred prior to the date on which any such delivery
would otherwise be required and the Lender promptly advises the Borrower that
it is not capable of receiving payments hereunder and under the Notes without
any deduction or withholding of United States federal income tax.  Notwithstanding anything to the contrary
contained in this Section 12.1, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or
other amounts payable hereunder for the account of any Lender which is not a
United States person for United States federal income tax purposes to the
extent that such Lender has not provided to the Borrower IRS forms that
establish a complete exemption from such deduction or withholding and
(y) the Borrowers shall not be obligated pursuant to Sections 12.1(a) or
12.1(b) hereof to gross-up payments to be made to a Lender or
otherwise indemnify a Lender in respect of income or similar taxes imposed by
the United States to the extent that (1) the obligation to withhold such
amounts existed on the date that such Lender became a party to this Agreement
or (2) the obligation to pay such additional amounts would not have arisen
but for the failure by such Lender to comply with this Section 12.1(d).  In the event that any Lender notifies the
Borrower of withholding obligations pursuant to clause (C) of this Section 12.1(d),
at the Borrower’s sole election, the Borrower may identify an Eligible Assignee
with the consent of the Administrative Agent, which is not subject to such
withholding obligations to whom the notifying Lender shall assign its interest
in the Loans at par pursuant to the terms of an Assignment and Acceptance
substantially in the form attached as Exhibit A
and otherwise in accordance with the terms and conditions of Section 13.1.


 


12.2.  Increased
Capital.  If after the
date hereof any Lender determines that (i) the adoption or implementation
of or any change in or in the interpretation or administration of any law or
regulation or any guideline or request from any central bank or other
Governmental Authority or quasi-governmental authority exercising jurisdiction,
power or control over any Lender or banks or financial institutions generally
(whether or not having the force of law), compliance with which affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and (ii) the amount
of such capital is increased by or based upon the making or maintenance by any
Lender of its Loans, the issuance of Letters of Credit, any Lender’s
participation in or obligation to participate in the Loans, Letters of Credit
or other advances made hereunder or the existence of any Lender’s obligation to
make Loans or to issue Letters of Credit, then, in any such case, within thirty
(30) days after written demand by such Lender (with a copy of such demand to
the Administrative Agent), the Borrower shall pay to the Administrative Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation
therefore.  Such demand shall be
accompanied by a statement as to the amount of such compensation and include a
brief summary of the basis for such demand. 
Such statement shall be conclusive and binding for all purposes, absent
manifest error.  Notwithstanding the
foregoing, in the event of any such demand, at the Borrower’s sole election,
the Borrower may identify an Eligible Assignee not making such a demand to whom
the demanding Lender shall assign its interest in the Loans at par pursuant to
the terms of an Assignment and Acceptance substantially in the form attached as
Exhibit A, subject to the
consent of the Administrative Agent and the Issuing Lender (such consent not to
be unreasonably withheld or delayed).


 


12.3.  Change in
Legal Restrictions.  If
after the date hereof any Lender determines that the adoption or implementation
of or any change in or in the interpretation or administration of any law or
regulation or any guideline or request from any central bank or other
Governmental Authority or quasi-governmental authority exercising jurisdiction,
power or control over any Lender, or over banks or financial institutions
generally (whether or not having the force of law), compliance with which:


 


99





















 


(a)                                  does or will subject a Lender (or its
Applicable Lending Office or Eurocurrency Affiliate) to charges (other than
taxes) of any kind (including any Mandatory Costs) which such Lender reasonably
determines to be applicable to the Term Loan Commitments or the Revolving
Credit Commitments of the Lenders to make, convert or continue Eurocurrency
Rate Loans or to make Fixed Rate Loans or issue or participate in Letters of
Credit or change the basis of taxation of payments to that Lender of principal,
fees, interest, or any other amount payable hereunder with respect to
Eurocurrency Rate Loans, Fixed Rate Loans or Letters of Credit; or


 


(b)                                 does or will impose, modify, or hold
applicable, in the reasonable determination of a Lender, any reserve (other
than reserves taken into account in calculating the Eurocurrency Rate), special
deposit, compulsory loan, FDIC insurance or similar requirement against assets
held by, or deposits or other liabilities in or for the account of, advances or
loans by, commitments made, or other credit extended by, or any other
acquisition of funds by, a Lender or any Applicable Lending Office or
Eurocurrency Affiliate of that Lender;


 


and the result of any of the foregoing is to increase the cost to that
Lender of making, renewing or maintaining the Loans or its Revolving Credit
Commitment or Term Loan Commitment or issuing or participating in Letters of
Credit or to reduce any amount receivable thereunder; then, in any such case,
within thirty (30) days after written demand by such Lender (with a copy of
such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, such amount or amounts as may be necessary to
compensate such Lender or its Eurocurrency Affiliate for any such additional
cost incurred or reduced amount received. 
Such demand shall be accompanied by a statement as to the amount of such
compensation and include a brief summary of the basis for such demand.  Such statement shall be conclusive and
binding for all purposes, absent manifest error.  Notwithstanding the foregoing, in the event
of any such demand, at the Borrower’s sole election, the Borrower may identify
an Eligible Assignee not making such a demand to whom the demanding Lender
shall assign its interest in the Loans at par pursuant to the terms of an
Assignment and Acceptance substantially in the form attached as Exhibit A.


 


Notwithstanding the foregoing provisions of this Section 12.3,
a Lender shall not be entitled to compensation pursuant to this Section 12.3
in respect of any Negotiated Rate Loan if the change in law or circumstance
that would otherwise entitle it to such compensation shall have been publicly
announced prior to submission of the Negotiated Rate Quote pursuant to which
such Loan was made.


 


ARTICLE XIII.

MISCELLANEOUS


 


13.1.  Assignments.


 


(a)                                  Assignments. 
No assignments of any Lender’s rights or obligations under this
Agreement shall be made except in accordance with this Section 13.1.  Each Lender may assign to one or more
Eligible Assignees all of its rights and obligations under this Agreement in
accordance with the provisions of this Section 13.1.  Each Lender, or on its behalf and at its
request, the Administrative Agent, shall promptly provide written notice to the
Borrower of any assignment of such Lender’s rights or obligations under this Section 13.1.


 


(b)                                 Limitations on Assignments. 
Each assignment shall be subject to the following conditions: (i) each
assignment shall be of a constant, and not a varying ratable percentage of the
assigning Lender’s rights and obligations under this Agreement and shall be in
a minimum principal


 


100





















 


amount of $5,000,000, (ii) each such assignment
shall be to an Eligible Assignee with the consent of the Administrative Agent
and the Issuing Lender (such consent not to be unreasonably withheld or
delayed), and, so long as no Event of Default has occurred and is continuing,
the Borrower, (such consent not to be unreasonably withheld or delayed by the
Borrower and shall be deemed to be given if the Borrower does not provide a
response within five (5) Business Days after such request, provided
that such request shall state, in capital letters, that “FAILURE TO RESPOND TO
THIS REQUEST WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT, SHALL BE DEEMED
CONSENT TO THE ENCLOSED REQUEST.”) (provided that the consent of the Borrower
shall not be required with respect to an assignment to an Eligible Assignee
described in clause (i) of the definition thereof), and (iii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance. Upon such execution, delivery, acceptance and recording in the
Register, from and after the effective date specified in each Assignment and
Acceptance and agreed to by the Administrative Agent, (A) the assignee
thereunder shall, in addition to any rights and obligations hereunder held by
it immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder, (B) the
assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
such rights and be released from such obligations under this Agreement and the
assigning Lender shall (if all of its Revolving Credit Commitment, its
Negotiated Rate Loans and its portion of the Term Loan are being assigned)
cease to be a party hereto and (C) if requested by the assignee or
assignor thereunder, the Borrower shall execute and deliver to the assignee and
the assignor (to the extent the assignor retains a Revolving Credit Commitment,
a Negotiated Rate Loan or a portion of the Term Loan) a Note or Notes
evidencing its obligations to such assignee with respect to the Loans upon the
cancellation or amendment of the original thereby being replaced.  If after the occurrence and continuance of an
Event of Default the Administrative Agent does not hold any portion of the
Loans, such Administrative Agent shall offer to resign as Administrative Agent
hereunder.  Notwithstanding anything
herein to the contrary, in the event that the Administrative Agent shall at any
time hold a Revolving Credit Commitment less than $25,000,000 (other than as a
result of pro-rata reductions in the Revolving Credit Commitments pursuant to Section 3.1),
then such Administrative Agent shall promptly provide written notice thereof to
the Lenders and the Requisite Lenders shall have the right, to be exercised
within fifteen (15) days of delivery of such notice by such Administrative
Agent, to elect to remove such Administrative Agent as Administrative Agent and
replace such Administrative Agent, subject to the terms of Section 11.7.


 


(c)                                  The Register. 
The Administrative Agent shall maintain at its address referred to in Section 13.8
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register (the “Register”) for the recordation of the names and addresses
of the Lenders, each accepted Negotiated Rate Loan, each Lender’s portion of
the Term Loan, the Revolving Credit Commitment of, and the principal amount of
Loans under the Revolving Credit Commitments owing to, each Lender from time to
time and whether such Lender is an original Lender or the assignee of another
Lender pursuant to an Assignment and Acceptance.  The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, TMC and each of their respective Subsidiaries, the Administrative
Agent and the other Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.


 


(d)                                 Fee.  Upon its receipt
of an Assignment and Acceptance executed by the assigning Lender and an
Eligible Assignee and a processing and recordation fee of $2,500 (payable by
the assignee to the Administrative Agent), the Administrative Agent shall, if
such Assignment and Acceptance has


 


101





















 


been completed and is in compliance with this
Agreement and in substantially the form of Exhibit A
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower and the other Lenders. 
Notwithstanding the foregoing, there shall be no processing or
recordation fee due in connection with an assignment by a Lender to an
Affiliate of such Lender.


 


(e)                                  Information Regarding the Borrower. 
Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 13.1,
disclose to the assignee, participant, proposed assignee or proposed participant
any information relating to the Borrower, TMC or their respective Subsidiaries
furnished to such Lender by the Administrative Agent or by or on behalf of the
Borrower or TMC; provided that prior to any such disclosure, such
assignee, participant, proposed assignee or proposed participant shall agree,
in writing, to preserve in accordance with Section 13.20 the
confidentiality of any confidential information described therein.


 


(f)                                    Lenders’ Creation of Security Interests. 
Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all of its rights under
this Agreement (including, without limitation, Obligations owing to it and any
Note held by it) including any pledge or assignment in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve Board or
U.S. Treasury Regulation 31CFR §203.14.


 


(g)                                 Participations. 
Each Lender may sell participations to one or more Eligible Assignees or
Approved Funds in all or a portion of such Lender’s rights and obligations
under this Agreement and the other Loan Documents; provided that (a) any
such sale or participation shall not affect the rights and duties of the
selling Lender hereunder to the Borrower, the Administrative Agent and the
other Lenders, (b) such sale and participation shall not entitle such
participant to any rights or privileges under this Agreement or the Loan
Documents (including, without limitation, the right to approve waivers,
amendments or modifications, provided that such participation may provide that
such Lender will not agree to any modification, amendment or waiver of this
Agreement described in Section 13.7 (b)(i), (ii) or (iii) or
Section 13.7(c)(i) without the consent of such participant), (c) such participant shall have no direct rights
against the Borrower or TMC except the rights granted to the Lenders pursuant
to Section 13.5, (d) such sale is effected in accordance with
all applicable laws.


 


(h)                                 Designated Lenders. 
Any Lender (each, a “Designating Lender”) may at any time
designate one Designated Bank to fund Negotiated Rate Loans on behalf of such
Designating Lender subject to the terms of this Section 13.1(h) and
the provisions in Section 13.1(b) and Section 13.1(g) shall
not apply to such designation.  No Lender
may designate more than one (1) Designated Bank.  The parties to each such designation shall
execute and deliver to the Administrative Agent for its acceptance a
Designation Agreement.  Upon such receipt
of an appropriately completed Designation Agreement executed by a Designating
Lender and a designee representing that it is a Designated Bank, the
Administrative Agent will accept such Designation Agreement and will give
prompt notice thereof to the Company, whereupon, (i) the Borrower shall,
if requested by the Designated Lender, execute and deliver to the Designating
Bank a Designated Bank Note payable to the order of the Designated Bank (such
Note to be subject to the provisions of Section 3.3(a) that
apply to other Notes evidencing Negotiated Rate Loans, (ii) from and after
the effective date specified in the Designation Agreement, the Designated Bank
shall become a party to this Agreement with a right to make Negotiated Rate
Loans on behalf of its Designating Lender pursuant to Section 2.7
after the Borrower has accepted a Negotiated Rate Loan (or portion thereof) of
such Designating Lender, and (iii) the Designated Bank shall not be
required to make payments with respect to any obligations in this Agreement
except to the extent of excess cash flow of such Designated Bank which is not
otherwise required to repay obligations of such Designated Bank which are then
due and payable; provided, however, that
regardless of such designation and assumption by the Designated Bank, the Designating
Lender shall be and remain obligated to the Borrower, the


 


102





















 


Administrative Agent and the other Lenders for each
and every of the obligations of the Designating Lender and its related
Designated Bank with respect to this Agreement, including, without limitation,
any indemnification obligations hereunder and any sums otherwise payable to the
Borrower by the Designated Bank.  Each
Designating Lender shall serve as the administrative agent of the Designated
Bank and shall on behalf of, and to the exclusion of, the Designated Bank: (i) receive
any and all payments made for the benefit of the Designated Bank and (ii) give
and receive all communications and notices and take all actions hereunder,
including, without limitation, votes, approvals, waivers, consents and
amendments under or relating to this Agreement and the other Loan
Documents.  Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by
the Designating Lender as administrative agent for the Designated Bank and
shall not be signed by the Designated Bank on its own behalf but shall be
binding on the Designated Bank to the same extent as if actually signed by the
Designated Bank.  The Borrower, the
Administrative Agent, and Lenders may rely thereon without any requirement that
the Designated Bank sign or acknowledge the same.  No Designated Bank may assign or transfer all
or any portion of its interest hereunder or under any other Loan Document,
other than assignments to the Designating Lender which originally designated
such Designated Bank.


 


13.2.  Expenses.


 


(a)                                  Generally.  The Borrower
agrees upon demand to pay, or reimburse the Administrative Agent for all of its
respective reasonable external audit and investigation expenses and for the
reasonable fees, expenses and disbursements of counsel to the Administrative
Agent (but not of other legal counsel) and for all other reasonable out-of
pocket costs and expenses of every type and nature incurred by the Administrative
Agent in connection with (i) the audit and investigation of the
Consolidated Businesses, the Real Properties and other Properties of the
Consolidated Businesses in connection with the preparation, negotiation, and
execution of the Loan Documents; (ii) the preparation, negotiation,
execution, syndication and interpretation of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any of the conditions
set forth in Article V), the Loan Documents, and the making of the
Loans hereunder or the issuance of Letters of Credit; (iii) the ongoing
administration of this Agreement and the Loans, including consultation with
attorneys in connection therewith and with respect to the Administrative Agent’s
rights and responsibilities under this Agreement and the other Loan Documents; (iv) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (v) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations,
the Borrower, TMC, this Agreement or any of the other Loan Documents; (vi) the
response to, and preparation for, any subpoena or request for document
production with which the Administrative Agent or any other Lender is served or
deposition or other proceeding in which any Lender is called to testify, in
each case, relating in any way to the Obligations, a Real Property, the
Borrower, TMC, any of the Consolidated Businesses, this Agreement or any of the
other Loan Documents; and (vii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same.


 


(b)                                 After Default. 
The Borrower further agrees to pay or reimburse the Administrative Agent
and each of the Lenders upon demand for all out-of-pocket costs and expenses,
including, without limitation, reasonable attorneys’ fees (including allocated
costs of internal counsel and costs of settlement) incurred by such entity
after the occurrence of an Event of Default (i) in enforcing any Loan
Document or obligation or any security therefor or exercising or enforcing any
other right or remedy available by reason of such Event of Default; (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a “work-out” or in any
insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to the Obligations, a Real
Property, any of the Consolidated Businesses and related to or arising out of
the transactions


 


103





















 


contemplated hereby or by any of the other Loan
Documents; and (iv) in taking any other action in or with respect to any
suit or proceeding (bankruptcy or otherwise) described in clauses (i) through
(iii) above.


 


13.3.  Indemnity.  The Borrower further agrees (a) to
defend, protect, indemnify, and hold harmless the Administrative Agent and each
and all of the other Lenders and each of their respective officers, directors,
employees, attorneys, Affiliates and agents
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in Article V)
(collectively, the “Indemnitees”) from and against any and all
liabilities, obligations, losses (other than loss of profits), damages,
penalties, actions, judgments, suits, claims, costs, reasonable expenses and
disbursements of any kind or nature whatsoever (excluding any taxes and
including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a
party thereto), imposed on, incurred by, or asserted against such Indemnitees
in any manner relating to or arising out of this Agreement or the other Loan
Documents, or any act, event or transaction related or attendant thereto, the
making of the Loans or the issuance of Letters of Credit hereunder, the
management of such Loans, the use or intended use of the proceeds of the Loans
or Letters of Credit hereunder, or any of the other transactions contemplated
by the Loan Documents (collectively, the “Indemnified Matters”); provided,
however, the Borrower shall have no obligation to an Indemnitee
thereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or gross negligence of such Indemnitee, as determined by a
court of competent jurisdiction in a non-appealable final judgment; and (b) not
to assert any claim against any of the Indemnitees, on any theory of liability,
for consequential or punitive damages arising out of, or in any way in
connection with, any Negotiated Rate Loans, the Term Loan, the Term Loan
Obligations, the Revolving Credit Commitments, the Revolving Credit
Obligations, or the other matters governed by this Agreement and the other Loan
Documents except with respect to the willful and intentional misconduct of such
Indemnitee.  To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding sentence
may be unenforceable because it is violative of any law or public policy, the
Borrower shall contribute the maximum portion which it is permitted to pay and
satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.


 


13.4.  Change in
Accounting Principles.  If
any change in the accounting principles used in the preparation of the most
recent financial statements referred to in Section 7.1 or 7.2
are hereafter required or permitted by the rules, regulations, pronouncements
and opinions of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and are adopted by the Borrower or TMC with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the covenants,
standards or terms found in Article IX, the parties hereto agree to
enter into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
compliance with such covenants, standards and terms by the Borrower and TMC
shall be the same after such changes as if such changes had not been made; provided,
however, that no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect
in such calculations until such provisions are amended, in a manner
satisfactory to the Administrative Agent and the Borrower, to so reflect such
change in accounting principles.


 


13.5.  Setoff.  In addition to any rights now or
hereafter granted under applicable law, upon the occurrence and during the
continuance of any Event of Default, each Lender is hereby authorized by the
Borrower at any time or from time to time, without notice to any Person (any
such notice being hereby expressly waived) to set off and to appropriate and to
apply any and all deposits (general or special,


 


104





















 


including, but not limited to, 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 to or for
the credit or the account of the Borrower against and on account of the
Obligations of the Borrower then due to such Lender, including, but not limited
to, all Loans and all claims of any nature or description arising out of or in
connection with this Agreement, irrespective of whether or not (i) such
Lender shall have made any demand hereunder or (ii) the Administrative
Agent, at the request or with the consent of the Requisite Lenders, shall have
declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by Article X and even
though such obligations may be contingent or unmatured.  Each Lender agrees that it shall not, unless
the Loans have been accelerated pursuant to Section 10.2(a),
without the express consent of the Requisite Lenders, and that it shall, to the
extent it is lawfully entitled to do so, upon the request of the Requisite
Lenders, exercise its setoff rights hereunder against any accounts of the
Borrower or TMC now or hereafter maintained with such Lender.


 


13.6.  Ratable
Sharing.  The Lenders
agree among themselves that (i) with respect to all amounts received by
them which are applicable to the payment of the Obligations (other than amounts
received in respect of any Negotiated Rate Loan) equitable adjustment will be
made so that, in effect, all such amounts will be shared among them ratably in
accordance with their Pro Rata Shares, whether received by voluntary payment,
by the exercise of the right of setoff or banker’s lien, by counterclaim or
cross-action or by the enforcement of any or all of the Obligations, (ii) if
any of them shall by voluntary payment or by the exercise of any right of
counterclaim, setoff, banker’s lien or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it, which is
greater than the amount which such Lender is entitled to receive hereunder, the
Lender receiving such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in such Obligations
owed to the others so that all such recoveries with respect to such Obligations
shall be applied ratably in accordance with their Pro Rata Shares; provided,
however, that if all or part of such excess payment received by the
purchasing party is thereafter recovered from it, those purchases shall be
rescinded and the purchase prices paid for such participations shall be
returned to such party to the extent necessary to adjust for such recovery, but
without interest except to the extent the purchasing party is required to pay
interest in connection with such recovery. 
The Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 13.6 may, to the fullest
extent permitted by law, exercise all its rights of payment (including, subject
to Section 13.5, the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.


 


13.7.  Amendments
and Waivers.


 


(a)                                  General Provisions. 
Unless otherwise provided for or required in this Agreement, no
amendment or modification of any provision of this Agreement or any of the
other Loan Documents shall be effective without the written agreement of the
Requisite Lenders (which the Requisite Lenders shall have the right to grant or
withhold in their sole discretion) and the Borrower; provided, however,
that Borrower’s agreement shall not be required for any amendment or modification
of Sections 11.1 through 11.8 (other than such Sections thereof
on which the Borrower is entitled to rely or which the Borrower is entitled to
enforce).  Unless otherwise provided for
in this Agreement, no termination or waiver of any provision of this Agreement
or any of the other Loan Documents, or consent to any departure by the Borrower
or TMC therefrom, other than those specifically reserved to the Administrative
Agent or the other Lenders, shall be effective without the written concurrence of
the Requisite Lenders, which the Requisite Lenders shall have the right to
grant or withhold in their sole discretion. 
All amendments, waivers and consents not specifically reserved to the
Administrative Agent or the other Lenders in Sections 13.7(b), 13.7(c) and
13.7(d) and in other provisions of this Agreement shall require only
the


 


105





















 


approval of the Requisite Lenders.  Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was
given.  In the event that any Lender
fails to fund its Pro Rata Share of any Loan requested by the Borrower which
such Lender is obligated to fund under the terms of this Agreement, to perform
its obligations under Section 2.4 of this Agreement, or to pay any
other amount payable by such Lender, then in addition to the other rights and
remedies that may be available to Administrative Agent or the Borrower, such
Lender’s right to participate in the administration of the Loan Documents,
including, without limitation, any rights to consent to or direct any action or
inaction of Administrative Agent pursuant to this Agreement or the other Loan
Documents, or to be taken into account in the calculation of Requisite Lenders,
or to exercise rights under Sections 13.7(b) or 13.7(c), shall be
suspended during the pendency of such failure. 
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other circumstances.  Any such action by the Requisite Lenders
shall be binding upon all of the Lenders and the Administrative Agent.  In connection with any proposed amendment or
waiver for which the consent of the Requisite Lenders has been obtained but the
consent of one or more other Lenders whose consent is required shall not have
been obtained, the Borrower may identify an Eligible Assignee to which such
non-consenting Lender shall assign its interest in the Loans and its Revolving
Credit Commitment at par value pursuant to an Assignment and Acceptance
substantially in the form attached as Exhibit A,
subject to the consent of the Administrative Agent and the Issuing Lender (such
consent not to be unreasonably withheld or delayed).


 


(b)                                 Amendments, Consents and Waivers by
Affected Lenders.  Any amendment, modification, termination,
waiver or consent with respect to any of the following provisions of this
Agreement shall be effective only by a written agreement, signed by each Lender
affected thereby:


 


(i)                                     increase
in the amount of such Lender’s Revolving Credit Commitments or Term Loan
Commitment;


 


(ii)                                  reduction
of the principal of, rate or amount of interest on the Loans or any fees or
other amounts payable to such Lender (other than by the payment or prepayment
thereof);


 


(iii)                               postponement or
extension of any date fixed for any payment of principal of, or interest on,
the Loans or Letters of Credit or any fees or other amounts payable to such
Lender (except with respect to (x) any modifications of the application provisions
relating to prepayments of Loans and other Obligations which are governed by Section 3.2(b) and
(y) the one-year extensions of the Revolving Credit Termination Date or the
Term Loan Maturity Date, each as permitted pursuant to Section 2.3);
and


 


(iv)                              addition
of new currencies to be available as “Optional Currency” under the definition
thereof.


 


(c)                                  Amendments, Consents and Waivers by All
Lenders.  Any amendment, modification, termination,
waiver or consent with respect to any of the following provisions of this
Agreement shall be effective only by a written agreement, signed by each
Lender:


 


(i)                                     postponement
of the Revolving Credit Termination Date (except for the one-year extension of
the Revolving Credit Termination Date as permitted pursuant to Section 2.3).


 


(ii)                                  postponement
of the Term Loan Maturity Date (except for the one-year extension of the Term
Loan Maturity Date as permitted pursuant to Section 2.3).


 


106





















 


(iii)                               increase the Maximum
Revolving Credit Amount to any amount in excess of $1,000,000,000 (except as
provided in Section 2.9).


 


(iv)                              change
in the definition of Requisite Lenders or in the aggregate Pro Rata Share of
the Lenders which shall be required for the Lenders or any of them to take
action hereunder or under the other Loan Documents,


 


(v)                                 amendment
of Section 13.6 or clauses (a), (b) and (c) of this Section 13.7,


 


(vi)                              permitting
the assignment of any right or interest in or under this Agreement or any of
the other Loan Documents by the Borrower, and


 


(vii)                           release of the Guaranty.


 


(d)                                 Administrative Agent Authority. 
The Administrative Agent may, but shall have no obligation to, with the
written concurrence of any Lender, execute amendments, modifications, waivers
or consents on behalf of that Lender. 
Notwithstanding anything to the contrary contained in this Section 13.7,
(i) no amendment, modification, waiver or consent shall affect the rights
or duties of the Administrative Agent as Administrative Agent under this
Agreement and the other Loan Documents, unless made in writing and signed by
the Administrative Agent in addition to the Lenders required above to take such
action, (ii) no amendment, modification, waiver or consent shall affect Section 11.11
of this Agreement unless made in writing and signed by the Co-Syndication
Agents, the Co-Documentation Agents and the Co-Arrangers in addition to the
Lenders required above to take such action and (iii) no amendment,
modification, waiver or consent shall affect the rights or duties of the
Issuing Lender or the Swing Lender under this Agreement and the other Loan
Documents, unless made in writing, and signed by the Issuing Lender or the
Swing Lender, as applicable, in addition to the Lenders required above to take
such action.  Notwithstanding anything
herein to the contrary, in the event that the Borrower shall have requested, in
writing, that any Lender agree to an amendment, modification, waiver or consent
with respect to any particular provision or provisions of this Agreement or the
other Loan Documents, and such Lender shall have failed to state, in writing,
that it either agrees or disagrees (in full or in part) with all such requests
(in the case of its statement of agreement, subject to satisfactory
documentation and such other reasonable conditions it may specify) within
fifteen (15) Business Days after such request, then such Lender hereby
irrevocably authorizes the Administrative Agent to agree or disagree, in full
or in part, and in the Administrative Agent’s sole discretion, to such requests
on behalf of such Lender as such Lender’s attorney-in-fact and to execute and
deliver any writing approved by the Administrative Agent which evidences such
agreement as such Lender’s duly authorized agent for such purposes; provided,
however, that such request shall state, in capital letters that “FAILURE
TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) BUSINESS DAYS AFTER RECEIPT,
SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST.”


 


13.8.  Notices.  Unless otherwise specifically
provided herein, any notice or other communication herein required or permitted
to be given shall be in writing and may be personally served, sent by facsimile
transmission or by courier service or United States certified mail and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of a facsimile transmission (or, in the case of any notices pursuant to
Section 7.11, by electronic transmission pursuant to procedures
approved by the Administrative Agent), or three (3) Business Days after
deposit in the United States mail with postage prepaid and properly
addressed.  Notices to the Administrative
Agent pursuant to Articles II, III or XI shall not be
effective until received by the Administrative Agent.  For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered as provided in
this Section 13.8) shall be as set forth below each party’s name on
the signature pages hereof or the signature page of


 


107





















 


any applicable Assignment and Acceptance, or, as to each party, at such
other address as may be designated by such party in a written notice to all of
the other parties to this Agreement.


 


13.9.  Survival
of Warranties and Agreements.  All
representations and warranties made herein and all obligations of the Borrower
in respect of taxes, indemnification and expense reimbursement shall survive
the execution and delivery of this Agreement and the other Loan Documents, the
making and repayment of the Loans and the termination of this Agreement and
shall not be limited in any way by the passage of time or occurrence of any
event.  Notwithstanding the foregoing,
however, such representations, warranties and obligations shall terminate and
be of no further force and effect two years after payment in full of the Loans.


 


13.10.  Failure
or Indulgence Not Waiver; Remedies Cumulative.  Subject to the terms of Section 13.7(d) of
this Agreement, no failure or delay on the part of the Administrative Agent or
any other Lender in the exercise of any power, right or privilege under any of
the Loan Documents 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 right, power or privilege.  All rights and remedies existing under the
Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.


 


13.11.  Marshaling;
Payments Set Aside.  None
of the Administrative Agent or any other Lender shall be under any obligation
to marshal any assets in favor of the Borrower or any other party or against or
in payment of any or all of the Obligations. 
To the extent that the Borrower makes a payment or payments to the
Administrative Agent or any other Lender or any such person exercises its
rights 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 or required to be repaid
to a trustee, receiver or any other party, then to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied, and all
right and remedies therefor shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.


 


13.12.  Severability.  In case any provision in or
obligation under this Agreement or the other Loan Documents 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.


 


13.13.  Headings.  Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement or be given any substantive effect.


 


13.14.  Governing
Law.  THIS AGREEMENT SHALL
BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.


 


13.15.  Limitation
of Liability.  No claim
may be made by any Lender, the Administrative Agent, or any other Person
against any Lender (acting in any capacity hereunder) or the Affiliates,
directors, officers, employees, attorneys or agents of any of them for any
consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith; and each Lender and the Administrative Agent
hereby waives, releases and agrees not to sue upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.  In addition, no claim may
be made by any Lender, the Administrative


 


108





















 


Agent, or any other Person against any directors, officers or trustees
of the Borrower or TMC or their respective Subsidiaries.


 


13.16.  Successors
and Assigns.  This Agreement
and the other Loan Documents shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and their successors and permitted assigns.  Notwithstanding the foregoing, Borrower may
not assign or transfer any of its rights or obligations under any of the Loan
Documents without the prior written consent of each of the Lenders (and any
such assignment or transfer without such consent shall be null and void).


 


13.17.  Certain
Consents and Waivers.


 


(a)                                  Personal Jurisdiction.  (i) EACH
OF THE LENDERS AND BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT
OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING
JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. 
THE BORROWER (IN SUCH CAPACITY, THE “PROCESS AGENT”) AGREES TO
ACCEPT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCH
SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT.  EACH OF THE LENDERS AND THE
BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  EACH OF THE LENDERS (AS TO COURTS IN NEW YORK
STATE ONLY) AND THE BORROWER, WITH RESPECT TO COURTS IN NEW YORK STATE, WAIVES
IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.


 


(ii)                                  THE
BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE RIGHT TO PROCEED
AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION NECESSARY OR
APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE OTHER LENDERS TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE ADMINISTRATIVE AGENT OR
ANY OTHER LENDER.  THE BORROWER AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY THE ADMINISTRATIVE AGENT OR ANY LENDER TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF THE ADMINISTRATIVE AGENT OR ANY LENDER.  THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCE
A PROCEEDING DESCRIBED IN THIS SECTION.


 


(b)                                 Service of Process. 
EACH OF THE LENDERS (WITH RESPECT TO NEW YORK STATE ONLY) AND THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF


 


109





















 


PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE PROCESS AGENT (FOR BORROWER) OR THE
BORROWER’S NOTICE ADDRESS SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE
UPON RECEIPT.  EACH OF THE LENDERS (WITH
RESPECT TO NEW YORK STATE ONLY) AND THE BORROWER, WITH RESPECT TO COURTS IN NEW
YORK STATE, IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM  NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. 
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT,
THE OTHER LENDERS OR THE BORROWER TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION.


 


(c)                                  Waiver of Jury Trial. 
EACH OF THE ADMINISTRATIVE AGENT AND THE OTHER LENDERS AND THE BORROWER
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.


 


13.18.  Counterparts;
Effectiveness; Inconsistencies. 
This Agreement and any amendments, waivers, consents, or supplements
hereto may be executed in 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. 
This Agreement shall become effective against the Borrower and each
Lender on the Closing Date.  This
Agreement and each of the other Loan Documents shall be construed to the extent
reasonable to be consistent one with the other, but to the extent that the
terms and conditions of this Agreement are actually inconsistent with the terms
and conditions of any other Loan Document, this Agreement shall govern.  In the event the Lenders enter into any
co-lender agreement with the Administrative Agent pertaining to the Lenders’
respective rights with respect to voting on any matter referenced in this
Agreement or the other Loan Documents on which the Lenders have a right to vote
under the terms of this Agreement or the other Loan Documents, such co-lender
agreement shall be construed to the extent reasonable to be consistent with
this Agreement and the other Loan Documents, but to the extent that the terms
and conditions of such co-lender agreement are actually inconsistent with the
terms and conditions of this Agreement and/or the other Loan Documents, such
co-lender agreement shall govern. 
Notwithstanding the foregoing, any rights reserved to the Administrative
Agent under this Agreement and the other Loan Documents shall not be varied or
in any way affected by such co-lender agreement and the rights and obligations
of the Borrower under the Loan Documents shall not be varied in any way by such
co-lender agreement.


 


13.19.  Limitation
on Agreements.  All
agreements between the Borrower, the Administrative Agent and each Lender in
the Loan Documents are hereby expressly limited so that in no event shall any
of the Loans or other amounts payable by the Borrower under any of the Loan
Documents be directly or indirectly secured (within the meaning of Regulation
U) by Margin Stock.


 


13.20.  Confidentiality.  Subject to Section 13.1(e),
the Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement, and identified as such by the Borrower, in
accordance with such Lender’s customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices (provided that such Lender may share such information with its
Affiliates, officers, directors, employees, accountants, attorneys and other
advisors in accordance with such Lender’s customary procedures for handling
confidential information of


 


110





















 


this nature and provided further that such Person shall hold such
information confidential) and in any event the Lenders may make disclosure
reasonably required by a bona fide offeree, transferee or participant in
connection with the contemplated transfer or by any actual or prospective
counterparty (or its advisors) to any swap transaction relating to the Borrower
or as required or requested by any Governmental Authority or representative
thereof or pursuant to legal process and shall require any such offeree,
transferee or counterparty to agree (and require any of its offerees,
transferees or participants to agree) to comply with this Section 13.20.  In no event shall any Lender be obligated or
required to return any materials furnished by the Borrower; provided, however,
each offeree shall be required to agree that if it does not become a transferee
it shall return all materials furnished to it by the Borrower or any Lender in
connection with this Agreement.  This Section 13.20
and any and all confidentiality agreements entered into between any Lender and
the Borrower shall survive the execution of this Agreement.  Nonpublic information shall not include any
information which is or subsequently becomes publicly available other than as a
result of a disclosure of such information by such Lender, or prior to the
delivery to such Lender is within the possession of such Lender if such
information is not known by such Lender to be subject to another
confidentiality agreement with or other obligations of secrecy to Borrower, or
is disclosed with the prior approval of Borrower.  Nothing herein shall prohibit the disclosure
of nonpublic information to the extent necessary to enforce the Loan Documents. Notwithstanding anything to the contrary
set forth herein or in any other written or oral understanding or agreement to
which the parties hereto are parties or by which they are bound, the parties
hereto acknowledge and agree that (i) any obligations of confidentiality
contained herein and therein do not apply and have not applied from the
commencement of discussions between the parties to the tax treatment and tax
structure of the transactions contemplated by the Loan Documents (and any
related transactions or arrangements), and (ii) each party (and each of
its employees, representatives, or other agents) may disclose to any and all
parties as required, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by the Loan Documents and all
materials of any kind (including opinions or other tax analyses) that are
provided to such party relating to such tax treatment and tax structure, all
within the meaning of Treasury Regulation Section 1.6011-4; provided,
however, that each party recognizes that the privilege each has to
maintain, in its sole discretion, the confidentiality of a communication
relating to the transactions contemplated by the Loan Documents, including a
confidential communication with its attorney or a confidential communication
with a federally authorized tax practitioner under Section 7525 of the
Internal Revenue Code, is not intended to be affected by the foregoing.


 


13.21.  Disclaimers.  The Administrative Agent and the
other Lenders shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer, tenant or other party for services performed or
materials supplied in connection with any work performed on the Real
Properties, including any TI Work.  The
Administrative Agent and the other Lenders shall not be liable for any debts or
claims accruing in favor of any such parties against the Borrower or others or
against any of the Real Properties. 
Borrower is not nor shall be an agent of any of the Administrative Agent
or the other Lenders for any purposes and none of the Lenders nor the
Administrative Agent shall be deemed partners or joint venturers with the
Borrower or any of its Affiliates as a result of the consummation of the transaction
contemplated by this Agreement.  None of
the Administrative Agent or the other Lenders shall be deemed to be in privity
of contract with any contractor or provider of services to any Real Property,
nor shall any payment of funds directly to a contractor or subcontractor or
provider of services be deemed to create any third-party beneficiary status or
recognition of same by any of the Administrative Agent or the other Lenders,
and the Borrower agrees to hold the Administrative Agent and the other Lenders
harmless from any of the damages and expenses resulting from such a
construction of the relationship of the parties or any assertion thereof solely
to the extent, if any, that the Borrower has requested that the Administrative
Agent or any other Lender deal directly with or make any payments directly to
such a contractor or provider of services.


 


111





















 


13.22.  Entire
Agreement.  This
Agreement, taken together with all of the other Loan Documents, embodies the
entire agreement and understanding among the parties hereto and supersedes all
prior agreements and understandings, written and oral, relating to the subject
matter hereof.


 


13.23.  Replacement
Notes.  Upon receipt of
evidence reasonably satisfactory to Borrower of the loss, theft, destruction or
mutilation of any Note, and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory to Borrower or,
in the case of any such mutilation, upon surrender and cancellation of the
applicable Note, Borrower will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to the applicable Note and
dated as of the date of the applicable Note and upon such execution and
delivery all references in the Loan Documents to such Note shall be deemed to
refer to such replacement Note.


 


13.24.  USA
Patriot Act.  Each Lender
hereby notifies the Borrower and TMC that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower and TMC, which information includes
the names and addresses of the Borrower and TMC and other information that will
allow such Lender to identify the Borrower and TMC in accordance with the Act.


 


13.25.  Transitional
Arrangements.


 


(a)                                   Existing
Revolving Agreement and Original Term Loan Agreement Superseded.  This Agreement shall supersede each of the
Amended Agreements in its entirety, except as provided in this Section 13.25.  On the Closing Date, the rights and
obligations of the parties under each of the Amended Agreements and the “Notes”
defined in each of the Amended Agreements shall be subsumed within and be governed
by this Agreement and the Notes; provided however,
that any of the “Obligations” (as defined in each of the Amended Agreements)
outstanding under each of the Amended Agreements shall, for purposes of this
Agreement, be Obligations hereunder.  The
Lenders’ interests in such Obligations, and participations in such Letters of
Credit shall be reallocated on the Closing Date in accordance with each Lender’s
applicable Pro Rata Share.


 


(b)                                Return and
Cancellation of Notes.  Upon its
receipt of the Notes to be delivered hereunder on the Closing Date, each Lender
will promptly return to the Borrower, marked “Cancelled” or “Replaced”, the
notes of the Borrower held by such Lender pursuant to the Existing Revolving
Agreement or the Original Term Loan Agreement. 
In the event that any Lender does not return its note or notes pursuant
to either of the Amended Agreements within twenty (20) days after the Closing
Date, the Borrower shall be entitled to receive an affidavit from the Lender,
including an indemnity agreement reasonably satisfactory to the Borrower, with
respect to the unreturned note or notes.


 


(c)                                  Interest and Fees Under Amended
Agreements.  All interest and all commitment, facility and
other fees and expenses owing or accruing under or in respect of each of the
Amended Agreements shall be calculated as of the Closing Date (with any
facility fees, letter of credit fees and other similar fees prorated for any
fractional periods), and shall be paid on the Closing Date in accordance with
the method specified in such Amended Agreement as if such agreement were still
in effect.


 


 


[Remainder of Page Intentionally
Left Blank]


 


112










 













 


IN WITNESS WHEREOF, this Agreement has been duly
executed as of the date first above written.


 


	
  THE BORROWER:

  	
  THE MILLS LIMITED PARTNERSHIP, a Delaware
  limited

  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION, a Delaware
  corporation,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ M. SCOTT DECAIN

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  M. Scott DeCain

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President,

  Capital Markets

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
  The Mills Limited Partnership

  
	
   

  	
  1300 Wilson
  Boulevard, Suite 400

  
	
   

  	
  Arlington, VA
  22209

  
	
   

  	
  Attn: Thomas E. Frost

  
	
   

  	
  Facsimile: 703/526-5198

  
						



 


 


Signature Page to Amended
and Restated

Revolving Credit Agreement


 





















 


	
  TMC (for purposes of its

  agreements contained

  herein):

  	
  THE MILLS CORPORATION, a Delaware
  corporation

  
	
   

  	
  By:

  	
  /s/ M. SCOTT DECAIN

  	
   

  
	
   

  	
   

  	
  Name:

  	
  M. Scott DeCain

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President,

  Capital Markets

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
  The Mills Limited Partnership

  
	
   

  	
  1300 Wilson
  Boulevard, Suite 400

  
	
   

  	
  Arlington, VA
  22209

  
	
   

  	
  Attn: Thomas E. Frost

  
	
   

  	
  Facsimile: 703/526-5198

  
					



 


Signature Page to Amended
and Restated

Revolving Credit Agreement


 





















 


	
  ADMINISTRATIVE AGENT

  	
  JPMORGAN CHASE BANK, N.A., FORMERLY

  
	
  SWING LENDER, ISSUING

  	
   

  	
  KNOWN AS JPMORGAN CHASE BANK

  	
   

  
	
  LENDER, AND LENDER:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ CHARLES HOAGLAND

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Charles Hoagland

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  270 Park Avenue

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  Attn: Charles Hoagland

  
	
   

  	
   

  	
  Facsimile: 212/270-0213

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  CO-SYNDICATION AGENT

  	
  BANK OF AMERICA, N.A.

  
	
  AND LENDER:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ MICHAEL W. EDWARDS

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael W. Edwards

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  231 S LaSalle Street

  
	
   

  	
   

  	
  IL1-231 10-35

  
	
   

  	
   

  	
  Chicago, IL 60604

  
	
   

  	
   

  	
  Attn: Michael Edwards

  
	
   

  	
   

  	
  Facsimile: 312/924-4970

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  CO-SYNDICATION AGENT

  	
  EUROHYPO AG, NEW YORK BRANCH

  
	
  AND LENDER:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ BEN J. MARCIANO

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ben J. Marciano

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JEFF PAGE

  	
   

  
	
   

  	
   

  	
   

  	
  Jeff Page

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  Eurohypo AG, New York Branch

  
	
   

  	
   

  	
  123 North Wacker Drive, Suite 2300

  
	
   

  	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  	
  Attn: Ryan Huddlestun

  
	
   

  	
   

  	
  Facsimile: 312/267-8875

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Eurohypo AG, New York Branch

  
	
   

  	
   

  	
  1114 Avenue of the Americas

  
	
   

  	
   

  	
  New York, NY 10036

  
	
   

  	
   

  	
  Attn: Legal Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Domestic Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  Eurohypo AG, New York Branch

  
	
   

  	
   

  	
  1114 Avenue of the Americas

  
	
   

  	
   

  	
  New York, NY 10036

  
	
   

  	
   

  	
  Attn: Legal Director

  
								



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  KEY BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ GREGORY W. LANE

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gregory W. Lane

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  101 Federal Street, Suite 1900

  
	
   

  	
   

  	
  Boston, MA
  02110

  
	
   

  	
   

  	
  Attn: Jeffry M.
  Morrison

  
	
   

  	
   

  	
  Facsimile: 617/204-5169

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Domestic Lending Office

  
	
   

  	
   

  	
  and Eurocurrency Lending Office:

  
	
   

  	
   

  	
  127 Public Square

  
	
   

  	
   

  	
  Cleveland, OH 44114

  
	
   

  	
   

  	
  Attn: Diana D’Aquila

  
	
   

  	
   

  	
  Facsimile: 216/689-3566

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ CYNTHIA A. BEAN

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Cynthia A. Bean

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  191 Peachtree Street, NE GA-8057

  
	
   

  	
   

  	
  Atlanta, GA 80303-1740

  
	
   

  	
   

  	
  Attn: Cathy Casey

  
	
   

  	
   

  	
  Facsimile: 404/332-4066

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  201 S. College St., CP9, NC 1183

  
	
   

  	
   

  	
  Charlotte, NC 28288

  
	
   

  	
   

  	
  Attn: Dianne Taylor

  
	
   

  	
   

  	
  Facsimile: 704/715-0094

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Domestic Lending Office:

  
	
   

  	
   

  	
  Wachovia
  Bank

  
	
   

  	
   

  	
  301 S.
  College Street, NC0172

  
	
   

  	
   

  	
  Charlotte, NC 28288

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Eurocurrency Lending Office:

  
	
   

  	
   

  	
  Wachovia Bank, NA London Branch

  
	
   

  	
   

  	
  3 Bishopsgate

  
	
   

  	
   

  	
  London EC2N 3AB

  
	
   

  	
   

  	
  United Kingdom

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  CITICORP NORTH AMERICA, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DAVID BOUTON

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David Bouton

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  390 Greenwich Street

  
	
   

  	
   

  	
  New York, NY 10013

  
	
   

  	
   

  	
  Attn: Blake Gronich

  
	
   

  	
   

  	
  Facsimile: 212/723-8547

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  HYPO REAL ESTATE CAPITAL

  	
   

  
	
   

  	
   

  	
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ EVAN F. DENNER

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Evan F. Denner

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ MEGGAN W. WALSH

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Meggan W. Walsh

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  622 Third Avenue, 29th
  Floor

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  Attn: Christine Elcik

  
	
   

  	
   

  	
  Facsimile: 212/671-6458

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  622 Third Avenue, 29 th
  Floor

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  Attn: Pavlina Jiroutkova

  
	
   

  	
   

  	
  Facsimile: 212/671-6434

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  622 Third Avenue, 29 th
  Floor

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  Attn: Maria Ortiz

  
	
   

  	
   

  	
  Facsimile: 212/671-6329

  
								



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  MORGAN STANLEY BANK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DANIEL TWENGE

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Daniel Twenge

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President, Morgan Stanley Bank

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  1633 Broadway, 25 th
  Floor

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attn: Erma Dell’Aquila

  
	
   

  	
   

  	
  Facsimile: 212/537-1867

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with copy to:

  
	
   

  	
   

  	
  1633 Broadway, 25 th
  Floor

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attn: Edward Henley

  
	
   

  	
   

  	
  Facsimile: 212/537-1866

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  ROYAL BANK OF CANADA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ GORDON MACARTHUR

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Gordon MacArthur

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  One Liberty Plaza, 3rd Floor

  
	
   

  	
   

  	
  165 Broadway

  
	
   

  	
   

  	
  New York, NY 10006-1404

  
	
   

  	
   

  	
  Attn: Manager, Loans Administration

  
	
   

  	
   

  	
  Facsimile: 212/428-2372

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A copy of notices should also be faxed to:

  
	
   

  	
   

  	
  Julita Tyszewicz

  
	
   

  	
   

  	
  CTM Group

  
	
   

  	
   

  	
  416/842-4020

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ MICHAEL RAARUP

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael Raarup

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  800 Nicollet Mall, 3rd Floor

  
	
   

  	
   

  	
  BC-MN-H03A

  
	
   

  	
   

  	
  Minneapolis, MN
  55402

  
	
   

  	
   

  	
  Attn: Barbara
  DeVahl

  
	
   

  	
   

  	
  Facsimile:
  612/303-2270

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  COMMERZBANK AG, NEW YORK AND

  GRAND CAYMAN BRANCHES

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ CHRISTIAN BERRY

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Christian Berry

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DOUGLAS TRAYNOR

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Douglas Traynor

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  2 World Financial Center

  
	
   

  	
   

  	
  New York, NY 10281

  
	
   

  	
   

  	
  Attn: Christian
  Berry

  
	
   

  	
   

  	
  Facsimile:
  212/266-7565

  
							



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  ING REAL ESTATE FINANCE (USA) LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DANIEL SLIWAK

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Daniel Sliwak

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  230 Park Avenue

  
	
   

  	
   

  	
  New York, NY 10169

  
	
   

  	
   

  	
  Attn: Alexander Joerg

  
	
   

  	
   

  	
  Facsimile: 212/883-2734

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  230 Park Avenue

  
	
   

  	
   

  	
  New York, NY 10169

  
	
   

  	
   

  	
  Attn: Daniel Sliwak

  
	
   

  	
   

  	
  Facsimile: 212/883-2734

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1325 Avenue of the Americas

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attn: Mark LaGreca

  
	
   

  	
   

  	
  Facsimile: 646/424-8251

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  MERRILL LYNCH CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JOHN C. ROWLAND

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John C. Rowland

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  4 World Financial Center, 16 th
  Floor

  
	
   

  	
   

  	
  New York, NY 10080

  
	
   

  	
   

  	
  Attn: John Rowland

  
	
   

  	
   

  	
  Facsimile: 212/738-1186

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  PB CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JONATHAN OH

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jonathan Oh

  
	
   

  	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ MICHAEL E. ASHEROFF

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Michael E. Asheroff

  
	
   

  	
   

  	
   

  	
  Title:    Associate

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  590 Madison Avenue

  
	
   

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Attn: Michael Asheroff

  
	
   

  	
   

  	
  Facsimile: 212/756-5536

  
								



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  BAYERISCHE LANDESBANK,

  NEW YORK BRANCH

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ GEORGE GNAD

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  George Gnad

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ NORMAN MCCLAVE

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Norman McClave

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  560 Lexington Avenue

  
	
   

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Attn: Pat Sanchez

  
	
   

  	
   

  	
  Facsimile: 212/310-9930

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  560 Lexington Avenue

  
	
   

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Attn: G. Schnepf

  
	
   

  	
   

  	
  Facsimile: 212/230-9151

  
								



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  BRANCH BANKING & TRUST CO.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ RONALD P. GUDBRANDSEN

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ronald P. Gudbrandsen

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  1909 K Street, N.W., 2nd Floor

  
	
   

  	
   

  	
  Washington, D.C. 20006-1152

  
	
   

  	
   

  	
  Attn: Divina S. Tamayo

  
	
   

  	
   

  	
  Facsimile: 202/835-9285

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  CALYON NEW YORK BRANCH

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JOHN A. WAIN

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John A. Wain

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DANIEL J. REDDY

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Daniel J. Reddy

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  1301 Avenue of the Americas,

  
	
   

  	
   

  	
  Real Estate Dept., 18 th
  Floor

  
	
   

  	
   

  	
  New York, NY 10019-6022

  
	
   

  	
   

  	
  Attn: Daniel Reddy

  
	
   

  	
   

  	
  Facsimile: 212/261-3813

  
							



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ ROBERT E. GOECKEL

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Robert E. Goeckel

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  135 S. LaSalle Street #1225

  
	
   

  	
   

  	
  Chicago, IL 60603

  
	
   

  	
   

  	
  Attn: Robert Goeckel

  
	
   

  	
   

  	
  Facsimile: 312/904-6691

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  MANUFACTURERS AND TRADERS

  TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ MATTHEW LIND

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Matthew Lind

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  One Fountain Plaza, 2nd Floor

  
	
   

  	
   

  	
  Buffalo, NY 14203

  
	
   

  	
   

  	
  Attn: Renee Davis

  
	
   

  	
   

  	
  Facsimile: 716/848-7881

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  EMIGRANT SAVINGS BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JANSEN NOYES

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jansen Noyes

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ MICHAEL A. WALSH

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael A. Walsh

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  5 East 42nd Street

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
  Attn: Jansen Noyes

  
	
   

  	
   

  	
  Facsimile: 212/850-4608

  
							



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  KBC BANK NV

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JEAN-PIERRE DIELS

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jean-Pierre Diels

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ KENNETH D. CONNOR

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kenneth D. Connor

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President, Real Estate

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  125 West 55 th Street,
  10 th Floor

  
	
   

  	
   

  	
  New York, NY 10019

  
	
   

  	
   

  	
  Attn: Kenneth D. Connor

  
	
   

  	
   

  	
  Facsimile: 212/541-0740

  
							



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ WILLIAM R. LYNCH, III

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William R. Lynch, III

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address:

  
	
   

  	
   

  	
  One PNC Plaza, Mailstop P1-POPP-19-2

  
	
   

  	
   

  	
  Pittsburgh, PA 15222

  
	
   

  	
   

  	
  Attn: Charlene Markoff

  
	
   

  	
   

  	
  Facsimile: 412/768-5754

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Domestic Lending Office

  
	
   

  	
   

  	
  and Eurocurrency Lending Office:

  
	
   

  	
   

  	
  PNC Bank, National Association

  
	
   

  	
   

  	
  249 Fifth Avenue, Mailstop: P1-POPP-19-2

  
	
   

  	
   

  	
  Pittsburgh, PA 15222

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  WELLS FARGO BANK,

  NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ ERIN P. PEART

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Erin P. Peart

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address and Domestic

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  1750 H Street, N.W., Suite 400

  
	
   

  	
   

  	
  Washington, D.C. 20006

  
	
   

  	
   

  	
  Attn: Erin Peart

  
	
   

  	
   

  	
  Facsimile: 202/429-2984

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Eurocurrency (LIBOR) Lending Office:

  
	
   

  	
   

  	
  2020 East Park Place, Suite 100

  
	
   

  	
   

  	
  El Segundo, CA 90245

  
	
   

  	
   

  	
  Attn: Puree Rhein

  
	
   

  	
   

  	
  Facsimile: 310/615-1014

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 





















 


	
  LENDER:

  	
   

  	
  SOVEREIGN BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ KATHERINE FELPEL

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Katherine Felpel

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notice Address, Domestic

  
	
   

  	
   

  	
  Lending Office and Eurocurrency

  
	
   

  	
   

  	
  Lending Office:

  
	
   

  	
   

  	
  75 State Street

  
	
   

  	
   

  	
  MA 1 SST 04-11

  
	
   

  	
   

  	
  Boston, MA 02109

  
	
   

  	
   

  	
  Attn: T. Gregory Donohue

  
	
   

  	
   

  	
  Facsimile: 617/757-5652

  
						



 


Signature Page to Second
Amended and Restated

Revolving Credit and Term Loan Agreement


 










 













 


EXHIBIT A


 


FORM OF


 


ASSIGNMENT
AND ACCEPTANCE


 


This Assignment and Acceptance (the “Assignment and Acceptance”) is dated
as of the effective date set forth below (the “Effective Date”) and is entered into by
and between                                                                       
(the “Assignor”) and                                                        (the
“Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below (as
amended, amended and restated or otherwise modified and in effect from time to
time, the “Credit Agreement”), receipt of a copy of
which is hereby acknowledged by the Assignee. 
The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Acceptance as if set forth herein in full.


 


For an agreed consideration, the Assignor
hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date (i) all of the Assignor’s rights and obligations in
its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations
of the Assignor under the respective facilities identified below (including
without limitation any letters of credit, guarantees, and swingline loans
included in such facilities), and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above
(the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above
being referred to herein collectively as the “Assigned
Interest”).  Such sale and
assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Acceptance, without representation or warranty
by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and is an
  Affiliate/Approved Fund of                                  (1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
  The Mills
  Limited Partnership

  



 










(1) Select Lender as applicable.


 


1





















 


	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

  	
  JPMorgan
  Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as the
  administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit
  Agreement:

  	
   

  	
  The Second
  Amended and Restated Revolving Credit and Term Loan Agreement, dated as of December     ,
  2004, by and among The Mills Limited Partnership, the Lenders named therein
  and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as
  Administrative Agent for the Lenders.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Assigned Interest:

  	
   

  	
   

  



 


	
  Facility Assigned

  	
   

  	
  Dollar Equivalent of

  and Optional Currency

  Aggregate Amount of

  Commitment/Loans for

  all Lenders (including

  any Letter of Credit

  Disbursements) *

  	
   

  	
  Dollar Equivalent of

  and Optional

  Currency Amount of

  Commitment/Loans

  Assigned *

  	
   

  	
  Percentage

  Assigned of

  Commitment/Loans

  (2)

  	
   

  
	
  Revolving
  Credit Tranche A Commitment

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  Revolving
  Credit Tranche B Commitment

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  Revolving
  Credit Tranche A Loans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  LIBOR Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  Revolving
  Credit Tranche B Loans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  LIBOR Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  EURIBOR Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  €

  	
   

  	
   

  	
  €

  	
   

  	
   

  	
   

  	
  %

  
	
  International
  Eurocurrency Rate Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  £

  	
   

  	
   

  	
  £

  	
   

  	
   

  	
   

  	
   

  



 










* Amount to be adjusted by the counterparties to take into account
any payments or prepayments made between the Trade Date and the Effective Date.


 


(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.


 


2





















 


	
  Term Loan

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Base Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  LIBOR Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  Negotiated
  Rate Loans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eurocurrency
  

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
  Negotiated
  Rate Loans

  	
   

  	
  [€][£]

  	
   

  	
   

  	
  [€][£]

  	
   

  	
   

  	
  %

  
	
  Fixed Rate
  Loans

  	
   

  	
  $

  [€][£]

  	
   

  	
   

  	
  $

  [€][£]

  	
   

  	
   

  	
   

  	
  %

  
	
  Letter of
  Credit 

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  participations
  interest

  	
   

  	
  [€][£]

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
  Swing Loan
  participations interest

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
											



 


	
  [7.                                   Trade Date:

  	
   

  	
                                         ](3)

  
	
   

  	
   

  	
   

  
	
  8.                                       Fee:

  	
   

  	
  The [Assignor/Assignee] shall pay the
  Administrative Agent the fee required by the Credit Agreement prior to the
  Effective Date.

  



 


Effective Date:                                      
        , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


 


[REMAINDER OF THIS PAGE
INTENTIONALLY LEFT BLANK]


 


 










(3)  To be completed if the Assignor and
the Assignee intend that the minimum assignment amount is to be determined as
of the Trade Date.


 


3





















 


The terms set forth in this Assignment and
Acceptance are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


4





















 


Consented to and Accepted:


 


	
  JPMORGAN CHASE BANK, N.A.

  	
   

  
	
  (formerly known as JPMorgan
  Chase Bank),
acting in its capacity as Administrative

  Agent

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A.

  	
   

  
	
  (formerly known as
  JPMorgan Chase Bank),

  acting in its capacity
  as Issuing Lender

  	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented to:

  	
   

  
	
   

  	
   

  
	
  THE MILLS LIMITED PARTNERSHIP, Delaware

  	
   

  
	
  limited partnership

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION, a Delaware

  	
   

  
	
   

  	
   

  	
  corporation, its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:](1)

  	
   

  
								



 










(1)  To the extent required under the Credit Agreement.


 


5





















 


ANNEX 1


 


The Second Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of December   , 2004,
among The Mills Limited Partnership, the Lenders parties thereto and JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative
Agent for the Lenders (as amended, amended and restated or otherwise modified
and in effect from time to time, the “Credit Agreement”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Assignment and Acceptance to which
this annex is attached and if not defined therein, shall have the meanings
given to them in the Credit Agreement.


 


STANDARD TERMS AND CONDITIONS
FOR

ASSIGNMENT AND ACCEPTANCE


 


1.                                       Representations
and Warranties.


 


1.1                                 Assignor.  The
Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Acceptance and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, The Mills Corporation (the “Guarantor”), as guarantor under the Guaranty,
or any of their Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Borrower, the Guarantor, or any of their Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.


 


1.2.                              Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 7.2(a) and (b) of the
Credit Agreement and, to the extent no financial statements have been delivered
under Section 7.2(b), the financial statements referred to in Section 5.1(i) of
the Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance


 


6





















 


and to purchase the Assigned Interest on the basis of which it has made
such analysis and decision independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, (v) if it is a Lender
which is not a “United States person” for United States federal income tax
purposes, attached to this Assignment and Acceptance is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee, and (vi) if the Assignee is
not already a Lender under the Credit Agreement, attached to this Assignment
and Acceptance is an administrative questionnaire, in a form acceptable to the
Administrative Agent, duly completed by the Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will
perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender.


 


2.   Payments.  From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.


 


3.                                       General
Provisions.  This Assignment and Acceptance shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.  This Assignment
and Acceptance may be executed in any number of counterparts, which together
shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Acceptance by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.  This Assignment and Acceptance shall be
governed by, and construed in accordance with, the laws of the State of New
York.


 


7





















 


EXHIBIT B-1


 


FORM OF
REVOLVING CREDIT NOTE


 


	
  $                              

  	
   

  	
                    ,
  2004

  



 


FOR VALUE RECEIVED, THE
MILLS LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”),
unconditionally promises to pay to the order of                                 
(the “Lender”),
on the Revolving Credit Termination Date (as defined in the Credit Agreement
referred to below) the principal sum of, or the Dollar Equivalent of which is
equal to,                                      
DOLLARS ($                     )
or, if less, the aggregate unpaid principal amount of all Revolving Credit
Loans made by the Lender pursuant to the Second Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of December         ,
2004 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the “Credit
Agreement”), among the Borrower, the various financial
institutions (including the Lender) from time to time party thereto, JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrative
agent for the Lenders (“Administrative
Agent”) and the other parties thereto. Unless otherwise defined,
terms used herein have the meanings provided in the Credit Agreement.


 


The Borrower also
promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from and including the date hereof until maturity (whether by
acceleration or otherwise) and, after maturity, until paid, at the rates per
annum and on the dates specified in the Credit Agreement.


 


Payments of both
principal and interest are to be made without setoff or counterclaim in the
currency in which such Loan was made and as specified in the Credit Agreement
in same day or immediately available funds to the account designated by the
Administrative Agent pursuant to the Credit Agreement.


 


This Revolving Credit
Note is one of the Notes referred to in, and evidences Indebtedness incurred
under, the Credit Agreement, to which reference is made for a description of
the security, if any, for this Revolving Credit Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Revolving Credit Note and on which such Indebtedness may be declared to be or
shall automatically become immediately due and payable and is entitled to the
benefits of, and is subject to the terms set forth in, the Credit Agreement.
The principal of this Revolving Credit Note is payable in the amounts and under
the circumstances, and its maturity is subject to acceleration upon the terms,
set forth in the Credit Agreement.


 


The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender’s Revolving Credit Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate
and Interest Period (if any) applicable to, the Revolving Credit Loans
evidenced hereby. Such notations shall, to the extent not inconsistent with the
notations made by the Administrative Agent in the Register, be conclusive and
binding on the Borrower in the absence of manifest error; provided, however, that
the failure of any Lender to make any such notations shall not limit or
otherwise affect any Obligations of the Borrower.


 


1





















 


All parties hereto,
whether as makers, endorsers, or otherwise, severally waive presentment for
payment, demand, protest and notice of dishonor.


 


THIS REVOLVING CREDIT NOTE SHALL
BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.


 


	
   

  	
  THE MILLS LIMITED PARTNERSHIP, a

  
	
   

  	
  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2





















 


REVOLVING CREDIT LOANS AND
PRINCIPAL PAYMENTS


 


	
   

  	
   

  	
  Amount of

  Revolving Credit Loan

  Made

  	
   

  	
  Interest

  Period

  (If

  Applicable)

  	
   

  	
  Amount of

  Principal Repaid

  	
   

  	
  Unpaid

  Principal Balance

  	
   

  	
  Total

  	
   

  	
  Notation

  Made By

  	
   

  
	
  Date

  	
   

  	
  Base

  Rate

  	
   

  	
  LIBOR Rate

  	
   

  	
  EURIBOR

  Rate

  	
   

  	
  International

  Eurocurrency

  Rate

  	
   

  	
   

  	
  Base

  Rate

  	
   

  	
  LIBOR

  Rate

  	
   

  	
  EURIBOR

  Rate

  	
   

  	
  International

  Eurocurrency

  Rate

  	
   

  	
  Base

  Rate

  	
   

  	
  LIBOR

  Rate

  	
   

  	
  EURIBOR

  Rate

  	
   

  	
  International Eurocurrency Rate

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


 


3





















 


EXHIBIT B-2


 


FORM OF
TERM LOAN NOTE


 


	
   

  	
   

  	
  New York, NY

  
	
  $                           

  	
   

  	
                    ,
  2004

  



 


FOR VALUE RECEIVED, THE
MILLS LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”),
unconditionally promises to pay to the order of                  
(the “Lender”),
on the Term Loan Maturity Date (as defined in the Second Amended and Restated
Revolving Credit and Term Loan Agreement referred to below) the principal sum
of                               
DOLLARS ($                )
or, if less, the aggregate unpaid principal amount of the Term Loan made by the
Lender pursuant to the Second Amended and Restated Revolving Credit and Term
Loan Agreement, dated as of December      , 2004
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the “Credit
Agreement”), by and among the Borrower, the various financial
institutions (including the Lender) from time to time party thereto, JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrative
agent for the Lenders (“Administrative
Agent”) and the other parties thereto. Unless otherwise defined,
terms used herein have the meanings provided in the Credit Agreement.


 


The Borrower also
promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from and including the date hereof until maturity (whether by
acceleration or otherwise) and, after maturity, until paid, at the rates per
annum and on the dates specified in the Credit Agreement.


 


Payments of both
principal and interest are to be made without setoff or counterclaim in lawful
money of the United States in Federal or other immediately available funds at
the office of the Administrative Agent (as such term is defined in the Credit Agreement).


 


This Term Loan Note is
one of the Notes referred to in, and evidences Indebtedness incurred under, the
Credit Agreement, to which reference is made for a description of the security,
if any, for this Term Loan Note and for a statement of the terms and conditions
on which the Borrower is permitted and required to make prepayments and
repayments of principal of the Indebtedness evidenced by this Term Loan Note
and on which such Indebtedness may be declared to be or shall automatically
become immediately due and payable and is entitled to the benefits of, and is
subject to the terms set forth in, the Credit Agreement. The principal of this
Term Loan Note is payable in the amounts and under the circumstances, and its
maturity is subject to acceleration upon the terms, set forth in the Credit
Agreement.


 


The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender’s Term Loan Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate
and Interest Period (if any) applicable to, the Term Loans evidenced hereby.
Such notations shall, to the extent not inconsistent with the notations made by
the Administrative Agent in the Register, be conclusive and binding on the
Borrower in the absence of manifest error; provided, however, that the failure
of any Lender to make any such notations shall not limit or otherwise affect
any Obligations of the Borrower.


 


All parties hereto,
whether as makers, endorsers, or otherwise, severally waive presentment for
payment, demand, protest and notice of dishonor.


 


1





















 


THIS TERM LOAN NOTE SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS CONFLICT OF LAWS PRINCIPLES.


 


	
   

  	
  THE MILLS LIMITED PARTNERSHIP, a

  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION, its

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2





















 


TERM LOANS AND PRINCIPAL
PAYMENTS


 


	
  Date

  	
   

  	
  Amount of Term Loan

  Made, Converted or

  Continued

  	
   

  	
  Interest

  Period (If

  Applicable)

  	
   

  	
  Amount of Principal

  Repaid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Total

  	
   

  	
  Notation

  Made

  By:

  	
   

  
	
   

  	
   

  	
  Base Rate

  	
   

  	
  LIBOR

  Rate

  	
   

  	
   

  	
   

  	
  Base Rate

  	
   

  	
  LIBOR

  Rate

  	
   

  	
  Base Rate

  	
   

  	
  LIBOR

  Rate

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


3





















 


EXHIBIT C


 


FORM OF
NOTICE OF BORROWING


 


JPMorgan Chase Bank, N.A.


(formerly known as JPMorgan Chase Bank),

as Administrative Agent

1111 Fannin, 10th Floor

Houston, Texas 77002

Attention:  Loan and Agency Services


 


THE MILLS LIMITED PARTNERSHIP


 


Gentlemen and Ladies:


 


This Notice of Borrowing
is delivered to you pursuant to Section 2.1(e) of the Second Amended
and Restated Revolving Credit and Term Loan Agreement, dated as of December    ,
2004 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the “Credit
Agreement”), among The Mills Limited Partnership, a Delaware
limited partnership (the “Borrower”),
the various financial institutions from time to time party thereto, JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrative
agent for the Lenders (“Administrative
Agent”) and the other parties thereto. Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.


 


The Borrower hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Borrowing is requested to be made:


 


	
  (A)

  	
   

  	
  Type
  of Borrowing(1)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (B)

  	
   

  	
  Funding
  Date(2)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (C)

  	
   

  	
  Principal
  Amount of Borrowing(3)

  	
   

  	
   

  	
   

  



 










(1) The Borrower shall indicate whether
the requested Borrowing is (a) (i) a Revolving Credit Tranche A Loan
or Revolving Credit Tranche B Loan and whether it is a Swing Borrowing or (ii) the
Term Loan, and (b) for a Base Rate or Eurocurrency Rate Borrowing.


 


(2) Shall be a Business Day at least (a) one
Business Day in the case of Base Rate Loans (except for Swing Loans), (b) three
(3) Business Days in the case of LIBOR Rate Loans, or (c) four (4) Business
Days in the case of a Eurocurrency Rate Loan denominated in Optional Currency,
in each case after the date hereof. 
Swing Loans may have a Funding Date which is the same date as the Notice
of Borrowing.


 


(3) Not less than (i) $2,000,000
for LIBOR Rate Loans (and in integral multiples of $500,000) and Swing Loans
(and in integral multiples $1,000,000) or (ii) $1,000,000 for all other
Loans (and in integral multiples of $500,000) and, in any case, not greater
than the Revolving Credit Availability. 
For Borrowings denominated in Optional Currency, specify the amount in
the requested Optional Currency.  The
Dollar Equivalent of any Loans requested herein that are denominated in
Optional Currency shall not exceed the Revolving Credit Tranche B Availability.


 


1





















 


	
  (D)

  	
   

  	
  [Type
  of Optional Currency(4)

  	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (E)

  	
   

  	
  Interest
  Rate Basis(5)

  	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (F)

  	
   

  	
  [Interest
  Period and the last day thereof(6)

  	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (G)

  	
   

  	
  [Number of One Week Interest Periods
  Requested to Consolidate LIBOR Rate Loans in Calendar Year (inclusive, if
  applicable, of this request)

  	
   

  	
   

  	
  ]

  



 


The Borrower hereby
certifies that[, based upon a conversion rate of        ,]
the Revolving Credit Tranche [A][B] Availability as of the date hereof, before
giving effect to the requested Revolving Credit Loan, is                              ,
and that after giving effect to the requested Revolving Credit Loan, the
Revolving Credit Tranche [A][B] Obligations and the Tranche [A][B] Letter of
Credit Obligations will not exceed the Revolving Credit Tranche [A][B]
Commitments.


 


[The Borrower hereby
further certifies that after giving effect to the requested Revolving Credit
Loans, [the Dollar Equivalent of the sum of (i) all Revolving Credit
Tranche B Obligations denominated in Optional Currency and (ii) all
Tranche B Letter of Credit Obligations denominated in Optional Currency is less
than or equal to the lesser of (a) $175,000,000 or (b) the Revolving
Credit Tranche B Commitments based upon a conversion rate of                     .][the
aggregate amount of all Swing Loans is less than or equal to $60,000,000.]]


 


The Borrower hereby
acknowledges that, pursuant to Section 5.1 or 5.2 of the Credit Agreement,
as applicable, each of the delivery of this Notice of Borrowing and the
acceptance by the Borrower of the proceeds of the Loans requested hereby
constitute a representation and warranty by the Borrower that, on the date
hereof and on the Funding Date, and immediately before and after giving effect thereto
and to the application of the proceeds therefrom, all the


 










(4) Sterling or Euros.


 


(5) Base Rate Loan, LIBOR Rate Loan,
EURIBOR Rate Loan or International Eurocurrency Rate Loan.


 


(6) For any (i) Eurocurrency Rate
Loan denominated in Optional Currency, 1, 2, or 3 months (or 6 months with the
approval of and availability from all Lenders with Revolving Credit Tranche B
Commitments) and (ii) LIBOR Rate Loan, 1, 2, 3 or 6 months, one week with
the approval of all Lenders or one year if available from all Lenders, provided
that on up to five (5) occasions per year, without the consent of the
Lenders, the Borrower may request an Interest Period of one week in order to
consolidate LIBOR Rate Loans.


 


2





















 


conditions set forth in Section 5.1
or Section 5.2 of the Credit Agreement, as applicable, have been
satisfied.


 


The Borrower agrees that
if prior to the Funding Date any matter certified to herein by it will not be
true and correct at such time as if then made, it will immediately so notify
the Administrative Agent. Except to the extent, if any, that prior to the
Funding Date the Administrative Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed to
be certified as true and correct on the Funding Date as if then made. The
proceeds of the Loan will be used for purposes permitted by the Credit
Agreement.


 


Please wire transfer the
proceeds of the Borrowing in the requested currency to the accounts [of the
following persons(7) [listed below in the name of the Borrower and
denominated in the currency in which the amount is borrowed](8) at the
financial institutions indicated respectively:


 


Person to be
Paid


 


	
  Amount to be

  	
  Name, Account No.,

  
	
  Transferred

  	
  Address, etc.

  
	
   

  	
   

  
	
  [$][€][£]

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Account No.:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [$][€][£]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Account No.:

  	
   

  	
   

  
									



 


 


{Remainder of page left intentionally blank)


 


 










(7) For Loans denominated in Dollars.


 


(8) For Loans denominated in Optional Currency.


 


3





















 


The Borrower has caused
this Notice of Borrowing to be executed and delivered, and the certification
and warranties contained herein to be made, by its duly authorized officer this
          day of                 ,
200      .


 


 


	
   

  	
  THE MILLS LIMITED PARTNERSHIP, a

  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION, its

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


4





















 


EXHIBIT D


 


FORM OF
NOTICE OF CONVERSION/CONTINUATION


 


JPMorgan Chase Bank, N.A.


(formerly known as JPMorgan Chase Bank),

as Administrative Agent

1111 Fannin, 10th Floor

Houston, Texas 77002


Attention:  Loan and Agency
Services


 


THE MILLS
LIMITED PARTNERSHIP


 


Gentlemen and Ladies:


 


This Notice of
Conversion/Continuation is delivered to you pursuant to Section 4.1(c) of
the Second Amended and Restated Revolving Credit and Term Loan Agreement, dated
as of December     , 2004 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”),
among The Mills Limited Partnership, a Delaware limited partnership (the “Borrower”), various
financial institutions as are, or may from time to time become, parties thereto
(collectively, the “Lenders”),
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as
administrative agent for the Lenders (in such capacity, the “Administrative Agent”)
and the other parties thereto. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.


 


The Borrower by its
signature below hereby requests and elects to(1):


 


(1)                                  Convert $                  (2) in
aggregate principal amount of the [Revolving Credit Tranche [A][B] Loans] [the
Term Loans] that are Base Rate Loans into LIBOR Rate Loans on              ,
200  (3). The Interest Period for such LIBOR Rate Loans is requested
to be                           (4).


 










(1) Include those items that are
applicable and complete appropriately for the circumstances.


 


(2) The amount of funds converted into a
LIBOR Rate Loan must be in a minimum amount of $2,000,000 and in integral
multiples of $1,000,000.


 


(3) Date of conversion must be a LIBOR
Business Day.


 


(4) The Interest Period may be, for any
LIBOR Rate Loan, 1, 2, 3 or 6 months, one week with the approval of all Lenders
or one year if available from all Lenders.


 


1





















 


(2)                                  Convert $              
in aggregate principal amount of [Revolving Credit Tranche [A][B] Loans] [the
Term Loans] that are LIBOR Rate Loans with a current Interest Period ending                 ,
200  (5) into Base Rate Loans.


 


(3)                                  Continue as
Eurocurrency [Revolving Credit] [Term] Loans [$][€][£]                                 (6) in
aggregate principal amount of Eurocurrency [Revolving Credit] [Term] Loans with
a current Interest Period from                               
and ending                              .  The succeeding Interest Period for such
Eurocurrency [Revolving Credit] [Term] Loans is requested to be                  (7) [The
number of one week Interest Periods, inclusive of this request, requested this
year to consolidate LIBOR Rate Loans is                 ].


 


The Borrower hereby:


 


(a)                                  certifies and
warrants that no Potential Event of Default or Event of Default has occurred
and is continuing or will (immediately after giving effect to the continuation
or conversion requested hereby) occur and be continuing; and


 


(b)                                 agrees that
if prior to the time of such continuation or conversion any matter certified to
herein by it will not be true and correct at such time as if then made, it will
immediately so notify the Administrative Agent.


 


Except to the extent, if
any, that prior to the time of the continuation or conversion requested hereby
the Administrative Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed to be certified as
true and correct on the date of such continuation or conversion as if then
made.


 


(Remainder of page intentionally
left blank)


 


 










(5) The conversion of LIBOR Rate Loans
to Base Rate Loans may only occur on the last day of the Interest Period.


 


(6) The amount continued as a
Eurocurrency Rate Loan must be in a minimum amount of the Dollar Equivalent of
$2,000,000 ($1,000,000 in the case of Loans denominated in Optional Currency)
and in integral multiples of the Dollar Equivalent of $1,000,000 ($500,000 in
the case of Loans denominated in Optional Currency).


 


(7) The Interest Period may be (i) for
any Eurocurrency Rate Loan denominated in Optional Currency, 1, 2, or 3 months
(or 6 months with the approval of and availability from all Lenders with
Revolving Credit Tranche B Commitments) and (ii) for any LIBOR Rate Loan,
1, 2, 3 or 6 months, one week with the approval of all Lenders or one year if
available from all Lenders, provided that on up to five (5) occasions per
year, without the consent of the Lenders, the Borrower may request an Interest
Period of one week in order to consolidate LIBOR Rate Loans.


 


2





















 


The Borrower has caused
this Notice of Conversion/Continuation to be executed and delivered, and the
certification and warranties contained herein to be made, by its duly
authorized officer this          day of
                            ,
200  .


 


 


	
   

  	
  THE MILLS LIMITED PARTNERSHIP, a

  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


3





















 


EXHIBIT E


 


FORM OF
LETTER OF CREDIT REQUEST


 


JPMorgan Chase Bank, N.A.


(formerly known as JPMorgan Chase Bank),

as Administrative Agent

1111 Fannin, 10th Floor

Houston, Texas 77002


Attention:  Loan and Agency
Services


 


THE MILLS
LIMITED PARTNERSHIP


 


Gentlemen and Ladies:


 


This Letter of Credit
Request is delivered to you pursuant to Sections 2.4 (a) and (b) of
the Second Amended and Restated Revolving Credit and Term Loan Agreement, dated
as of December   , 2004 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the “Credit Agreement”),
among The Mills Limited Partnership, a Delaware limited partnership (the “Borrower”), the
various financial institutions from time to time party thereto, JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrative agent for
the Lenders (“Administrative
Agent”) and the other parties thereto. Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.


 


The Borrower hereby
requests that a Letter of Credit be issued under Section 2.4 of the Credit
Agreement as follows:


 


	
  Principal Amount:

  	
   

  	
  [$][€][£]

  	
   

  	
   

  
	
  Beneficiary:

  	
   

  	
   

  	
   

  
	
  Requested Issuance Date:(1)

  	
   

  	
   

  	
   

  
	
  Requested Expiration:(2)

  	
   

  	
   

  	
   

  
	
  Purpose:

  	
   

  	
   

  	
   

  



 










(1) Must be at least five (5) Business
Days in the case of a Letter of Credit denominated in Dollars, and ten (10) Business
Days in the case of a Letter of Credit denominated in Optional Currency, after
the date hereof.


 


(2) May not be later than (i) fifteen
(15) days prior to the Revolving Credit Termination Date in the case of a
Letter of Credit denominated in Dollars or (ii) thirty (30) days prior to
the Revolving Credit Termination Date in the case of a Letter of Credit
denominated in Optional Currency, unless (a) such Letter of Credit is
denominated in Dollars, (b) the aggregate of all Letters of Credit
expiring after such date, including after the Revolving Credit Termination
Date, are less than or equal to $20,000,000, (c) such Letter of Credit
expires not later than 180 days after the Revolving Credit Termination Date,
and (d) such Letter of Credit is collateralized or will be collateralized
when required pursuant to Section 2.4(a).


 


1





















 


The Borrower hereby
certifies that[, based upon a conversion rate of                       ]
(i) the Revolving Credit Tranche [A][B] Availability as of the date hereof,
before giving effect to the requested Letter of Credit, is                                 ,
(ii) after giving effect to the requested Letter of Credit, the Revolving
Credit Tranche [A][B] Obligations and the Tranche [A][B] Letter of Credit
Obligations will not exceed the Revolving Credit Tranche [A][B] Commitments,
and (iii) after giving effect to the requested Letter of Credit, the
Letter of Credit Obligations will not exceed $200,000,000.


 


The Borrower hereby
acknowledges that, pursuant to Section 5.1 or 5.2 of the Credit Agreement,
as applicable, each of the delivery of this Letter of Credit Request and the
acceptance by the Borrower of the Letter of Credit requested hereby constitute
a representation and warranty by the Borrower that, on the date of issuance of
such Letter of Credit, and immediately before and after giving effect thereto
and to the application of the proceeds therefrom, all conditions set forth in Section 5.1
or Section 5.2 of the Credit Agreement, as applicable, have been
satisfied.


 


The Borrower agrees that
if prior to the time of the issuance of the Letter of Credit requested hereby
any matter certified to herein by it will not be true and correct at such time
as if then made, it will immediately so notify the Administrative Agent. Except
to the extent, if any, that prior to the time of the issuance of the Letter of
Credit requested hereby the Administrative Agent shall receive written notice
to the contrary from the Borrower, each matter certified to herein shall be
deemed once again to be certified as true and correct at the date of issuance
of such Letter of Credit as if then made. The Letter of Credit will be used for
purposes permitted by the Credit Agreement.


 


(Remainder of page intentionally left blank)


 


2





















 


The Borrower has caused
this Letter of Credit Request to be executed and delivered, and the
certification and warranties contained herein to be made, by its duly
authorized officer this          
day of              ,200  .


 


 


	
   

  	
  THE MILLS LIMITED

  PARTNERSHIP,

  a Delaware limited partnership

  
	
   

  
	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


3










 













 


EXHIBIT F


 


FORM OF


 


NEGOTIATED
RATE QUOTE REQUEST


 


           ,
200  


 


JPMorgan Chase Bank, N.A.


(formerly known as JPMorgan Chase Bank), as Administrative Agent

for the Lenders party to the Second Amended and Restated

Revolving Credit and Term Loan Agreement referred to below

1111 Fannin, 10th Floor

Houston, Texas 77002


Attention:  Loan and Agency
Services


 


Re:                               Negotiated Rate Quote
Request


 


Ladies and Gentlemen:


 


Reference is hereby made to that certain
Second Amended and Restated Revolving Credit and Term Loan Agreement dated as
of December    , 2004 (as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time, the
“Credit Agreement”,
capitalized terms used herein and not otherwise defined shall have the meanings
given to them therein), among The Mills Limited Partnership (the “Borrower”), the
Lenders named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank), as Administrative Agent for the Lenders.


 


The Borrower hereby requests Negotiated Rate
Quotes under the Credit Agreement pursuant to Section 2.7 thereof and, in
connection therewith, sets forth below the information relating to such
Borrowings (the “Proposed Borrowing”) as
required pursuant to the terms of the Credit Agreement:


 


(i)                                     The funding date
(which shall be a Business Day) of the Proposed Borrowing is                ,
200  .


 


(ii)                                  The aggregate amount
of the Proposed Borrowing is        .(1)


 










(1) For amounts denominated in Optional Currency, specify the
amount in the requested Optional Currency. 
The Dollar Equivalent of the requested amount shall (i) not exceed
the Revolving Credit Availability, (ii) after giving effect to the
borrowing of Negotiated Rate Loans, the aggregate principal amount of the
outstanding Negotiated Rate Loans shall not exceed 50% of the Maximum Revolving
Credit Amount, and (iii) not exceed, to the extent such amount is to be
denominated in Optional Currency, the Revolving Credit Tranche B Availability.


 


1





















 


(iii)                                 The Proposed Borrowing
will be a [Eurocurrency Negotiated Rate Loan] [Fixed Rate Loan].


 


[(iv)                            The type of Optional
Currency requested is [Sterling] [Euros].](2)


 


([i]v)                      The requested Interest Periods
for the Proposed Borrowing are as follows:(3)


 


	
  Start of Interest Period

  	
   

  	
  End Date of Interest Period

  	
   

  	
  Duration in months

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


Upon any acceptance of a Negotiated Rate
Quote by the Borrower, the Administrative Agent is hereby directed to disburse
the proceeds of the Negotiated Rate Loans comprising the Proposed Borrowing on
the funding date therefor as set forth on Schedule 1
attached hereto and made a part hereof, whereupon the proceeds of such
Negotiated Rate Loans shall be deemed received by or for the benefit of the
Borrower.


 


The Borrower hereby certifies that the
conditions precedent contained in Sections 5.1 and 5.2 of the Credit Agreement
are satisfied on the date hereof and will be satisfied on the funding date of
the Proposed Borrowing.  The Compliance
Certificate as to pro forma covenant compliance required by Section 5.2(e) of
the Credit Agreement is attached hereto.


 


	 
	
   

  	
  THE MILLS LIMITED PARTNERSHIP, a

  Delaware limited partnership

  	 

	 
	
   

  	
   

  	 

	 
	
   

  	
  By:

  	
  THE MILLS CORPORATION,

  its General Partner

  	 

	 
	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
									



 










(2) Include if Optional Currency requested.


 


(3) Such Interest Period shall be 1, 2, 3 or 6 months.


 


2





















 


SCHEDULE 1


to


Negotiated
Rate Quote Request


 


dated          
      , 200  


 


[Insert
disbursement directions]


 


 


3





















 


[Attach
Compliance Certificate]


 


 


4





















 


EXHIBIT G


FORM OF


 


NEGOTIATED
RATE QUOTE


 


             
      , 200   


 


JPMorgan Chase Bank, N.A.


(formerly known as JPMorgan Chase Bank),

as Administrative Agent

for the Lenders party to the Second Amended and Restated

Revolving Credit and Term Loan Agreement referred to below

1111 Fannin, 10th Floor

Houston, Texas 77002


Attention:  Loan and Agency
Services


 


Re:                               Negotiated Rate Quote



 


Ladies and Gentlemen:


 


Reference is hereby made to that certain
Second Amended and Restated Revolving Credit and Term Loan Agreement dated as
of December   , 2004 (as the same may be amended, supplemented,
amended and restated or otherwise modified from time to time, the “Credit Agreement”,
capitalized terms used herein and not otherwise defined shall have the meanings
given to them therein), among The Mills Limited Partnership (the “Borrower”), the
Lenders named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank), as Administrative Agent for the Lenders.


 


The lender designated herein (the “Lender”) hereby makes
a Negotiated Rate Quote, pursuant to Section 2.7 of the Credit Agreement
and, in connection therewith, sets forth below the information relating to such
Borrowing (the “Proposed Borrowing”) as
required pursuant to the terms of the Credit Agreement:


 


(i)                                     The name of the
Lender is                        .
The contact information for such Lender is as follows:


 


[Name]


[Address]


[Telephone]


[Telecopy]


 


1





















 


(ii)                                  The principal amount
of the Proposed Borrowing is [$][€][£]
                   .(1)


 


(iii)                               The Negotiated Rate or
Rates at which the Lender is prepared to make such Loan or Loans is/are as
follows:


 


	
  Currency

  	
   

  	
  Loan

  Amount

  	
   

  	
  Rate

  	
   

  	
  Interest Period

  Beginning

  	
   

  	
  Interest Period

  Ending

  	
   

  	
  Duration(2)

  	
   

  



 


 


 


 


 


 


	
   

  	
  [LENDER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


 










(1)The principal amount shall be a minimum of the Dollar Equivalent of
$5,000,000 and an integral multiple of the Dollar Equivalent of $1,000,000 and
may equal the entire principal amount of the Negotiated Rate Loan requested by
the Borrower.


 


(2)Such Interest Period shall be 1, 2, 3 or 6 months.


 


2





















 


EXHIBIT H


 


FORM OF
SECOND AMENDED AND RESTATED GUARANTY


 


FOR AND IN CONSIDERATION OF the sum of Ten
and No/100 Dollars ($10.00) and other good and valuable consideration paid or
delivered to the undersigned THE MILLS CORPORATION, a
Delaware corporation (hereinafter referred to as “Guarantor”), the receipt and sufficiency
whereof are hereby acknowledged by Guarantor, and for the purpose of seeking to
induce JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank), a national banking association, as administrative agent and
as a Lender (hereinafter referred to as “Lender,” which term shall also include each
other Lender which may now or hereafter become party to the Second Amended and
Restated Revolving Credit and Term Loan Agreement, dated of even date herewith
among Borrower (as defined below), JPMorgan Chase Bank, N.A. (formerly known as
JPMorgan Chase Bank), for itself and as administrative agent, the other Lenders
now or hereafter a party thereto and the other parties thereto (the “Credit Agreement”)
and shall also include any such individual Lender acting as Administrative
Agent for all of the Lenders or any other holder of a Note), to extend Loans or
Letters of Credit or otherwise provide financial accommodations to THE MILLS LIMITED PARTNERSHIP, a Delaware limited
partnership (“Borrower”),
which Loans, Letters of Credit and provision of financial accommodations
Guarantor acknowledges will be to the direct interest, advantage and benefit of
Guarantor, Guarantor does hereby absolutely, unconditionally and irrevocably
guarantee (as this agreement may be amended, supplemented, restated or modified
from time to time, this “Guaranty”)
to Lender:


 


(a) the full and prompt payment when
due, whether by acceleration or otherwise, either before or after maturity
thereof, of the Notes, together with interest as provided in the Notes,
together with any replacements, supplements, amendments, renewals,
modifications, consolidations, restatements and extensions thereof; and


 


(b) the full and prompt payment and
performance of all obligations of Borrower to Lender under the terms of the
Credit Agreement, together with any replacements, supplements, renewals,
modifications, consolidations, restatements and extensions thereof; and


 


(c) the full and prompt payment and
performance of any and all other obligations of Borrower to Lender under any
other agreements, documents or instruments now or hereafter evidencing,
securing or otherwise relating to the indebtedness evidenced by the Notes or
the Credit Agreement (the Notes, the Credit Agreement and said other
agreements, documents and instruments are hereinafter collectively referred to
as the “Loan Documents”
and individually referred to as a “Loan Document”).  All terms used herein and not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.


 


1.                                       Agreement to
Pay and Perform; Costs of Collection. Guarantor does hereby agree that if
any of the Notes is not paid by Borrower in accordance with its terms, or if
any and all sums which are now or may hereafter become due from Borrower to
Lender under the Loan Documents are not paid by Borrower in accordance with
their terms, or if any and all other obligations of Borrower to Lender under
the Notes and the Loan Documents are not performed by Borrower in accordance
with their terms, Guarantor will, on demand by the Administrative Agent, make
such payments and perform such obligations. Guarantor further agrees to pay
Lender on demand all reasonable costs and expenses (including court costs and reasonable
attorneys’ fees and disbursements) paid or incurred by Lender in endeavoring to
collect the indebtedness guaranteed hereby, to enforce any of the other
obligations of Borrower guaranteed hereby, or any portion thereof, or to
enforce this Guaranty, and


 


1





















 


until paid to Lender, such sums shall bear interest at the default rate
of interest set forth in Section 4.1(d) of the Credit Agreement (or
any successor provision thereto) unless collection from Guarantor of interest
at such rate would be contrary to applicable law, in which event such sums
shall bear interest at the highest rate which may be collected from Guarantor
under applicable law.


 


2.                                       Reinstatement
of Refunded Payments. If, for any reason, any payment to Lender of any of
the obligations guaranteed hereunder is required to be refunded by Lender to
Borrower, or paid or turned over to any other Person, including, without
limitation, by reason of the operation of bankruptcy, reorganization, receivership
or insolvency laws or similar laws of general application relating to creditors’
rights and remedies now or hereafter enacted, Guarantor agrees to pay the
amount so required to be refunded, paid or turned over (the “Turnover Payment”),
the obligations of Guarantor shall not be treated as having been discharged by
the original payment to Lender giving rise to the Turnover Payment, and this
Guaranty shall be treated as having remained in full force and effect for any
such Turnover Payment so made by Lender, as well as for any amounts not
theretofore paid to Lender on account of such obligations.


 


3.                                            Rights
of Lender to Deal with Collateral, Borrower and Other Persons. Guarantor
hereby consents and agrees that Lender may at any time, and from time to time,
without thereby releasing Guarantor from any liability hereunder and without
notice to or further consent from Guarantor, either with or without
consideration: release or surrender any Lien or other security of any kind or
nature whatsoever held by it or by any Person on its behalf or for its account,
securing any indebtedness or liability hereby guaranteed; substitute for any
collateral so held by it, other collateral of like kind, or of any kind; modify
the terms of the Notes or the Loan Documents; extend or renew the Notes for any
period; grant releases, compromises and indulgences with respect to the Notes
or the Loan Documents and to any Persons now or hereafter liable thereunder or
hereunder; release any other guarantor, surety, endorser or accommodation party
of the Notes or any other Loan Documents; or take or fail to take any action of
any type whatsoever. No such action which Lender shall take or fail to take in
connection with the Notes or the Loan Documents, or any of them, or any security
for the payment of the indebtedness of Borrower to Lender or for the
performance of any obligations or undertakings of Borrower, nor any course of
dealing with Borrower or any other Person, shall release Guarantor’s
obligations hereunder, affect this Guaranty in any way or afford Guarantor any
recourse against Lender. The provisions of this Guaranty shall extend and be
applicable to all replacements, supplements, renewals, amendments, extensions,
consolidations, restatements and modifications of the Notes and the Loan
Documents, and any and all references herein to the Notes and the Loan
Documents shall be deemed to include any such replacements, supplements,
renewals, extensions, amendments, consolidations, restatements or modifications
thereof. Without limiting the generality of the foregoing, Guarantor
acknowledges and agrees that this Guaranty shall extend and be applicable to
each new or replacement note delivered by Borrower pursuant to Section 13.1
of the Credit Agreement.


 


4.                                       No Contest
with Lender; Subordination. So long as any obligation hereby guaranteed
remains unpaid or undischarged, Guarantor will not, by paying any sum
recoverable hereunder (whether or not demanded by Lender) or by any means or on
any other ground, claim any set-off or counterclaim against Borrower in respect
of any liability of Guarantor to Borrower or, in proceedings under federal
bankruptcy law or insolvency proceedings of any nature, prove in competition
with Lender in respect of any payment hereunder or be entitled to have the
benefit of any counterclaim or proof of claim or dividend or payment by or on
behalf of Borrower or the benefit of any other security for any obligation
hereby guaranteed which, now or hereafter, Lender may hold or in which it may
have any share. Guarantor hereby expressly waives any right of contribution
from or indemnity against Borrower, whether at law or in equity, arising from
any payments made by Guarantor pursuant


 


2





















 


to the terms of this Guaranty, and Guarantor acknowledges that, until
the indefeasible payment in full of the Obligations and the termination of the
Revolving Credit Commitments, Guarantor has no right whatsoever to proceed
against Borrower for reimbursement of any such payments. In connection with the
foregoing, Guarantor expressly waives, until the indefeasible payment in full
of the Obligations and the termination of the Revolving Credit Commitments, any
and all rights of subrogation to Lender against Borrower (it being understood that
Guarantor is not waiving any right of subrogation that it may otherwise have
but only is waiving the exercise thereof as provided above), and Guarantor
hereby waives any rights to enforce any remedy which Lender may have against
Borrower and any rights to participate in any collateral for Borrower’s
obligations under the Loan Documents. Guarantor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Guarantor to all indebtedness
of Borrower to Lender (including any indebtedness accruing after the
commencement of a case under any chapter of Title 11, U.S.C.A. as amended from
time to time or any successor statute), and agrees with Lender that (a) from
and after the occurrence and during the continuance of a Potential Event of
Default or Event of Default, Guarantor shall not demand or accept any payment
from Borrower on account of such indebtedness, (b) Guarantor shall not
claim any offset or other reduction of Guarantor’s obligations hereunder
because of any such indebtedness, and (c) Guarantor shall not take any
action to obtain any interest in any of the security described in and
encumbered by the Loan Documents because of any such indebtedness; provided,
however, that, if Lender so requests, such indebtedness shall be collected, enforced
and received by Guarantor as trustee for Lender and be paid over to Lender on
account of the indebtedness of Borrower to Lender, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty except to the extent the principal amount of such outstanding
indebtedness shall have been reduced by such payment.


 


5.                                       Waiver of
Defenses. Guarantor hereby agrees that its obligations hereunder shall not
be affected or impaired by, and hereby waives and agrees not to assert or take
advantage of any defense based on:


 


(a)                                  any statute of
limitations in any action hereunder or for the collection of the Notes or for
the payment or performance of any obligation hereby guaranteed;


 


(b)                                 the incapacity, lack
of authority, death or disability of Borrower or any other Person, or the
failure of Lender to file or enforce a claim against the estate (either in
administration, bankruptcy or in any other proceeding) of Borrower or Guarantor
or any other Person;


 


(c)                                  the dissolution or
termination of existence of Borrower or Guarantor;


 


(d)                                 the voluntary or
involuntary liquidation, sale or other disposition of all or substantially all
of the assets of Borrower;


 


(e)                                  the voluntary or
involuntary receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, assignment, composition, or readjustment of, or any
similar proceeding affecting, Borrower, Guarantor, or any of Guarantor’s
Subsidiaries or any of their respective properties or assets;


 


(f)                                    the damage,
destruction, condemnation, foreclosure or surrender of all or any part of the
Property;


 


(g)                                 the failure of Lender
to give notice of the existence, creation or incurring of any new or additional
indebtedness or obligation of Borrower or of any action or nonaction on the
part


 


3





















 


of any other Person whomsoever in connection with any obligation hereby
guaranteed;


 


(h)                                 any failure or delay
of Lender to commence an action against Borrower or any other Person, to assert
or enforce any remedies against Borrower under the Notes or the Loan Documents,
or to realize upon any security;


 


(i)                                     any failure of any
duty on the part of Lender to disclose to Guarantor any facts it may now or
hereafter know regarding Borrower, the Property or any of the Improvements,
whether such facts materially increase the risk to Guarantor or not;


 


(j)                                     failure to accept
or give notice of acceptance of this Guaranty by Lender;


 


(k)                                  failure to make or
give notice of presentment and demand for payment of any of the indebtedness or
performance of any of the obligations hereby guaranteed;


 


(1)                                  failure to make or
give protest and notice of dishonor or of default to Guarantor or to any other
party with respect to the indebtedness or performance of obligations hereby
guaranteed;


 


(m)                               any and all other
notices whatsoever to which Guarantor might otherwise be entitled;


 


(n)                                 any lack of diligence
by Lender in collection, protection or realization upon any collateral securing
the payment of the indebtedness or performance of obligations hereby
guaranteed;


 


(o)                                 the invalidity or
unenforceability of the Notes or any of the Loan Documents;


 


(p)                                 the compromise,
settlement, release or termination of any or all of the obligations of Borrower
under the Notes or the Loan Documents;


 


(q)                                 any transfer by
Borrower or any other Person of all or any part of the security, if any,
encumbered by the Loan Documents;


 


(r)                                    the failure of
Lender to perfect any security or to extend or renew the perfection of any security;
or


 


(s)                                  to the fullest extent
permitted by law, any other legal, equitable or surety defenses whatsoever to
which Guarantor might otherwise be entitled, it being the intention that the
obligations of Guarantor hereunder are absolute, unconditional and irrevocable.


 


6.                                       Guaranty of
Payment and Performance and Not of Collection. This is a guaranty of
payment and performance and not of collection. The liability of Guarantor under
this Guaranty shall be primary, direct and immediate and not conditional or
contingent upon the pursuit of any remedies against Borrower or any other
Person, nor against securities or Liens available to Lender, its successors,
successors in title, endorsees or assigns. Guarantor hereby waives any right to
require that an action be brought against Borrower or any other Person or to
require that resort be had to any security or to any balance of any deposit
account or credit on the books of Lender in favor of Borrower or any other
Person.


 


4





















 


7.                                       Rights and
Remedies of Lender. In the event of the occurrence of an Event of Default
under the Notes or the Loan Documents, or any of them, Lender shall have the
right to enforce its rights, powers and remedies thereunder or hereunder or
under any other agreement, document or instrument now or hereafter evidencing,
securing or otherwise relating to the indebtedness evidenced by the Notes or
contemplated or secured by the Loan Documents, in any order, and all rights,
powers and remedies available to Lender in such event shall be nonexclusive and
cumulative of all other rights, powers and remedies provided thereunder or
hereunder or by law or in equity. Accordingly, Guarantor hereby authorizes and
empowers Lender upon the occurrence and during the continuance of any Event of
Default under the Notes or the Loan Documents, at its sole discretion, and
without notice to Guarantor, to exercise any right or remedy which Lender may
have, including, but not limited to, judicial foreclosure, exercise of rights
of power of sale, acceptance of a deed or assignment in lieu of foreclosure,
appointment of a receiver to collect rents and profits, exercise of remedies
against personal property, or enforcement of any assignment of leases, as to
any security, whether real, personal or intangible. At any public or private
sale of any security or collateral for any indebtedness or any part thereof
guaranteed hereby, whether by foreclosure or otherwise, Lender may, in its
discretion, purchase all or any part of such security or collateral so sold or
offered for sale for its own account and may apply against the amount bid
therefor all or any part of the balance due it pursuant to the terms of the
Notes or the Loan Documents without prejudice to Lender’s remedies hereunder against
Guarantor for deficiencies. If the indebtedness guaranteed hereby is partially
paid by reason of the election of Lender to pursue any of the remedies
available to Lender, or if such indebtedness is otherwise partially paid, this
Guaranty shall nevertheless remain in full force and effect, and Guarantor
shall remain liable for the entire balance of the indebtedness guaranteed
hereby even though any rights which Guarantor may have against Borrower may, be
destroyed or diminished by the exercise of any such remedy.


 


8                                          Application
of Payments. Guarantor hereby authorizes Lender, without notice to
Guarantor, to apply all payments and credits received from Borrower or from
Guarantor and its Subsidiaries or realized from any security in such manner and
in such priority as set forth in the Credit Agreement to the indebtedness,
obligation and undertakings which are the subject of this Guaranty.


 


9.                                       Business
Failure, Bankruptcy or Insolvency. In the event of the business failure of
Guarantor or if there shall be pending any bankruptcy or insolvency case or
proceeding with respect to Guarantor under federal bankruptcy law or any other
applicable law or in connection with the insolvency of Guarantor, or if a
liquidator, receiver, or trustee shall have been appointed for Guarantor or
Guarantor’s properties or assets, Lender may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of Lender allowed in any proceedings relative to Guarantor, or any of
Guarantor’s properties or assets, and, irrespective of whether the indebtedness
or other obligations of Borrower guaranteed hereby shall then be due and
payable, by declaration or otherwise, Lender shall be entitled and empowered to
file and prove a claim for the whole amount of any sums or sums owing with
respect to the, indebtedness or other obligations of Borrower guaranteed
hereby, and to collect and receive any moneys or other property payable or
deliverable on any such claim. Guarantor covenants and agrees that upon the
commencement of a voluntary or involuntary bankruptcy proceeding by or against
Borrower, Guarantor shall not seek a supplemental stay or otherwise pursuant to
11 U.S.C. §105 or any other provision of the Bankruptcy Reform Act of 1978, as amended,
or any other debtor relief law (whether statutory, common law, case law, or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which
may be or become applicable, to stay, interdict, condition, reduce or inhibit
the ability of Lender to enforce any rights of Lender against Guarantor by
virtue of this Guaranty or otherwise.


 


10.                                 Representations and
Warranties. Guarantor hereby represents and warrants to each


 


5





















 


Lender that the representations and warranties contained in Article VI
of the Credit Agreement, insofar as the representations and warranties
contained therein are applicable to it, its Subsidiaries and its properties,
are true and correct in all material respects, each such representation, and
warranty set forth in such Article (insofar as applicable as aforesaid)
and all other terms of the Credit Agreement to which reference is made therein,
together with all related definitions and ancillary provisions, being hereby
incorporated into this Guaranty by reference as though specifically set forth
in this Article.


 


11.                                 Affirmative
Covenants. Guarantor covenants and agrees that, so long as any portion of
the Obligations shall remain unpaid, any other obligation guaranteed hereunder
remains undischarged or any Lender shall have any outstanding Revolving Credit
Commitments or obligation to issue Letters of Credit, it will, unless the
Requisite Lenders shall otherwise consent in writing, perform, comply with and
be bound by all of the agreements, covenants and obligations contained in Article VII,
VIII and IX of the Credit Agreement which are applicable to Guarantor, its
Subsidiaries or its properties, each such agreement, covenant and obligation
contained in such Articles and all other terms of the Credit Agreement,
including without limitation Borrower’s right to cure certain Potential Events
of Default as set forth in Section 10.1 of the Credit Agreement, to which
reference is made herein, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by reference as though
specifically set forth in this Article.


 


12.                                 Rights of Set-off.
Regardless of the adequacy of any collateral or other means of obtaining
repayment of the obligations guaranteed hereunder, during the continuance of
any Event of Default hereunder or under the Notes or the Loan Documents, each
Lender may at any time and without notice to Guarantor set-off and apply the
whole or any portion or portions of any or all deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or the
branch of Lender where the deposits are held) now or hereafter held by such
Lender and other sums credited by or due from such Lender to Guarantor or subject
to withdrawal by Guarantor against amounts payable under this Guaranty, whether
or not (a) any other Person or Persons could also withdraw money
therefrom; (b) such Lender shall have made any demand hereunder or (c) the
Administrative Agent, at the request or with the consent of the Requisite
Lenders, shall have declared the principal of and interest on the Loans and
other amounts due hereunder or under the Loan Document to be due and payable as
permitted by the Credit Agreement and even though such obligations may be
contingent or unmatured.


 


13.                                 Changes in Writing;
No Revocation. This Guaranty may not be changed orally, and no obligation
of Guarantor hereunder can be released or waived by Lender except by a writing
signed by a duly authorized officer of Lender. This Guaranty shall be
irrevocable by Guarantor until all indebtedness guaranteed hereby has been
completely repaid, the obligation to issue Letters of Credit has terminated and
all obligations and undertakings of Borrower under, by reason of, or pursuant
to the Notes and the Loan Documents have been completely performed.


 


14.                                 Notices. Unless
otherwise specifically provided herein, any notice or other communication
herein required or permitted to be given shall be in writing and may be
personally served, sent by facsimile transmission or by courier service or
United States certified mail and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of a facsimile
transmission, or four (4) Business Days after deposit in the United States
mail with postage prepaid and properly addressed. For the purposes hereof, the
addresses of the Lender shall be in care of Administrative Agent at its address
for notices set forth in the Credit Agreement and the address of Guarantor
shall be as set forth below the Guarantor’s name on the signature page hereof
(until notice of a change thereof is delivered as provided in Section 13.8
of the Credit Agreement).


 


6





















 


15.                                 Governing Law, Entire
Agreement, etc.  THIS GUARANTY SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,
IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.


 


16.                                 Forum Selection and
Consent to Jurisdiction.


 


(a) Personal Jurisdiction. EACH OF THE LENDERS AND GUARANTOR IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY
COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS CREDIT
AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR,
TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE GUARANTOR (IN SUCH
CAPACITY, THE “PROCESS AGENT”)
AGREES TO ACCEPT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. EACH OF THE LENDERS AND THE GUARANTOR AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. EACH OF THE LENDERS (AS TO COURTS IN NEW YORK STATE ONLY) AND
THE GUARANTOR, WITH RESPECT TO COURTS IN NEW YORK STATE, WAIVES IN ALL DISPUTES
ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.


 


(b)                                 THE
GUARANTOR AGREES THAT THE LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THE
GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION NECESSARY OR APPROPRIATE
TO ENABLE THE LENDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF THE LENDER. THE GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE LENDER TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. THE GUARANTOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE
LENDER  MAY COMMENCE A
PROCEEDING DESCRIBED IN THIS SECTION.


 


(i)                                     Service of
Process. EACH LENDER (WITH RESPECT TO NEW YORK STATE
ONLY) AND THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, FOR THE
GUARANTOR TO THE PROCESS AGENT (FOR GUARANTOR) OR THE GUARANTOR’S NOTICE
ADDRESS SPECIFIED


 


7





















 


BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON
RECEIPT.  EACH LENDER (WITH RESPECT TO
NEW YORK STATE ONLY) AND THE GUARANTOR WITH RESPECT TO COURTS IN NEW YORK
STATE, IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM  NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS CREDIT AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE LENDER TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE
COURTS OF ANY OTHER JURISDICTION.


 


17.                            Waiver of Jury Trial.
EACH LENDER AND THE GUARANTOR IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS CREDIT AGREEMENT
OR ANY OTHER LOAN DOCUMENT.


 


18.                                 Successors and
Assigns. The provisions of this Guaranty shall be binding upon Guarantor
and its successors, successors in title, legal representatives, and assigns,
and shall inure to the benefit of Lender, its successors, successors in title,
legal representatives and assigns.


 


19.                                 Assignment by
Lender. This Guaranty is assignable by Lender in whole or in part in
conjunction with any assignment of the Notes or portions thereof made in
compliance with the provisions of the Credit Agreement, and any assignment
hereof or any transfer or assignment of the Notes or portions thereof by Lender
shall operate to vest in any such assignee the rights and powers, in whole or
in part, as appropriate, herein conferred upon and granted to Lender.


 


20.                                 Severability.
If any term or provision of this Guaranty shall be determined to be illegal or
unenforceable, all other terms and provisions hereof shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by law.


 


21.                                 Disclosure.
Guarantor agrees that in addition to disclosures made in accordance with
standard banking practices, any Lender may disclose information obtained by
such Lender pursuant to this Guaranty to assignees or participants and
potential assignees or participants hereunder; provided, however,
that all such disclosures shall be subject to the confidentiality provisions
set forth in Section 13.20 of the Credit Agreement.


 


22.                                 No Unwritten
Agreements. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.


 


23.                                 Time of the Essence.
Time is of the essence with respect to each and every covenant, agreement and
obligation of Guarantor under this Guaranty.


 


24.                                 Condition of
Borrower. Guarantor warrants and represents that it is fully aware of the
financial condition of the Borrower and is executing and delivering this
Guaranty based solely upon Guarantor’s own independent investigation of all
matters pertinent hereto, and that Guarantor is not relying in any manner upon
any representation or statement of any Lender. Guarantor warrants,


 


8





















 


represents and agrees that Guarantor is in a position to obtain, and
Guarantor hereby assumes full responsibility for obtaining, any additional
information concerning the financial condition of the Borrower and any other
matter pertinent hereto, and that Guarantor is not relying upon any Lender to
furnish, and shall have no right to require any Lender to obtain or disclose,
any information with respect to the indebtedness or obligations guaranteed
hereby, the financial condition or character of the Borrower or the ability of
the Borrower to pay the indebtedness or perform the obligations guaranteed
hereby, the existence of any collateral or security for any or all of such
indebtedness or obligations, the existence or nonexistence of any other
guaranties of all or any part of such indebtedness or obligations, any actions
or non-action on the part of any Lender, the Borrower or any other Person, or
any other matter, fact or occurrence whatsoever. By execution this Guaranty,
Guarantor acknowledges and knowingly accepts the full range of risks
encompassed within a contract of guaranty.


 


25.                                 No Assignment by
Guarantor. Guarantor shall not assign or transfer any of its rights or
obligations under this Guaranty or any of the Loan Documents without the prior
written consent of each of the Lenders (and any such assignment or transfer
shall be null and void).


 


26.                                 Statement of
Discharge. Upon the payment in full of the indebtedness guaranteed hereby
and upon the termination of the Lender’s obligations to advance Loans or issue
Letters of Credit to Borrower, the Agent shall, upon the written request of
Guarantor, deliver a statement to the Guarantor that the Guarantor’s
obligations under this Guaranty have been discharged and satisfied and that
this Guaranty is terminated (subject to reinstatement as provided herein).


 


27.                                 Original Guaranties
Superceded.  This Guaranty shall
supercede (i) that certain Amended and Restated Guaranty, dated as of June 26,
2003, by the Guarantor in favor of Fleet National Bank, as administrative agent
and as a lender, and each of the other lenders party to the Existing Revolving
Agreement (as defined in the Credit Agreement), as reaffirmed by the Guarantor
in that certain Reaffirmation of Guaranty, dated as of October 15, 2004
(collectively, the “Revolving
Credit Guaranty”), guaranteeing the payment and performance of
the obligations under the Existing Revolving Agreement, and (ii) that
certain Guaranty, dated as of October 15, 2004 (the “Term Loan Guaranty”),
by the Guarantor in favor of JPMorgan Chase Bank, N.A. (formerly known as
JPMorgan Chase Bank), as administrative agent and as a lender and each of the
other lenders party to the Original Term Loan Agreement (as defined in the
Credit Agreement), guaranteeing the payment and performance of the obligations
of the Borrower under the Original Term Loan Agreement, each in its entirety.  On the Closing Date, the rights and
obligations of the Guarantor under each of the Revolving Credit Guaranty and
the Term Loan Guaranty shall be subsumed within and be governed by this
Guaranty.


 


[SIGNATURES BEGIN ON FOLLOWING
PAGE]


 


9





















 


IN WITNESS WHEREOF, Guarantor has executed
this Guaranty as of the     th day of December, 2004.


 


 


	
   

  	
  THE MILLS CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
  The Mills Corporation

  
	
   

  	
  1300 Wilson Boulevard, Suite 400

  
	
   

  	
  Arlington, Virginia 22209

  
	
   

  	
  Attn: Thomas Frost

  
	
   

  	
  Facsimile: (703) 526-5198

  



 


10





















 


Administrative Agent joins in the execution
of this Guaranty for the sole and limited purpose of evidencing its agreement
to waiver of the right to trial by jury contained in Section 17 hereof and
Section 13.17 of the Credit Agreement.


 


 


	
   

  	
  JPMORGAN CHASE BANK, N.A. (formerly known

  as JPMorgan Chase Bank), as Administrative Agent

  for Lenders

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


11





















 


EXHIBIT I


 


FORM OF


 


DESIGNATED
BANK NOTE


 


 


	
  $

  	
  New York,
  New York

  
	
   

  	
              
       ,200    

  



 


FOR VALUE RECEIVED, The Mills Limited
Partnership (the “Borrower”), promises to pay
to the order of                              
(the “Lender”) the Dollar
Equivalent of the unpaid principal amount of each Negotiated Rate Loan made by
the Lender to the Borrowers pursuant to the Second Amended and Restated
Revolving Credit and Term Loan Agreement, dated as of December    ,
2004 (as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time, the “Credit Agreement”),
among the Borrower, the institutions from time to time party thereto as lenders
and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Administrative Agent, on the dates specified in the
Credit Agreement.  The Borrower promises
to pay interest on the unpaid principal amount of each such Negotiated Rate
Loan on the dates and at the rate or rates provided for in the Credit
Agreement.  All such payments of
principal and interest shall be made in the currency in which the Negotiated
Rate Loan was made and as specified in the Credit Agreement in same day or
other immediately available funds at the office of the Administrative Agent (as
such term is defined in the Credit Agreement).


 


All Negotiated Rate Loans made by the Lender,
the respective types and maturities thereof and all repayments of the principal
thereof shall be recorded by the Lender and, if the Lender so elects in
connection with any transfer or enforcement hereof, appropriate notations to
evidence the foregoing information with respect to each such Loan then
outstanding may be endorsed by the Lender on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.


 


This Designated Bank Note is one of the
Designated Bank Notes referred to in the Credit Agreement.  Terms used but not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.  Reference is made to the Credit Agreement for
provisions for the prepayment hereof, the acceleration of the maturity hereof
upon the happening of certain events and certain waivers by the Borrower.


 


THIS DESIGNATED BANK NOTE SHALL BE
INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.


 


	
   

  	
  THE MILLS LIMITED PARTNERSHIP, a

  Delaware limited partnership

  



 


1





















 


	
   

  	
   

  
	
   

  	
  By:

  	
  THE MILLS CORPORATION,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2





















 


NEGOTIATED RATE LOANS AND
PAYMENTS OF PRINCIPAL


 


 


	
  Date

  	
   

  	
  Amount of

  Negotiated

  Rate Loan

  	
   

  	
  Type of

  Negotiated

  Rate Loan

  	
   

  	
  Amount of

  Principal

  Repaid

  	
   

  	
  Maturity Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


 


 


 


3





















 


EXHIBIT J


 


FORM OF


 


DESIGNATION
AGREEMENT


 


Dated                  
       , 200   


 


Reference is hereby made to the Second
Amended and Restated Revolving Credit and Term Loan Agreement dated as of December    ,
2004 (as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time, the “Credit Agreement”),
among The Mills Limited Partnership (the “Borrower”),
the Lenders named therein and JPMorgan Chase Bank, N.A. (formerly known as
JPMorgan Chase Bank), as Administrative Agent for the Lenders.  Terms used but not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.


 


[NAME OF DESIGNOR] (the “Designor”)
and [NAME OF DESIGNEE] (the “Designee”)
agree as follows:


 


1.                                       The Designor
hereby designates the Designee, and the Designee hereby accepts such
designation, to have a right to make Negotiated Rate Loans pursuant to Section 2.7
of the Credit Agreement.  Any assignment
by Designor to Designee of its rights to make a Negotiated Rate Loan pursuant
to such Article II shall be effective at the time of the funding of such
Negotiated Rate Loan and not before such time.


 


2.                                       Except as set
forth in Section 7 below (solely with respect to the Designor), none of
the Designor, any other Lender or the Administrative Agent makes any
representation or warranty or assumes any responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or representations made in or in connection with any Loan
Document or any other instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument and document furnished
pursuant thereto or (b) the financial condition of the Borrower or the
performance or observance by the Borrower of any of their obligations under any
Loan Document or any other instrument or document furnished pursuant thereto.


 


3.                                       The Designee (a) confirms
that it has received a copy of each Loan Document, together with copies of the
financial statements referred to in the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Designation Agreement; (b) agrees
that it will independently and without reliance upon the Administrative Agent,
J.P. Morgan Securities Inc., the Issuing Lender, the Swing Lender, any other
agent named in the Credit Agreement, the Designor or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
any Loan Document; (c) confirms that it is a Designated Bank; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under any Loan Document as
are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; and


 


1





















 


(e) agrees to be bound by each and every provision of each Loan
Document and further agrees that it will perform in accordance with their terms
all of the obligations which by the terms of any Loan Document are required to
be performed by it as a Designated Bank, including any and all obligations set
forth in Section 13.1(h) of the Credit Agreement.


 


4.                                      The Designee
hereby appoints Designor as Designee’s agent and attorney in fact, and grants
to Designor an irrevocable power of attorney, to receive payments made for the
benefit of Designee under the Credit Agreement, to deliver and receive all
communications and notices under the Credit Agreement and other Loan Documents
and to exercise on Designee’s behalf all rights to vote and to grant and make
approvals, waivers, consents or amendments to or under the Credit Agreement or
other Loan Documents.  Any document
executed by the Designor on the Designee’s behalf in connection with the Credit
Agreement or other Loan Documents shall be binding on the Designee to the same
extent as if actually signed by the Designee. 
The Borrower, the Administrative Agent and each of the other Lenders may
rely on and are third-party beneficiaries of the preceding provisions entitled
to directly enforce the same.


 


5.                                      Following the
execution of this Designation Agreement by the Designor and Designee, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent.  The effective date
for this Designation Agreement (the “Effective Date”)
shall be the date of acceptance hereof by the Administrative Agent, unless
otherwise specified on the signature page hereto.


 


6.                                      The Designor
unconditionally agrees to pay or reimburse the Designee for, and save the
Designee harmless against, all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Designation Agreement or any other
Loan Documents or any action taken or omitted by the Designee hereunder or
thereunder.


 


7.                                      Upon such
acceptance and recording by the Administrative Agent, as of the Effective Date,
the Designee shall be a party to the Credit Agreement with a right to make
Negotiated Rate Loans as a Lender pursuant to Section 2.7 of the Credit
Agreement and the rights and obligations of a Lender related thereto; provided, however, that the Designee shall not be required
to make payments with respect to such obligations except to the extent of
excess cash flow of the Designee which is not otherwise required to repay
obligations of the Designee which are then due and payable.  Notwithstanding the foregoing, the Designor,
as agent for the Designee, shall be and remain obligated to the Borrower, the
Administrative Agent, and the other Lenders for each and every of the
obligations of the Designee and the Designor with respect to the Credit
Agreement and any sums otherwise payable to the Borrower by the Designee.


 


8.                                      This Designation
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York without regard to its conflict of laws principles.


 


9.                                      This Designation
Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.  Delivery of
an executed counterpart of a signature page to this Designation Agreement
by facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.


 


2





















 


IN WITNESS WHEREOF, the Designor and the
Designee, intending to be legally bound, have caused this Designation Agreement
to be executed by their officers thereunto duly authorized as of the date first
above written.


 


	
  Effective Date:

  	
                
         , 200   

  
	
   

  	
   

  
	
   

  	
  [NAME OF DESIGNOR], as

  
	
   

  	
  Designor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF DESIGNEE], as

  
	
   

  	
  Designee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Applicable Lending Office (and (address for
  notices):

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [ADDRESS]

  
	
   

  	
   

  
	
  Accepted this            
  day

  	
   

  
	
  of                       ,
  200     

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A.

  (formerly known as JPMorgan Chase Bank),

  as Administrative Agent

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
								



 


3