Exhibit 10.1


 


EXECUTION VERSION


 


SENIOR SECURED DEBTOR IN POSSESSION CREDIT,

SECURITY AND GUARANTY AGREEMENT


 


dated as of May 15, 2009


 


among


 


THE ENTITIES FROM TIME TO TIME PARTY HERETO AS LENDERS,

as the Lenders,


 


UBS SECURITIES LLC,

as the Lead Arranger,


 


UBS AG, STAMFORD BRANCH,

as the Agent,


 


GENERAL GROWTH PROPERTIES, INC.

and GGP LIMITED PARTNERSHIP,

as the Borrowers,


 


and


 


THE ENTITIES FROM TIME TO TIME PARTY HERETO AS GUARANTORS,

as the Guarantors


 

















 


EXECUTION
VERSION


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE
  1 INTERPRETATION OF THIS AGREEMENT

  	
  1

  
	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Accounting
  Terms

  	
  22

  
	
  Section 1.3

  	
  Interpretive
  Provisions

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2 TERM LOAN; INTEREST AND FEES

  	
  23

  
	
   

  	
   

  
	
  Section 2.1

  	
  Total
  Facility

  	
  23

  
	
  Section 2.2

  	
  Term
  Loan

  	
  24

  
	
  Section 2.3

  	
  Interest

  	
  24

  
	
  Section 2.4

  	
  Exit
  Fees

  	
  25

  
	
  Section 2.5

  	
  Interest
  Limitation

  	
  25

  
	
  Section 2.6

  	
  Agent’s
  Fee

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3 PAYMENTS AND PREPAYMENTS

  	
  26

  
	
   

  	
   

  
	
  Section 3.1

  	
  Term
  Loan

  	
  26

  
	
  Section 3.2

  	
  Optional
  Prepayment of the Term Loan

  	
  26

  
	
  Section 3.3

  	
  Mandatory
  Prepayments of the Term Loan

  	
  26

  
	
  Section 3.4

  	
  Payments
  by the Borrowers

  	
  28

  
	
  Section 3.5

  	
  Apportionment,
  Application, and Reversal of Payments

  	
  28

  
	
  Section 3.6

  	
  Indemnity
  for Returned Payments

  	
  29

  
	
  Section 3.7

  	
  The
  Agent’s Books and Records

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4 CASH COLLATERAL ACCOUNTS

  	
  29

  
	
   

  	
   

  
	
  Section 4.1

  	
  Cash
  Collateral Accounts

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5 TAXES, YIELD PROTECTION, AND ILLEGALITY

  	
  30

  
	
   

  	
   

  
	
  Section 5.1

  	
  Taxes

  	
  30

  
	
  Section 5.2

  	
  Increased
  Costs and Reduction of Return

  	
  32

  
	
  Section 5.3

  	
  Certificates
  of Lenders

  	
  32

  
	
  Section 5.4

  	
  Replacement
  of Lenders

  	
  32

  
	
  Section 5.5

  	
  Survival

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6 COLLATERAL

  	
  33

  
	
   

  	
   

  
	
  Section 6.1

  	
  Grant
  of Security Interest

  	
  33

  
	
  Section 6.2

  	
  Perfection
  and Protection of Security Interest

  	
  35

  
	
  Section 6.3

  	
  Delivery
  of Mortgages

  	
  36

  
	
  Section 6.4

  	
  Title to,
  Liens on, and Use of Collateral

  	
  36

  



 


i

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  Access
  and Examination; Confidentiality

  	
  37

  
	
  Section 6.6

  	
  Documents,
  Instruments, and Chattel Paper

  	
  37

  
	
  Section 6.7

  	
  Right
  to Cure

  	
  37

  
	
  Section 6.8

  	
  Power
  of Attorney

  	
  38

  
	
  Section 6.9

  	
  The
  Agent’s and Lenders’ Rights, Duties, and Liabilities

  	
  38

  
	
  Section 6.10

  	
  Site
  Visits, Observations, and Testing

  	
  38

  
	
  Section 6.11

  	
  Joinder
  of Subsidiaries

  	
  39

  
	
  Section 6.12

  	
  Voting
  Rights, etc. in Respect of Investment Property

  	
  39

  
	
  Section 6.13

  	
  Remedies

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES

  	
  41

  
	
   

  	
   

  
	
  Section 7.1

  	
  Books
  and Records

  	
  41

  
	
  Section 7.2

  	
  Financial
  Information

  	
  41

  
	
  Section 7.3

  	
  Notices
  to the Agent

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8 GENERAL WARRANTIES AND REPRESENTATIONS

  	
  46

  
	
   

  	
   

  
	
  Section 8.1

  	
  Authorization,
  Validity, and Enforceability of this Agreement and the Loan Documents; No
  Conflicts

  	
  46

  
	
  Section 8.2

  	
  Validity
  and Priority of Security Interest; Administrative Priority

  	
  47

  
	
  Section 8.3

  	
  Corporate
  Name; Prior Transactions

  	
  48

  
	
  Section 8.4

  	
  Capitalization;
  Subsidiaries

  	
  48

  
	
  Section 8.5

  	
  Material
  Agreements

  	
  48

  
	
  Section 8.6

  	
  Proprietary
  Rights

  	
  48

  
	
  Section 8.7

  	
  Litigation

  	
  48

  
	
  Section 8.8

  	
  Labor
  Disputes

  	
  48

  
	
  Section 8.9

  	
  Environmental
  Laws

  	
  48

  
	
  Section 8.10

  	
  No
  Violation of Law

  	
  49

  
	
  Section 8.11

  	
  ERISA
  Compliance

  	
  49

  
	
  Section 8.12

  	
  Taxes

  	
  50

  
	
  Section 8.13

  	
  Regulated
  Entities

  	
  50

  
	
  Section 8.14

  	
  Use
  of Proceeds

  	
  50

  
	
  Section 8.15

  	
  Full
  Disclosure

  	
  50

  
	
  Section 8.16

  	
  Bank
  Accounts

  	
  51

  
	
  Section 8.17

  	
  Governmental
  Authorization

  	
  51

  
	
  Section 8.18

  	
  First
  Lien Properties

  	
  51

  
	
  Section 8.19

  	
  Prior
  Lien Debt

  	
  51

  
	
  Section 8.20

  	
  Leases

  	
  52

  
	
  Section 8.21

  	
  Title

  	
  52

  
	
  Section 8.22

  	
  Physical
  Condition

  	
  52

  



 


ii

















 


TABLE
OF CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 8.23

  	
  Management

  	
  53

  
	
  Section 8.24

  	
  Condemnation

  	
  53

  
	
  Section 8.25

  	
  Utilities
  and Public Access

  	
  53

  
	
  Section 8.26

  	
  Separate
  Lots

  	
  53

  
	
  Section 8.27

  	
  Permits;
  Certificate of Occupancy

  	
  53

  
	
  Section 8.28

  	
  Ground
  Leased Property

  	
  53

  
	
  Section 8.29

  	
  Embargoed
  Person

  	
  53

  
	
  Section 8.30

  	
  Compliance
  with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9 AFFIRMATIVE AND NEGATIVE COVENANTS

  	
  54

  
	
   

  	
   

  
	
  Section 9.1

  	
  Existence
  and Good Standing

  	
  54

  
	
  Section 9.2

  	
  Compliance
  with Law and Agreements; Maintenance of Licenses

  	
  55

  
	
  Section 9.3

  	
  Insurance

  	
  55

  
	
  Section 9.4

  	
  Casualty
  and Condemnation

  	
  55

  
	
  Section 9.5

  	
  Covenants
  with Respect to REA

  	
  56

  
	
  Section 9.6

  	
  Environmental
  Laws

  	
  57

  
	
  Section 9.7

  	
  Compliance
  with ERISA

  	
  58

  
	
  Section 9.8

  	
  Mergers,
  Consolidations, Sales, Acquisitions

  	
  58

  
	
  Section 9.9

  	
  Transactions
  with Affiliates

  	
  60

  
	
  Section 9.10

  	
  Business
  Conducted

  	
  62

  
	
  Section 9.11

  	
  Debt;
  Liens; No Negative Pledge

  	
  62

  
	
  Section 9.12

  	
  New
  Subsidiaries

  	
  65

  
	
  Section 9.13

  	
  Use
  of Proceeds

  	
  65

  
	
  Section 9.14

  	
  Investments

  	
  66

  
	
  Section 9.15

  	
  Case
  Matters

  	
  66

  
	
  Section 9.16

  	
  No
  Amendments or Advances of Prior Lien Debt

  	
  68

  
	
  Section 9.17

  	
  Maintenance
  of Property; Compliance with Legal Requirements; Parking

  	
  68

  
	
  Section 9.18

  	
  Taxes
  and Other Claims

  	
  69

  
	
  Section 9.19

  	
  Leases

  	
  69

  
	
  Section 9.20

  	
  Restricted
  Payments

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10 CONDITIONS OF LENDING

  	
  71

  
	
   

  	
   

  
	
  Section 10.1

  	
  Conditions
  Precedent to Making of Term Loan

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11 DEFAULT; REMEDIES

  	
  73

  
	
   

  	
   

  
	
  Section 11.1

  	
  Events
  of Default

  	
  73

  



 


iii

















 


TABLE OF
CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Remedies

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12 GUARANTY

  	
  80

  
	
   

  	
   

  
	
  Section 12.1

  	
  Guaranty;
  Limitation of Liability

  	
  80

  
	
  Section 12.2

  	
  Guaranty
  Absolute

  	
  81

  
	
  Section 12.3

  	
  Waivers
  and Acknowledgments

  	
  82

  
	
  Section 12.4

  	
  Subrogation

  	
  83

  
	
  Section 12.5

  	
  Guaranty
  Supplements

  	
  83

  
	
  Section 12.6

  	
  Continuing
  Guaranty; Assignments

  	
  83

  
	
  Section 12.7

  	
  Limitation
  on Guaranty

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  13 AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS

  	
  84

  
	
   

  	
   

  
	
  Section 13.1

  	
  No
  Waivers; Cumulative Remedies

  	
  84

  
	
  Section 13.2

  	
  Amendments
  and Waivers

  	
  84

  
	
  Section 13.3

  	
  Assignments;
  Participations

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14 THE AGENT

  	
  88

  
	
   

  	
   

  
	
  Section 14.1

  	
  Appointment
  and Authorization

  	
  88

  
	
  Section 14.2

  	
  Delegation
  of Duties

  	
  88

  
	
  Section 14.3

  	
  Liability
  of the Agent

  	
  89

  
	
  Section 14.4

  	
  Reliance
  by the Agent

  	
  89

  
	
  Section 14.5

  	
  Notice
  of Default

  	
  90

  
	
  Section 14.6

  	
  Credit
  Decision

  	
  90

  
	
  Section 14.7

  	
  Indemnification

  	
  90

  
	
  Section 14.8

  	
  The
  Agent in Individual Capacity

  	
  91

  
	
  Section 14.9

  	
  Successor
  Agent

  	
  91

  
	
  Section 14.10

  	
  Withholding
  Tax

  	
  92

  
	
  Section 14.11

  	
  Collateral
  Matters

  	
  94

  
	
  Section 14.12

  	
  Restrictions
  on Actions by the Lenders; Sharing of Payments

  	
  95

  
	
  Section 14.13

  	
  Agency
  for Perfection

  	
  95

  
	
  Section 14.14

  	
  Payments
  by the Agent to the Lenders

  	
  95

  
	
  Section 14.15

  	
  Concerning
  the Collateral and the Related Loan Documents

  	
  96

  
	
  Section 14.16

  	
  Relation
  Among the Lenders

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  15 MISCELLANEOUS

  	
  96

  
	
   

  	
   

  
	
  Section 15.1

  	
  Cumulative
  Remedies

  	
  96

  
	
  Section 15.2

  	
  Severability

  	
  96

  



 


iv

















 


TABLE
OF CONTENTS

(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 15.3

  	
  Governing
  Law; Choice of Forum; Service of Process; Jury Trial Waiver

  	
  96

  
	
  Section 15.4

  	
  Waiver
  of Jury Trial

  	
  97

  
	
  Section 15.5

  	
  Survival

  	
  98

  
	
  Section 15.6

  	
  Fees
  and Expenses

  	
  98

  
	
  Section 15.7

  	
  Notices

  	
  99

  
	
  Section 15.8

  	
  Waiver
  of Notices

  	
  100

  
	
  Section 15.9

  	
  Binding
  Effect

  	
  100

  
	
  Section 15.10

  	
  Indemnity
  of the Agent and the Lenders by the Obligors

  	
  100

  
	
  Section 15.11

  	
  Limitation
  of Liability

  	
  101

  
	
  Section 15.12

  	
  Final
  Agreement

  	
  101

  
	
  Section 15.13

  	
  Counterparts

  	
  102

  
	
  Section 15.14

  	
  Captions

  	
  102

  
	
  Section 15.15

  	
  Agency
  of the General Partner for the Other Obligors

  	
  102

  
	
  Section 15.16

  	
  Patriot
  Act

  	
  102

  
	
  Section 15.17

  	
  Absence
  of Fiduciary Relationship; Affiliates; Etc.

  	
  102

  
	
  Section 15.18

  	
  Incorporation
  of Financing Order by Reference

  	
  103

  
	
  Section 15.19

  	
  Right
  to Publicize and Advertise

  	
  103

  
	
  Section 15.20

  	
  Consent
  of the Agent and Lenders

  	
  103

  
	
  Section 15.21

  	
  Lead
  Arranger

  	
  103

  
	
  Section 15.22

  	
  Schedules

  	
  103

  



 


v

















 


	
  Schedules:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  1.1A

  	
   

  	
  —

  	
   

  	
  Fee
  Properties

  
	
  Schedule
  1.1B

  	
   

  	
  —

  	
   

  	
  Guarantors

  
	
  Schedule
  1.1C

  	
   

  	
  —

  	
   

  	
  Leased
  Properties

  
	
  Schedule
  1.1D

  	
   

  	
  —

  	
   

  	
  Primary
  Properties

  
	
  Schedule
  3.1

  	
   

  	
  —

  	
   

  	
  Debt
  to Equity Conversion Schedule

  
	
  Schedule
  6.1

  	
   

  	
  —

  	
   

  	
  Commercial
  Tort Claims

  
	
  Schedule
  6.3

  	
   

  	
  —

  	
   

  	
  Delivery
  of Mortgages

  
	
  Schedule
  8.3

  	
   

  	
  —

  	
   

  	
  Prior
  Names

  
	
  Schedule
  8.4

  	
   

  	
  —

  	
   

  	
  Capitalization

  
	
  Schedule
  8.5

  	
   

  	
  —

  	
   

  	
  Material
  Agreements — Exceptions

  
	
  Schedule
  8.9

  	
   

  	
  —

  	
   

  	
  Environmental
  Matters

  
	
  Schedule
  8.11

  	
   

  	
  —

  	
   

  	
  ERISA
  Matters

  
	
  Schedule
  8.16

  	
   

  	
  —

  	
   

  	
  Bank
  Accounts

  
	
  Schedule
  8.17

  	
   

  	
  —

  	
   

  	
  Governmental
  Authorization — Exceptions

  
	
  Schedule
  8.18

  	
   

  	
  —

  	
   

  	
  First
  Lien Properties

  
	
  Schedule
  8.19-1

  	
   

  	
  —

  	
   

  	
  Prior
  Lien Debt

  
	
  Schedule
  8.19-2

  	
   

  	
  —

  	
   

  	
  M&M
  Liens

  
	
  Schedule
  8.20

  	
   

  	
  —

  	
   

  	
  Current
  Rent Roll

  
	
  Schedule
  8.20-1

  	
   

  	
  —

  	
   

  	
  A/R
  Report

  
	
  Schedule
  8.21

  	
   

  	
  —

  	
   

  	
  Title
  Exception Issues

  
	
  Schedule
  8.22

  	
   

  	
  —

  	
   

  	
  Physical
  Condition — Exceptions

  
	
  Schedule
  8.23

  	
   

  	
  —

  	
   

  	
  Management

  
	
  Schedule
  8.25

  	
   

  	
  —

  	
   

  	
  Utilities
  and Public Access — Exceptions

  
	
  Schedule
  8.27

  	
   

  	
  —

  	
   

  	
  Permits
  — Exceptions

  
	
  Schedule
  8.28

  	
   

  	
  —

  	
   

  	
  Unrecorded
  Ground Leases

  
	
  Schedule
  9.3

  	
   

  	
  —

  	
   

  	
  Insurance

  
	
  Schedule
  9.8

  	
   

  	
  —

  	
   

  	
  Property
  Dispositions

  
	
  Schedule
  9.13

  	
   

  	
  —

  	
   

  	
  Use
  of Proceeds — Debt

  
	
   

  	
   

  	
  —

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibits:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  —

  	
   

  	
  Form of
  Continuation Notice

  
	
  Exhibit B

  	
   

  	
  —

  	
   

  	
  Form of
  Financing Order

  
	
  Exhibit C

  	
   

  	
  —

  	
   

  	
  Form of
  Funding Notice

  
	
  Exhibit D

  	
   

  	
  —

  	
   

  	
  Form of
  Term Note

  
	
  Exhibit E

  	
   

  	
  —

  	
   

  	
  Form of
  Compliance Certificate

  
	
  Exhibit F

  	
   

  	
  —

  	
   

  	
  Form of
  Subordination, Non-Disturbance and Attornment Agreement

  
	
  Exhibit G

  	
   

  	
  —

  	
   

  	
  [Intentionally
  Omitted]

  
	
  Exhibit H

  	
   

  	
  —

  	
   

  	
  Form of
  Guaranty Supplement

  
	
  Exhibit I-1

  	
   

  	
  —

  	
   

  	
  Form of
  Mortgage

  
	
  Exhibit I-2

  	
   

  	
  —

  	
   

  	
  Form of
  Deed of Trust

  
	
  Exhibit J-1

  	
   

  	
  —

  	
   

  	
  Form of
  Legal Opinion of Ronald L. Gern and Jeffrey Palkovitz

  
	
  Exhibit J-2

  	
   

  	
  —

  	
   

  	
  Form of
  Legal Opinion of Weil, Gotshal & Manges LLP

  
	
  Exhibit K-1

  	
   

  	
  —

  	
   

  	
  Form of
  Deed of Trust Subordination Agreement

  
	
  Exhibit K-2

  	
   

  	
  —

  	
   

  	
  Form of
  Mortgage Subordination Agreement

  



 


vi

















 


SENIOR SECURED DEBTOR IN POSSESSION

CREDIT, SECURITY AND GUARANTY AGREEMENT


 


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


 


W
I T N E S S E T H


 


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


 


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


 


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


 


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


 


ARTICLE 1


 


INTERPRETATION OF THIS
AGREEMENT


 


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


 


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


 


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


 
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


“Charges”
has the meaning specified in Section 2.5.


 


“Closing
Date” means the date of this Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Mortgage”
has the meaning specified in Section 6.3.


 


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


 


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


 


14

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


“Outside
Date” means May 16, 2011.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Permitted
Liens” means:


 


(a)           the Agent’s Liens;


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


18

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Platform”
has the meaning specified in Section 7.2.


 


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


 


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


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21
















 


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


 


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


 


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


 


“TRC”
means The Rouse Company LP.


 


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


 


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


 


“United
States” means the United States of America.


 


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


 


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


 


Section 1.3                                                  Interpretive
Provisions.


 


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


 


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


 


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


 


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


 


22

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


ARTICLE 2 



TERM LOAN; INTEREST AND FEES


 


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


 


23

















 


Section 2.2                                                  Term Loan.


 


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


 


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


 


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


 


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


 


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


 


Section 2.3                                                  Interest.


 


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


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


ARTICLE 3



PAYMENTS AND PREPAYMENTS


 


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


 


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


 


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


 


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


 


26

















 


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


 


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


 


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


 


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


 


27

















 


Section 3.4                                                  Payments by the
Borrowers.


 


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


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


ARTICLE 4



CASH COLLATERAL ACCOUNTS


 


Section 4.1                                                  Cash Collateral
Accounts.


 


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


 


29

















 


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


 


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


 


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


 


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


 


ARTICLE 5


 


TAXES, YIELD PROTECTION,
AND ILLEGALITY


 


Section 5.1                                                  Taxes.


 


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


 


30

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


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


 


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


 


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


 


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


 


ARTICLE 6



COLLATERAL


 


Section 6.1                                                  Grant of
Security Interest.


 


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


 


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


 


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


 


(iii)                               all chattel paper;


 


(iv)                              all documents;


 


(v)                                 all instruments;


 


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


 


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


 


(viii)                        all inventory and other goods;


 


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(ix)                                all equipment and fixtures;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


34

















 


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


 


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


 


Section 6.2                                                  Perfection and
Protection of Security Interest.


 


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


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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Section 6.5                                                  Access and
Examination; Confidentiality.


 


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


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


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


 


38

















 


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


 


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


 


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


 


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


 


39

















 


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


 


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


 


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


 


ARTICLE 7


 


BOOKS AND RECORDS;
FINANCIAL INFORMATION; NOTICES


 


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


 


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


 


(a)                                  As soon as available, but in any event
not later than 90 days after the close of each Fiscal Year, an audited
consolidated balance sheet and consolidated statements of income and cash flow
for the General Partner and its consolidated Subsidiaries for such Fiscal Year,
and with respect to such audited financial statements, setting forth in
comparative form figures for the previous Fiscal Year, all in reasonable
detail, fairly presenting, in all material respects, the financial position and
the results of operations of the General Partner and its consolidated
Subsidiaries as at the date thereof and for the Fiscal Year then ended in accordance
with GAAP.  Such financial statements
shall be examined in accordance with generally accepted auditing standards by,
and accompanied by a report thereon (without any qualification or exception as
to the scope of such audit, other than any such qualification or exception
arising as a result of the commencement of the Case or the events leading
thereto) of Deloitte & Touche LLP, other independent certified public
accountants of national standing selected by the General Partner or another
firm reasonably satisfactory to the Agent. 
The General Partner authorizes the Agent to communicate directly with
the General Partner’s certified public accountants, upon reasonable advance
notice to the Borrowers, and by this provision, authorizes those accountants to
disclose to the Agent any and all financial statements and other supporting
financial documents and schedules relating to the General Partner and its
consolidated Subsidiaries and to discuss directly with the Agent the finances
and affairs of the General Partner and its consolidated Subsidiaries; provided
that the Borrowers shall have a reasonable opportunity to participate in such
communications.


 


(b)                                 As soon as
available but in any event not later than 45 days after the end of each of the
first three Fiscal Quarters, the unaudited consolidated balance sheet of the
General Partner and its consolidated Subsidiaries as at the end of such Fiscal
Quarter, and unaudited consolidated statements of income for the General
Partner and its consolidated Subsidiaries for such Fiscal Quarter and for the
period from the beginning of the Fiscal Year to the end of such Fiscal Quarter,
all in reasonable detail, fairly presenting, in all material respects, the
financial position and results of operations of the General Partner and its
consolidated Subsidiaries as at the date thereof and for such periods, in
accordance with GAAP (other than presentation of footnotes and subject to
normal year-end audit adjustments).  The
General Partner shall certify by a certificate signed by its chief financial
officer that all such financial statements have been prepared in accordance
with GAAP and present fairly, in all material respects, subject to


 


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normal year-end
adjustments and the absence of footnotes, the General Partner’s consolidated
financial position as at the dates thereof and its results of operations for
the periods then ended.


 


(c)                                  As soon as available but in any event not
later than 90 days after the end of each Fiscal Year and 45 days after the end
of each of the first three Fiscal Quarters, the unaudited consolidated balance
sheet of the Obligor or Obligors owning each Primary Property and any Debtor
owning any Negative Pledge Property to the extent prepared for the holder of
the Prior Lien Debt as at the end of such Fiscal Year or Fiscal Quarter, as the
case may be, and unaudited consolidated statements of income for the Obligor or
Obligors owning each Primary Property and any Negative Pledge Property to the
extent prepared for the holder of the Prior Lien Debt for such period and, with
respect to each of the first three Fiscal Quarters of each Fiscal Year, for the
period from the beginning of the Fiscal Year to the end of such Fiscal Quarter.


 


(d)                                 With each of the financial statements
delivered pursuant to Section 7.2(a) and Section 7.2(b),
the General Partner shall provide to the Agent a certificate of its chief
financial officer or other principal financial officer in the form of Exhibit E
(the “Compliance Certificate”) stating that, except as explained in
reasonable detail in such certificate, no Default or Event of Default then
exists.  If such certificate discloses
that a Default or Event of Default then exists, such certificate shall set
forth what action the Obligors have taken or propose to take with respect
thereto.


 


(e)                                  Within ten (10) days after the
filing thereof or the date the same are sent, as applicable, the Obligors shall
provide to the Agent copies of all reports, if any, to or other documents filed
by the General Partner with the Securities and Exchange Commission under the
Exchange Act, and all reports, notices, or statements sent (other than routine
non-material correspondence) by the General Partner to all holders of any
equity interests of the General Partner or of any Debt of any Obligor
registered under the Securities Act of 1933 or to the trustee under any
indenture under which the same is issued, in each case, unless such statement,
report or certificate is made publicly available by such Obligor.


 


(f)                                    Promptly and in any event no later than
the last Business Day of each month, the Obligors shall provide to the Agent an
updated 13-week cash flow forecast of receipts and disbursements on a
consolidated basis.


 


(g)                                 Promptly, and in any event no later than
2:00 p.m. (New York City time), on the last Business Day of each week, the
Obligors shall provide to the Agent the cash balance of the Main Operating
Account as of the close of business on the immediately preceding Business Day
(which notice may be provided by electronic mail).


 


(h)                                 Promptly after receipt thereof, the
General Partner shall provide to the Agent a copy of the final management
letter prepared for the General Partner by its independent certified public accountants
in connection with its annual audit.


 


(i)                                     Promptly after any filing thereof, the
Obligors shall deliver to the Agent copies of all written pleadings, motions,
applications, financial information, petitions, schedules, 


 


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reports, and other papers
and documents filed with the Bankruptcy Court by or on behalf of any Debtor in
the Case.


 


(j)                                     Promptly after any delivery thereof, the
Obligors shall deliver to the Agent copies of all material written reports and
presentations (other than information which is privileged or confidential in
respect of the recipient) delivered by or on behalf of any Debtor to any
official creditors’ committee in the Case.


 


(k)                                  The Obligors shall provide to the Agent
such additional information as the Agent (and/or any Lender, acting through the
Agent) may from time to time reasonably request regarding the financial and
business affairs of any Debtor.


 


Documents
required to be delivered pursuant to this Section 7.2 may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrowers post such documents, or provide a link
thereto on the website of the Securities and Exchange Commission at
http://www.sec.gov or on the website of the General Partner at www.ggp.com (or
such other website address accessible to the Agent and the Lenders as notified
to the Agent in accordance with the terms hereof); or (ii) on which such
documents are posted on the Borrowers’ behalf on IntraLinks/IntraAgency or
another website to which each Lender and the Agent have access (whether a
commercial, third-party website or whether sponsored by the Agent); provided
that the Borrowers shall notify (which notice may be by facsimile or electronic
mail) the Agent of the posting of any such documents.  Notwithstanding anything to the contrary
contained in clauses (e) through (j) of this Section 7.2,
the failure to deliver any notice or provide any information in accordance
therewith shall not constitute a Default or Event of Default so long as such
notice or information is delivered to the Agent concurrently with the delivery
of the financial statements pursuant to clauses (a) or (b) above
for the period in which such relevant notice or information were to have been
given to the Agent.  Notwithstanding
anything contained herein, in every instance the Borrowers shall be required to
provide paper copies of the Compliance Certificates required by Section 7.2(d) to
the Agent; provided, however, that if such Compliance Certificate is first
delivered by electronic means, the date of such delivery by electronic means
shall constitute the date of delivery for purposes of compliance with Section 7.2(d).


 


The
Borrowers hereby acknowledge that (a) the Agent will make available to the
Lenders materials and/or information provided by or on behalf of the Obligors
hereunder (collectively, “Obligor Materials”) by posting the Obligor
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Obligors or their securities) (each, a “Public Lender”).
The Borrowers hereby agree that they will identify that portion of the Obligor
Materials that may be distributed to the Public Lenders and that (w) all
such Obligor Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Obligor Materials “PUBLIC,”
the Borrowers shall be deemed to have authorized the Agent and the Lenders to
treat such Obligor Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the
Obligors or their securities for purposes of United States federal and state
securities laws; (y) all Obligor Materials marked “PUBLIC” are permitted
to be made available through a portion of the 


 


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Platform designated “Public Investor”; and (z) the Agent shall be
entitled to treat any Obligor Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”


 


Each
Lender acknowledges that circumstances may arise that require it to refer to
Obligor Materials that may contain material non-public information (“Private
Side Communications”).  Accordingly, each Lender agrees that it will
use commercially reasonable efforts to designate at least one individual to
receive Private Side Communications on its behalf in compliance with its
procedures and applicable law and identify such designee (including such
designee’s contact information) on such Lender’s “Administrative Questionnaire.” 
Each Lender agrees to notify the Agent in writing from time to time of such
Lender’s designee’s e-mail address to which notice of the availability of
Private Side Communications may be sent by electronic transmission.


 


Each
Lender that elects not to be given access to Private Side Communications does
so voluntarily and, by such election, (i) acknowledges and agrees that the
Agent and other Lenders may have access to Private Side Communications that
such electing Lender does not have and (ii) takes sole responsibility for
the consequences of, and waives any and all claims based on or arising out of,
not having access to Private Side Communications.


 


The
Platform is provided “as is” and “as available.”  The Agent does not
warrant the accuracy or completeness of the Obligor Materials, or the adequacy
of the Platform and expressly disclaim liability for errors or omissions in the
communications.  No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by Agent in connection with the Obligor
Materials or the Platform.  In no event shall Agent or any Agent-Related
Person have any liability to the Obligors, any Lender or any other person for
damages of any kind, including direct or indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or
otherwise) arising out of any Obligor’s or Agent’s transmission of
communications through the Internet, except to the extent the liability of such
person is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such person’s gross negligence or willful
misconduct.


 


Section 7.3                                                  Notices to the
Agent.  The Obligors shall notify the
Agent in writing of the following matters at the following times (which notice
shall set forth, in reasonable detail, the action that the Obligors or any
ERISA Affiliate, as applicable, has taken or proposes to take with respect
thereto):


 


(a)                                  promptly upon obtaining Knowledge of any
Default or Event of Default;


 


(b)                                 promptly upon obtaining Knowledge of any
event or development which could reasonably be expected to have, or has
resulted in, a Material Adverse Effect;


 


(c)                                  promptly upon obtaining Knowledge of any
pending (or written threat of any) action, suit, proceeding, or counterclaim by
any Person, or any pending or threatened (in writing) investigation by a
Governmental Authority, which could reasonably be expected to have, or has
resulted in, a Material Adverse Effect;


 


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(d)                                 promptly upon obtaining Knowledge of any
pending (or written threat of any) strike, work stoppage, unfair labor practice
claim, or other labor dispute affecting any Obligor, in each case in a manner
which could reasonably be expected to have, or has resulted in, a Material
Adverse Effect;


 


(e)                                  promptly upon obtaining Knowledge of any
violation of any law, statute, regulation, or ordinance of a Governmental
Authority affecting any Obligor which could reasonably be expected to have, or
has resulted in, a Material Adverse Effect;


 


(f)                                    promptly after receipt of any notice of
any violation by any Obligor of any Environmental Law which could reasonably be
expected to have, or has resulted in, a Material Adverse Effect or that any
Governmental Authority has asserted that any Obligor is not in compliance with
any Environmental Law or is investigating any Obligor’s compliance therewith,
in each case, which could reasonably be expected to have, or has resulted in, a
Material Adverse Effect;


 


(g)                                 promptly after receipt of any written
notice that any Obligor is or may be liable to any Person as a result of the
Release or threatened Release of any Contaminant or that any Obligor (or
Obligor’s Property) is subject to an Environmental Lien which has priority over
the Agent’s Liens or any investigation by any Governmental Authority evaluating
whether any remedial action is needed to respond to the Release or threatened
Release of any Contaminant which, in each case, could reasonably be expected to
have, or has resulted in, a Material Adverse Effect;


 


(h)                                 at least 30 days prior to any change in
any Obligor’s legal name, state of organization, or form of organization;


 


(i)                                     upon request, each annual report (Form 5500
series), including Schedule B thereto, filed with the PBGC, the DOL, or
the IRS with respect to each Pension Plan;


 


(j)                                     upon request, copies of each actuarial
report for any Pension Plan and annual report for any Multi-employer Plan, and
promptly after receipt thereof by any Obligor or any ERISA Affiliate, copies of
the following:  (i) any notices of
the PBGC’s intention to terminate a Pension Plan or to have a trustee appointed
to administer such Pension Plan, (ii) any unfavorable determination letter
from the IRS regarding the qualification of a Pension Plan under Section 401(a) of
the Code or (iii) any notice from a Multi-employer Plan regarding the
imposition of withdrawal liability;


 


(k)                                  promptly after any Obligor or any ERISA
Affiliate has Knowledge that any of the following events, which could
reasonably be expected to have, or has resulted in, a Material Adverse Effect,
has or will occur:  (i) a
Multi-employer Plan has been or will be terminated, (ii) the administrator
or plan sponsor of a Multi-employer Plan intends to terminate a Multi- employer
Plan, or (iii) the PBGC has instituted or will institute proceedings under
Section 4042 of ERISA to terminate a Multi-employer Plan;


 


(l)                                     promptly upon obtaining Knowledge of any (i) default,
breach or failure to perform alleged in writing on the part of any Debtor under
or in regard to any Major Lease, 


 


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(ii) default, breach
or failure to perform on the part of any Tenant under any Major Lease or any
assertion, in writing, by any such Tenant or any guarantor of any such Tenant’s
obligations under such Major Lease that such Tenant or guarantor intends to
seek to terminate such Major Lease or the guarantee of the Tenant’s obligations
thereunder or (iii) bankruptcy or similar action relating to any such
Tenant or guarantor, in each case, which could reasonably be expected to have,
or has resulted in, a Material Adverse Effect;


 


(m)                               promptly upon obtaining Knowledge of any
Casualty that is expected to result in damages in excess of the Threshold
Amount or any Condemnation that could reasonably be expected to have a material
adverse effect on the value of the relevant Property affected thereby,
information regarding such Casualty or Condemnation (as applicable) in such
detail as the Agent may reasonably request;


 


(n)                                 each Obligor shall deliver to the Agent
copies of any written notices of material default or material event of default
relating to any Major REA served to or by such Debtor which could reasonably be
expected to have a Material Adverse Effect; and


 


(o)                                 promptly upon obtaining Knowledge that
the aggregate amount of any Tenant Allowances made in respect of Primary
Properties has exceeded $7,000,000 in any Fiscal Year (for purposes of the
Fiscal Year ending December 31, 2009, for the period from the Closing Date
through December 31, 2009).


 


Notwithstanding
anything to the contrary contained in clauses (g), (h), (j),
(k), (l), (m), (n) or (o) of this Section 7.3,
the failure to deliver any  notice or
provide any information in accordance therewith shall not constitute a Default
or Event of Default so long as such notice or information is delivered to the
Agent concurrently with the delivery of the financial statements pursuant to clauses
(a) or (b) of Section 7.2 for the period in
which such relevant notice or information were to have been given to the
Agent.  Notwithstanding the foregoing,
notice shall be deemed to have been properly given in respect of the events,
facts or circumstances set forth in this Article 7 if such events,
facts or circumstances are described in any pleading, motion, application,
financial information, petition, schedule, report and other papers or documents
delivered to the Agent pursuant to Section 7.2(i) or Section 7.2(j).


 


ARTICLE
8


 


GENERAL
WARRANTIES AND REPRESENTATIONS


 


Each
of the Obligors warrants and represents to the Agent and the Lenders as
follows:


 


Section 8.1                                                  Authorization,
Validity, and Enforceability of this Agreement and the Loan Documents; No
Conflicts.  Subject to
entry of the Financing Order with respect to each Debtor, each Obligor has the
power and authority to execute, deliver, and perform this Agreement and the
other Loan Documents to which it is a party, to incur the Obligations, and to
grant to the Agent the Liens upon the Collateral.  Subject to entry of the Financing Order with
respect to each Debtor, each Obligor has taken all necessary action (including,
without limitation, obtaining approval of its stockholders, general partners,
limited partners, members, or other applicable equity owners, if necessary) to
authorize its execution, delivery, and 


 


46

















 


performance of this Agreement and the other
Loan Documents to which it is a party. 
This Agreement and the other Loan Documents have been duly executed and
delivered by each Obligor and, subject to entry of the Financing Order with
respect to each Debtor, constitute the legal, valid, and binding obligations of
each Obligor, enforceable against it in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally, and the Cases in
particular.  Each Obligor’s execution,
delivery, and performance of this Agreement and the other Loan Documents to
which it is a party do not conflict with, or constitute a violation or breach
of, or constitute a default under, or result in the creation or imposition of
any Lien upon the property of any Obligor by reason of the terms of (a) any
post-petition contract, agreement, indenture, or instrument to which such
Obligor is a party or which is binding upon it, in each case which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, (b) any Legal Requirement applicable to such
Obligor which could reasonably be expected to have a Material Adverse Effect,
or (c) the certificate of limited partnership, agreement of limited
partnership, certificate of incorporation, bylaws, or other organizational or
constituent documents, as the case may be, of the Borrowers.


 


Section 8.2                                                  Validity and
Priority of Security Interest; Administrative Priority.


 


(a)                                  The provisions of this Agreement and the
other Loan Documents create Liens upon the Collateral in favor of the Agent,
for the benefit of the Agent and the Lenders, which shall be deemed valid and
perfected by entry of the Financing Order with respect to each Obligor and
which shall constitute continuing Liens on the Collateral having priority over
all other Liens on the Collateral (except the Carve-Out and as provided in Section 6.4),
securing all the Obligations.  The Agent
shall not be required to file or record any financing statements, mortgages,
notices of Lien or similar instruments in any jurisdiction or filing office or
to take any other action in order to validate or perfect the Liens and security
interest granted by or pursuant to this Agreement, the Financing Order or any
other Loan Document, except (i) the financing statement naming GGMI as
debtor to be filed with the Secretary of State of the State of Delaware or (ii) to
the extent not required by Section 6.2(a).  As of the Closing Date, GGMI has not incurred
any Debt for borrowed money that is secured by one or more Liens, except for
the Liens created by this Agreement.


 


(b)                                 Pursuant to Section 364(c)(1) of
the Bankruptcy Code, the Obligations of the Obligors shall at all times
constitute allowed administrative expenses in the Case, having priority over
all administrative expenses of and unsecured claims against the applicable
Obligor now existing or hereafter arising, of any kind or nature whatsoever,
including, without limitation, all administrative expenses of the kind
specified in, or arising or ordered under, Sections 105, 326, 503(b),
506(c), 507(a), 507(b), 546(c), 726, 1113 and 1114 of the Bankruptcy Code,
subject, as to priority, only to the Carve-Out and any adequate protection
Liens granted pursuant to the Financing Order, and shall at all times be senior
to the rights of any Obligor, any Obligor’s estate, and any successor trustee
or estate representative in the Case or any subsequent proceeding or case under
the Bankruptcy Code.  Each of the
Guarantors set forth on Schedule 1.1B (other than the Non-Debtor
Guarantor), together with the Borrowers, and the Negative Pledge Debtors
collectively constitute all of the Persons that are subject to the Case as of May 4,
2009.


 


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Section 8.3                                                  Corporate Name;
Prior Transactions.  Except as
set forth on Schedule 8.3, during the past four months, no Obligor
has been known by or used any other corporate name, or been a party to any merger
or consolidation with any Person (other than Affiliates of the Borrower).


 


Section 8.4                                                  Capitalization;
Subsidiaries.  Each
Obligor is (a) duly incorporated, formed, or organized, as the case may
be, and validly existing in good standing under the laws of its state of
incorporation, formation, or organization, and (b) qualified to do
business as a foreign business entity and in good standing in each jurisdiction
in which the failure to be so qualified or be in good standing has had, or
could reasonably be expected to have, a Material Adverse Effect, and (c) subject
to the entry of the Financing Order with respect to each Debtor, has all
requisite power and authority to conduct its business and own its property as
presently conducted or owned.  As of the
Petition Date, the Capital Stock of each Obligor (other than the General
Partner) and each Subsidiary of an Obligor directly owned by either Borrower or
any Subsidiary is owned beneficially and of record in the amounts and by the
Persons set forth on Schedule 8.4 (other than minor typographical
errors and shortening of legal names). 
Each of the Guarantors (other than the Borrowers) and each of the
Negative Pledge Debtors is a Subsidiary of GGPLP.


 


Section 8.5                                                  Material
Agreements.  The
Borrowers have granted the Agent access to true and complete copies of all
Material Agreements.  Except as indicated
in Schedule 8.5 or as may occur as a result of the commencement of
the Case, (a) each of the Material Agreements is in full force and effect
and, to the Knowledge of the Obligors, there are no material defaults
thereunder on the part of any other party thereto which are not subject to the
Automatic Stay or which would reasonably be expected to have a Material Adverse
Effect, and (b) no Debtor is in default in any material respect in the
performance, observance or fulfillment of any of its obligations, covenants or
conditions contained in any agreement evidencing or creating any Permitted Lien
which is not subject to the Automatic Stay or any other Material Agreement to
which it is a party or by which it or its Property is bound which are not
subject to the Automatic Stay or which would reasonably be expected to have a
Material Adverse Effect.


 


Section 8.6                                                  Proprietary
Rights.  To the Obligors’ Knowledge, as
of the Closing Date, none of their Proprietary Rights infringe on or conflict
with any other Person’s property and no other Person’s property infringes on or
conflicts with such Proprietary Rights, in each case, in a manner which could
reasonably be expected to have a Material Adverse Effect.


 


Section 8.7                                                  Litigation.  As of the Closing Date, there is no pending
or (to any Obligor’s Knowledge) written threat of, any action, suit,
proceeding, or counterclaim by any Person, or investigation by any Governmental
Authority, which could reasonably be expected to have a Material Adverse
Effect.


 


Section 8.8                                                  Labor Disputes.  There is no pending or (to any Obligor’s
Knowledge) threatened, strike, work stoppage, material unfair labor practice
claim, or other material labor dispute against or affecting any Obligor or its
respective employees which could reasonably be expected to have a Material
Adverse Effect.


 


Section 8.9                                                  Environmental
Laws.  Except as otherwise disclosed
on Schedule 8.9, as of the Petition Date:


 


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(a)                                  Each Debtor has complied in all material
respects with all Environmental Laws except where failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 Each Debtor has obtained all Permits
necessary for its current operations under Environmental Laws if the failure to
do so could reasonably be expected to have a Material Adverse Effect, and all
such Permits are in good standing and each Debtor is in compliance with all
terms and conditions of such Permits except for non-compliance that could not
reasonably be expected to have a Material Adverse Effect.


 


(c)                                  No Debtor has received any summons,
complaint, order, or similar written notice indicating that it is not currently
in compliance with, or that any Governmental Authority is investigating its
compliance with, any Environmental Laws or that it is or may be liable to any
other Person as a result of a Release or threatened Release of a Contaminant
which could reasonably be expected to have a Material Adverse Effect.


 


(d)                                 To each Obligor’s Knowledge, none of the
present operations of any Debtor is the subject of any current investigation by
any Governmental Authority evaluating whether any remedial action is needed to
respond to a Release or threatened Release of a Contaminant which could
reasonably be expected to have a Material Adverse Effect.


 


(e)                                  To each Obligor’s Knowledge, there has
been no Release of a Contaminant at any Debtor’s Property that requires, or
would reasonably be expected to require, investigation, removal, remediation,
or other response action under Environmental Laws which, in each case, could
reasonably be expected to have a Material Adverse Effect.


 


The
representations and warranties contained in this Section 8.9 are the
sole and exclusive representation being made by the Obligors with respect to
any environmental matter related in any way to this Agreement or subject
matter.


 


Section 8.10                                            No Violation of
Law.  No Debtor is in violation of
any law, statute, regulation, ordinance, judgment, order, or decree applicable
to it which violation could reasonably be expected to have a Material Adverse
Effect.


 


Section 8.11                                            ERISA
Compliance.  Except as
specifically disclosed in Schedule 8.11, as of the Closing Date:


 


(a)                                  Except for
those failures that could not, in the aggregate, reasonably be expected to
result in a Material Adverse Effect, (i) each Pension Plan is in
compliance in all material respects with the applicable provisions of ERISA,
the Code, and other Legal Requirements and (ii) each Obligor and each
ERISA Affiliate has made all required contributions to any Pension Plan subject
to Section 412 or Section 430 of the Code (or corresponding
provisions of ERISA), and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 or Section 430 of
the Code (or corresponding provisions of ERISA) has been made with respect to
any Pension Plan.


 


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(b)       There are no pending or, to
the Knowledge of any Obligor, threatened claims, actions, or lawsuits, or
actions by any Governmental Authority, with respect to any Pension Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.  There has been no prohibited
transaction or violation of the fiduciary responsibility rules with
respect to any Pension Plan which has resulted or could reasonably be expected
to result in a Material Adverse Effect.


 


(c)       Except for instances, if
any, which together do not give rise to liability which has resulted or could
reasonably be expected to result in a Material Adverse Effect, (i) no
ERISA Event has occurred or is reasonably expected to occur, (ii) neither
any Obligor nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension
Plan (other than contributions and premiums due and not delinquent under Section 4007
of ERISA) or a Multi-employer Plan (other than contributions in the normal
course), (iii) neither any Obligor nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Section 4201 or 4243 of ERISA with respect to a
Multi-employer Plan, and (iv) neither any Obligor nor any ERISA Affiliate
has engaged in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.


 


Section 8.12       Taxes.  Each Debtor has filed all federal and other
material tax returns and reports required to be filed (or appropriate
extensions have been timely filed), and has paid all post-petition federal and
other material taxes, assessments, fees and other governmental charges levied
or imposed upon it or its properties, income, or assets or which otherwise are
due and payable (other than any such returns or reports or material taxes,
assessments, fees and other governmental charges, as applicable (a) being
contested in good faith by appropriate proceedings, (b) which consist of
interest or penalties on pre-petition taxes or (c) which could not
reasonably be expected to have a Material Adverse Effect).


 


Section 8.13       Regulated Entities.  No Obligor is an “investment company” or a company
“controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940.  No Obligor is a
“holding company” or a “subsidiary company” of a “holding company” or an
“affiliate” of a “holding company” or a “public utility” within the meaning of
the Public Utility Holding Company Act of 1935, or is subject to regulation
under the Federal Power Act, the Interstate Commerce Act, any state public
utilities code or law, or any other federal or state statute or regulation
limiting its ability to incur indebtedness.


 


Section 8.14       Use of Proceeds.  The proceeds of the Term Loan are to be used
solely for the purposes specified in Section 9.13.  No Obligor is engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.


 


Section 8.15       Full Disclosure.  None of the representations or warranties
made by any Obligor in the Loan Documents as of the date such representations
and warranties are made or deemed made, and none of the statements or
information contained in any exhibit, report (including the 2008 schedule of
net operating income for the Properties delivered to the Agent immediately
prior to the Closing Date), statement, or certificate furnished by or on behalf
of any 


 


50

















 


Obligor for use in connection with the Loan
Documents (other than projections, forecasts or other forward-looking
information or information of any industry-specific or general economic nature),
contain any untrue statement of a material fact or omit any material fact
required to be stated therein or necessary to make the statements made therein,
when taken as a whole and in light of the circumstances under which they are
made, not materially misleading as of the time when made or delivered.  The rolling 24-month forecast and the 13-week
cash flow forecast delivered to the Agent immediately prior to the Closing Date
are the most recent rolling 24-month forecast and the most recent 13-week cash
flow forecast of receipts and disbursements on a consolidated basis, in each
case prepared prior to the Petition Date (it being understood that the Obligors
make no representation or warranty as to such forecasts other than that they
have been delivered and were prepared in good faith based on assumptions
believed by the Borrowers to be reasonable at the time of preparation thereof).


 


Section 8.16       Bank Accounts.  Schedule 8.16 contains a complete
and accurate list, as of the Petition Date, of all material bank accounts,
deposit accounts, commodity accounts, investment accounts and security accounts
maintained by each Debtor with any bank or other financial institution; provided
that such schedule may, at the option of the Debtors, omit accounts which
contain, on average, money with an average individual monthly balance less than
$100,000 for any individual account.


 


Section 8.17       Governmental
Authorization.  Except (i) as
set forth on Schedule 8.17, (ii) for the entry of or pursuant
to the terms of the Financing Order, (iii) for such approvals or similar
actions which have been obtained prior to the Closing Date and remain in full
force and effect, and (iv) for filings and recordings with respect to the
Collateral required to be made under applicable law (if any), no approval,
consent, exemption, authorization, or other action by, or notice to, or filing
or registration with, any Governmental Authority, or other Person is necessary
or required in connection with the execution, delivery, or performance by, or
enforcement against, any Obligor of this Agreement or any other Loan Document.


 


Section 8.18       First Lien Properties.  As of the Funding Date, there has been no
material diminution in the fair market value (taking into account any
applicable insurance proceeds) of the First Lien Properties since the date of
the Commitment Letter, other than arising out of or resulting from (a) the
commencement of the Cases, (b) general market conditions beyond the
control of the Obligors, (c) acts of war or sabotage or terrorism or (d) earthquakes,
hurricanes or other natural disasters.  Schedule 8.18
accurately sets forth all First Lien Properties as of the Petition Date (after
giving effect to the use of proceeds of the Term Loan) and each owner or lessee
under a Ground Lease of First Lien Properties.


 


Section 8.19       Prior Lien Debt.  Schedule 8.19-1 accurately sets
forth, in all material respects, the outstanding principal amount of all Debt
for borrowed money due and outstanding in regard to the Prior Lien Debt as of
the date set forth in Schedule 8.19-1.  Schedule 8.19-2 sets forth, in
all material respects, the M&M Liens affecting each Property, the name of
each party asserting the claims, the amount claimed as being owed and the
Property which is the subject of such claim by any Person who alleges it has
supplied any labor and/or materials relating to any such Property and which
remain unpaid as of the Closing Date, which information is segregated by each
Property affected thereby, except to the extent any M&M Liens not listed in
such Schedule 8.19-2 secure valid claims in an amount less than or
equal to (i) $25,000,000 in the 


 


51

















 


aggregate with respect to the First Lien
Properties and (ii) $50,000,000 in the aggregate with respect to all
Properties; provided that it will not be a breach of this representation
so long as an amount equal to any amounts in excess of such $25,000,000 and
$50,000,000 amounts referred to above are applied either (A) to the
payment of M&M Lien claims or (B) to prepay the Term Loan, in either
case within 30 days after the date such M&M Liens exceed such amounts.  No Debtor has the right to request or receive
any further advances of proceeds of any Prior Lien Debt and the only amounts
that may hereafter be advanced as part of the Prior Lien Debt are amounts the
holders of the Prior Lien Debt may advance as protective advances to pay taxes
and insurance premiums relating to, and costs to protect or repair, collateral
which secures such Prior Lien Debt.  The
Debtors have provided or made available to the Agent, true, correct and
complete copies of all material documents which evidence, secure and/or relate
to the Prior Lien Debt set forth on Schedule 8.19-1.


 


Section 8.20       Leases.


 


(a)       Schedule 8.20
sets forth in all material respects on a Property by Property basis (to the
extent applicable) a rent roll, effective as of March 9, 2009, relating to
all Leases (the “Rent Roll”).  As
of the date of the Rent Roll, to the Obligors’ Knowledge, each of the Major
Leases is valid and enforceable in accordance with its terms and is in full
force and effect.


 


(b)       Except as set forth on Schedule 8.20-1
(the “A/R Report”), as of the date of such A/R Report, no rent
(exclusive of any security deposits and de minimis
payments constituting rent) under any Major Lease with respect to any of the
First Lien Properties is more than 60 days past due.


 


Section 8.21       Title.  Except as set forth on Schedule 8.21,
each Debtor owns good and indefeasible fee and/or leasehold title to its Property
and good title to its personal property, in each case free and clear of all
Liens whatsoever except the Permitted Liens; provided that after giving
effect to the funding of the Term Loan and the use of the proceeds thereof on
the Funding Date, none of the First Lien Properties are encumbered by any valid
Liens securing outstanding Debt for borrowed money (except to the extent
subordinated pursuant to an Intercompany Subordination Agreement and other than
any such borrowed money incurred pursuant to a Municipal Financing if such Debt
is permitted under Section 9.11(a)(xxi)).


 


Section 8.22       Physical Condition.


 


(a)       Except for matters set
forth in Schedule 8.22, as of the Closing Date, no Obligor has
Knowledge of any material structural or other material defect or damages in any
Property or any Improvements thereon, whether latent or otherwise, which could
reasonably be expected to have a Material Adverse Effect.


 


(b)       No Debtor has received, and
no Obligor has Knowledge of any other party’s receipt of, written notice from
any insurance company or bonding company of any defects or inadequacies in any
Property not covered by insurance policies which would, alone or in the
aggregate, adversely affect in any material respect the insurability of the
same or of any termination of any policy of insurance or bond which could
reasonably be expected to have a Material Adverse Effect.


 


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Section 8.23       Management.  Except as described on Schedule 8.23
or pursuant to contracts with Affiliates of the Debtor, no property management
agreements are in effect with respect to any Property as of the Closing Date.


 


Section 8.24       Condemnation.  No Condemnation that could reasonably be
expected to have a Material Adverse Effect has been commenced or, to each
Obligor’s Knowledge, is contemplated as of the Closing Date with respect to all
or any material portion of any Property.


 


Section 8.25       Utilities and Public
Access.  With respect to all
Properties that are operating shopping centers, except as set forth in Schedule 8.25
or to the extent that the failure to have the same would not reasonably be
expected to have a Material Adverse Effect, each Property has adequate rights
of access to dedicated public ways and is served by water, electric, sewer,
sanitary sewer and storm drain facilities necessary to the continued use and
enjoyment of each Property as presently used and enjoyed.


 


Section 8.26       Separate Lots.  To the Obligors’ Knowledge, no portion of any
Primary Property is part of a tax lot that also includes any real property that
is not Collateral unless (i) there exists an equitable and enforceable
mechanism for the allocation of taxes thereon or (ii) such failure to have
a separate tax lot could not reasonably be expected to have a Material Adverse
Effect.


 


Section 8.27       Permits; Certificate of
Occupancy.  Except as disclosed in Schedule 8.27,
each Debtor has to the Obligors’ Knowledge obtained all Permits necessary for
the present use and operation of its Property except to the extent the failure
to do so would not reasonably be expected to have a Material Adverse
Effect.  The uses being made of each
Property are in conformity in all material respects with the Permits for such
Property, all applicable Legal Requirements and any other restrictions,
covenants or conditions affecting such Property except to the extent the
failure to so conform would not reasonably be expected to have a Material
Adverse Effect.


 


Section 8.28       Ground Leased Property.  A true and complete copy of all material Ground
Leases has been made available to the Agent, and except as set forth on Schedule 8.28,
each material Ground Lease in respect of a Primary Property or a memorandum
thereof has been duly recorded (or the relevant Obligor will promptly use
commercially reasonable efforts to cause the same to be duly recorded upon
acquiring Knowledge that it has not been duly recorded).  Each Ground Lease is in full force and effect
and no post-petition default has occurred thereunder and, to each Obligor’s
Knowledge, there is not any post-petition existing condition (other than the
granting of the security interests hereunder) which, but for the passage of
time or the giving of notice or both, would result in a default under the terms
of such Ground Lease, in each case which would reasonably be expected to have a
Material Adverse Effect.


 


Section 8.29       Embargoed Person.


 


(a)       None of the funds or other
assets of any Obligor, or any direct or indirect equityholder in any Obligor,
constitute property of, or are beneficially owned, directly or indirectly, by,
any Person subject to trade restrictions under federal law, including, without
limitation, the International Emergency Economic Powers Act, 50 U.S.C.
§§ 1701 et seq., The 


 


53

















 


Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any executive orders or regulations promulgated
thereunder, with the result that (i) the investment in any Obligor or any
direct or indirect equityholder in any Obligor, as applicable (whether directly
or indirectly), is prohibited by law or (ii) the Term Loan is in violation
of law (any such Person, an “Embargoed Person”).


 


(b)       No Embargoed Person has any
interest of any nature whatsoever in any Obligor or any direct or indirect
equityholder in any Obligor, as applicable (whether directly or indirectly),
with the result that (i) the investment in any Obligor or any direct or
indirect equityholder in any Obligor, as applicable (whether directly or
indirectly) is prohibited by law or (ii) the Term Loan is in violation of
law and (c) none of the funds of any Obligor or any direct or indirect
equityholder in any Obligor, as applicable, have been derived from any unlawful
activity with the result that (i) the investment in any Obligor or any
direct or indirect equityholder in any Obligor, as applicable (whether directly
or indirectly) is prohibited by law or (ii) the Term Loan is in violation
of law.  Notwithstanding the foregoing,
no part of this Section 8.29 shall apply, or be construed as
applying, to any Person that owns or purchases publicly traded shares in the
General Partner.


 


Section 8.30       Compliance with
Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws.


 


(a)       Each Obligor, and to each
Obligor’s Knowledge, each Person owning an interest in any Obligor or any
direct or indirect equityholder in any Obligor: 
(A) is not currently identified on the OFAC List and (B) is
not a Person with whom a citizen of the United States is prohibited to engage
in transactions by any trade embargo, economic sanction, or other prohibition
of any Legal Requirement. 
Notwithstanding the foregoing, no part of this Section 8.30
shall apply, or be construed as applying, to any Person that owns or purchases
publicly traded shares in the General Partner.


 


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


 


ARTICLE 9



AFFIRMATIVE AND NEGATIVE COVENANTS


 


Each Obligor covenants to the Agent and each
Lender that so long as any of the non-contingent Obligations remain outstanding
or any Commitment or this Agreement is in effect:


 


Section 9.1         Existence and Good
Standing.  Each Obligor shall, and
shall cause each Debtor to, (a) maintain its existence in the jurisdiction
of its incorporation, formation or organization, as the case may be (subject
only to any mergers, consolidations, dissolutions or liquidations permitted by Section 9.8)
and (b) maintain its qualification and good standing in all 


 


54

















 


jurisdictions in which the failure to
maintain such existence and qualification or good standing could reasonably be
expected to have a Material Adverse Effect.


 


Section 9.2         Compliance with Law
and Agreements; Maintenance of Licenses. 
Each Obligor shall, and shall cause each other Debtor to, comply with
all Legal Requirements of any Governmental Authority having jurisdiction over
it or its business (including the Federal Fair Labor Standards Act) unless
failure to do so could not reasonably be expected to have a Material Adverse
Effect.  Each Obligor shall, and shall
cause each other Debtor to, obtain and maintain all Permits necessary to own
its property and to conduct its business in substantially the same manner as
conducted on the Closing Date unless failure to do so could not reasonably be
expected to have a Material Adverse Effect. 
No Obligor shall, and shall not cause each other Debtor to, modify,
amend, or alter its certificate of limited partnership, certificate of
incorporation, partnership agreement, bylaws, or other similar documents in a
manner which materially and adversely affects the rights of the Lenders or the
Agent.


 


Section 9.3         Insurance.  Each Obligor shall, and shall cause each
other Debtor to, comply with all terms and provisions of Schedule 9.3,
which are incorporated herein by reference.


 


Section 9.4         Casualty and
Condemnation.


 


(a)       The Agent, on behalf of the
Lenders, may, with respect to the First Lien Properties and subject to the
rights of any other Person pursuant to any Lease, Ground Lease or REA, (i) jointly
with the applicable Obligor settle and adjust any claims in respect of any
Casualty or Condemnation, (ii) during the continuance of an Event of
Default, settle and adjust any such claims without the consent or cooperation
of any Obligor, or (iii) allow the applicable Obligor to settle and adjust
any such claims; provided that if no Event of Default has occurred and
is continuing, the Obligors may settle and adjust such claims without regard to
clause (i) above aggregating not in excess of the Threshold
Amount.  The reasonable out-of-pocket
expenses incurred by the Agent in the adjustment and collection of Loss
Proceeds shall become part of the Obligations, and shall be reimbursed by the
Borrowers to the Agent within 30 days after receipt of written demand therefor
itemizing such expenses.


 


(b)       Subject to the terms of any
Lease, any Ground Lease, any REA or any agreement governing any Pre-Petition
Lien, as applicable, all Loss Proceeds from any Casualty or Condemnation, shall
be forthwith deposited into a Cash Collateral Account.


 


(c)       If any Condemnation or
Casualty occurs and:


 


(i)            no monetary Event of
Default exists at the time of the Condemnation or Casualty or the receipt of
the Loss Proceeds; and


 


(ii)           either:


 


(A)          in
the case of a Casualty, the Casualty will not render untenantable, or result in
the cancellation of Leases (provided that a Lease shall not be deemed
cancelled if the relevant Debtor shall enter into a new Lease with an existing
or new Tenant on market terms) covering, more than 15% of the 


 


55

















 


gross rentable
area of such Property and the General Partner delivers to the Agent evidence
reasonably satisfactory to the Agent that the insurer under each applicable
insurance policy has not denied liability thereunder; or


 


(B)           in
the case of a Condemnation, the Condemnation did not render untenantable, or
result in the cancellation of Leases (provided that a Lease shall not be
deemed cancelled if the relevant Debtor shall enter into a new Lease with an
existing or new Tenant on market terms) covering, more than 15% of the gross
rentable area of the applicable Property, and the General Partner delivers to
the Agent evidence reasonably satisfactory to the Agent that such Property can
be restored to an economically and architecturally viable unit;


 


then the Loss Proceeds (after reimbursement of any reasonable out of
pocket expenses incurred by the Agent in connection therewith) shall be applied
to the cost of restoring, repairing, replacing or rebuilding such Property or
part thereof subject to the Casualty or Condemnation, in the manner set forth
below.  The Obligors hereby covenant and
agree to commence or cause to be commenced as promptly and diligently as
practicable and to prosecute or cause to be prosecuted such restoring,
repairing, replacing or rebuilding of such Property in a workmanlike fashion
and in accordance with applicable law to a status at least equivalent to the
quality and character of such Property immediately prior to the Condemnation or
Casualty.  If there shall remain excess
Loss Proceeds after the proposed restoration has been substantially completed
in accordance with the provisions of this Section 9.4, such excess
shall be maintained in a Cash Collateral Account and disbursed in accordance
with this Agreement.  Notwithstanding
anything to the contrary contained in this clause (c), if the terms
of any Lease, any Ground Lease, any REA or any agreement governing any Prior
Lien Debt require restoration, repair, replacement, rebuilding or other
application then the Loss Proceeds shall be applied in accordance with the
terms of such Lease, Ground Lease, REA or agreement governing such Prior Lien
Debt, as the case may be.


 


(d)       Each Obligor shall
cooperate with the Agent in obtaining for the Lenders the benefits of any Loss
Proceeds lawfully or equitably payable to the Lenders.  The Agent shall be reimbursed for any
out-of-pocket expenses reasonably incurred in connection therewith (including
all costs and expenses set forth in Section 15.6) out of such Loss
Proceeds.


 


(e)       If a Debtor is not entitled
to apply Loss Proceeds toward the restoration of its Property pursuant to Section 9.4(c),
such Loss Proceeds shall either be applied within two (2) Business Days
(during which period no Obligor shall be entitled to make any Restricted
Payment) of receipt of such Loss Proceeds as a prepayment on the Term Loan or
deposited into a Cash Collateral Account, as the Agent may so elect.


 


Section 9.5         Covenants with Respect
to REA.


 


(a)       The Obligors covenant and
agree (and shall cause the other Debtors to covenant and agree) as follows:


 


56

















 


(i)            each Debtor shall
comply with all material terms, conditions and covenants of any Major REA
except for such non-compliance that could not reasonably be expected to have a
Material Adverse Effect; and


 


(ii)           notwithstanding
anything herein to the contrary, each Debtor shall have the right to waive or
negotiate settlement of defaults (or threatened defaults) under any REA, so
long as such waiver or settlement could not reasonably be expected to have a
Material Adverse Effect.


 


(b)       Each Obligor shall (and
shall cause each other Debtor to) pay all post-petition fees, assessments,
charges or other amounts assessed to such Debtor pursuant to any Major REA when
the same become due and payable (subject to good faith disputes) except to the
extent the failure to pay such fees, assessments, charges or other amounts
could reasonably be expected to have a Material Adverse Effect.


 


(c)       Subject to the terms of the
applicable REA, in the event proceeds of a Casualty or Condemnation with
respect to the Property owned or leased by a Debtor under a Ground Lease are
required to be deposited into a segregated account pursuant to any REA, the
Borrowers shall cause such amounts to be deposited into a segregated account of
the type specified in the REA or established with an Eligible Institution.  Any amounts released from such segregated
account to any Obligor shall be deposited into the Cash Collateral Accounts in
accordance herewith.


 


(d)       At the Borrowers’ written
request, the Agent, for and on behalf of the Lenders, shall enter into a
subordination agreement with respect to any (i) new REA or (ii) amendment,
restatement, amendment and restatement, supplement or other modification of an
existing REA, in each case, to the extent permitted by this Agreement and
otherwise upon reasonable and customary terms. 
For avoidance of doubt, the costs and expenses of the Agent in
connection with the review of any such subordination agreement shall be paid or
reimbursable by the Borrowers in accordance with Section 15.6; provided
that such fees and expenses shall not exceed $3,000 per agreement.


 


Section 9.6         Environmental Laws.


 


(a)       Each Obligor shall, and
shall cause each other Debtor to, conduct its business in compliance with all
Environmental Laws applicable to it, including those relating to the
generation, handling, use, storage, and disposal of any Contaminant except for
such non-compliance that could not reasonably be expected to have a Material
Adverse Effect.  Each Obligor shall, and
shall cause each other Debtor to, take prompt and appropriate action to respond
to any non-compliance with Environmental Laws that could reasonably be expected
to result in a Material Adverse Effect of which any Obligor at any time has
Knowledge (“Environmental Compliance Issues”) and shall upon written
request from the Agent report to the Agent from time to time on such response
to any unresolved Environmental Compliance Issue.


 


(b)       The Agent may reasonably
request, in which case the Obligors will promptly furnish or cause to be
promptly furnished to the Agent, an update of the status of each 


 


57

















 


unresolved Environmental Compliance Issue (whether
past or present), if any, and copies of non-privileged technical reports
prepared by any Debtor and its communications with any Governmental Authority
to determine whether such Debtor is proceeding reasonably to correct, cure, or
contest in good faith any Environmental Compliance Issue.  At any time any Environmental Compliance
Issue that could reasonably be expected to have a Material Adverse Effect or
Event of Default exists, the Obligors shall at the Agent’s or the Majority
Lenders’ request and at the Obligors’ expense, (i) retain an independent
environmental professional reasonably acceptable to the Agent to evaluate the
site, including tests if appropriate, to which the Environmental Compliance
Issue relates and prepare and deliver to the Agent (with a copy to the relevant
Obligor), for distribution by the Agent to the Lenders, a report setting forth
the results of such evaluation, a proposed plan for responding to any
environmental problems described therein, and an estimate of the costs thereof
and (ii) provide to the Agent for distribution by the Agent to the Lenders
a supplemental report of such environmental professional whenever the scope of
the environmental problems (if any), or the response thereto or the estimated
costs thereof, shall change in any material respect.


 


Section 9.7         Compliance with ERISA.  Except to the extent the same could not
reasonably be expected to result in a Material Adverse Effect, each Obligor
shall and shall cause each ERISA Affiliate to: 
(a) maintain each Pension Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code, and other federal
or state law; (b) make all required contributions to any Pension Plan
subject to Section 412 or Section 430 of the Code (or corresponding
provisions of ERISA or any Multi-employer Plan); and (c) not engage in a
transaction that could be subject to Section 4069 or 4212(c) of
ERISA, in each case unless enforcement action is stayed pursuant to Legal
Requirements.


 


Section 9.8         Mergers,
Consolidations, Sales, Acquisitions. 
No Obligor shall, nor shall it permit any other Debtor to, consummate
any transaction of merger, reorganization, or consolidation, or sell, assign,
lease (or otherwise dispose of all or any part of its property (including any
sale or other disposition of Capital Stock of any Debtor)) (for purposes of
this Section 9.8, each such transaction, a “disposition”),
or wind up, liquidate or dissolve, except for:


 


(a)       dispositions of obsolete,
worn out or surplus personal property or personal property no longer useful in
the business of the Debtors;


 


(b)       consolidations, mergers and
dispositions of assets between or among Debtors (provided that any such
consolidation or merger involving a Borrower shall result in a Borrower being
the surviving entity in such consolidation or merger);


 


(c)       dissolutions and
liquidations if all of the property of the dissolving Debtor is transferred to
a Debtor;


 


(d)       dispositions of any
Property (or any Debtor owning a Property or its direct or indirect parent
holding company); provided that the net proceeds thereof are applied in
accordance with, and to the extent required by, Section 3.3(a);


 


58

















 


(e)       dispositions of real
property constituting all or a portion of an anchor parcel to an anchor
occupant in the ordinary course of business or otherwise consistent with past
practice;


 


(f)        (i) dispositions of
inventory (including gift cards, sales transfers and/or dedications from the
Debtors’ master planned communities and condominium sales) in the ordinary
course of business; provided that, in the case of condominium sales, the
net proceeds thereof are applied in accordance with Section 3.3(a);
and (ii) sales of Property pursuant to any purchase option, right of first
refusal, right of first offer or similar right in respect of any of the
Properties, in each case, in the ordinary course of business and (A) to
the extent existing on the Petition Date, (B) consisting of customary
purchase options, rights of first refusal, rights of first offer or similar
rights given in respect of anchor occupant parcels or outparcels or (C) in
respect of any Negative Pledge Property;


 


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


 


(h)       the disposition of cash and
cash equivalents for a purpose that is otherwise permitted under this
Agreement;


 


(i)        to the extent constituting
a disposition, the entering into and performance of the Loan Documents;


 


(j)        dispositions of accounts
in connection with the collection or compromise thereof;


 


(k)       Leases permitted under Section 9.19
and licenses or sublicenses of property in the ordinary course of business and
which do not materially interfere with the business of any Debtor;


 


(l)        transfers of property
subject to any Casualty or Condemnation proceeding (including in lieu thereof)
upon receipt of the net proceeds therefor;


 


(m)      dispositions in the ordinary
course of business consisting of the abandonment of intellectual property
rights which, in the reasonable good faith determination of the General
Partner, are not material to the conduct of the business of any Debtor;


 


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


 


(o)       Permitted Liens to the
extent constituting a disposition of property;


 


(p)       dispositions of personal
property (other than Capital Stock) among the Debtors and by a Debtor to any
non-debtor Affiliate in the ordinary course of business;


 


59
















 


(q)       in order to resolve disputes that occur in the
ordinary course of business (in which event the Debtors may discount or
otherwise compromise for less than the face value thereof) the disposition of
notes or accounts receivable;


 


(r)        a disposition in order to qualify members of the board
of directors (or similar governing body) if required by applicable law or
contract;


 


(s)       Restricted Payments in accordance with Section 9.20
and, to the extent constituting a disposition, Permitted Liens;


 


(t)        any involuntary or voluntary terminations of Hedge
Agreements;


 


(u)       dispositions of investments in non-wholly owned
Persons to the extent required by, or made pursuant to, buy/sale arrangements
among the owners of the Capital Stock of such entity set forth in binding
agreements pertaining to the ownership of such Capital Stock entered into
before the Closing Date;


 


(v)       dispositions of Property secured by Pre-Petition Liens
to the holders of such Pre-Petition Liens when the Borrowers reasonably believe
that doing so is in the best interests of the Debtors and that the relevant
Debtor’s equity interest in such assets is negative;


 


(w)      the disposition of the Property described on Schedule 9.8;
and


 


(x)        the disposition of assets (other than Property) in an
amount not to exceed $50,000,000 in the aggregate.


 


Notwithstanding the foregoing, for the purposes of clause (d) and
sales of condominiums pursuant to clause (f)(i), (w) no Debtor
shall consummate the disposition of any of the Properties collectively known to
the parties as “Victoria Ward” without the prior written consent of the
Majority Lenders, (x) no Property (or any Debtor owning a Property or its
direct or indirect parent holding company) shall be disposed of for less than
fair market value, as determined by the applicable Debtor in good faith, (y) no
First Lien Property (or any Debtor owning a First Lien Property or its direct
or indirect parent holding company) with a fair market value in excess of
$30,000,000 shall be disposed of without the prior written consent of the
Majority Lenders and (z) if any Real Estate of any Person is being
disposed together with any First Lien Property (or any Debtor owning a First
Lien Property or its direct or indirect parent holding company) in a single
transaction or in a series or related transaction, none of such dispositions
shall be consummated unless the Majority Lenders shall be satisfied with the
allocation of consideration among such First Lien Property and other Real
Estate.


 


Section 9.9         Transactions
with Affiliates.  No Obligor
shall, nor shall it permit any other Debtor to, (i) sell, transfer,
distribute, or pay any money or property, including, but not limited to, any
fees or expenses of any nature (including, but not limited to management or
service fees), to any Affiliate (other than the other Debtors), (ii) lend
or advance money or property to, invest in (by capital contribution or
otherwise) or purchase or repurchase any stock, indebtedness or any property
of, any Affiliate or (iii) become liable on any Guaranty of the


 


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indebtedness, dividends, or other obligations of any Affiliate (any of
the foregoing, “Affiliate Investments”); provided that the
foregoing shall not prohibit any of the following:


 


(a)       transactions upon fair and reasonable terms no less
favorable to such Debtor than it would obtain in a comparable arm’s-length
transaction with a Person that is not an Affiliate;


 


(b)       Affiliate Investments among the Debtors;


 


(c)       Affiliate Investments existing as of the Closing Date;


 


(d)       Affiliate Investments (i) by any Affiliate of the
Debtors that is not a Debtor in any Debtor, (ii) by any Debtor in any
Affiliate of a Debtor that is not a Debtor consisting of required capital
contributions pursuant to agreements or instruments existing as of the Closing
Date, (iii) by the Non-Debtor Guarantor in its Subsidiaries or (iv) otherwise,
in an aggregate amount under this clause (iv) not to exceed
$50,000,000 after the Closing Date; provided that if an Event of Default
has occurred and is continuing, no Affiliate Investments under clause (ii) or
(iv) in an amount of $1,000,000 or more shall be made without the
prior written consent of the Majority Lenders;


 


(e)       transactions in the ordinary course of business in
accordance with the General Partner’s and its Subsidiaries’ cash management
system;


 


(f)        loans and advances to directors, officers, employees
and members of management of the Debtors in the ordinary course of business
consisting of advances of payroll, travel expenses, petty cash and similar
items;


 


(g)       Affiliate Investments reasonably necessary for any
Debtor to remain qualified as a real estate investment trust, qualified REIT
subsidiary or taxable REIT subsidiary under the provisions of the Code;


 


(h)       dispositions permitted pursuant to Section 9.8,
Debt permitted by Section 9.11(a) and Liens permitted pursuant
to Section 9.11(b);


 


(i)        Restricted Payments permitted in accordance with Section 9.20
and loans and advances made in lieu of such permitted Restricted Payments;


 


(j)        acquisitions of the property and assumptions of
obligations of Affiliates resulting from mergers, consolidations, liquidations
or dissolutions of any Affiliate permitted by Section 9.8;


 


(k)       reasonable and customary director, officer and
employee compensation (including bonuses and severance) and other benefits
(including retirement, health, stock option and other benefit plans) and
indemnification arrangements in the ordinary course of business or to the
extent approved in good faith by the board of directors (or other governing
body) of such Debtor;


 


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(l)        the payment of management fees by the Debtor which
owns Willowbrook Mall to GGMI in accordance with the Amended and Restated
Willowbrook Mall Property Management Agreement dated December 19, 1995;


 


(m)      equity issuances not prohibited by this Agreement; and


 


(n)       reasonable and customary fees paid to members of the
board of directors (or other governing body) of any Debtor (or its direct or
indirect parent) and reimbursement of reasonable out-of-pocket costs and
expenses of such Persons.


 


Section 9.10       Business
Conducted.  No Obligor
shall, nor shall it permit any other Debtor to, engage directly or indirectly,
in any line of business other than the businesses in which such Person is
engaged on the Closing Date and businesses reasonably related or ancillary
thereto.


 


Section 9.11       Debt; Liens; No Negative
Pledge.


 


(a)       No Obligor shall, nor shall it permit any other Debtor
to, create, incur, assume or suffer to exist any Debt  except:


 


(i)            Debt under the Loan Documents;


 


(ii)           Debt in existence on the Petition Date (and
refinancings thereof in accordance with clause (b) of the
definition of “Permitted Liens”);


 


(iii)          Capital Leases in existence on the Petition Date;


 


(iv)          purchase money Debt and Debt in respect of Capital
Leases, in each case incurred after the Petition Date in the ordinary course of
business of the Debtors as modified pursuant to the Case;


 


(v)           endorsement of items for deposit or collection in the
ordinary course of business;


 


(vi)          indebtedness with respect to letters of credit or
guaranties entered into in the ordinary course of business and any amendment,
modification, extension, renewal or replacement thereof; provided that
any letters of credit or guaranties under this clause (vi) shall
be included in the limitation under clause (xiv);


 


(vii)         Debt among Debtors; provided that no such Debt
shall be incurred by GGMI other than in the ordinary course of business;


 


(viii)        Debt which may be deemed to exist in connection with
customary agreements providing for indemnification, purchase price adjustments,
earnouts and similar obligations in connection with dispositions permitted
pursuant to Section 9.8;


 


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(ix)           Debt consisting of the financing of insurance premiums
in the ordinary course of business, so long as the aggregate amount payable
pursuant to such Debt does not materially exceed the amount of the premium for
such insurance;


 


(x)            cash management obligations and Debt in respect of
netting services, overdraft protection and similar arrangements in connection
with cash management and deposit accounts;


 


(xi)           Debt representing deferred compensation to directors,
officers, members of management, employees or consultants of the Debtors in the
ordinary course of business;


 


(xii)          contingent obligations in respect of indemnities or
similar agreements to hold others harmless arising in the ordinary course of
business;


 


(xiii)         Debt in respect of indemnity, performance, surety,
stay, customs, bid, appeal bonds, completion guarantees or other similar
obligations provided in the ordinary course of business, including guarantees
or obligations of the Debtors with respect to (and deposits of cash to secure)
letters of credit supporting such indemnity, performance, surety, stay,
customs, bid, appeal bonds, completion guarantees or other similar obligations,
but excluding Debt incurred through the borrowing of money, Capital Leases and
purchase money obligations;


 


(xiv)        other Debt of the Debtors in an aggregate principal
amount at any time outstanding not to exceed, together with the aggregate
amount of all letters of credit and guaranties under clause (vi) above,
$75,000,000 (in all cases without double counting); provided that (x) before
any Debtor incurs any Debt for borrowed money pursuant to this clause (xiv)
in an aggregate principal amount exceeding $10,000,000, an Obligor shall
provide to the Agent a reasonably detailed summary of the economic and other
terms of such Debt and (y) no Debt for borrowed money incurred pursuant to
this clause (xiv) in an aggregate principal amount in excess of
$20,000,000 shall have a final maturity sooner than, or a weighted average life
less than, that of the Term Loan;


 


(xv)         Guaranties of the Debtors with respect to Debt of the
Debtors permitted hereunder;


 


(xvi)        Debt consisting of take or pay obligations contained
in supply agreements, in each case incurred in the ordinary course of business;


 


(xvii)       Debt constituting reimbursement obligations with
respect to (and deposits of cash to secure) letters of credit issued in the
ordinary course in respect of workers’ compensation, unemployment insurance,
social security or other similar laws, to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, trade contracts and
other similar obligations, securing insurance premiums or deductibles,
coinsurance, reinsurance, self-retention or reimbursement obligations,
indemnity, performance, surety, stay, customs and appeal bonds, performance
bonds, performance and completion guarantees and other obligations of a similar
nature;


 


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provided that upon the drawing of such letters of credit or
the incurrence of such Debt, such obligations are reimbursed within 30 days
following such drawing or incurrence;


 


(xviii)      Debt of the Debtors to any Affiliate of the Debtors in
the ordinary course of business in connection with cash management and
otherwise consistent with the cash management order in all material respects;


 


(xix)         additional Prior Lien Debt advanced as protective
advances to pay taxes and insurance premiums relating to, and costs to protect
or repair, collateral secured by Pre-Petition Liens, to the extent permitted
under the definitive documents for such Prior Lien Debt as in effect on the
Closing Date (as refinanced in accordance with clause (b) of
the definition of Permitted Liens);


 


(xx)          to the extent constituting Debt by virtue of clause (h) of
the definition thereof, Debt (other than in respect of borrowed money, purchase
money and Capital Leases) secured by Permitted Liens;


 


(xxi)         Debt constituting a Municipal Financing incurred in
the ordinary course of business in connection with a new development or
redevelopment of the Property; provided that the prior written consent
of the Majority Lenders shall be required with respect to any Municipal
Financing that qualifies as Debt incurred after the Petition Date with respect
to any First Lien Property; and


 


(xxii)        all premiums (if any), interest, fees, expenses,
charges and additional or contingent interest on obligations described above in
this Section 9.11(a).


 


(b)       No Obligor shall, nor shall it permit any other Debtor to, create, incur,
assume, or permit to exist any Lien on (A) any property now owned or
hereafter acquired by any of them, except Permitted Liens or (B) any of
the Negative Pledge Properties, except Permitted Liens.


 


(c)       Other than as set forth in this Agreement, no Obligor
shall, nor shall it permit any other Debtor to, enter into or become subject
after the Closing Date to any agreement, contract, or other arrangement whereby
any Debtor is prohibited from, or would otherwise be in default as a result of,
creating, assuming, incurring, or suffering to exist, directly or indirectly,
any Agent’s Lien, except for the following:


 


(i)            any agreement governing any post-petition Debt
permitted by (A) clauses (iv), (ix) and (xvi)
of Section 9.11(a) as to the assets financed with the proceeds
of such Debt or (B) clauses (vi), (xiii) and (xvii)
of Section 9.11(a) in respect of cash collateral;


 


(ii)           customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of a Debtor;


 


(iii)          customary provisions restricting assignment
of any agreement entered into by a Debtor in the ordinary course of business;


 


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(iv)          agreements of any holder of any
Permitted Lien set forth in clause (b), (f), (m), (n), (o)(ii), (r), (s) or
(v) of the definition thereof restricting the transfer of any property
subject thereto;


 


(v)           customary restrictions and conditions
contained in any agreement relating to the disposition of any Property
permitted under Section 9.8 pending the consummation of such
disposition or in leases, subleases, licenses or sub-licenses relating to the
assets covered thereby;


 


(vi)          customary provisions in partnership
agreements, limited liability company organizational governance documents,
asset sale and stock sale agreements and other similar agreements entered into
in the ordinary course of business that restrict the transfer of ownership
interests in such partnership, limited liability company or similar Person;


 


(vii)         restrictions on cash or other deposits
or net worth imposed by suppliers or landlords under contracts entered into the
ordinary course of business; or


 


(viii)        customary provisions in joint venture
agreements and similar agreements applicable to joint venture relating solely
to such joint venture.


 


Section 9.12       New Subsidiaries.  No Debtor shall, nor shall it permit any
other Debtor to, directly or indirectly, organize, create or acquire any direct
Subsidiary other than as follows:


 


(a)       in connection with a tax driven strategy in the
ordinary course of business;


 


(b)       Subsidiaries (i) existing on the Closing Date,
and/or (ii) acquired or formed by a Subsidiary that was not a Debtor at
the time of such acquisition or formation;


 


(c)       new Subsidiaries of the Debtors approved in writing by
the Majority Lenders; and


 


(d)       as approved by the Bankruptcy Court and reasonably
acceptable to the Agent.


 


Section 9.13       Use of Proceeds.  The proceeds of the Term Loan shall be used (a) first,
to repay the Debt set forth in Schedule 9.13 and (b) after
such Debt has been repaid in full and the Pre-Petition Liens with respect
thereto have been released, for general working capital purposes (not otherwise
prohibited by this Agreement) in the ordinary course of business, (i) to
fund expenses incident to the Debtors’ efforts to operate, maintain,
reorganize, or dispose of their business and assets, (ii) to fund payment
of fees and expenses owing to Professional Persons incurred during the Case, (iii) to
pay all fees and expenses provided under this Agreement (whether incurred
before or after the Petition Date) and, in any event, only to the extent
authorized by the Financing Order, and (iv) as otherwise authorized by the
Financing Order, including, without limitation, permitted capital expenditures,
priority employee wage claims, and expenses associated with the assumption of
executory contracts and unexpired leases. 
The Borrowers shall not use any portion of the proceeds of the Term
Loan, directly or


 


65

















 


indirectly, (A) to purchase or carry any Margin Stock, (B) to
repay or otherwise refinance indebtedness of the Borrowers or others incurred
to purchase or carry any Margin Stock, (C) to extend credit for the
purpose of purchasing or carrying any Margin Stock, (D) to acquire any
security in any transaction that is subject to Section 13 or 14 of the
Exchange Act, or (E) as prohibited pursuant to Section 9.15.


 


Section 9.14       Investments.  No Obligor shall, nor shall it permit any
other Debtor to, directly or indirectly, make or hold any Investments, except
the following:


 


(a)       Affiliate Investments not prohibited by Section 9.9;


 


(b)       Investments in cash and/or Cash Equivalents;


 


(c)       Investments existing on the Closing Date;


 


(d)       Investments in the ordinary course of business
consisting of UCC Article III endorsements for collection or deposit;


 


(e)       Investments (including debt obligations and Capital
Stock) received in connection with the bankruptcy or reorganization of
suppliers and customers or in settlement of delinquent obligations of, or other
disputes with, customers and suppliers arising in the ordinary course of
business or upon the foreclosure with respect to any secured Investment or
other transfer of title with respect to any secured Investment;


 


(f)        Investments constituting (i) accounts or notes
receivable arising, (ii) trade debt granted, (iii) deposits made in
connection with the purchase price of goods or services or (iv) lease,
utility and other similar deposits, in each case in the ordinary course of
business;


 


(g)       other Investments over the term of this Agreement not
to exceed $100,000,000;


 


(h)       Investments consisting of indebtedness or contingent
liabilities, Liens, Restricted Payments and dispositions permitted by Section 9.11,
Section 9.20 and Section 9.8, respectively; and


 


(i)        Investments received in connection with the
satisfaction or enforcement of indebtedness or claims due or owing to any
Debtor or as security for any such Indebtedness claim;


 


provided that any
Investment which when made complies with the requirements of the definition of
the term “Cash Equivalent” may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements.


 


Section 9.15       Case Matters.


 


(a)       All fees or expenses of Professional Persons at any
time paid by the Debtors, or any of them, shall be paid by the Debtors pursuant
to procedures established by an order of the Bankruptcy Court.


 


(b)       No Obligor shall, nor shall it permit any other Debtor
to, assert, file or seek, or consent to the filing or the assertion of or
joinder in, or use any portion of the proceeds of the 


 


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Term Loan to compensate services rendered or expenses
incurred in connection with, any claim, counterclaim, action, proceeding,
order, application, pleading, motion, objection, any other papers or documents,
defense (including, without limitation, offsets and counterclaims of any nature
or kind), or other contested matter (including, without limitation, any of the
foregoing the purpose of which is to seek or the result of which would be to
obtain any order, judgment, determination, declaration, or similar relief):


 


(i)            invalidating, setting aside, avoiding, subordinating,
or otherwise challenging the validity, perfection, enforceability, or nonavoidability
(under Sections 105, 506(c), 542, 543, 544, 545, 547, 548, 549, 550, 551,
552(b), or 553 of the Bankruptcy Code or otherwise), in each case, in whole or
in part, of the Obligations or the Agent’s Liens;


 


(ii)           reversing, modifying, amending, staying or vacating
the Financing Order, except for modifications and amendments consented to by
the Majority Lenders in writing;


 


(iii)          granting priority for any administrative expense,
secured claim or unsecured claim against the Borrowers or any of the Guarantors
other than the Non-Debtor Guarantor (now existing or hereafter arising of any
kind or nature whatsoever, including without limitation any administrative
expenses of the kind specified in, or arising or ordered under,
Sections 105, 326, 327, 328, 330, 331, 503(b), 506(c), 507(a), 507(b),
546(c), 726 and 1114 of the Bankruptcy Code) equal or superior to the priority
of the Agent and the Lenders in respect of the Obligations, except as provided
under the Carve-Out, Pre-Petition Liens and the Financing Order;


 


(iv)          granting or imposing under Sections 364(c) or
364(d) of the Bankruptcy Code or otherwise, any Lien equal or superior to
the priority of the Agent’s Liens (other than under clause (i) of
the definition of Permitted Liens (to the extent, and only to the extent, set
forth in the Financing Order) or as permitted to have priority under Section 6.4);


 


(v)           permitting the use of cash collateral as defined in Section 363
of the Bankruptcy Code, except as expressly permitted by the Financing Order or
this Agreement; or


 


(vi)          modifying, altering, or impairing in any manner any of
the Agent’s Liens pursuant to the Financing Order, this Agreement, or any of
the Loan Documents or any documents related thereto (including, without
limitation, the right to demand payment of all Obligations and to enforce its
liens and security interests in the Collateral), whether by plan of
reorganization or liquidation, order of confirmation, or any financings of,
extensions of credit to, or incurring of debt by any Debtor, whether pursuant
to Section 364 of the Bankruptcy Code or otherwise.


 


(c)       No Obligor shall, nor shall it permit any other Debtor
to, seek or consent to any order (i) dismissing any part of the Case under
Sections 105, 305 or 1112 of the Bankruptcy Code or otherwise; or (ii) converting
any part of the Case under Sections 105 or 1112 of the


 


67

















 


Bankruptcy Code or otherwise, in each case in respect
of any Major Entity, unless such Debtor would cease to be a Major Entity upon
giving effect to transactions permitted under Section 9.8; provided
that any mandatory prepayments required under Section 3.3 shall
occur substantially contemporaneously with or prior to such dismissal or
conversion.


 


(d)       The Obligors shall not, nor shall they permit any
other Debtor to, make any payments or transfer any property on account of
claims asserted by any vendors of any Debtor, for reclamation in accordance
with Section 2-702 of any applicable UCC and Section 546(c) of
the Bankruptcy Code, unless otherwise ordered by the Bankruptcy Court upon
prior notice to the Agent or unless otherwise consented to by the Majority
Lenders.


 


(e)       The Obligors shall not, nor shall they permit any
other Debtor to, return any inventory or other property to any vendor pursuant
to Section 546(g) of the Bankruptcy Code, unless otherwise ordered by
the Bankruptcy Court in accordance with Section 546(g) of the
Bankruptcy Code upon prior notice to the Agent or unless otherwise consented to
by the Majority Lenders.


 


Section 9.16       No Amendments or Advances of
Prior Lien Debt.  No
amendment or modification of the terms of the Prior Lien Debt constituting debt
for borrowed money or any document or instrument which evidences, secures or
otherwise relates to any Prior Lien Debt constituting debt for borrowed money
will be effected, other than in connection with any refinancing permitted
hereby or which does not adversely affect the Term Loan or the Lenders, without
the prior written consent of the Majority Lenders.  No Obligor shall,  nor shall it permit any other Debtor to,
request or accept any advance of proceeds of any Prior Lien Debt after the
Closing Date other than protective advances to pay taxes and insurance premiums
relating to, and costs to protect or repair, collateral which secures such
Prior Lien Debt and other similar matters.


 


Section 9.17       Maintenance of Property;
Compliance with Legal Requirements; Parking.


 


(a)       Each Obligor shall, and shall cause each other Debtor
to, keep its Property and Improvements that are operating as shopping malls or
occupied buildings in good working order and repair (reasonable wear and tear
and Casualty and Condemnation excepted). 
Each Obligor shall, and shall cause each other Debtor to, from time to
time make, or cause to be made, all reasonably necessary repairs, renewals,
replacements, betterments and improvements thereto.  Each Obligor shall, and shall cause each
other Debtor to, comply with, and shall cause its Property and Improvements to
be operated, maintained, repaired and improved in compliance with, all Legal
Requirements, Insurance Requirements and the requirements of any Major Lease or
Ground Lease, in each case except to the extent that the failure to comply,
operate, maintain, repair or improve the relevant Property or Improvements (i) could
not reasonably be expected to have a Material Adverse Effect or (ii) is
occasioned by Casualty or Condemnation and (A) the Agent or other insured
party has not made available the proceeds thereof to the relevant Debtor to restore,
repair, replace or rebuild the relevant Property or Improvements, or (B) the
relevant Debtor is in the process of restoring, repairing, replacing or
rebuilding the relevant Property or Improvements.


 


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(b)       As applicable, each Obligor shall, and shall cause
each other Debtor to, provide, maintain and light parking areas of its
Properties that are operating as shopping malls, including any sidewalks,
aisles, streets, driveways, sidewalk cuts and rights-of-way to and from the
adjacent public streets, in a manner consistent with properties of a similar
class as the relevant Property in the locale where such Property is located, in
each case except to the extent such failure could not reasonably be expected to
have a Material Adverse Effect.


 


Section 9.18       Taxes and Other Claims.  Each Obligor shall, and shall cause each
other Debtor to, pay and discharge all material post-petition federal and other
material post-petition taxes, assessments and governmental charges levied upon
it, its income and its assets, subject to any orders of the Bankruptcy Court,
and all lawful post-petition claims for labor, materials and supplies or
otherwise, in each case subject to any rights to contest contained in the
definition of Permitted Liens.  Each
Obligor shall, and shall cause each other Debtor to, file all post-petition
federal and all post-petition material state and local tax returns and other
reports that it is required by law to file within the timeframes permitted (including
any extensions thereof).  All references
in this Section to post-petition taxes, assessments and governmental
charges shall, in the case of the Non-Debtor Guarantor only, include a
reference to pre-petition taxes, assessments and governmental charges of the
Non-Debtor Guarantor.


 


Section 9.19       Leases.


 


(a)       Upon the reasonable request of the Agent, the
Borrowers shall furnish the Agent with executed copies of any Major Leases
entered into after the Closing Date.  The
Obligors hereby covenant and agree that, with respect to First Lien Properties
and subject to clause (b) below, all new Major Leases and
renewals or amendments of Major Leases shall be entered into with Tenants whose
identity and creditworthiness are appropriate for tenancy at the applicable
Property, shall provide for rental rates and other economic terms which, taken
as a whole, are not materially less favorable than then-existing market rates,
based on the applicable market, except as otherwise agreed to by the Majority
Lenders.


 


(b)       With respect to First Lien Properties, all new Major
Leases that do not comply with Section 9.19(a) shall be
subject to the prior written consent of the Majority Lenders (it being
understood that all other Leases or terminations, renewals and amendments of
Leases shall not require the Agent’s prior written consent), which consent
shall not be unreasonably withheld, conditioned or delayed.  Each Debtor shall have the right to waive or
negotiate settlement of defaults (or threatened defaults) under Leases, so long
as such waiver or settlement could not reasonably be expected to have a
Material Adverse Effect.


 


(c)       Each Obligor shall, and shall cause each other Debtor to (i) observe
and perform all material post-petition obligations imposed upon the lessor
under the Major Leases (other than Major Leases that are rejected pursuant to
the Case), (ii) with respect to First Lien Properties, enforce all
material terms, covenants and conditions contained in the Major Leases on the
part of the lessee thereunder to be observed or performed, short of termination
thereof (including enforcing the provisions, if any, requiring Tenants to
perform all acts necessary to satisfy the requirements of Governmental
Authorities and, if applicable, to do such acts as are necessary to maintain
their respective certificates of occupancy in full force and effect); provided
that a Debtor may terminate any Lease, subject to Section 9.19(b) above,
following a


 


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default thereunder by the
respective Tenant, (iii) not collect any of the rents under any Major
Lease (exclusive of security deposits) more than one month in advance of the
due date thereof, other than in connection with the satisfaction or compromise
of Tenant improvements costs, (iv) not execute any assignment of lessor’s
interest in the Leases or associated rents other than the assignment of rents
and leases contained in the Financing Order and, as applicable, in the
documents that create or evidence the Pre-Petition Liens (or any refinancing or
extension thereof permitted under this Agreement) and (v) not cancel or
terminate any guarantee (except in accordance with the terms thereof) of any of
the Major Leases without the prior written consent of the Majority Lenders
(which consent shall not be unreasonably withheld or delayed) unless such
cancellation or termination could not reasonably be expected to have a Material
Adverse Effect.


 


(d)       At the Borrowers’ written
request, the Agent, for and on behalf of the Lenders, shall enter into a
subordination, non-disturbance and attornment agreement, in the form (i) in
the case of Leases with respect to First Lien Properties, attached hereto as Exhibit F
or (ii) in the case of Leases with respect to Negative Pledge Properties,
in the form approved by the lender that holds the prior Lien on such Negative
Pledge Property, and, in each case with respect to any national Tenant, as such
Tenant and the Agent shall reasonably agree. 
The Agent shall not be required to provide any such subordination,
non-disturbance and attornment agreement with respect to First Lien Properties
unless it shall receive in exchange an estoppel certificate from the Tenant
under the applicable Lease that the Tenant is not aware of any material default
by the landlord under the Lease.  For
avoidance of doubt, the costs and expenses of the Agent in connection with the
review of any such subordination, non-disturbance and attornment agreement
shall be paid or reimbursable by the Borrowers in accordance with Section 15.6;
provided that such fees and expenses shall not exceed $100 per such
agreement in the case of agreements set forth in clause (i) which
are not negotiated and otherwise $1,000 per agreement.


 


(e)       With respect to any
approval by the Majority Lenders of a Major Lease pursuant to Section 9.19(a) or
any consent of the Majority Lenders regarding any Major Lease referred to in Section 9.19(b),
if no response thereto is received by the General Partner from the Agent
within  ten (10) Business Days after
a request for such approval or consent is delivered in writing to the Agent,
then such approval or consent (as applicable) shall be deemed to have been
given by the Majority Lenders.


 


Section 9.20       Restricted
Payments.  No Obligor
shall, nor shall it permit any other Debtor to, make any Restricted Payment
except:


 


(a)       the Debtors may make
Restricted Payments to any other Debtor (and, in the case of Debtors (other
than the General Partner) that are not wholly-owned Subsidiaries, to other
equity holders in accordance with and to the extent provided for in their
governing organizational documents as in effect on the Closing Date or by
applicable law);


 


(b)       Restricted Payments to any
Debtor and to the General Partner and to its equityholders in order to maintain
its REIT status under the Code; provided that, in the case of Restricted
Payments to the equityholders of the General Partner, the cash portion of any
such Restricted Payments shall not exceed the minimum cash portion necessary to
maintain such


 


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REIT status, taking into
account IRS Revenue Procedure 2009-15 and any comparable guidance;


 


(c)       Restricted Payments by a
Debtor to a Subsidiary of the Borrowers that is not a Debtor to enable such Subsidiary
or another Subsidiary to satisfy any tax liabilities (after taking into account
any off-setting deductions) that are attributable to the business or activities
of any Debtor and are not payable directly by any Debtor, in each case to the
extent used to pay such tax liabilities; and


 


(d)       Restricted Payments by any
Debtor to enable the recipient or its direct or indirect parent to make
preferred dividends in the amount not to exceed $500,000 in the aggregate; provided
that any such preferred dividend is made by an entity that qualifies as a REIT.


 


ARTICLE
10


 


CONDITIONS
OF LENDING


 


Section 10.1       Conditions
Precedent to Making of Term Loan.  The obligation of each Lender to make the
Term Loan on the Funding Date is subject to the following conditions precedent
having been satisfied (except if and to the extent that any such condition has
been expressly waived in writing by the Agent and the Lenders):


 


(a)       Financing Order.  At the time of the making of the Term Loan,
the Agent shall have received a certified copy of the Financing Order, which
Financing Order (i) shall have been entered on the docket of the
Bankruptcy Court on or before the Funding Date and (ii) shall be in full
force and effect and shall not have been vacated, stayed, reversed, modified or
amended in any respect without the written consent of the Majority Lenders;
and, if the Financing Order is the subject of a pending appeal in any respect,
neither the making of the Term Loan, nor the performance by the Obligors of any
of their respective obligations hereunder, under the other Loan Documents or
under any other instrument or agreement referred to herein shall be the subject
of a presently effective stay pending appeal.


 


(b)       [Intentionally Omitted].


 


(c)       Delivery of Documents.  The Agent shall have received each of the
following documents, which shall be satisfactory in form and substance to the
Agent and the Lenders:


 


(i)            executed counterparts
of this Agreement, executed and delivered by a Responsible Officer of each
Borrower and each other Obligor listed on Schedule 1.1B, the Agent,
and the Lenders;


 


(ii)           a Term Note payable to
the order of each Lender, duly executed and delivered by the Borrowers,
complying with the requirements of Section 2.2(d);


 


(iii)          a copy of the
resolutions of the board of directors (or similar governing body) of each
Obligor authorizing and approving (as applicable) the commencement of the Case
and the execution, delivery and performance of the Loan Documents;


 


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(iv)          written opinions
(addressed to the Agent and the Lenders and dated the Funding Date), issued by
counsel to the Obligors in the forms set forth as Exhibits J-1 and J-2,
respectively;


 


(v)           all other documents and
instruments required by law or reasonably requested by the Agent in proper form
to be filed, registered or recorded to create or perfect the Liens intended to
be created under the Loan Documents; it being understood that no Mortgages, UCC
financing statements or similar documents will be filed on the Funding Date
except a UCC financing statement naming the Non-Debtor Guarantor as debtor to
be filed with the Secretary of State of the State of Delaware;


 


(vi)          all governmental and
regulatory approvals necessary in connection with the closing of this Agreement
and the transactions contemplated hereby and such approvals shall have been
received and be in full force and effect; and


 


(vii)         all certificates of
insurance with proper loss payee and additional insured endorsements for the
insurance policies required by Section 9.3.


 


(d)       The representations and
warranties contained in this Agreement shall be true and correct in all
material respects on and as of the Funding Date as if made on and as of such
date (except to the extent that any such representation or warranty relates to
another specified date, in which case the same shall be true and correct as of
such other specified date), which shall be amended by the “Exception Report”
(as defined in the Commitment Letter).


 


(e)       No material adverse change
shall have occurred with respect to the assets, liabilities, business,
financial condition, or results of operations of the Debtors , taken as a
whole, in comparison to those that existed on the date of the Commitment
Letter, in each case other than as a result of the filing of the Petitions and
the commencement of the Case.


 


(f)        The Obligors shall have
paid all costs and expenses of the Agent and the Lenders set forth in Section 15.6
invoiced at least two Business Days prior to the Funding Date, due and payable
to the Agent for the benefit of the Agent or the Lenders.


 


(g)       [Intentionally Omitted.]


 


(h)       No event shall have
occurred and be continuing, or would occur as a result of such extension of
credit, which constitutes a Default or an Event of Default.


 


The
acceptance by the Borrowers of any proceeds of the Term Loan shall be deemed to
be a representation and warranty (other than with respect to conditions
qualified as satisfactory to, to the satisfaction of or similar approval or
consent of the Agent or any Lender, as to which the Borrowers make no
representations or warranty) made by the Obligors to the effect that all of the
conditions precedent to the making of the Term Loan have been satisfied or to
the knowledge of the Borrower waived, with the same effect as delivery to the
Agent and the Lenders of a certificate signed by a Responsible Officer of the
Obligors as of the Funding Date to such effect.


 


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ARTICLE
11


 


DEFAULT;
REMEDIES


 


Section 11.1       Events of Default.  It shall constitute an event of default (“Event
of Default”) if, on or after the Closing Date, any one or more of the
following shall occur for any reason:


 


(a)       any failure by any
Borrowers or any other Obligor obligated therefor to pay (i) any principal
amount owing hereunder within two Business Days of the date when due (provided
that no grace period shall be available for principal payments due on the
Maturity Date) or (ii) any interest or premium on any of the Obligations
or any fee or other amount owing hereunder within two Business Days of when
due, whether upon demand or otherwise;


 


(b)       any representation or
warranty made or deemed made by any Obligor in this Agreement or in any of the
other Loan Documents or any certificate furnished by any Obligor at any time to
the Agent or any Lender hereunder or thereunder shall prove to be untrue in any
material respect as of the date on which made, deemed made, or furnished;


 


(c)       any default shall occur in


 


(i)            the observance or
performance of any of the covenants and agreements contained in paragraphs (4) of
Schedule 3.1-A, Section 4.1, Section 7.3(a),
Section 9.1 (but only insofar as it requires the preservation of
the existence of the Borrowers), Section 9.8, Section 9.9,
Section 9.11, Section 9.12, Section 9.13, Section 9.14
and Section 9.15;


 


(ii)           the observance or
performance of any of the covenants and agreements contained in this Agreement,
other than as referenced in Section 11.1(a) or Section 11.1(c)(i),
or any other Loan Documents, and such default shall continue for a period of
thirty (30) days after receipt by the General Partner of written notice from
the Agent; provided that if such breach is not capable of cure within
such thirty (30) day period, such period shall be extended for a reasonable period
of time to permit such cure so long as the relevant Person has promptly
commenced and is diligently pursuing such cure; provided that, other
than in the case of cures involving maintenance and repair of Real Estate and
Improvements, such extended period shall not exceed an additional sixty (60)
days; or


 


(iii)          the observance or
performance of any of the covenants and agreements contained in paragraph (3) of
Schedule 3.1-A and such default shall continue for a period of five
(5) Business Days after the payment date (as such term is used in such paragraph (3));


 


(d)       any default shall occur
with respect to any post-petition Debt of any Obligor or any Debt of the
Non-Debtor Guarantor (in each case, other than the Obligations) in an
outstanding principal amount which exceeds $50,000,000, or under any agreement
or instrument under or pursuant to which any such Debt may have been issued,
created, assumed, 


 


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or guaranteed by any
Obligor, and such default shall continue for more than the period of any grace,
waiver, cure or forbearance, if any, if the effect thereof (after taking into
account the giving of notice or after the lapse of any required time period or
both) is to accelerate, or to permit the holders of any such post-petition Debt
to accelerate, the maturity of any such post-petition Debt, or any such
post-petition Debt shall be declared due and payable or be required to be
prepaid (other than by a regularly scheduled required prepayment) prior to the
stated maturity thereof;


 


(e)       any Loan Document,
including any guaranty of the Obligations, shall be (i) terminated other
than in accordance with its terms, (ii) revoked by an Obligor, (iii) declared
void, invalid, or unenforceable (it being understood that, to the extent the
Financing Order contains provisions to allow the realization on the Collateral,
no such declaration, invalidity or unenforceability shall constitute an Event
of Default so long as the Liens on the Collateral granted pursuant to the Financing
Order remain valid and enforceable), or (iv) challenged in writing by any
Obligor;


 


(f)        one or more judgments,
orders, decrees, or arbitration awards (other than any claim against any
Property that is not stayed pending appeal granting relief from the Automatic
Stay with respect to the Debtors’ Properties) is entered against any Obligor
involving liability in the aggregate (to the extent not covered by independent
third party insurance) as to any single or related or unrelated series of
transactions, incidents or conditions, of $37,500,000 or more, and the same
shall remain unsatisfied, unvacated, and unstayed pending appeal or not subject
to the Automatic Stay for a period of 60 days after the entry thereof;


 


(g)       (i) an ERISA Event
shall occur with respect to a Pension Plan or Multi-employer Plan which has
resulted or could reasonably be expected to result in a Material Adverse
Effect; (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans at any time which has resulted or could reasonably be expected to
result in a Material Adverse Effect; or (iii) any Obligor or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multi-employer Plan in an aggregate
amount which has resulted or could reasonably be expected to result in a
Material Adverse Effect;


 


(h)       any Loan Document ceases to
be in full force and effect (other than in accordance with its terms) or any
Lien with respect to any material portion of the Collateral intended to be
secured thereby ceases to be, or is not, valid, perfected, and prior to all
other Liens (other than Permitted Liens which are expressly permitted to have
priority over the Agent’s Lien) or is terminated, revoked, or declared void
(other than in accordance with its terms) it being understood that to the
extent the Financing Order contains provisions to allow the realization on any
Collateral, no such termination, revocation, declaration, invalidity or
unenforceability with respect to any Loan Document shall constitute an Event of
Default;


 


(i)        an order shall be entered
confirming any plan of reorganization in the Case in respect of any Major
Entity (unless the applicable Debtor would cease to be a Major Entity upon
giving effect to a transaction permitted under Section 9.8 and any
mandatory prepayments required under Section 3.3 occurring
substantially contemporaneously with or


 


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prior to such plan of
reorganization), which does not, upon entry thereof (i) contain a
provision for the payment in full in cash of all non-contingent Obligations as
of and no later than the effective date of such plan and (ii) provide for
the continuation of the Liens and security interests granted to the Agent for
the benefit of the Lenders and the required priorities of such Liens until the
Obligations have been paid in full in cash;


 


(j)        an order with respect to
the Case shall be entered appointing, or any Obligor shall file an application
for an order with respect to the Case seeking the appointment of, in either
case without the prior written consent of the Majority Lenders (i) a
trustee under Section 1104 of the Bankruptcy Code, or (ii) an
examiner or any other Person with enlarged powers relating to the operation of
the business (i.e., powers beyond those set
forth in Sections 1104(d) and 1106(a)(3) and (4) of the
Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code;


 


(k)       an order shall be entered
dismissing the Case or converting the Case to a case under Chapter 7 of
the Bankruptcy Code, in each case in respect of a Major Entity, unless the
applicable Debtor would cease to be a Major Entity upon giving effect to a transaction
permitted under Section 9.8 and any mandatory prepayments required
under Section 3.3 occurring substantially contemporaneously with or
prior to such dismissal or conversion;


 


(l)        any Debtor or any Person
with the support of any Debtor shall file any pleading, or any order is entered
with respect to the Case, without the prior written consent of the Majority
Lenders (i) to revoke, reverse, stay, modify, supplement, or amend the
Financing Order, (ii) to permit any administrative expense or any claim
(now existing or hereafter arising, of any kind or nature whatsoever) to have
administrative priority equal or superior to the priority of the Agent and the
Lenders in respect of the Obligations other than the Carve-Out, (iii) to
grant or permit the grant of a Lien on any of the Collateral other than
Permitted Liens (other than with respect to any pleading that (A) has been
filed inadvertently, (B) has not resulted in the granting of or permission
to grant such Lien and (C) has been withdrawn as soon as practicable but
in no event later than the earlier to occur of (1) 15 days from the filing
of such pleading or (2) 3 days prior to the hearing on the motion), (iv) to
permit any Debtor to use proceeds of Collateral other than in accordance with
the terms of the Loan Documents, (v) to invalidate or otherwise challenge
any of the Agent’s Liens, or otherwise object to, or raise defenses to, the
extent, amount (other than bona fide disputes as to the amount of Obligations
owed), validity, perfection, priority or enforceability of any of the
Obligations or the Agent’s Liens, (vi) to surcharge under Section 506(c) or
552 of the Bankruptcy Code any Collateral, or (vii) permit the use of cash
collateral except as permitted by this Agreement and the Financing Order;


 


(m)      an order shall be entered
that is not stayed pending appeal granting relief from the Automatic Stay to
any creditor of a Debtor with respect to any claim against any Property that,
when taken together with all other orders entered on the docket of the Bankruptcy
Court that are not stayed pending appeal granting relief from the Automatic
Stay with respect to the Debtors’ Properties, could reasonably be expected to
have a Material Adverse Effect; provided that it shall not be an Event
of Default if relief from the Automatic Stay is granted (i) solely for the
purpose of allowing such creditor to determine the liquidated amount of its
claim against a Debtor, (ii) to permit the commencement of or prosecution
of a proceeding to collect proceeds


 


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in respect of a
Condemnation or Casualty, (iii) to make protective advances in respect of
taxes, insurance premiums or costs to protect or repair any Collateral secured
by a Prior Lien Debt or (iv) in connection with a transaction permitted by
Section 9.8(v);


 


(n)       the violation by any Debtor
of any of the provisions of the Financing Order if such violation is adverse to
the Agent or the Lenders;


 


(o)       absent the prior written
consent of the Majority Lenders, any change or alteration that is adverse in
any material respect to the Lenders to (i) the consolidated cash
management system of the Obligors, as such system existed on the Petition Date
(other than changes in the ordinary course of business consistent with past
practices), or (ii) any order entered by the Bankruptcy Court in the
Debtors’ chapter 11 cases approving such cash management system; or


 


(p)       a Change in Control.


 


Section 11.2       Remedies.


 


(a)       If an Event of Default
exists, the Agent may, in its discretion, and shall, at the direction of the
Majority Lenders, at any time or times and in any order, without notice to or
demand on any Obligor, restrict the amount of or refuse to permit any Lender to
make the Term Loan.  If an Event of
Default exists, the Agent shall, at the direction of the Majority Lenders, do
one or more of the following, in addition to the action described in the
preceding sentence, at any time or times and in any order, without notice to or
demand on any Obligor except as required by Section 11.2(e):  (A) terminate the Commitments and the
other obligations of the Agent and the Lenders under this Agreement; (B) declare
any or all Obligations to be immediately due and payable; and (C) pursue
its other rights and remedies under the Loan Documents, the Financing Order
and/or applicable law.  Except as
otherwise provided in the Financing Order, the Agent and the Lenders may
exercise any of the foregoing remedies without demand and without further
application to or order of the Bankruptcy Court.


 


(b)       Each Obligor recognizes
that the Agent may be unable to effect a public sale of any or all of the
Collateral that constitutes securities to be sold by reason of certain
prohibitions contained in the laws of any jurisdiction outside the United
States or in applicable federal or state securities laws but may be compelled
to resort to one or more private sales thereof to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
Collateral to be sold for their own account for investment and not with a view
to the distribution or resale thereof. 
Each Obligor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable to the seller than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall, to the extent permitted by law, be deemed to have been
made in a commercially reasonable manner. 
Unless required by a Legal Requirement, the Agent shall not be under any
obligation to delay a sale of any of such Collateral to be sold for the period
of time necessary to permit the issuer of such securities to register such
securities under the laws of any jurisdiction outside the United States or
under any applicable federal or state securities laws, even if such issuer
would agree to do so.  Each Obligor
further agrees to do or cause to be done, to the extent that such Obligor may
do so under Legal Requirements, all such other acts and things as may be
necessary to


 


76

















 


make such sales or
resales of any portion or all of such Collateral or other property to be sold
valid and binding and in compliance with any and all Legal Requirements at the
Obligors’ expense.  Each Obligor further
agrees that a breach of any of the covenants contained in this Section 11.2(b) will
cause irreparable injury to the Agent and the Lenders for which there is no
adequate remedy at law and, as a consequence, agrees that each covenant
contained in this Section 11.2(b) shall be specifically
enforceable against such Obligor, and each Obligor hereby waives and agrees, to
the fullest extent permitted by law, not to assert as a defense against an
action for specific performance of such covenants that (i) such Obligor’s
failure to perform such covenants will not cause irreparable injury to the
Agent and the Lenders or (ii) the Agent or the Lenders have an adequate
remedy at law in respect of such breach. 
Each Obligor further acknowledges the impossibility of ascertaining the
amount of damages which would be suffered by the Agent and the Lenders by
reason of a breach of any of the covenants contained in this Section 11.2(b) and,
consequently, agrees that, if such Obligor shall breach any of such covenants
and the Agent or the Lenders shall sue for damages for such breach, such
Obligor shall pay to the Agent, for the benefit of the Agent and the Lenders,
as liquidated damages and not as a penalty, an aggregate amount equal to the
value of the Collateral or other property to be sold on the date the Agent
shall demand compliance with this Section 11.2(b).


 


(c)       If an Event of Default has
occurred and is continuing:  (i) the
Agent shall have for the benefit of the Lenders, in addition to all other
rights of the Agent and the Lenders, the rights and remedies of a secured party
under the UCC; (ii) the Agent may, at any time, take possession of,
foreclose on and/or request a receiver of the Collateral and keep it on any
Obligor’s premises, at no cost to the Agent or any Lender, or remove any part of
it to such other place or places as the Agent may desire, or the Obligors
shall, upon the Agent’s demand, at the Obligors’ cost, assemble the Collateral
and make it available to the Agent at a place reasonably convenient to the
Agent; (iii) the Agent may sell and deliver any Collateral at public or
private sales, for cash, upon credit, or otherwise, at such prices and upon
such terms as the Agent deems advisable, in its sole discretion, and may, if
the Agent deems it reasonable, postpone or adjourn any sale of the Collateral
by an announcement at the time and place of sale or of such postponed or
adjourned sale; (iv) the Agent may hold, lease, develop, manage, operate,
control and otherwise use the First Lien Properties upon such terms and
conditions as the Agent may deem reasonable under the circumstances (making
such repairs, alterations, additions and improvements and taking other actions,
from time to time, as the Agent deems reasonably necessary or desirable),
exercise all such rights and powers of each Obligor with respect to the First
Lien Properties, whether in the name of Obligor or otherwise, including without
limitation the right to make, cancel, enforce or modify leases, obtain and
evict tenants, and demand, sue for, collect and receive all rents, in each
case, in accordance with the standards applicable to the Agent under the Loan
Documents; (v) the Agent may employ consultants to inspect the First Lien
Properties and to assure compliance by each Obligor of the terms and conditions
of the Loan Documents and to take any other reasonable actions, as the Agent
deems reasonably necessary or desirable, in connection with the First Lien
Properties (including preparing for the disposition thereof), and all actual,
reasonable, out-of-pocket fees and expenses incurred in connection therewith
shall be borne by the Obligors and (vi) upon demand from the Agent, the
applicable Obligor shall direct the grantor or licensor of, or the contracting
party to, any property agreement with respect to any First Lien Property to
recognize and accept the Agent, for the benefit of and on behalf of the
Lenders, as the party to


 


77
















 


such agreement for any and all purposes as fully as it
would recognize and accept such Obligor and the performance of such Obligor
thereunder and, in such events, without further notice or demand and at such
Obligor’s sole cost and expense, the Agent, for the benefit of and on behalf of
the Lenders, may exercise all rights of such Obligor arising under such
agreements.  Without in any way requiring
notice to be given in the following manner, each Obligor agrees that any notice
by the Agent of sale, disposition, or other intended action hereunder or in
connection herewith, whether required by the UCC or otherwise, shall constitute
reasonable notice to such Obligor if such notice is mailed by registered or
certified mail, return receipt requested, postage prepaid, or is delivered
personally against receipt, at least ten (10) Business Days prior to such
action to the Obligors’ address specified in or pursuant to Section 15.7.  If any Collateral is sold on terms other than
payment in full at the time of sale, no credit shall be given against the
Obligations until the Agent or the Lenders receive payment, and if the buyer
defaults in payment, the Agent may resell the Collateral.  In the event the Agent seeks to take possession
of all or any portion of the Collateral by judicial process, each Obligor
irrevocably waives:  (A) the posting
of any bond, surety, or security with respect thereto which might otherwise be
required; (B) any demand for possession prior to the commencement of any
suit or action to recover the Collateral; and (C) any requirement that the
Agent retain possession and not dispose of any Collateral until after trial or
final judgment.  Each Obligor agrees that
the Agent has no obligation to preserve rights to the Collateral or marshal any
Collateral for the benefit of any Person. 
The Agent is hereby granted a license or other right to use, without
charge, each Obligor’s labels, patents, copyrights, name, trade secrets, trade
names, trademarks, and advertising matter, or any similar property, in completing
production of, advertising, or selling any Collateral, and each such Obligor’s
rights under all licenses and all franchise agreements shall inure to the Agent’s
benefit for such purpose.  The proceeds
of sale shall be applied first to all expenses of sale, including reasonable
attorneys’ fees, and then to the Obligations. 
The Agent will return any excess to the applicable Obligor and the
Obligors shall remain liable for any deficiency.


 


(d)       The Obligors acknowledge
and agree that the Lenders would not provide the Term Loan if, among other
things, they were not assured that if an Event of Default specifically occurs,
the Agent, on behalf of the Lenders, may obtain all amounts in the Cash
Collateral Accounts (other than amounts held in the Main Operating Account
subject to the Liens in favor of the Adequate Protection Parties (as defined in
the Financing Order)) and apply them immediately to the Obligations, and
otherwise exercise the other rights and remedies available to the Agent.


 


(e)       Notwithstanding anything
herein to the contrary, (i) neither the Agent nor any Lender shall take
any action under this Section 11.2 (or similar provisions of any
Loan Document) except after compliance with any applicable notice requirements
applicable thereto set forth in accordance with the Financing Order, and (ii) following
the occurrence and during the continuance of an Event of Default, all amounts
received by the Agent on account of the Obligations, from the Obligors and/or
all amounts with respect to the proceeds of any Collateral (including, after
the Agent has given the General Partner notice of the exercise of control, all
amounts in the Cash Collateral Accounts, other than amounts held in the Main
Operating Account subject to the Liens in favor of the Adequate Protection
Parties (as defined in the Financing Order)) shall be (subject to the proviso
below) promptly disbursed by the


 


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Agent as follows, unless otherwise agreed by the Agent
and the Majority Lenders:  (A) first,
to the payment of expenses incurred by the Agent in the performance of its
duties and the enforcement of the rights and remedies of the Agent and the
Lenders under the Loan Documents, including, without limitation, all costs and
expenses of collection, reasonable attorneys’ fees, court costs and other
amounts required to be paid or reimbursed by the Obligors to the Agent or the
Lenders as provided by this Agreement or any of the other Loan Documents; (B) second,
to the Lenders, pro rata in accordance with their respective Pro Rata Shares,
until interest accrued on the Term Loan has been paid in full; (C) third,
to the Lenders, pro rata in accordance with their respective Pro Rata Shares,
until principal of the Term Loan then due and payable (if any) has been paid in
full; (D) fourth, to the Agent, any remaining amount owed to the Agent
pursuant to the terms of this Agreement or any other Loan Document; (E) fifth,
to each Lender, any remaining amount owed to such Lender pursuant to the terms
of this Agreement or any other Loan Document hereof multiplied by a fraction,
the numerator of which is all remaining amounts owed to such Lender hereunder
and thereunder and the denominator of which is the aggregate of all remaining
amounts due all Lenders hereunder and thereunder, until all such remaining
amounts have been paid in full and (F) lastly, to the extent the
non-contingent Obligations have been paid in full, to the Borrowers; provided
that during the existence of an Event of Default (1)  notwithstanding the
existence of such Event of Default or an acceleration of the Obligations, funds
in the Main Operating Account that are not subject to the first priority Agent’s
Lien shall not be transferred out of the Main Operating Account other than for
ordinary course expenditures to protect and preserve the Collateral (including
all documented payroll expenses (including benefits), operating expenses of the
Properties, taxes, insurance premiums, ground rents with respect to the
Properties, and cash management, in each case, in the ordinary course of
business, and the adequate protection payments), (2) funds in any Cash
Collateral Account that are subject to the first priority Agent’s Lien (x) may,
until otherwise directed by Agent, be transferred out of the Cash Collateral
Accounts only for ordinary course expenditures to protect and preserve the
Adequate Protection Properties (as defined in the Financing Order) (including
all documented payroll expenses (including benefits), operating expenses of
such Properties, taxes, insurance premiums, ground rents with respect to such
Properties, and cash management, in each case, in the ordinary course of
business) and (y) at the Agent’s sole discretion and with the consent of
the Majority Lenders, any funds in the Cash Collateral Accounts that are
subject to the first priority Agent’s Lien may instead be applied at the
direction of the Agent and (3) all proceeds received by the Agent and the
Lenders in respect of sales of Collateral subject to a Pre-Petition Lien shall first
be paid to the holder of such Pre-Petition Lien to the extent of its priority
interest in such proceeds.  The order of
priority set forth in this Section 11.2(e) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Agent and the Lenders as among themselves.  The order of priority set forth in this Section 11.2(e) may
at any time and from time to time be changed by the Agent and the Lenders
without necessity of notice to or consent of or approval by any Obligor or any
other Person.


 


(f)        An Event of Default shall
occur as set forth in this Agreement even if an act or circumstance which gives
rise, directly or indirectly, to such Event of Default has been authorized by
the Bankruptcy Court or another court or tribunal with jurisdiction over the
Case.  Neither the Agent nor any Lender
shall have any obligation whatsoever to object to any relief requested by any
Debtor from the Bankruptcy Court or another court or tribunal with


 


79

















 


jurisdiction over the Case if and because such relief
would or may constitute, or would or may lead to, an Event of Default, or the
Agent’s or any Lender’s failure to object to such relief shall not limit the
Events of Default under this Agreement, constitute a waiver or release of
rights and remedies under this Agreement, estop or preclude the Agent or any
Lender from fully enforcing the same, or have any res judicata effect on
whether an Event of Default has occurred under this Agreement.  Each Debtor shall be fully responsible for
determining whether any relief it seeks from the Bankruptcy Court or another
court or tribunal with jurisdiction over the Case would or may constitute, or
would or may lead to, an Event of Default under this Agreement, and
authorization for such relief shall not limit in any manner whatsoever such
Debtor’s obligation to fully comply with all of the terms and conditions of
this Agreement.


 


(g)       Without limiting the
remedies of the Agent and the Lenders hereunder, each Obligor further agrees
that a breach of any of the covenants and agreements of the Obligors contained
in paragraphs (4) of Schedule 3.1-A will cause
irreparable injury to the Agent and the Lenders for which there is no adequate
remedy at law and, as a consequence, agrees that each such covenant and
agreement contained in paragraphs (4) of Schedule 3.1-A
shall be specifically enforceable against such Obligor, and the Agent and the
Lenders shall be entitled to obtain injunctive relief with respect thereto
without any bond or other security being required, and each Obligor hereby
waives and agrees, to the fullest extent permitted by law, not to assert as a
defense against an action for specific performance of such covenants that (i) such
Obligor’s failure to perform such covenants will not cause irreparable injury
to the Agent and the Lenders or (ii) the Agent or the Lenders have an
adequate remedy at law in respect of such breach.


 


ARTICLE
12


 


GUARANTY


 


Section 12.1       Guaranty; Limitation of
Liability.


 


(a)       Each Guarantor, jointly and
severally, hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of each other Obligor now or hereafter existing under or in respect of the Loan
Documents, whether direct or indirect, absolute or contingent, and whether for
principal, interest, premiums, fees, indemnities, contract causes of action, costs,
expenses or otherwise (such Obligations being the “Guaranteed Obligations”),
and agrees to pay any and all reasonable out-of-pocket expenses (including,
without limitation, reasonable out-of-pocket fees and expenses of counsel but
excluding allocated costs of in-house counsel) incurred by the Agent or any
Lender in enforcing any rights under this Guaranty or any other Loan
Document.  Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Obligor to the Agent or any Lender under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Obligor.


 


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(b)       Each Guarantor hereby
unconditionally and irrevocably agrees that in the event any payment shall be
required to be made to the Agent or any Lender under this Guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts
to each other Guarantor so as to maximize the aggregate amount paid to the
Agent and the Lenders under or in respect of the Loan Documents.


 


Section 12.2       Guaranty Absolute.  Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. 
The Obligations of each Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other Obligations of any
other Obligor under or in respect of the Loan Documents, and a separate action
or actions may be brought and prosecuted against each Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against any Borrower or
any other Obligor or whether any Borrower or any other Obligor is joined in any
such action or actions.  The liability of
each Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:


 


(a)       any lack of validity or
enforceability of any Loan Document or any agreement or instrument relating
thereto;


 


(b)       any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations or any other Obligations of any other Obligor under or
in respect of the Loan Documents, or any other amendment or waiver of or any
consent to departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Obligor or otherwise;


 


(c)       any taking, exchange,
release or non-perfection of any Collateral, or any taking, release or
amendment or waiver of, or consent to departure from, any other guaranty, for
all or any of the Guaranteed Obligations;


 


(d)       any manner of application
of Collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any Collateral for
all or any of the Guaranteed Obligations or any other Obligations of any
Obligor under the Loan Documents or any other assets of any Obligor;


 


(e)       any change, restructuring
or termination of the corporate structure or existence of any Obligor;


 


(f)        any failure of the Agent
or any Lender to disclose to any Obligor any information relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Obligor now or hereafter known to such Agent
or such Lender, as the case may be (each Guarantor waiving any duty on the part
of the Agent and the Lenders to disclose such information);


 


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(g)       the failure of any other
Person to execute or deliver this Guaranty or the release or reduction of
liability of any Guarantor or surety with respect to the Guaranteed
Obligations; or


 


(h)       any other circumstance
(including, without limitation, any statute of limitations) or any existence of
or reliance on any representation by the Agent or any Lender that might
otherwise constitute a defense available to, or a discharge of, any Obligor or
any other guarantor or surety, in its capacity as a guarantor or surety.


 


This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Agent or any Lender or any other
Person upon the insolvency, bankruptcy or reorganization of any Borrower or any
other Obligor or otherwise, all as though such payment had not been made.


 


Section 12.3       Waivers and
Acknowledgments.


 


(a)       Each Guarantor hereby
unconditionally and irrevocably waives any right to revoke this Guaranty and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.


 


(b)       Each Guarantor hereby
unconditionally and irrevocably waives (i) any defense arising by reason
of any claim or defense based upon an election of remedies by the Agent or any
Lender that in any manner impairs, reduces, releases or otherwise adversely
affects the subrogation, reimbursement, exoneration, contribution or
indemnification rights of such Guarantor or other rights of such Guarantor to proceed
against any of the other Obligors, any other guarantor or any other Person or
any Collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.


 


(c)       Each Guarantor acknowledges
that the Agent may, to the extent permitted by applicable law, without notice
to or demand upon such Guarantor and without affecting the liability of such
Guarantor under this Guaranty, foreclose under any Loan Document by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery by the Agent
and the Lenders against such Guarantor of any deficiency after such nonjudicial
sale and any defense or benefits that may be afforded by applicable law.


 


(d)       Each Guarantor hereby unconditionally
and irrevocably waives any duty on the part of the Agent or any Lender to
disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any other Obligor or any of its Subsidiaries now or hereafter
known by the Agent or such Lender, as the case may be.


 


(e)       Each Guarantor acknowledges
that it will receive substantial direct and indirect benefits from the
financing arrangements contemplated by the Loan Documents and that the waivers
set forth in Section 12.2 and this Section 12.3 are
knowingly made in contemplation of such benefits.


 


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Section 12.4       Subrogation.  Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other Obligor that arise from the
existence, payment, performance or enforcement of such Guarantor’s Obligations
under or in respect of this Guaranty or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Agent or any Lender against any Borrower or any other Obligor,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from any Borrower or any other Obligor, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or been
terminated.  If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and (b) the
Maturity Date, such amount shall be received and held in trust for the benefit
of the Agent and the Lenders, shall be segregated from other property and funds
of such Guarantor and shall forthwith be paid or delivered to the Agent in the
same form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter
arising.  If (i) any Guarantor shall
make payment to the Agent of all or any part of the Guaranteed Obligations, (ii) all
of the Guaranteed Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash and (iii) the Maturity Date shall
have occurred, the Agent and the Lenders will, at such Guarantor’s request and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.


 


Section 12.5       Guaranty Supplements.  Upon the execution and delivery by any
Subsidiary of a guaranty supplement in substantially the form of Exhibit H
hereto (each, a “Guaranty Supplement”), (a) such Subsidiary shall
be referred to as an “Additional Guarantor,” and shall become and be a
Guarantor hereunder, and each reference in this Guaranty or any other provision
of this Agreement to a “Guarantor” shall also mean and be a reference to
such Additional Guarantor, and each reference in any other Loan Document to a “Guarantor”
shall also mean and be a reference to such Additional Guarantor, and (b) each
reference herein to “this Guaranty,” “this Agreement,” “hereunder,” “hereof” or
words of like import referring to this Guaranty and/or this Agreement, as the
case may be, and each reference in any other Loan Document to the “Guaranty,” “thereunder,”
“thereof” or words of like import referring to this Guaranty, shall mean and be
a reference to this Guaranty and this Agreement as supplemented by such
Guaranty Supplement; provided that in no event shall a Foreign
Subsidiary be obligated to become a Guarantor.


 


Section 12.6       Continuing Guaranty;
Assignments.  This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until
the payment in full in cash of the 


 


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Guaranteed Obligations and all other amounts
payable under this Guaranty and the termination or expiration of all
Commitments, (b) be binding upon each Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Agent
and the Lenders and their respective successors, transferees and assigns.  Without limiting the generality of clause (c) of
the immediately preceding sentence, any Lender may assign or otherwise transfer
all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, any Term
Loan held by it and its rights and remedies with respect to Collateral and the
Obligations) to any Eligible Assignee, and such Eligible Assignee shall
thereupon become vested with all the benefits in respect thereof granted to
such Lender herein or otherwise, in each case as and to the extent provided in Section 13.3.  No Guarantor shall have the right to assign
its rights hereunder or any interest herein or delegate any of its duties,
liabilities or obligations hereunder or under any other Loan Document without
the prior written consent of the Majority Lenders.


 


Section 12.7       Limitation on Guaranty.  Notwithstanding any provision of this
Guaranty to the contrary, it is intended that this Guaranty, and any Liens
granted hereunder by each Guarantor to secure the obligations and liabilities
arising pursuant to this Guaranty, not constitute a “Fraudulent Conveyance” (as
defined below).  Consequently, each
Guarantor agrees that if this Guaranty, or any Liens securing the obligations
and liabilities arising pursuant to this Guaranty, would, but for the
application of this sentence, constitute a Fraudulent Conveyance, this Guaranty
and each such Lien shall be valid and enforceable only to the maximum extent
that would not cause this Guaranty or such Lien to constitute a Fraudulent Conveyance,
and this Guaranty shall automatically be deemed to have been amended
accordingly at all relevant times.  For
purposes hereof, “Fraudulent Conveyance” means a fraudulent conveyance or
fraudulent transfer applicable under Section 548 of the Bankruptcy Code or
any fraudulent conveyance or fraudulent transfer under the provisions of any
applicable fraudulent conveyance or fraudulent transfer law or similar law of
any state, nation or other governmental unit, as in effect from time to time.


 


ARTICLE
13


 


AMENDMENTS;
WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS


 


Section 13.1       No Waivers; Cumulative
Remedies.  No failure by the Agent or
any Lender to exercise any right, remedy, or option under this Agreement, or in
any other agreement between or among any Obligor and the Agent and/or any
Lender, or delay by the Agent or any Lender in exercising the same, will
operate as a waiver thereof.  No waiver
by the Agent or the Lenders on any occasion shall affect or diminish the Agent’s
and each Lender’s rights thereafter to require strict performance by any
Obligor of any provision of this Agreement. 
The Agent’s and each Lender’s rights will be cumulative and not
exclusive of any other right or remedy.


 


Section 13.2       Amendments and Waivers.  No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by any Obligor therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Lenders (or by the Agent at the written
consent of the Majority Lenders) and the Obligors and then any such waiver or
consent shall be effective only in the specific instance and


 


84

















 


for the specific purpose for which given; provided
that no such waiver, amendment, or consent shall, unless in writing and signed
by all the affected Lenders, do any of the following:


 


(a)       increase or extend the
Commitment of any Lender;


 


(b)       postpone or delay any date
fixed by this Agreement or any other Loan Document for any payment of
principal, interest or fees;


 


(c)       reduce the principal of, or
the rate of interest specified herein on, the Term Loan or reduce any fees
payable hereunder or under any other Loan Document;


 


(d)       amend this Section;


 


(e)       release all or substantially
all of the Collateral or all or substantially all of the value of the
Guarantees under Article 12;


 


(f)        change the definition of
Majority Lenders; or


 


(g)       modify Schedule 3.1-A
or Schedule 3.1-B.


 


provided that (i) no amendment, waiver,
or consent shall, unless in writing and signed by the Agent, affect the rights
or remedies or duties of the Agent under this Agreement or any other Loan
Document and (ii) notwithstanding anything to the contrary set forth in
this Section 13.2, the Financing Order may be amended in accordance
with the definition thereof.


 


Section 13.3       Assignments;
Participations.


 


(a)       Any Lender may, with the
written consent of the Agent (which consent shall not be unreasonably
withheld), assign and delegate to one or more Eligible Assignees (each an “Assignee”)
all, or any part of all, of the Term Loan, the Commitments, and the other
rights and obligations of such Lender hereunder; provided that the
Obligors and the Agent may continue to deal solely and directly with such
Lender in connection with the interest so assigned to an Assignee until (x) written
notice of such assignment, together with payment instructions, addresses, and
related information with respect to the Assignee, shall have been given to the
General Partner and the Agent by such Lender and the Assignee; and (y) such
Lender and its Assignee shall have delivered to the Agent an Assignment and
Acceptance in a form reasonably acceptable to the Agent (“Assignment and
Acceptance”) together with any Term Note or Term Notes subject to such
assignment and a recordation fee (payable by such Lender or such Assignee) of
$3,500.


 


(b)       From and after the date
that the Agent notifies the assignor Lender that it has received an executed
Assignment and Acceptance, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender under the Loan Documents (including the obligations
pursuant to Schedule 3.1-A and Schedule 3.1-B), and (ii) the
assignor Lender shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and in the case 


 


85

















 


of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).


 


(c)       By executing and delivering
an Assignment and Acceptance, the assigning Lender thereunder and the Assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows:  (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in connection with this Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency,
or value of this Agreement or any other Loan Document furnished pursuant hereto
or the attachment, perfection, or priority of any Lien granted by any Obligor
to the Agent or any Lender in the Collateral; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of any Obligor or the performance or observance by
any Obligor of any of its obligations under this Agreement or any other Loan
Document furnished pursuant hereto; (iii) such Assignee confirms that it
has received a copy of this Agreement, together with such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such Assignee
will, independently and without reliance upon the Agent, such assigning Lender
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 this Agreement; (v) such Assignee
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers, including the discretionary
rights and incidental power, as are reasonably incidental thereto; and (vi) such
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.


 


(d)       The Agent, acting solely
for this purpose as an agent of the Borrowers, shall maintain at its address
referred to in Section 15.7 a copy of each Assignment and
Acceptance delivered to it and a register (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Term Loan and any stated interest owing to, each
Lender from time to time.  The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Term Loan and any Term Notes
evidencing such Term Loan recorded therein for all purposes of this
Agreement.  Any assignment of any Term
Loan, whether or not evidenced by a Term Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register.  Any assignment of all or part of a Term Loan
evidenced by a Term Note shall be registered on the Register only upon
surrender for registration of assignment of the Term Note evidencing such Term
Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one
or more new Term Notes in the same aggregate principal amount shall be issued
to the assigning Lender and/or the designated Eligible Assignee (as
applicable), and the old Term Notes shall be returned by the Agent to the
Borrowers marked “canceled.”  The
Register shall be available for inspection by the Borrowers or any Lender (with
respect to any entry relating


 


86

















 


to such Lender’s Term Loan) at any reasonable time and
from time to time upon reasonable prior notice. 
The Register shall be treated, solely for purposes of Treasury
Regulation Section 5f.103-1(c) (which relates to whether an
obligation is in registered form for purposes of claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the
Code with respect to payments of “portfolio interest” received by a Non-U.S.
Lender), as being maintained by the Agent as agent for the Borrowers; provided
that the Agent shall have no duty or obligation whatsoever to or for the benefit
of the Borrowers in connection with such matter.


 


(e)       Immediately upon
satisfaction of the requirements of Section 13.3(a) and Section 13.3(d),
this Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the resulting
adjustment of the Commitments arising therefrom.  The Commitment allocated to each Assignee
shall reduce such Commitments of the assigning Lender pro tanto.


 


(f)        Any Lender may at any time
sell to one or more commercial banks, financial institutions, or other Persons
(a “Participant”) participating interests in any Term Loan, the
Commitment of that Lender, and the other interests of that Lender (the “originating
Lender”) hereunder and under the other Loan Documents; provided that
(i) the originating Lender’s obligations under this Agreement shall remain
unchanged (including the obligations pursuant to Schedule 3.1-A and
Schedule 3.1-B), (ii) the originating Lender shall remain solely
responsible for the performance of such obligations, (iii) the Obligors
and the Agent shall continue to deal solely and directly with the originating
Lender in connection with the originating Lender’s rights and obligations under
this Agreement and the other Loan Documents, 
(iv) no Lender shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan
Document,  (v) all amounts payable
by the Obligors hereunder shall be determined as if such Lender had not sold
such participation, and (vi) at any time on or prior to the Maturity Date,
no Disqualified Lender may, without the Borrowers’ prior written consent, be a
Participant unless the maturity of the Term Loan has been accelerated; except
that, if amounts outstanding under this Agreement shall have been declared or
shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
and subject to the same limitation as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement.


 


(g)       In the event that any
Lender sells participations in a Term Loan, such Lender shall, acting solely
for this purpose as an agent of the Borrowers, maintain, or cause to be
maintained, a register, on which it enters the name of all Participants in the
Term Loan held by it and the principal amount (and stated interest thereon) of
the portion of the Term Loan that is the subject of the participation (the “Participant
Register”).  A Term Loan (and the
note, if any, evidencing the same) may be participated in whole or in part only
by registration of such participation on the Participant Register.  Any participation of such Term Loan (and the
note, if any, evidencing the same) may be effected only by the registration of
such participation on the Participant Register. 
The Participant Register shall be available for inspection by the
Borrowers and any Lender at any reasonable time and from time to time upon
reasonable prior


 


87
















 


notice.  The Participant Register shall be treated,
solely for purposes of Treasury Regulation Section 5f.103-1(c) (which
relates to whether an obligation is in registered form for purposes of claiming
exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of “portfolio interest”
received by a Non-U.S. Lender), as being maintained by the applicable Lender as
agent for the Borrowers; provided that such Lender shall have no duty or
obligation whatsoever to or for the benefit of the Borrowers in connection with
such matter.


 


(h)       Notwithstanding any other
provision in this Agreement, any Lender may at any time create a security
interest in, or pledge, all or any portion of its rights under and interest in
this Agreement in favor of any Federal Reserve Bank, in accordance with
Regulation A of the Federal Reserve Board or U.S. Treasury Regulation 31 CFR
§203.14, or any Federal Home Loan Bank, and such Federal Reserve Bank and/or
Federal Home Loan Bank may enforce such pledge or security interest in any
manner permitted under applicable law.


 


ARTICLE
14


 


THE
AGENT


 


Section 14.1       Appointment and
Authorization.  Each Lender hereby
designates and appoints the Agent as its agent under this Agreement and the
other Loan Documents and each Lender hereby irrevocably authorizes the Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.  The Agent agrees to act as such on the
express conditions contained in this Article 14.  The provisions of this Article 14
are solely for the benefit of the Agent and the Lenders and no Obligor shall
have rights as a third party beneficiary of any of the provisions contained
herein other than with respect to Section 14.9, Section 14.10
and Section 14.11. 
Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Agent have or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations, or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. 
Without limiting the generality of the foregoing sentence, the use of
the term “agent” in this Agreement with reference to the Agent is not intended
to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.  Except
as expressly otherwise provided in this Agreement, the Agent shall have and may
use its sole discretion with respect to exercising or refraining from
exercising any discretionary rights or taking or refraining from taking any
actions which the Agent is expressly entitled to take or assert under this
Agreement and the other Loan Documents, including the exercise of rights and
remedies pursuant to Section 11.2, and any action so taken or not
taken shall be deemed consented to by the Lenders.


 


Section 14.2       Delegation of Duties.  The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, sub-agents,
employees, or 


 


88

















 


attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties.  The Agent shall not be responsible for the
negligence or misconduct of any agent, sub-agent, employee, or attorney-in-fact
that it selects as long as such selection was made without gross negligence or
willful misconduct.


 


Section 14.3       Liability of the Agent.  None of the Agent-Related Persons shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (b) be responsible in any manner to any of the Lenders for
any recital, statement, representation, or warranty made by any Obligor or any
Affiliate of any Obligor, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement, or
other document referred to or provided for in, or received by the Agent under
or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability, or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Obligor to
perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books, or records of any
Obligor or any Affiliate of any Obligor.


 


Without limiting the generality of the foregoing, no Agent-Related
Person: (i)  shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Agent is
required to exercise as directed in writing by the Majority Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents);
provided that such Agent-Related Person shall not be required to
take any action that, in its judgment or the judgment of its counsel, may
expose such Person to liability or that is contrary to any Loan Document or
applicable Requirements of Law; and (ii)  shall, except as expressly
set forth herein and in the other Loan Documents, have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to Borrowers or any of their Affiliates that is communicated to or obtained by
the person serving as Agent or any of its Affiliates in any capacity.


 


Section 14.4       Reliance by the Agent.


 


(a)       The Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or
telephone message, statement, or other document or conversation believed by it
to be genuine and correct and to have been signed, sent, or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including,
without limitation, counsel to the Obligors), independent accountants, and
other experts selected by the Agent.  The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.  The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in 


 


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accordance with a request
or consent of the Majority Lenders (or all Lenders if so required by the terms
of this Agreement) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.


 


(b)       For purposes of determining
compliance with the conditions specified in Section 10.1, each
Lender that has executed this Agreement shall be deemed to have consented to,
approved, or accepted or to be satisfied with, each document or other matter
either sent by the Agent to such Lender for consent, approval, acceptance, or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Lender.


 


Section 14.5       Notice of Default.  The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
unless the Agent shall have received written notice from a Lender or an Obligor
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default.”  The Agent will notify the Lenders of its receipt
of any such notice.  The Agent shall take
such action with respect to such Default or Event of Default as may be
requested by the Majority Lenders in accordance with Article 11; provided
that unless and until the Agent has received any such request, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable.


 


Section 14.6       Credit Decision.  Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agent hereinafter taken, including any review of the affairs of
the Obligors and their Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender.  Each Lender represents to the Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition, and creditworthiness of the Obligors
and their Affiliates, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Obligors. 
Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals, and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition, and creditworthiness of the
Obligors.  Except for notices, reports,
and other documents expressly herein required to be furnished to the Lenders by
the Agent, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition, or creditworthiness of the
Obligors which may come into the possession of any of the Agent-Related
Persons.


 


Section 14.7       Indemnification.  WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY ARE CONSUMMATED, THE LENDERS SHALL INDEMNIFY UPON DEMAND THE
AGENT-RELATED PERSONS (TO THE EXTENT NOT REIMBURSED BY OR ON BEHALF OF THE
OBLIGORS AND WITHOUT LIMITING THE OBLIGATION OF THE OBLIGORS TO DO SO), PRO
RATA, FROM AND AGAINST


 


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ANY AND ALL INDEMNIFIED LIABILITIES AS SUCH
TERM IS DEFINED IN SECTION 15.10; PROVIDED THAT NO LENDER
SHALL BE LIABLE FOR THE PAYMENT TO THE AGENT-RELATED PERSONS OF ANY PORTION OF
SUCH INDEMNIFIED LIABILITIES RESULTING SOLELY FROM SUCH PERSON’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. 
WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER SHALL REIMBURSE THE
AGENT UPON DEMAND FOR ITS RATABLE SHARE OF ANY COSTS OR OUT-OF-POCKET EXPENSES
(INCLUDING COSTS AND EXPENSES SET FORTH IN SECTION 15.6) INCURRED
BY THE AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, MODIFICATION, AMENDMENT, OR ENFORCEMENT (WHETHER THROUGH
NEGOTIATIONS, LEGAL PROCEEDINGS, OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT
OF RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT,
OR ANY DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN, TO THE EXTENT THAT THE
AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY OR ON BEHALF OF THE OBLIGORS.  THE UNDERTAKING IN THIS SECTION SHALL
SURVIVE THE PAYMENT OF ALL OBLIGATIONS HEREUNDER AND THE RESIGNATION OR
REPLACEMENT OF THE AGENT.


 


Section 14.8       The Agent in Individual
Capacity.  The Agent and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting, or other business
with the Obligors and their Affiliates as though it were not the Agent
hereunder and without notice to or consent of the Lenders.  The Lenders acknowledge that, pursuant to
such activities, the Agent or its Affiliates may receive information regarding
the Obligors or their Affiliates (including information that may be subject to
confidentiality obligations in favor of the Obligors or such Affiliates) and
acknowledge that the Agent shall be under no obligation to provide such
information to them.  With respect to its
Term Loan, the Agent as a Lender shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it were
not the Agent, and the terms “Lender” and “Lenders” include the Agent in its
individual capacity as a Lender hereunder.


 


Section 14.9       Successor Agent.  The Agent may resign as the Agent upon 30
days notice to the Lenders and the Borrowers, such resignation to be effective,
subject to the next succeeding paragraph of this Section 14.9, upon
the acceptance of a successor agent to its appointment as Agent.  If the Agent resigns under this Agreement,
the Majority Lenders shall, with the consent of the General Partner if the Term
Loan has not been accelerated (which consent may be withheld in it’s sole and
absolute discretion), appoint from among the Lenders a successor agent for the
Lenders.  Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers, and duties of the retiring Agent and the term “Agent”
shall mean such successor agent and the retiring Agent’s appointment, powers,
and duties as the Agent shall be terminated. 
After any retiring Agent’s resignation hereunder as Agent, the
provisions of this Section 14.9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Agent under
this Agreement.


 


If no such successor Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders, appoint a successor Agent


 


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meeting the qualifications set forth above
provided that if the Agent shall notify Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case of any Collateral
held by the Agent on behalf of the Lenders under any of the Loan Documents, the
retiring Agent shall continue to hold such Collateral as nominee until such
time as a successor Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through an
Agent shall instead be made by or to each Lender directly, until such time as
the Majority Lenders appoint a successor Agent as provided for above in this Section 14.9.


 


After the retiring Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article 14 and Section 15.10
shall continue in effect for the benefit of such retiring Agent and its
sub-agents in respect of any actions taken or omitted to be taken by any of
them while the retiring Agent was acting as Agent.


 


Section 14.10     Withholding Tax.


 


(a)       Each of the Lenders and the
Agent shall provide in favor of the Obligors and the Agent the following forms:


 


(i)            Each Non-U.S. Lender
shall deliver to the Borrowers and the Agent either (i) two copies of
either U.S. Internal Revenue Service Form W-8BEN (claiming exemption from,
or a reduction of, U.S. withholding tax under an income tax treaty), Form W-8ECI
(claiming exemption from U.S. withholding tax because the income is effectively
connected with a U.S. trade or business) or Form W-8IMY including any
required statements and Forms W-8BEN and W-8ECI, or any subsequent versions
thereof or successors thereto, as applicable, or (ii) in the case of a
Non-U.S. Lender entitled to an exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to
payments of “portfolio interest,” two copies of Form W-8BEN (certifying
that such Non-U.S. Lender is a beneficial owner of the Term Loan), Form W-8IMY
including any required statements and Forms W-8BEN and W-8ECI or any subsequent
versions thereof or successors thereto, and a certificate satisfactory to the
Agent and the General Partner that such Non-U.S. Lender Party is not (1) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a
“10 percent shareholder” of the General Partner within the meaning of Section 881(c)(3)(B) of
the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code.  Each Form W-8BEN, Form W-8IMY
or Form W-8ECI delivered under this Section 14.10(a) shall
be properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrowers under this Agreement and the other Loan
Documents.  Such forms shall be delivered
by each Non-U.S. Lender prior to the date of the first payment by the Borrower
hereunder made to such Non-U.S. Lender and on or before the date, if any, that
such Non-U.S. Lender designates a New Lending Office.  In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender or as reasonably requested from
time to time by the General Partner or the Agent.  Each 


 


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Non-U.S. Lender shall promptly notify the General
Partner and the Agent at any time it determines that it is no longer in a
position to provide any previously delivered form, statement, or certificate to
the Borrowers or the Agent (or any other form, statement, or form of
certification adopted by the IRS for such purpose).  Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.


 


(ii)           Each U.S. Lender shall
deliver to the Borrowers and the Agent two copies of U.S. Internal Revenue
Service Form W-9, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such U.S. Lender certifying
that such U.S. Lender is entitled to an exemption from United States backup
withholding tax on all payments by the Borrowers under this Agreement and the
other Loan Documents.  Such forms shall
be delivered by each U.S. Lender on or before the date it becomes a party to
this Agreement.  In addition, each U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such U.S. Lender or as reasonably requested
from time to time by the General Partner or the Agent.  Each U.S. Lender shall promptly notify the
General Partner and the Agent at any time it determines that it is no longer in
a position to provide any previously delivered form, statement, or certificate
to the General Partner or the Agent (or any other form, statement, or form of
certification adopted by the U.S. taxing authorities for such purpose).  Solely for purposes of this Section 14.10(a)(ii),
a U.S. Lender shall not include a Lender (or Assignee) that is treated as an
exempt recipient based on the indicators described in Treasury Regulation Section 1.6049-4(c)(1)(ii).


 


(iii)          A Lender that is
entitled to an exemption from or reduction of non-U.S. withholding tax under
the law of the jurisdiction in which the Borrowers is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrowers (with a copy to the Agent), at the
time or times prescribed by applicable law or reasonably requested by the
Borrowers, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or
at a reduced rate, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender’s
reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.


 


(b)       If the IRS or any other
Governmental Authority of the United States or other jurisdiction asserts a
claim that the Agent or the Borrowers did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to
notify the Agent or the Borrowers of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Agent and the Borrowers fully for
all amounts paid, directly or indirectly, by the Agent or the Borrowers as
Taxes or otherwise, including penalties and interest, and including any Taxes
imposed by any jurisdiction on the amounts payable to the Agent under this Section 14.10(b),
together with all costs and expenses (including attorney and accountant costs
related thereto).  


 


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The obligation of the
Lenders under this Section 14.10(b) shall survive the payment
of the Obligations and the resignation or replacement of the Agent and
termination of this Agreement.


 


Section 14.11     Collateral Matters.


 


(a)       The Lenders hereby
irrevocably authorize the Agent, without the further consent of the Lenders, to
release any Agent’s Lien upon any Collateral (i) upon the termination of
the Commitments and payment and satisfaction in full of all Term Loan and all
other Obligations (other than indemnities to which a claim has not been made
and obligations pursuant to Schedule 3.1-A and Schedule 3.1-B
or pursuant to the provisions of the last sentence of Section 15.5);
(ii) constituting property being sold or disposed of in accordance with
this Agreement and with the approval of the Bankruptcy Court (to the extent
required); (iii) constituting property leased to an Obligor under a lease
which has expired or been terminated; or (iv) as required pursuant to any
order of the Bankruptcy Court or as provided in Section 6.1(a).  Except as provided above, the Agent will not
release any of the Agent’s Liens without the prior written authorization of the
Majority Lenders.  Upon request by the
Agent or the General Partner at any time, the Majority Lenders will confirm in
writing the Agent’s authority to release any Agent’s Liens upon particular
types or items of Collateral pursuant to this Section 14.11.  The Lenders hereby irrevocably authorize the
Agent, at the request of the General Partner, to subordinate any Agent’s Lien
to the holder of any Lien described in clauses (b), (d), (f),
(j) (if and to the extent applicable), (m), (o), (p),
(s), (t), and (v) of the definition of Permitted
Liens; in each case to the extent the underlying transaction is not prohibited
hereby.


 


(b)       Upon receipt by the Agent
of any authorization required pursuant to Section 14.11(a) to
release any Agent’s Liens upon particular types or items of Collateral, and
upon at least two Business Days prior written request (or such shorter time
period as the Agent may agree) by the General Partner, the Agent shall (and is
hereby irrevocably authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of the Agent’s Liens upon such Collateral;
provided that (i) the Agent shall not be required to execute any
such document on terms which, in the Agent’s good-faith opinion, would expose
the Agent to liability or create any material obligation or entail any material
adverse consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect,
or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of the Obligors in respect of) all interests
retained by any Obligor, including the proceeds of any sale, all of which shall
continue to constitute part of the Collateral.


 


(c)       The Agent shall have no
obligation whatsoever to any of the Lenders to assure that the Collateral
exists or is owned by any Obligor or is cared for, protected, or insured or has
been encumbered, or that the Agent’s Liens have been properly or sufficiently
or lawfully created, perfected, protected, or enforced or are entitled to any
particular priority, or to exercise at all or in any particular manner or under
any duty of care, disclosure, or fidelity, or to continue exercising, any of
the rights, authorities, and powers granted or available to the Agent pursuant
to any of the Loan Documents, it being understood and agreed that in respect of
the Collateral, or any act, omission, or event related thereto, the Agent may
act in any manner it may deem appropriate, in its sole discretion given the
Agent’s own interest in the Collateral in 


 


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its capacity as one of
the Lenders and that the Agent shall have no other duty or liability whatsoever
to any Lender as to any of the foregoing.


 


Section 14.12     Restrictions on Actions by the Lenders; Sharing
of Payments.


 


(a)       Each Lender hereby waives
any and all rights to set-off against the Obligations, any amounts owing by
such Lender to any Obligor or any accounts unrelated to the Term Loan of any
Obligor now or hereafter maintained with such Lender.  Each of the Lenders further agrees that it
shall not take or cause to be taken any action to enforce its rights under this
Agreement or against any Obligor, including the commencement of any legal or
equitable proceedings, to foreclose any Lien on, or otherwise enforce any
security interest in, any of the Collateral.


 


(b)       If at any time or times any
Lender shall receive (i) by payment, foreclosure, set-off or otherwise,
any proceeds of Collateral or any payments with respect to the Obligations
owing to such Lender arising under, or relating to, this Agreement or the other
Loan Documents, except for any such proceeds or payments received by such
Lender from the Agent pursuant to the terms of this Agreement, or (ii) payments
from the Agent in excess of such Lender’s ratable portion of all such
distributions by the Agent, such Lender shall promptly (A) turn the same
over to the Agent, in kind, and with such endorsements as may be required to
negotiate the same to the Agent, or in same day funds, as applicable, for the
account of all of the Lenders and for application to the Obligations in
accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the
Obligations owed to the other Lenders so that such excess payment received
shall be applied ratably as among the Lenders in accordance with their Pro Rata
Shares; provided that if all or part of such excess payment received by
the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to
such purchasing party, but without interest except to the extent that such
purchasing party is required to pay interest in connection with the recovery of
the excess payment.


 


Section 14.13     Agency for Perfection.  Each Lender hereby appoints each other Lender
as agent for the purpose of perfecting the Lenders’ security interest in assets
which, in accordance with Article 9 of the UCC can be perfected by possession.  Should any Lender (other than the Agent)
obtain possession of any such Collateral, such Lender shall notify the Agent
thereof, and, promptly upon the Agent’s request therefor shall deliver such
Collateral to the Agent or otherwise deal with such Collateral in accordance
with the Agent’s instructions.


 


Section 14.14     Payments by the Agent to
the Lenders.  All payments to be made
by the Agent to the Lenders shall be made by bank wire transfer or internal
transfer of immediately available funds to each Lender pursuant to wire
transfer instructions delivered in writing to the Agent on or prior to the
Closing Date (or if such Lender is an Assignee, on the applicable Assignment
and Acceptance), or pursuant to such other wire transfer instructions as each
party may designate for itself by written notice to the Agent.  Concurrently with each such payment, the
Agent shall identify whether such payment (or any portion thereof) represents
principal, premium, or interest on the Term Loan or otherwise.


 


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Section 14.15     Concerning the
Collateral and the Related Loan Documents.  Each Lender authorizes and directs the Agent
to enter into this Agreement and the other Loan Documents relating to the
Collateral, for the benefit of the Agent and the Lenders.  Each Lender agrees that any action taken by
the Agent or the Majority Lenders, as applicable, in accordance with the terms
of this Agreement or the other Loan Documents relating to the Collateral, and
the exercise by the Agent or the Majority Lenders, as applicable, of their
respective powers set forth therein or herein, together with such other powers
that are reasonably incidental thereto, shall be binding upon all of the
Lenders.


 


Section 14.16     Relation Among
the Lenders.  The Lenders
are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Agent)
authorized to act for, any other Lender.


 


ARTICLE 15


 


MISCELLANEOUS


 


Section 15.1       Cumulative
Remedies.  The
enumeration herein of the Agent’s and each Lender’s rights and remedies is not
intended to be exclusive, and such rights and remedies are in addition to and
not by way of limitation of any other rights or remedies that the Agent and the
Lenders may have under the UCC or other applicable law.  The Agent (at the direction of the Majority
Lenders when the same is required pursuant to the terms hereof) and the
Majority Lenders shall have the right, in their sole discretion, to determine
which rights and remedies within their authorities are to be exercised and in
which order.  The exercise of one right
or remedy shall not preclude the exercise of any others, all of which shall be
cumulative.  The Agent may, and shall
with the consent or at the direction of the Majority Lenders, without
limitation, proceed directly against any Person liable therefor to collect the
Obligations without any prior recourse to the Collateral.  No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy, power,
or privilege hereunder, shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power, or privilege.


 


Section 15.2       Severability.  The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.


 


Section 15.3       Governing Law; Choice of
Forum; Service of Process; Jury Trial Waiver.


 


(a)       EXCEPT TO THE EXTENT GOVERNED BY THE BANKRUPTCY CODE,
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS; PROVIDED
THAT PERFECTION ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY GIVE
EFFECT TO APPLICABLE 


 


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CHOICE OR CONFLICT OF LAW RULES SET FORTH IN
ARTICLE 9 OF THE UCC) OF THE STATE OF NEW YORK; PROVIDED, FURTHER,
THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.


 


(b)       IN THE EVENT THE BANKRUPTCY COURT DOES NOT HAVE OR
REFUSES TO EXERCISE JURISDICTION WITH RESPECT THERETO, ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE AGENT, EACH LENDER, AND EACH OBLIGOR, CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON EXCLUSIVE JURISDICTION OF THOSE
COURTS.  EACH OF THE AGENT, EACH LENDER,
AND EACH OBLIGOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
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 ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.


 


(c)       EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO SUCH PARTY AT
ITS ADDRESS SET FORTH IN SECTION 15.7 AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN SO
DEPOSITED IN THE UNITED STATES MAILS. 
NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE LEGAL PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.


 


Section 15.4       Waiver of Jury
Trial.  EACH OF THE AGENT, EACH
LENDER, AND EACH OBLIGOR WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING, OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT, OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE.  EACH OF THE AGENT, EACH
LENDER, AND EACH OBLIGOR AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. 
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM, OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, 


 


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RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.


 


Section 15.5       Survival.  All of the representations and warranties of
the Obligors contained in this Agreement and the other Loan Documents shall
survive the execution, delivery, and acceptance thereof by the parties,
notwithstanding any investigation by the Agent or the Lenders or their
respective agents, and shall terminate upon the repayment in full of the
Obligations (other than indemnities to which a claim has not been made and
obligations pursuant to Schedule 3.1-A and Schedule 3.1-B).  Solely to the extent related to the
obligations of the parties under Schedule 3.1-A and Schedule
3.1-B, the only terms of this Agreement that will remain in full force and
effect and will survive the termination of the Commitments and the payment and
satisfaction in full of all Term Loans and all other Obligations (other than
indemnities to which a claim has not been made) are as follows:  Schedule 3.1-A and Schedule
3.1-B, Section 3.6, clauses (c)(i), (c)(iii) and
(h) (solely as it relates to the provisions of this Agreement set
forth in this sentence being in full force and effect in accordance with their
terms) of Section 11.1, Section 13.1, the last sentence
of Section 13.2 and Sections 15.2, 15.3, 15.4,
15.6, 15.7, 15.9, 15.10, 15.12, 15.13,
15.14, 15.17, and 15.18.


 


Section 15.6       Fees and Expenses.


 


(a)       Each Obligor agrees to pay to the Agent and each
Lender, on demand, all reasonable and documented out-of-pocket costs and
expenses that the Agent or any Lender pays or incurs in connection with the
negotiation, preparation, consummation, administration, and termination of this
Agreement or any of the other Loan Documents as follows:  (i) all reasonable and documented fees,
expenses, and disbursements of Gibson, Dunn & Crutcher LLP and of any
law firm or other counsel, if any, (not to exceed one such firm or counsel) engaged
by the Agent in connection with the negotiation, preparation and execution of
the Loan Documents, including any such fees, expenses and disbursements of such
law firm or other counsel in connection with the Case; (ii) costs and
expenses (including attorneys’ and paralegals’ fees and disbursements for one counsel
to the Agent and Lenders, taken as a whole, but excluding allocated costs of
in-house counsel) for any amendment, supplement, waiver, consent, or subsequent
closing in connection with the Loan Documents and the transactions contemplated
thereby; (iii) taxes, fees and other charges for recording mortgages with
respect to the Primary Properties, filing financing statements (to the extent
permitted by this Agreement) and continuations, and other actions to perfect,
protect, and continue the Agent’s Liens (including costs and expenses paid or
incurred by the Agent in connection with the consummation of this Agreement); (iv) actual,
out-of-pocket sums paid or incurred during the existence of an Event of Default
to pay any amount or take any action required of any Obligor under the Loan
Documents that such Obligor fails to pay or take (but only to the extent that
the Agent is otherwise permitted to take such action under any Loan Document or
the Financing Order); (v) costs and expenses of any reasonably necessary
actions taken during the existence of an Event of Default aimed at preserving
and protecting the Collateral; and (vi) costs and expenses (including the
cost of appraisals, inspections and verifications of the Collateral and
disbursements for one counsel to the Agent and Lenders, taken as a whole, and,
in the case of a conflict of interest, one additional counsel to the affected
Lenders, taken as a whole, and, to the extent reasonably necessary, one counsel
in each relevant material jurisdiction (not to exceed one per state), but in
each case excluding allocated costs of in house counsel) of the Agent and 


 


98

















 


the Lenders paid or incurred to (and/or in attempting
to) obtain payment of the Obligations, enforce the Agent’s Liens, sell or
otherwise realize upon the Collateral, and otherwise enforce the provisions of
the Loan Documents, or to defend any claims made or threatened against the
Agent or any Lender arising out of the transactions contemplated hereby
(including preparation for and consultations concerning any such matters).  All of the foregoing costs and expenses shall
be part of the Obligations, shall bear interest until paid at the Default Rate
and shall be payable on demand.  No
Obligor shall be responsible for the fees of any financial, restructuring or
similar advisor pursuant to the Loan Documents unless agreed in writing by the
Borrowers.


 


(b)       [Intentionally Omitted.]


 


Section 15.7       Notices.  Except as otherwise provided herein, all
notices, demands, and requests that any party is required or elects to give to
any other shall be in writing, or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including, but not limited to, delivery by overnight
mail and courier service, (b) five (5) days after it shall have been
mailed by United States mail, first class, certified or registered, with
postage prepaid, or (c) in the case of notice by such a telecommunications
device, when properly transmitted (with written confirmation of delivery), in
each case addressed to the party to be notified as follows:


 


if
to the Agent or to any Initial Lender:


 


UBS AG, Stamford Branch

677 Washington Boulevard

Stamford, CT 06901

Telecopy: (203) 719-4176 

Attention: Omar Musule


 


with
a copy to:


 


Gibson,
Dunn & Crutcher LLP


New
York Office:


200
Park Avenue


New
York, New York 10166-1093


Telecopy:
(212) 351-6366


Attention: 
David M. Feldman, Esq.

J. Eric Wise, Esq.


 


if
to any Obligor:


 


General
Growth Properties, Inc.

110 North Wacker Drive

Chicago, Illinois  60068

Telecopy No.:  312-960-5485

Attn:  General Counsel


 


with
a copy to (which shall not constitute notice):


 


99

















 


Weil,
Gotshal & Manges LLP

200 Crescent Court, Suite 300

Dallas, Texas  75201-6950

Telecopy:  214-746-7777

Attention:  Angela L. Fontana, Esq.


 


or
to such other address as each party may designate for itself by like notice,
subject to the provisions of Section 15.15.


 


Section 15.8       Waiver of
Notices.  Unless otherwise expressly
provided herein, each Obligor waives presentment, protest and notice of demand
or dishonor and protest as to any instrument, notice of intent to accelerate
the Obligations, and notice of acceleration of the Obligations, as well as any
and all other notices to which it might otherwise be entitled.  No notice to or demand on any Obligor which
the Agent or any Lender may elect to give shall entitle any Obligor to any or
further notice or demand in the same, similar, or other circumstances.


 


Section 15.9       Binding Effect.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective representatives,
successors, and assigns of the parties hereto; provided that no interest
herein may be assigned by any Obligor without prior written consent of the
Agent and each Lender, except, if applicable, as contemplated by Section 3.1-A
in connection with a debt conversion.


 


Section 15.10     Indemnity of the Agent and
the Lenders by the Obligors.


 


(a)       THE OBLIGORS AGREE TO DEFEND, INDEMNIFY, AND HOLD THE
AGENT-RELATED PERSONS, AND EACH LENDER AND EACH OF ITS RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, COUNSEL, AGENTS, AND ATTORNEYS-IN-FACT (EACH, AN “INDEMNIFIED
PERSON”) HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, CHARGES,
EXPENSES, AND DISBURSEMENTS (INCLUDING REASONABLE OUT-OF-POCKET ATTORNEY COSTS
FOR ALL INDEMNIFIED PERSONS, TAKEN AS A WHOLE BUT EXCLUDING ALLOCATED COSTS OF
IN-HOUSE COUNSEL) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME
(INCLUDING AT ANY TIME FOLLOWING REPAYMENT OF THE TERM LOAN AND THE
TERMINATION, RESIGNATION OR REPLACEMENT OF THE AGENT OR REPLACEMENT OF ANY
LENDER) BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ANY SUCH PERSON IN ANY
WAY RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY LOAN DOCUMENT, OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OR ANY ACTION TAKEN OR OMITTED BY ANY SUCH PERSON
UNDER OR IN CONNECTION WITH ANY OF THE FOREGOING, INCLUDING WITH RESPECT TO ANY
INVESTIGATION, LITIGATION, OR PROCEEDING (INCLUDING ANY INSOLVENCY PROCEEDING
OR APPELLATE PROCEEDING) RELATED TO OR ARISING OUT OF THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT, OR THE TERM LOAN OR THE USE OF THE PROCEEDS THEREOF AND
INCLUDING ANY OF THE FOREGOING ARISING FROM THE ORDINARY, SOLE OR CONTRIBUTORY
NEGLIGENCE OF THE INDEMNIFIED PERSON, WHETHER OR NOT ANY INDEMNIFIED PERSON IS
A PARTY THERETO 


 


100

















 


(ALL THE FOREGOING, COLLECTIVELY, THE “INDEMNIFIED
LIABILITIES”); PROVIDED THAT THE OBLIGORS SHALL HAVE NO OBLIGATION
HEREUNDER TO ANY INDEMNIFIED PERSON WITH RESPECT TO (I) INDEMNIFIED
LIABILITIES RESULTING SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH INDEMNIFIED PERSON OR (II) LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, CHARGES, EXPENSES, AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE
IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ANY SUCH PERSON AFTER THE DATE OF
PAYMENT IN FULL OF THE NON-CONTINGENT OBLIGATIONS.  THE AGREEMENTS IN THIS SECTION SHALL
SURVIVE PAYMENT OF ALL OTHER OBLIGATIONS.


 


(b)       THE OBLIGORS AGREE TO INDEMNIFY, DEFEND, AND HOLD
HARMLESS THE AGENT AND THE LENDERS FROM ANY LOSS OR LIABILITY DIRECTLY OR
INDIRECTLY ARISING OUT OF THE USE, GENERATION, MANUFACTURE, PRODUCTION,
STORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL, OR PRESENCE OF A
CONTAMINANT OR ARISING OUT OF A VIOLATION OF OR LIABILITY UNDER ENVIRONMENTAL
LAWS, IN EACH CASE RELATING TO ANY OBLIGOR’S OPERATIONS, BUSINESS, OR
PROPERTY.  THIS INDEMNITY WILL APPLY
WHETHER THE CONTAMINANT IS ON, UNDER, OR ABOUT ANY OBLIGOR’S PROPERTY OR
OPERATIONS OR PROPERTY LEASED TO ANY OBLIGOR. 
THIS INDEMNITY INCLUDES, BUT IS NOT LIMITED TO, REASONABLE,
OUT-OF-POCKET ATTORNEYS’ FEES (EXCLUDING THE ALLOCATED COST OF IN-HOUSE
COUNSEL).  THIS INDEMNITY EXTENDS TO THE
AGENT AND THE LENDERS, THEIR PARENTS, AFFILIATES, SUBSIDIARIES, AND ALL OF
THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ATTORNEYS, AND
ASSIGNS.  THIS INDEMNITY WILL SURVIVE
REPAYMENT OF ALL OTHER OBLIGATIONS.


 


Section 15.11     Limitation of
Liability.  No claim
may be made by any Obligor, any Lender, or other Person against the Agent, any
Lender, or the Affiliates, directors, officers, officers, employees, or agents
of the Agent or any Lender for any special, indirect, 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 other Loan Document, or any act, omission, or event
occurring in connection therewith, and each of the Obligors and the Lenders
hereby waives, releases, and agrees not to sue upon any claim for such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.


 


Section 15.12     Final Agreement.  This Agreement and the other Loan Documents are
intended by the Obligors, the Agent, and the Lenders to be the final, complete,
and exclusive expression of the agreement between them.  This Agreement supersedes any and all prior
oral or written agreements relating to the subject matter hereof.  Except as otherwise expressly provided
herein, no modification, rescission, waiver, release, or amendment of any
provision of this Agreement and any Schedules or Exhibits hereto that are
amended or supplemented pursuant to the terms hereof or any other Loan Document
shall be made, except by a written agreement signed by the Obligors and a duly
authorized officer of each of the Agent and the requisite 


 


101

















 


Lenders.  THIS WRITTEN AGREEMENT
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.


 


Section 15.13     Counterparts.  This Agreement and the other Loan Documents
may be executed in any number of counterparts, and by the Agent, each Lender,
and the Obligors in separate counterparts, each of which shall be an original,
but all of which shall together constitute one and the same agreement.  Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.


 


Section 15.14     Captions.  The captions contained in this Agreement are
for convenience of reference only, are without substantive meaning and should
not be construed to modify, enlarge, or restrict any provision.


 


Section 15.15     Agency of the
General Partner for the Other Obligors.  Each of the Obligors (other than the General
Partner) irrevocably appoints the General Partner as its representative for all
purposes relevant to this Agreement, including the giving and receipt of notices
and execution and delivery of all documents, instruments, and certificates
contemplated herein and all modifications hereto.  Any acknowledgment, consent, direction,
certification, or other action which might otherwise be valid or effective only
if given or taken by all or any of the Obligors or acting singly, shall be
valid and effective if given or taken only by the General Partner whether or
not any of the other Obligors joins therein, and the Agent and the Lenders
shall have no duty or obligation to make further inquiry with respect to the
authority of the General Partner under this Section 15.15; provided
that nothing in this Section 15.15 shall limit the effectiveness
of, or the right of the Agent and the Lenders to rely upon, any notice,
document, instrument, certificate, acknowledgment, consent, direction,
certification or other action delivered by any Obligor pursuant to this
Agreement.


 


Section 15.16     Patriot Act.  Each Lender and the Agent (for itself and not
on behalf of any Lender) hereby notifies each Obligor that, pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record
information that identifies such Obligor, which information includes the name
and address of such Obligor and other information that will allow such Lender
or the Agent, as applicable, to identify such Obligor in accordance with the
Patriot Act.


 


Section 15.17     Absence of
Fiduciary Relationship; Affiliates; Etc.  The Obligors acknowledge that the Agent, the
Lenders and their respective Affiliates may have economic interests that
conflict with those of the Obligors and their Affiliates.  The obligors agree that each of the Agent,
the Lenders and their respective Affiliates will act in their respective capacities
under the Loan Documents as independent contractors and that nothing in the
Loan Documents will be deemed to create an advisory, fiduciary or agency
relationship or fiduciary or other implied duty between the Agent, the Lenders
and their respective Affiliates, on the one hand, and any Obligor, its owners
or its Affiliates, on the other hand. 
The Obligors acknowledge and agree that (a) the transactions
contemplated by the Loan Documents are arm’s-length commercial 


 


102

















 


transactions between the Agent, the Lenders and their respective
Affiliates, on the one hand, and the Obligors, on the other, (b) in
connection with such transactions each of the Agent, the Lenders and their
respective Affiliates is acting solely as a principal and not the agent or
fiduciary of any Obligor, its management, stockholders, creditors, affiliates
or any other Person, (c) none of the Agent, the Lenders or any of their
respective Affiliates has assumed an advisory or a fiduciary responsibility in
favor of any Obligor or any of its Affiliates with respect to the transactions
contemplated hereby or any other obligation to any Obligor or any of Affiliates
of any Obligor, except the obligations expressly set forth in this Agreement,
and (d) each Obligor has consulted its own legal and financial advisors to
the extent it deemed appropriate.  Each
Obligor further acknowledges and agrees that it is responsible for making its
own independent judgment with respect to such transactions and the process
leading thereto.  Each Obligor agrees
that it will not claim that any of the Agent, the Lenders or their respective
Affiliates has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty, to any Obligor or any Affiliates of an Obligor in
connection with such transactions.  In
addition, each of the Agent, the Lenders and their respective Affiliates may
employ the services of its Affiliates in providing certain services hereunder
and, subject to the agreement of such Affiliate to be bound by Section 6.5,
may exchange with such Affiliates information concerning the Obligors, the
Affiliates of the Obligors and other Persons that may be the subject of this
arrangement, and such Affiliates shall be entitled to the benefits afforded to
the Agent, the Lenders and their respective Affiliates hereunder.  In addition, the Obligors acknowledge that
none of the Agent, the Initial Lenders or their respective Affiliates provides
accounting, tax or legal advice.


 


Section 15.18     Incorporation
of Financing Order by Reference.  Each of the Obligors, the Agent, and the
Lenders agrees that any reference contained herein to the Financing Order shall
include all terms, conditions, and provisions of such Financing Order and that
the Financing Order is incorporated herein for all purposes.  To the extent there is any inconsistency
between the terms of this Agreement and the terms of the Financing Order, the
terms of the Financing Order shall govern.


 


Section 15.19     Right to
Publicize and Advertise. 
Subject to Section 6.5(b) hereof, the Agent and each
Lender may, without consent of any Obligor, publicly disclose and/or advertise
its lending relationship with the Obligors, the identity of the Obligors, the
Commitments, and such other information as is publicly disclosed by any Obligor
through any filing with the Bankruptcy Court or the Securities and Exchange
Commission.


 


Section 15.20     Consent of the
Agent and Lenders.  Except as
otherwise provided herein, whenever the consent of the Agent or any Lender is
required by this Agreement, such consent may be granted or withheld in the sole
discretion of the Agent or such Lender.


 


Section 15.21     Lead Arranger.  Notwithstanding anything herein to the
contrary, the Lead Arranger listed on the cover page hereof shall not have
any powers, duties or responsibilities under this Agreement or any of the other
Loan Documents.


 


Section 15.22     Schedules.  Schedules 8.19-2, 8.20, 8.20-1,
8.21 and  9.8 are not attached hereto but have been
delivered to the Agent who will retain copies thereof and make them available
to any Lender that has elected to be given access to Private Side
Communications 


 


103

















 


(or the designee of any Lender that has agreed to be subject to the
confidentiality provisions of Section 6.5(b)) upon request.


 


104
















 


IN
WITNESS WHEREOF, the parties have entered into this Agreement on the date first
above written.


 


	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  UBS
  AG, STAMFORD BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Irja R. Otsa

  
	
   

  	
   

  	
  Its:

  	
  Irja
  R. Otsa

  
	
   

  	
   

  	
   

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
  Banking
  Products

  
	
   

  	
   

  	
   

  	
  Services
  US

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marie A. Haddad

  
	
   

  	
   

  	
  Its:

  	
  Marie
  A. Haddad

  
	
   

  	
   

  	
   

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
  Banking
  Products

  
	
   

  	
   

  	
   

  	
  Services, US

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
   

  	
  INITIAL
  LENDERS:

  
	
   

  	
   

  
	
  Commitment:
  $196,500,000

  	
  OPEN
  AIR INVESTORS, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:
  Farallon Capital Management, L.L.C.,

  
	
   

  	
  Its
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raj Patel

  
	
   

  	
   

  	
  Name:

  	
  Raj
  Patel

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $103,500,000

  	
  LUXOR
  CAPITAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Norris Nissim

  
	
   

  	
   

  	
  Name:

  	
  Norris
  Nissim

  
	
   

  	
   

  	
  Title:

  	
  General
  Counsel

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $25,000,000

  	
  CANPARTNERS
  INVESTMENTS IV, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mitchell R. Julis

  
	
   

  	
   

  	
  Name:

  	
  Mitchell
  R. Julis

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $25,000,000

  	
  PERRY
  PRINCIPALS INVESTMENTS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lance Kravitz

  
	
   

  	
   

  	
  Name:

  	
  Lance
  Kravitz

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment: $20,000,000

  	
  OAKTREE
  ROF4 FINANCING-GGP, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  OAKTREE
  REAL ESTATE

  
	
   

  	
   

  	
  OPPORTUNITIES
  FUND IV, L.P.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Oaktree Real Estate
  Opportunities

  
	
   

  	
   

  	
   

  	
  Fund IV GP, L.P.,

  
	
   

  	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Oaktree Real Estate

  
	
   

  	
   

  	
   

  	
   

  	
  Opportunities Fund IV GP
  Ltd.,

  
	
   

  	
   

  	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  Oaktree Capital

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Management, L.P.,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  its sole director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ John C. Brady

  
	
   

  	
   

  	
   

  	
  Name: John C. Brady

  
	
   

  	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Cary Kleinman

  
	
   

  	
   

  	
   

  	
  Name: Cary Kleinman

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  
							



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $11,000,000

  	
  WHITEBOX
  COMBINED PARTNERS LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Wood

  
	
   

  	
   

  	
  Name:

  	
  Jonathan
  Wood

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
  Whitebox
  Combined Partners LP

  
	
   

  	
   

  	
     Whitebox
  Combined Advisors LLC

  
	
   

  	
   

  	
         Whitebox
  Advisors LLC

  
	
   

  	
   

  	
             Jonathn
  Wood, Chief Operating Officer/Director

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $6,000,000

  	
  WHITEBOX
  HEDGED HIGH YIELD PARTNERS LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Wood

  
	
   

  	
   

  	
  Name:

  	
  Jonathan
  Wood

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
  Whitebox
  Hedged High Yield Partners LP

  
	
   

  	
   

  	
     Whitebox
  Hedged High Yield Advisors LLC

  
	
   

  	
   

  	
         Whitebox
  Advisors LLC

  
	
   

  	
   

  	
             Jonathan
  Wood, Chief Operating Officer/Director

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $5,000,000

  	
  WHITEBOX
  CONVERTIBLE ARBITRAGE PARTNERS LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Wood

  
	
   

  	
   

  	
  Name:

  	
  Jonathan
  Wood

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
  Whitebox
  Convertible Arbitrage Partners LP

  
	
   

  	
   

  	
     Whitebox
  Convertible Arbitrage Advisors LLC

  
	
   

  	
   

  	
         Whitebox
  Advisors LLC

  
	
   

  	
   

  	
             Jonathan
  Wood, Chief Operating Officer/Director

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $2,000,000

  	
  PANDORA
  SELECT PARTNERS LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Wood

  
	
   

  	
   

  	
  Name:

  	
  Jonathan
  Wood

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Pandora
  Select Partners LP

  
	
   

  	
   

  	
     Pandora
  Select Advisors LLC

  
	
   

  	
   

  	
        Jonathan
  Wood, Chief Operating Officer/Director

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $1,000,000

  	
  WHITEBOX
  SPECIAL OPPORTUNITIES FUND SERIES B 

  PARTNERS LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Wood

  
	
   

  	
   

  	
  Name:

  	
  Jonathan
  Wood

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  	
  Whitebox
  Special Opportunities Fund LP-Series B

  
	
   

  	
   

  	
     Whitebox
  Special Opportunities Advisors LLC

  
	
   

  	
   

  	
         Whitebox
  Advisors LLC

  
	
   

  	
   

  	
             Jonathan
  Wood, Chief Operating Officer/Director

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
  Commitment:
  $5,000,000

  	
  DELAWARE
  STREET CAPITAL MASTER 

  FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  DSC
  Advisors, L.P., its Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Prashant Gupta

  
	
   

  	
   

  	
  Name:

  	
  Prashant
  Gupta

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  



 


[Signature
page to DIP Credit Agreement]


 

















 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL
  GROWTH PROPERTIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas H. Nolan, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  H. Nolan, Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GGP
  LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  General
  Growth Properties, Inc., its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Thomas H. Nolan, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Thomas
  H. Nolan, Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


[Signature
page to DIP Credit Agreement]


 

















 


GUARANTORS:


 


[Signature
page to DIP Credit Agreement]