** **

**Exhibit 10.49**

 

**EXECUTION VERSION**

 

 

 

 

SECOND AMENDED AND RESTATED

 

REVOLVING CREDIT AND TERM LOANAGREEMENT

 

Dated as of December 17,2004

 

among

 

THE MILLS LIMITED PARTNERSHIP,as Borrower

 

THE INSTITUTIONS FROM TIME TOTIMEPARTY HERETO,as Lenders

 

JPMORGAN CHASE BANK, N.A.,as Administrative Agent

 

and

 

BANC OF AMERICA SECURITIES LLCand J.P. MORGAN SECURITIES INC.,as Co-Lead Arrangers and Joint Bookrunners

 

and

 

BANK OF AMERICA, N.A. and

EUROHYPO AG, NEW YORK BRANCH

 

as Co-Syndication Agents

 

and

 

KEYBANK, NATIONAL ASSOCIATIONand

WACHOVIA BANK, NATIONALASSOCIATION,

 

as Co-Documentation Agents

 

 

 

 

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TABLE OF CONTENTS

 
| ARTICLE I. DEFINITIONS                                                         |   |
|-------------------------------------------------------------------------------------|--------|
| 1.1.  Certain Defined Terms                                               |   |
| 1.2.  Computation of Time Periods                                         |   |
| 1.3.  Accounting Terms                                                    |   |
| 1.4.  Other Terms                                                         |   |
|                                                                                |   |
| ARTICLE II. AMOUNTS AND TERMS OF LOANS                                         |   |
| 2.1.  Loans                                                               |   |
| 2.2.  Use of Proceeds of Loans                                            |   |
| 2.3.  Termination, Maturity and  Extensions                               |   |
| 2.4.  Letters of Credit                                                   |   |
| 2.5.  Maximum Credit Facility                                             |   |
| 2.6.  Authorized Agents                                                   |   |
| 2.7.  Negotiated Rate Procedure                                           |   |
| 2.8.  Sharing Event                                                       |   |
| 2.9.  Increase of Revolving Credit  Commitment                            |   |
|                                                                                |   |
| ARTICLE III. PAYMENTS AND PREPAYMENTS                                          |   |
| 3.1.  Prepayments; Reductions in  Revolving Credit Commitments            |   |
| 3.2.  Payments                                                            |   |
| 3.3.  Promise to Repay; Evidence of  Indebtedness                         |   |
| 3.4.  Currency Matters                                                    |   |
|                                                                                |   |
| ARTICLE IV. INTEREST AND FEES                                                  |   |
| 4.1.  Interest on the Loans and other  Obligations                        |   |
| 4.2.  Special Provisions Governing  Eurocurrency Rate Loans               |   |
| 4.3.  Fees                                                                |   |
|                                                                                |   |
| ARTICLE V. CONDITIONS TO LOANS AND ISSUANCE  OF LETTERS OF CREDIT              |   |
| 5.1.  Conditions Precedent to the  Initial Loans and Letters of Credit    |   |
| 5.2.  Conditions Precedent to All  Subsequent Loans and Letters of Credit |   |
|                                                                                |   |
| ARTICLE VI. REPRESENTATIONS AND WARRANTIES                                     |   |
| 6.1.  Representations and Warranties  of the Borrower                     |   |
|                                                                                |   |
| ARTICLE VII. REPORTING COVENANTS                                               |   |
| 7.1.  Borrower  Accounting Practices                                      |   |
| 7.2.  Financial  Reports                                                  |   |
| 7.3.  Events  of Default                                                  |   |
| 7.4.  Lawsuits                                                            |   |
| 7.5.  Insurance                                                           |   |
| 7.6.  ERISA  Notices                                                      |   |
| 7.7.  Environmental  Notices                                              |   |
| 7.8.  Labor  Matters                                                      |   |
| 7.9.  Notices  of Asset Sales and/or Acquisitions                         |   |

 

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| 7.10.  Tenant Notifications                                  |   |
|------------------------------------------------------------------------|--------|
| 7.11.  Other Reports                                         |   |
| 7.12.  Other  Information                                    |   |
| 7.13.  Credit  Rating                                        |   |
|                                                                   |   |
| ARTICLE VIII. AFFIRMATIVE COVENANTS                               |   |
| 8.1.  Existence,  Etc                                        |   |
| 8.2.  Powers;  Conduct of Business                           |   |
| 8.3.  Compliance  with Laws, Etc                             |   |
| 8.4.  Payment  of Taxes and Claims                           |   |
| 8.5.  Insurance                                              |   |
| 8.6.  Inspection  of Property; Books and Records; Discussion |   |
| 8.7.  ERISA  Compliance                                      |   |
| 8.8.  Maintenance  of Property                               |   |
| 8.9.  Company  Status                                        |   |
| 8.10.  Distributions  of Income to the Borrower              |   |
| 8.11.  Variable  Rate Debt                                   |   |
| 8.12.  Property  Management                                  |   |
|                                                                   |   |
| ARTICLE IX. NEGATIVE COVENANTS                                    |   |
| 9.1.  Sales  of Assets                                       |   |
| 9.2.  Liens                                                  |   |
| 9.3.  Conduct  of Business                                   |   |
| 9.4.  Transactions  with Partners and Affiliates             |   |
| 9.5.  Restriction  on Fundamental Changes                    |   |
| 9.6.  Margin  Regulations; Securities Laws                   |   |
| 9.7.  ERISA                                                  |   |
| 9.8.  Organizational  Documents                              |   |
| 9.9.  Fiscal  Year                                           |   |
| 9.10.  Indebtedness                                          |   |
| 9.11.  Investments                                           |   |
| 9.12.  Other  Financial Covenants                            |   |
| 9.13.  Stock  Repurchase                                     |   |
| 9.14.  Negative  Pledge Clauses                              |   |
| 9.15.  Restriction  on Prepayment of Indebtedness            |   |
|                                                                   |   |
| ARTICLE X. EVENTS OF DEFAULT; RIGHTS AND  REMEDIES                |   |
| 10.1.  Events  of Default                                    |   |
| 10.2.  Rights  and Remedies                                  |   |
|                                                                   |   |
| ARTICLE XI. THE AGENT                                             |   |
| 11.1.  Appointment                                           |   |
| 11.2.  Nature  of Duties                                     |   |
| 11.3.  Right  to Request Instructions                        |   |
| 11.4.  Reliance                                              |   |
| 11.5.  Indemnification                                       |   |
| 11.6.  Administrative  Agent Individually                    |   |

 

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| 11.7.  Successor Administrative Agent                         |   |
|-------------------------------------------------------------------------|--------|
| 11.8.  Relations  Among the Lenders                           |   |
| 11.9.  Notices                                                |   |
| 11.10.  No Representations                                    |   |
| 11.11.  Co-Agents                                             |   |
|                                                                    |   |
| ARTICLE XII. YIELD PROTECTION                                      |   |
| 12.1.  Taxes                                                  |   |
| 12.2.  Increased  Capital                                     |   |
| 12.3.  Change  in Legal Restrictions                          |   |
|                                                                    |   |
| ARTICLE XIII. MISCELLANEOUS                                        |   |
| 13.1.  Assignments                                            |   |
| 13.2.  Expenses                                               |   |
| 13.3.  Indemnity                                              |   |
| 13.4.  Change  in Accounting Principles                       |   |
| 13.5.  Setoff                                                 |   |
| 13.6.  Ratable  Sharing                                       |   |
| 13.7.  Amendments  and Waivers                                |   |
| 13.8.  Notices                                                |   |
| 13.9.  Survival  of Warranties and Agreements                 |   |
| 13.10.  Failure or Indulgence Not Waiver; Remedies Cumulative |   |
| 13.11.  Marshaling;  Payments Set Aside                       |   |
| 13.12.  Severability                                          |   |
| 13.13.  Headings                                              |   |
| 13.14.  Governing  Law                                        |   |
| 13.15.  Limitation  of Liability                              |   |
| 13.16.  Successors  and Assigns                               |   |
| 13.17.  Certain  Consents and Waivers                         |   |
| 13.18.  Counterparts; Effectiveness; Inconsistencies          |   |
| 13.19.  Limitation  on Agreements                             |   |
| 13.20.  Confidentiality                                       |   |
| 13.21.  Disclaimers                                           |   |
| 13.22.  Entire  Agreement                                     |   |
| 13.23.  Replacement  Notes                                    |   |
| 13.24.  USA  Patriot Act                                      |   |
| 13.25.  Transitional Arrangements                             |   |

 

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**LIST OF EXHIBITS ANDSCHEDULES**

 
| Exhibit A       | — | Form of Assignment and Acceptance                                   |
|----------------------|--------|--------------------------------------------------------------------------|
| Exhibit B-1     | — | Form of Revolving Credit Note                                       |
| Exhibit B-2     | — | Form of Term Loan Note                                              |
| Exhibit C       | — | Form of Notice of Borrowing                                         |
| Exhibit D       | — | Form of Notice of  Conversion/Continuation                          |
| Exhibit E       | — | Form of Letter of Credit Request                                    |
| Exhibit F       | — | Form of Negotiated Rate Quote Request                               |
| Exhibit G       | — | Form of Negotiated Rate Quote                                       |
| Exhibit H       | — | Form of Second Amended and Restated  Guaranty                       |
| Exhibit I       | — | Form of Designated Bank Note                                        |
| Exhibit J       | — | Form of Designation Agreement                                       |
|                 |   |                                                                     |
|                 |   |                                                                     |
| Schedule 1.1-A  | — | Revolving Credit Commitments, Term Loan  Commitments and Pro Rata Shares |
| Schedule 1.1-B  | — | CVS Portfolio                                                            |
| Schedule 1.1-C  | — | Regional Mall Assets                                                     |
| Schedule 2.4    | — | Outstanding Letters of Credit                                            |
| Schedule 5.1(a) | — | List of Closing Documents                                                |
| Schedule 6.1-C  | — | Structure                                                                |
| Schedule 6.1-H  | — | Indebtedness for Borrowed Money                                          |
| Schedule 6.1-I  | — | Pending Actions                                                          |
| Schedule 6.1-P  | — | Environmental Matters                                                    |
| Schedule 6.1-Q  | — | ERISA Matters                                                            |
| Schedule 6.1-T  | — | Insurance Policies                                                       |
| Schedule 7.2    | — | Sample Calculation of Financial Covenants                                |

 

 

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**SECOND AMENDED ANDRESTATED**

**REVOLVING CREDIT AND TERMLOAN AGREEMENT**

 

**THIS SECOND AMENDED AND RESTATED REVOLVING CREDITAND TERM LOAN AGREEMENT**, dated as of December 17, 2004 (as amended, supplemented ormodified from time to time, the “Agreement”), is entered into among THEMILLS LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”),the institutions from time to time parties hereto as Lenders (as definedherein), whether by execution of this Agreement or an Assignment andAcceptance, and JP MORGAN CHASE BANK, N.A. (formerly known as JPMorgan ChaseBank) (“JPMCB”), as the administrative agent (the “AdministrativeAgent”).

 

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

 

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

 

**WHEREAS**, the Borrower, JPMCB and the Lenders party heretohave agreed to enter into this Agreement to amend and restate each of theExisting Revolving Agreement and the Original Term Loan Agreement in itsentirety as set forth herein;

 

**NOW**, **THEREFORE**, inconsideration of the foregoing and for good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretoagree to amend and restate the Existing Revolving Agreement and the OriginalTerm Loan Agreement as follows:

 

# **ARTICLE I.DEFINITIONS**

# ** **

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

 

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

 

“Acquisition Asset Under Redevelopment” meansany Property that, except for being an Acquisition Asset, otherwise satisfiesthe requirements of a Redevelopment Asset.

 

“Acquisition Assets at Cost” means, withrespect to any Acquisition Asset, the (i) lower of cost or market price ofsuch Acquisition Asset, in accordance with GAAP, plus (ii) thetransaction costs associated with the acquisition of such Acquisition Asset plus(iii), without duplication, the aggregate sum expended on construction ofimprovements after the initial acquisition, including the costs of anysubsequent land acquisitions relating to such Acquisition Asset; providedthat, for the purposes of making any calculation under this Agreement, “AcquisitionAssets at Cost” of Acquisition Assets held by Minority Holdings that are notConsolidated in accordance with GAAP (such as those held in a joint

 

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

 

“Act” is defined in Section 13.24.

 

“Adjusted Combined EBITDA” means an amountequal to (i) Combined EBITDA for any period, minus (ii) to theextent included in Combined EBITDA, Recurring Land Sales of the Borrower andits wholly owned subsidiaries for the****same period asCombined EBITDA is measured, minus (iii) to the extent included inCombined EBITDA, the portion of Recurring Land Sales of Minority Holdingsallocable to the Borrower for the same period as Combined EBITDA is measured, minus(iv) to the extent included in Combined EBITDA, Service Revenues of theBorrower and its wholly owned subsidiaries for the same period as Combined EBITDAis measured, minus (v) to the extent included in Combined EBITDA,the portion of Service Revenues of Minority Holdings allocable to the Borrowerfor the same period as Combined EBITDA is measured, plus (vi) tothe extent any debt is actually outstanding under a construction loan made to aMinority Holding which is guaranteed by Borrower, the EBITDA or total revenuesless total expenses for the same period as Combined EBITDA is measured, asapplicable, allocable to non-Investment Grade rated partners or members withBorrower in such Minority Holdings, from such time as any of such debt shall beoutstanding until such time as the guaranty of payment has been reduced to thepercentage of such loan equal to the percentage ownership of the Borrower insuch Minority Holding.

 

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

 

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

 

“Affiliate”, as applied to any Person, meansany other Person that directly or indirectly controls, is controlled by, or isunder common control with, that Person. For purposes of this definition, “control” (including, with correlativemeanings, the terms “controlling”, “controlled by” and “under common control with”),as applied to any Person, means the possession, directly or indirectly, of thepower to vote fifteen percent (15.0%) or more of the equity Securities havingvoting power for the election of directors of such Person or otherwise todirect or cause the direction of the management and policies of that Person,whether through the ownership of voting equity Securities or by contract orotherwise; provided, however, notwithstanding any of theaforementioned, KanAm shall not be considered an “Affiliate” of the Borrower orTMC.

 

“Agreement” is defined in the preamble.

 

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

 

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

 

6

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depreciation,amortization and other non-cash charges as determined in accordance with GAAPand shall be adjusted for non-recurring items such as sales of Properties orsales of Minority Holdings (but allowing for Recurring Land Sales, subject tothe limitations described in the definition of Combined EBITDA)); provided,that (a) in the case of (x) an Acquisition Asset (other than anAcquisition Asset Under Redevelopment) owned by the Borrower, a ConsolidatedBusiness or a Minority Holding for a period of less than the immediatelypreceding consecutive four (4) fiscal quarters or (y) a Property that hasbeen open for business for a period of less than the immediately precedingconsecutive four (4) fiscal quarters following such asset ceasing to be aConstruction Asset or Redevelopment Asset, Annual EBITDA shall be calculated onthe basis set forth above, but determined by annualizing the results ofoperations from the immediately preceding consecutive one, two or three fiscalquarters, as applicable, with respect to the length of such ownership (in thecase of an Acquisition Asset (other than an Acquisition Asset UnderRedevelopment)) or the time the project has been operating since ceasing to bea Construction Asset or a Redevelopment Asset, as applicable and (b) inthe case of any Property that is a Redevelopment Asset or an Acquisition AssetUnder Redevelopment, the Annual EBITDA for such Property shall be equal to thelesser of (x) Annual EBITDA determined as set forth above for the period offour (4) consecutive fiscal quarters ending immediately prior theRedevelopment Commencement Date (or, in the case of a Property owned for aperiod of less than the immediately preceding consecutive four (4) fiscalquarters prior to the Redevelopment Commencement Date, by annualizing theresults of operations from the immediately preceding consecutive one, two, orthree fiscal quarters, as applicable, with respect to the length of suchownership prior to the Redevelopment Commencement Date) and (y) 85% of thepro-forma, projected Annual EBITDA of such Redevelopment Asset or AcquisitionAsset Under Redevelopment for the period of four (4) consecutive fiscalquarters ending after such Property ceases to be a Redevelopment Asset orAcquisition Asset Under Redevelopment; providedfurther, that foreach (a) Acquisition Asset which has been owned by the Borrower, aConsolidated Business or a Minority Holding for a period of less than one (1) fullfiscal quarter and (b) Property that has been open for business for aperiod of less than one (1) full fiscal quarter after ceasing to be aConstruction Asset or Redevelopment Asset, no amount shall be included in  calculating “Annual EBITDA”.  Annual EBITDA shall not include revenues orexpenses attributable to the CVS Portfolio.

 

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

 

“Applicable Margin” means, with respect to eachLoan other than a Negotiated Rate Loan, the respective percentages per annumdetermined at any time based on the range into which the Leverage Ratio, asevidenced by the most recent Compliance Certificate delivered pursuant to Section 5.1or Section 7.2, as applicable, then falls, in accordance with thefollowing table.  Any change in the ApplicableMargin shall be effective on the first Business Day after the receipt byAdministrative Agent of the Compliance Certificate required to be delivered toAdministrative Agent pursuant to Section 7.2; provided thatif a Compliance Certificate required in Section 7.2 hereof has notbeen delivered by the date such certificates are required to be delivered toAdministrative Agent, then from the date the applicable information is requireduntil the date the applicable information has been duly delivered, the greatestApplicable Margin set forth below shall be deemed to apply.

 
| **Leverage Ratio**    | ** ** | **Applicable Margin for  Eurocurrency Rate Loans  (% per annum)** | ** ** | **Applicable Margin for  Base Rate Loans  (% per annum)** | ** ** |
|-----------------------|------------|-------------------------------------------------------------------|------------|-----------------------------------------------------------|------------|
| ** **            | ** ** | ** **                                                        | ** ** | ** **                                                | ** ** |
| less than  50%        |       | 0.950%                                                            |       | 0.000%                                                    |       |
|                  |       |                                                              |       |                                                      |       |
| 50% to less  than 55% |       | 1.025%                                                            |       | 0.000%                                                    |       |
|                  |       |                                                              |       |                                                      |       |
| 55% to less  than 60% |       | 1.175%                                                            |       | 0.150%                                                    |       |
|                  |       |                                                              |       |                                                      |       |
| 60% or  greater       |       | 1.450%                                                            |       | 0.450%                                                    |       |

 

7

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Borrower” is defined in the preamble.

 

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

 

8

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

 

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

 

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

 

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

 

“Capital Lease” means any lease of any property(whether real, personal or mixed) by a Person as lessee which, in conformitywith GAAP, is accounted for as a capital lease on the balance sheet of thatPerson.

 

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

 

“Capitalization Value” means, as of any date ofdetermination, the sum, without duplication, of (i) the Adjusted CombinedEBITDA (excluding the Regional Mall Assets, Acquisition Assets, ConstructionAssets, Other Assets and Redevelopment Assets) for the immediately precedingconsecutive four (4) fiscal quarters divided by 8.25%, (ii) ServiceRevenues for such period divided by 15.00%, (iii) Cash and CashEquivalents of the Borrower and its Subsidiaries (including the Borrower’s prorata share of the Minority Holdings’ Cash and Cash Equivalents), (iv) OtherAssets at Cost, (v) the Adjusted Combined EBITDA of the Regional MallAssets for the immediately preceding consecutive four (4) fiscal quartersdivided by 8.0%, (vi) Acquisition Assets at Cost, including AcquisitionAssets Under Redevelopment and (vii) for each Redevelopment Asset, the sumof (I) the Adjusted Combined EBITDA of such Redevelopment Asset for the periodof four (4) consecutive fiscal quarters ending immediately

 

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prior to theRedevelopment Commencement Date divided by 8.00% (if a Regional Mall Asset) or8.25% (if a Property other than a Regional Mall Asset) (“RedevelopmentEBITDA”) plus (II) the Redevelopment Cost of such Redevelopment Asset fromand after the Redevelopment Commencement Date; provided, however,that for purposes of calculating Capitalization Value, (A) the value ofOther Assets at Cost and Redevelopment Costs shall be included only to theextent that the aggregate amount thereof included in the sum of clauses (i),(ii), (iii), (iv), (v), (vi) and (vii), (1) with respect to the valueof all Other Assets at Cost and Redevelopment Costs, does not exceedtwenty-five percent (25%) of such sum, (2) with respect to the value ofConstruction Assets at Cost and Redevelopment Costs, does not exceed twenty-twoand one-half percent (22.5%) of such sum, and (3) with respect to thevalue of Other Assets at Cost (not including Construction Assets at Cost), doesnot exceed five percent (5%) of such sum; and (B) the sum of theRedevelopment EBITDA plus the Redevelopment Cost for any Redevelopment Assetshall be limited to 85% of its pro-forma, projected Capitalization Value aftercompletion of redevelopment improvements.

 

“Cash and Cash Equivalents” means (i) unrestrictedcash, (ii) Securities issued or directly or fully guaranteed or insured bythe United States of America or any agency or instrumentality thereof (provided,that the full faith and credit of the United States of America is pledged insupport thereof); and (iii) unrestricted domestic and LIBOR certificatesof deposit and time deposits, bankers’ acceptances and floating ratecertificates of deposit issued by any commercial bank organized under the lawsof the United States, any state thereof, the District of Columbia, any foreignbank, or its branches or agencies (fully protected against currencyfluctuations), which, at the time of acquisition, are rated A-1 (orbetter) by S&P or P-1 (or better) by Moody’s (any such bank an “ApprovedBank”), maturing within one year from the date of acquisition, (iv) commercialpaper issued by any Approved Bank or by the parent company of any Approved Bankand commercial paper issued by, or guaranteed by, any industrial or financialcompany with a short-term commercial paper rating of at least A-1 or theequivalent thereof by S&P or at least P-1 or the equivalent thereofby Moody’s, or guaranteed by any industrial company with a long term unsecureddebt rating of at least A or A2, or the equivalent of each thereof, fromS&P or Moody’s, as the case may be, and in each case maturing within oneyear after the date of acquisition, (v) marketable direct obligationsissued by the District of Columbia or any state of the United States of Americaor any political subdivision of any such state or any public instrumentalitythereof maturing within one year from the date of acquisition thereof and, atthe time of acquisition, having one of the two highest ratings obtainable fromeither S&P or Moody’s and (vi) investments in money market fundssubstantially all the assets of which are comprised of securities of the anytype described in any one or more of clauses (i) through (vi) above,but without regard to the maturity date of the underlying assets of any suchmoney market fund.

 

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

 

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

 

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

 

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

 

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

 

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

 

(d)                                 during any twelve-month period on orafter the Closing Date, individuals who at the beginning of such periodconstituted the Board of Directors of TMC (together with any new directorswhose election by the Board of Directors or whose nomination for election bythe shareholders of TMC was approved by a vote of at least a majority of themembers of the Board of Directors then in office who either were members of theBoard of Directors at the beginning of such period or whose election ornomination for election was previously so approved) ceased for any reason toconstitute a majority of the members of the Board of Directors of TMC then inoffice.

 

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

 

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

 

“Closing Date” means December 17, 2004.

 

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

 

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

 

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

 

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

 

“Combined Interest Expense” means, for anyperiod, the sum of (i) interest expense of the Consolidated Businessespaid or accrued in accordance with GAAP during such period and (ii) theportion of the interest expense of Minority Holdings allocable to the Borrowerpaid or accrued in accordance with GAAP during such period, in each caseexcluding extraordinary interest expense and prepayment fees, premiums orpenalties and net of amortization of deferred costs associated with new

 

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financings orrefinancings of existing Indebtedness; provided, that (a) withrespect to Properties that are included in the calculation of Annual EBITDApursuant to clauses (a) and (b) of the first proviso of thedefinition thereof, the interest expense with respect thereto (incurred inconnection with any Loans made in connection with the acquisition and/orconstruction of such Property or in connection with any mortgage loans enteredinto or assumed in connection therewith) shall be the interest expense paid oraccrued in accordance with GAAP during the same period over which results ofoperations are measured (and annualized, if applicable) to determine AnnualEBITDA of such Property, and (b) with respect to Properties that are notincluded in the calculation of Annual EBITDA, the interest expense with respectthereto (incurred in connection with any Loans made in connection with theacquisition and/or construction of such Property or in connection with anymortgage loans entered into or assumed in connection therewith) shall beexcluded; provided further that Combined Interest Expense shall notinclude any dividends payable by Borrower or TMC on the Series A PreferredInterests prior to the sale, waiver, release, termination or other cancellationby the holders of the Series A Preferred Interests of their option toconvert the Series A Preferred Interests to common equity of TMC orBorrower.

 

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

 

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

 

“Consolidated” means consolidated in accordancewith GAAP.

 

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

 

“Construction Assets” means (i) anyProperty which is raw land, vacant out-parcels, or Property on whichconstruction of material improvements has commenced and is continuing to beperformed (such commencement evidenced by foundation excavation) but has notyet been (a) completed (as evidenced by a certificate of occupancypermitting use of such Property by the general public) and (b) opened forbusiness for one (1) full fiscal quarter, and (ii) any othernon-income producing real estate investment, but excluding any RedevelopmentAssets or Acquisition Assets.

 

“Construction Assets at Cost” means, withrespect to all Construction Assets, the aggregate sums expended on theconstruction of such improvements including land acquisition costs; providedthat, for purposes of making any calculation under this Agreement, “ConstructionAssets at Cost” of Construction Assets held by Minority Holdings that are notConsolidated in accordance with GAAP (such as those held in a joint ventureformat) will be equal to (without duplication) the sum of (a) the Borrower’scontributed equity, (b) the Borrower’s pro-rata share of debt from itemsthat are not Consolidated in accordance with GAAP, (c) the Borrower’sContingent Obligations related to items that are not Consolidated in accordancewith GAAP, to the extent not redundant with (b), plus (d) any(non-Borrower) co-venturer’s equity in such items that are not Consolidated inaccordance with GAAP to the extent that such co-venturer’s share of debt wasincluded in the calculation of the Borrower’s Total Adjusted OutstandingIndebtedness.

 

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

 

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with a tire or batteryretail store provided the same are stored, sold and used in accordance with allEnvironmental, Health or Safety Requirements of Law.

 

“Contingent Obligations” means as to any Person(the “guaranteeing person”), without duplication, (i) the amount ofany contingent obligation of such Person required to be shown on such Person’sbalance sheet in accordance with GAAP, and (ii) the amount of anyobligation required to be disclosed in the footnotes to such Person’s financialstatements in accordance with GAAP, which obligation guarantees or in effectguarantees any Indebtedness, leases, dividends or other obligations (the “primaryobligations”) of any other Person (the “primary obligor”) in anymanner, whether directly or indirectly, including, without limitation, any obligationof the guaranteeing person, whether or not contingent, (a)  to purchaseany such primary obligation or any property constituting direct or indirectsecurity therefor, (b) to advance or supply funds (1) for thepurchase or payment of any such primary obligation or (2) to maintaincapital or equity capital of the primary obligor or otherwise to maintain thenet worth or solvency of the primary obligor, (c) to purchase property,securities or services primarily for the purpose of assuring the owner of anysuch primary obligation of the ability of the primary obligor to make paymentof such primary obligation, (d) to reimburse, indemnify or otherwiseprotect any other person for any advance of funds, issuance of a letter ofcredit or undertaking of other obligations by such person for the benefit ofthe primary obligor, or (e) otherwise to assure or hold harmless the ownerof any such primary obligation against loss in respect thereof; provided,however, that the term Contingent Obligation shall not include(x) endorsements of instruments for deposit or collection in the ordinarycourse of business, or (y) guarantees or indemnification given to a lenderin connection with any non-recourse Indebtedness of Borrower, its Subsidiariesor Minority Holdings, with respect to claims that (A) are based on fraud,intentional misrepresentation, misapplication of funds, gross negligence orwillful misconduct, (B) result from intentional mismanagement of or wasteat such Real Property securing such non-recourse Indebtedness, (C) arisefrom the presence of any Contaminant on such Real Property securing suchnon-recourse Indebtedness, (D) are the result of any unpaid real estatetaxes and assessments relating to the Real Property securing such non-recourseIndebtedness, (E) arise as a result of a voluntary bankruptcy filing, or (F) arebased on any usual and customary exclusions for non-recourse limitationsgoverning any non-recourse Indebtedness of Borrower, its Subsidiaries andMinority Holdings, in each case, until such claim is made with respect thereto,and then only to the extent of the amount of such claim.  Notwithstanding anything contained herein tothe contrary, guarantees of completion shall not be deemed to be ContingentObligations unless and until a claim for payment has been made thereunder, atwhich time any such guaranty of completion shall be deemed to be a ContingentObligation in an amount equal to any such claim.  Subject to the above provisions, in the caseof a joint and several guaranty given by such Person and another Person (butonly to the extent such guaranty is not non-recourse debt, directly orindirectly to the applicable guarantor), the amount of the guaranty shall bedeemed to be 100% thereof; provided that (i) so long as such otherPerson holds an Investment Grade Credit Rating, the amount of such Person’sguaranty to be included in Contingent Obligations shall be reduced by an amountequal to the Contingent Obligation Amount, or (ii) in the event such otherPerson does not hold an Investment Grade Credit Rating, the amount of suchPerson’s guaranty to be included as Contingent Obligations may be reduced by anamount based on the creditworthiness of such other Person, as such amount isapproved by the Requisite Lenders.

 

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

 

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

 

“Contractual Obligation”, as applied to anyPerson, means any provision of any Securities issued by that Person or anyindenture, mortgage, deed of trust, security agreement, pledge agreement,guaranty, contract, undertaking, agreement or instrument to which that Personis a party or by which it or any of its properties is bound, or to which it orany of its properties is subject.

 

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

 

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

 

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

 

“Customary Permitted Liens” means

 

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

 

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

 

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

 

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

 

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materially interfere withthe ordinary conduct of the business of the Borrower or any of itsSubsidiaries, and do not secure the payment of borrowed money, or materiallyaffect the value thereof or, taken together, to the extent they would not belikely to result in a Material Adverse Effect;

 

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

 

(vi)                              Federal, state, local or foreign taxLiens filed against the Borrower or TMC which are discharged of record, bondedover or otherwise secured to the satisfaction of the Administrative Agentwithin thirty (30) days after the later of the filing thereof or the date uponwhich the Borrower****receivesactual knowledge of the filing thereof, the aggregate of which at any time equalsless than $30,000,000; and

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Dollars” and “$” mean the lawful moneyof the United States.

 

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

 

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

 

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

 

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

 

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

 

“Environmental Property Transfer Act” means anyapplicable Requirement of Law that conditions, restricts, prohibits or requiresany notification or disclosure triggered by the transfer, sale, lease orclosure of any Property or deed or title for any Property for environmentalreasons, including, but not limited to, any so-called “Environmental CleanupResponsibility Act” or “Responsible Property Transfer Act”.

 

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

 

“ERISA” means the Employee Retirement IncomeSecurity Act of 1974, 29 U.S.C. §§ 1000 etseq., anyamendments thereto, any successor statutes, and any regulations or guidancehaving the force of law promulgated thereunder.

 

“ERISA Affiliate” means (i) anycorporation which is a member of the same controlled group of corporations(within the meaning of Section 414(b) of the Internal Revenue Code)as the Borrower; (ii) a partnership or other trade or business (whether ornot incorporated) which is under common control (within the meaning of Section 414(c) ofthe Internal Revenue Code) with the Borrower; and (iii) a member of thesame affiliated service group (within the meaning of Section 414(m) of theInternal Revenue Code) as the Borrower, any corporation described in clause (i) aboveor any partnership or trade or business described in clause (ii) above.

 

“ERISA Termination Event” means (i) aReportable Event with respect to any Benefit Plan; (ii) the withdrawal ofthe Borrower or any ERISA Affiliate from a Benefit Plan during a plan year inwhich the Borrower or such ERISA Affiliate was a “substantial employer” asdefined in Section 4001(a)(2) of ERISA or the cessation of operationswhich results in the termination of employment of 20% of Benefit Planparticipants who are employees of the Borrower or TMC or any ERISA Affiliate; (iii) theimposition of an obligation on the Borrower or TMC or any ERISA Affiliate underSection 4041 of ERISA to provide affected parties written notice of intentto terminate a Benefit Plan in a distress termination

 

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

 

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

 

“Euro” or “€” means the euro referred toin the Council Regulation (EC) No. 1103/97 dated 17 June 1997 passedby the Council of the European Union, or, if different, the then lawfulcurrency of the member states of the European Union that participate in thethird stage of the Economic and Monetary Union.

 

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

 

“Eurocurrency Interbank Market” means anylawful recognized market in which deposits of Dollars and the relevant OptionalCurrency are offered by international banking units of United States bankinginstitutions and by foreign banking institutions to each other and in whichforeign currency and exchange operations or eurocurrency funding operations arecustomarily conducted.

 

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

 

“Eurocurrency Negotiated Rate Loan” means aNegotiated Rate Loan bearing interest calculated by reference to theEurocurrency Rate.

 

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

 

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

 

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“Eurocurrency Revolving Credit Loan” means aRevolving Credit Loan bearing interest calculated by reference to theEurocurrency Rate.

 

“Eurocurrency Term Loan” means a Term Loan (orportion thereof) bearing interest calculated by reference to the EurocurrencyRate.

 

“Event of Default” means any of the occurrencesset forth in Section 10.1 after the expiration of any applicablegrace period and the giving of any applicable notice, in each case as expresslyprovided in Section 10.1.

 

“Existing Revolving Agreement” is defined inthe recitals.

 

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

 

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

 

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

 
| **Leverage Ratio**    | ** ** | **Facility Fee Rate  (% per annum)** | ** ** |
|-----------------------|------------|--------------------------------------|------------|
| ** **            | ** ** | ** **                           | ** ** |
| less than  50%        |       | 0.200%                               |       |
|                  |       |                                 |       |
| 50% to less  than 55% |       | 0.225%                               |       |
|                  |       |                                 |       |
| 55% to less  than 60% |       | 0.225%                               |       |
|                  |       |                                 |       |
| 60% or  greater       |       | 0.250%                               |       |

 

“Federal Funds Rate” means, for any day, therate per annum equal to the weighted average of the rates on overnight Federalfunds transactions with members of the Federal Reserve System arranged byFederal funds brokers, as published for such day (or, if such day is not aBusiness Day, for the next preceding Business Day) by the Federal Reserve Bankof New York, or, if such rate is not so published, the average of thequotations for such day on such transactions received by the AdministrativeAgent from three Federal funds brokers of recognized standing selected by theAdministrative Agent.

 

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“Federal Reserve Board” means the Board ofGovernors of the Federal Reserve System or any Governmental Authoritysucceeding to its functions.

 

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

 

“FFO” means net income, as determined inaccordance with GAAP, excluding gains (or losses) from debt restructuring,sales of property (except Recurring Land Sales) and foreign currency exchangerate changes (whether or not associated with a foreign currency contract), plusdepreciation and amortization, and after adjustments for unconsolidatedpartnerships and joint ventures (which will be calculated to reflect funds fromoperations on the same basis).

 

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

 

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

 

“Fixed Charges” means, for the immediatelypreceding consecutive four fiscal quarters, the sum of (a) CombinedInterest Expense and (b) the aggregate of all scheduled principal paymentson Total Adjusted Outstanding Indebtedness according to GAAP made or requiredto be made during such fiscal period for the Consolidated Businesses andMinority Holdings (but excluding balloon payments of principal due upon thestated maturity of an Indebtedness), and (c) the aggregate of alldividends payable on the preferred stock of the Consolidated Businesses notowned by the Borrower or any of its Affiliates.

 

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

 

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

 

“Fleet” means Fleet National Bank or anysuccessor thereto.

 

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

 

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

 

“GAAP” means generally accepted accountingprinciples set forth in the opinions and pronouncements of the AmericanInstitute of Certified Public Accountants’ Accounting Principles Board andFinancial Accounting Standards Board or in such other statements by such otherentity as may be in general use by significant segments of the accountingprofession as in effect on the Closing Date (unless otherwise specified hereinas in effect on another date or dates).

 

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

 

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

 

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

 

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

 

“Holder” means any Person entitled to enforceany of the Obligations, whether or not such Person holds any evidence ofIndebtedness, including, without limitation, the Administrative Agent and eachother Lender.

 

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

 

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

 

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“Indemnified Matters” is defined in Section 13.3.

 

“Indemnitees” is defined in Section 13.3.

 

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

 

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

 

“Interest Period” means, (a) with respectto any Negotiated Rate Loan, the period commencing on the Funding Date of suchLoan and ending on the last day of one of the following periods, as selected bythe Borrower in an accepted Negotiated Rate Quote or as otherwise required bythe terms of this Agreement, 1, 2, 3, or 6 months, and (b) with respect toeach Eurocurrency Rate Loan (other than a Eurocurrency Negotiated Rate Loan), (i) initially,the period commencing on the Funding Date of such Loan and ending on the lastday of one of the following periods, as selected by the Borrower in a Notice ofBorrowing or as otherwise required by the terms of this Agreement (A) forany Eurocurrency Rate Loan other than a LIBOR Rate Loan, 1, 2, or 3 months, or6 months if approved by and available from all Lenders with Revolving CreditTranche B Commitments; or (B) for any LIBOR Rate Loan, 1, 2, 3, or 6months, one week with the approval of all Lenders, or one year if availablefrom all Lenders; provided that the Borrower may, on up to five (5) occasionsper year without the approval of the Lenders, request an Interest Period of oneweek for Revolving Credit Loans or the Term Loan in order to consolidate LIBORRate Loans; and (ii) thereafter, each period commencing on the last day ofthe next preceding Interest Period applicable to such Loan and ending on thelast day of one of the periods set forth above, as selected by the Borrower ina Notice of Conversion/Continuation; provided that all of the foregoingprovisions relating to Interest Periods are subject to the following:

 

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

 

(2)                                   any Interest Period relating to anyEurocurrency Rate Loan (other than one (1) week LIBOR Rate Loans) or toany Negotiated Rate Loan that begins on the last Business Day of a calendarmonth (or on a day for which there is no numerically corresponding day in thecalendar month at the end of such Interest Period) shall end on the lastBusiness Day of a calendar month; and

 

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

 

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

 

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

 

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such Optional Currencyother than Euros for the period of the time comparable to such Interest Periodthat appears on Reuters Screen FRBD or the applicable Reuters Screen for suchOptional Currency as of 11:00 a.m. (London time) two (2) BusinessDays prior to the first day of such Interest Period, and having a maturityequal to such Interest Period, provided,however, (i) if Reuters Screen FRBD or the applicable Reuters Screenfor such Optional Currency is not available to the Administrative Agent for anyreason, the applicable International Eurocurrency Rate for the relevantEurocurrency Interest Period shall instead be the applicable British Bankers’Association Interest Settlement Rate for deposits in the applicable OptionalCurrency as reported by any other generally recognized financial informationservice as of 11:00 a.m. (London time) two (2) Business Days prior tothe first day of such Interest Period, and having a maturity equal to suchInterest Period, and (ii) if no such British Bankers’ Association InterestSettlement Rate is available, the applicable International Eurocurrency Ratefor the relevant Interest Period shall be the rate determined by theAdministrative Agent, as the rate at which the Administrative Agent offers toplace deposits in the applicable Optional Currency with other major banks in theLondon interbank market at approximately 11:00 a.m. (London time) two (2) BusinessDays prior to the first day of such Interest Period, in the approximate amountof JPMCB’s relevant Eurocurrency Rate Loan and having a maturity equal to suchEurocurrency Interest Period, divided by (b) a number equal to 1.00 minusthe Reserve Percentage, if applicable.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Leverage Ratio” means the ratio, expressed asa percentage, of the Total Adjusted Outstanding Indebtedness to theCapitalization Value.

 

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

 

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

 

“LIBOR Rate” means, with respect to any LIBORRate Loan for any Interest Period, the rate appearing on “Telerate Page 3750”(or on any successor or substitute page of such service, or any successorto or substitute for such service, providing rate quotations comparable tothose currently provided on such page, as determined by the AdministrativeAgent from time to time for purposes of providing quotations of interest ratesapplicable to dollar deposits in the London interbank market) at approximately11:00 a.m., London time, two Business Days prior to the commencement of suchInterest Period, as the rate for dollar deposits with a maturity comparable tosuch Interest Period.  In the event thatsuch rate is not available at such time for any reason, then the “LIBOR Rate”with respect to such LIBOR Rate Borrowing for such Interest Period shall be therate at which dollar deposits of $5,000,000, and for a maturity comparable tosuch Interest Period, are offered by the principal London offices of theAdministrative Agent and Bank of America, N.A. in immediately available funds inthe London interbank market at approximately 11:00 a.m., London time, twoBusiness Days prior to the commencement of such Interest Period (determined byrequesting quotes from both such banks and taking the arithmetic average ofsuch quotes; provided that if the Bank of America, N.A. quote isunavailable to the Administrative Agent, then the “LIBOR Rate” shall be therate offered by the principal London office of the Administrative Agent).  In the event that the Board of Governors ofthe Federal Reserve System shall impose a Reserve Percentage with respect toLIBOR deposits of the Administrative Agent, then for any

 

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

 

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

 

“Lien” means any mortgage, deed of trust,pledge, hypothecation, assignment, conditional sale agreement, depositarrangement, security interest, encumbrance, lien (statutory or other andincluding, without limitation, any Environmental Lien), preference, priority orother security agreement or preferential arrangement of any kind or naturewhatsoever in respect of any property of a Person (that has the practicaleffect of creating a security interest in respect of such asset), whethergranted voluntarily or imposed by law, and includes the interest of a lessorunder a Capital Lease or under any financing lease having substantially thesame economic effect as any of the foregoing.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Maximum Revolving Credit Amount” means, at anyparticular time, the aggregate amount of the Revolving Credit Commitments atsuch time.

 

“Minority Holdings” means partnerships, jointventures, corporations, limited liability companies or other businessassociations held or owned directly or indirectly by the Borrower which are notdirectly or indirectly wholly-owned by the Borrower.

 

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

 

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

 

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

 

“Negotiated Rate Loan” means a Loan madepursuant to Section 2.7.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Original Agreement” is defined in therecitals.

 

“Original Term Loan Agreement” is defined inthe recitals.

 

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

 

“OSHA” means the Occupational Safety and HealthAct of 1970, 29 U.S.C. §§ 651 etseq., any amendmentsthereto, any successor statutes and any regulations or guidance having theforce of law promulgated thereunder.

 

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

 

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“Other Assets at Cost” means, individually orin the aggregate, the book value or historical cost of Other Assets plusConstruction Assets at Cost.

 

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

 

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

 

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

 

“Permitted Disposition” means the sale of anydirect or indirect beneficial interest in a Subsidiary or Minority Holding solong as (i) no Event of Default shall have occurred and be continuing, (ii) suchtransfer (or series of transfers) of partnership or membership interests in anySubsidiary or Minority Holding shall not result in Borrower owning less than25% of the interest held by Borrower in such Person as of the Closing Date, (iii) suchtransfer (or series of transfers) shall not result in Borrower transferringmore than 49% of its general partner or managing member interest in anySubsidiary or Minority Holding, and (iv) Borrower shall maintain controlover all material decisions with respect to such Subsidiary or MinorityHolding.  For purposes of thisdefinition, Borrower shall be deemed to control a Subsidiary or MinorityHolding if Borrower has the ability to exercise a buy-sell right in the eventof a disagreement regarding the sale, financing of or other material decisionwith respect to, the Property owned by such Subsidiary or Minority Holding.

 

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

 

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

 

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

 

“Potential Event of Default” means an eventwhich, with the giving of notice or the lapse of time, or both, wouldconstitute an Event of Default.

 

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

 

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

 

“Property” means any Real Property or personalproperty, plant, building, facility, structure, underground storage tank orunit, equipment, general intangible, receivable, or other asset owned, leasedor operated by any Consolidated Business or any Minority Holding (including anysurface water thereon or adjacent thereto, and soil and groundwaterthereunder).

 

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

 

“RCRA” means the Resource Conservation andRecovery Act of 1976, 42 U.S.C. §§ 6901 etseq., anyamendments thereto, any successor statutes, and any regulations or guidancehaving the force of law promulgated thereunder.

 

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

 

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

 

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

 

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

 

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

 

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

 

“Redevelopment EBITDA” is defined in thedefinition of Capitalization Value.

 

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

 

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

 

“Regional Mall Assets” means the Properties setforth on **Schedule 1.1-C**attached hereto and other similar properties with (i) two or moretraditional anchor tenants, each of which has a long term lease or is the ownerof the site upon which the anchor tenant is located and (ii) grossleaseable space in excess of 500,000 square feet; provided, that for thepurposes of calculating Capitialization Value hereunder, such other assets mustbe approved as Regional Mall Assets by the Administrative Agent.

 

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

 

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

 

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

 

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

 

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

 

“REIT” means a domestic trust or corporationthat qualifies as a real estate investment trust under the provisions ofSections 856, etseq. of the Internal Revenue Code.

 

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

 

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

 

“Reportable Event” means any of the eventsdescribed in Section 4043(c) of ERISA and the regulations having theforce of law promulgated thereunder as in effect from time to time but notincluding any such event as to which the thirty (30) day notice requirement hasbeen waived by applicable PBGC regulations.

 

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

 

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

 

“Requisite Lenders” means Lenders whoseaggregate Revolving Credit Commitments and outstanding principal amount of theTerm Loan are equal to or greater than sixty-six and two thirds percent (66-2/3%)of the Revolving Credit Commitments and outstanding principal amount of theTerm Loan of all Lenders; provided, however, that, in the eventany of the Lenders shall have failed to fund its Pro Rata Share of any Loanrequested by the Borrower or acquire its Pro Rata Share of any Letter of CreditObligations****which such Lenders are obligatedto fund or acquire under the terms of this Agreement and any such failure hasnot been cured as provided in Section 3.2(b)(v)(B), then for solong as such failure continues, “Requisite Lenders” means Lenders(excluding all Lenders whose failure to fund their respective Pro Rata Sharesof such Loans or acquire their respective Pro Rata Shares of such Letter ofCredit Obligations have not been so cured) whose aggregate Revolving CreditCommitments and outstanding principal amount of the Term Loan, are equal to orgreater than sixty-six and two thirds percent (66-2/3%) of the RevolvingCredit Commitments and outstanding principal amount of the Term Loan of suchLenders; provided, further, however, that, in the eventthat the Revolving Credit Commitments have been terminated pursuant to theterms of this Agreement, “Requisite Lenders” means Lenders (withoutregard to such Lenders’ performance of their respective obligations hereunder)holding at least sixty-six and two-thirds percent (66-2/3%) of theaggregate outstanding principal balance of all Loans (including Negotiated RateLoans) and Letter of Credit Obligations.

 

“Reserve Percentage” means for any day withrespect to a Eurocurrency Rate Loan, the maximum rate (expressed as a decimal)at which any Lender subject thereto would be required to maintain reserves(including, without limitation, all base, supplemental, marginal and otherreserves) under Regulation D of the Board of Governors of the Federal ReserveSystem (or any successor or similar regulations relating to such reserverequirements) against “Eurocurrency Liabilities” (as that term is used inRegulation D or any successor or similar regulation), if such liabilities wereoutstanding.  The Reserve Percentageshall be adjusted automatically on and as of the effective date of any changein the Reserve Percentage.

 

“Revolving Credit Availability” means, at anyparticular time, the amount by which the Maximum Revolving Credit Amount atsuch time exceeds the sum of the Revolving Credit Obligations plus the Letterof Credit Obligations at such time.

 

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

 

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

 

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

 

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

 

“Revolving Credit Obligations” means, at anyparticular time, the sum of the Dollar Equivalent of outstanding principalamount of the Revolving Credit Tranche A Obligations and the Revolving CreditTranche B Obligations at such time.

 

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

 

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

 

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

 

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

 

“Revolving Credit Tranche A Loans” means Loans(including Swing Loans) made by the Lenders pursuant to Sections 2.1(a) and2.1(c), to the extent that such loans are deemed, pursuant to Sections2.1(a) and 2.1(c)(i), as applicable, to be a use of theRevolving Credit Tranche A Commitment.

 

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

 

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

 

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

 

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

 

“Revolving Credit Tranche B Loans” means Loans(including Swing Loans) made by the Lenders pursuant to Sections 2.1(b) and2.1(c), to the extent that such loans are deemed, pursuant to Sections2.1(a) and 2.1(c)(i), as applicable, to be a use of theRevolving Credit Tranche B Commitment.

 

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

 

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

 

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

 

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

 

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

 

“Securities Act” means the Securities Act of1933, as amended from time to time, and any successor statute.

 

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

 

“Series A Preferred Interests” means theoutstanding Series A Cumulative Convertible Preferred Stock of TMC and theunderlying Series A Preferred OP Units of Borrower.

 

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

 

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

 

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

 

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

 

(ii)                                   thepresent fair saleable value of its assets is greater than its probableliability on its existing debts as such debts become absolute and matured; and

 

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

 

(iv)                               ithas capital sufficient to carry on its business as conducted and as proposed tobe conducted.

 

“Sterling” or “£” means the lawful moneyof the United Kingdom.

 

“Subsidiary” of a Person means any corporation,limited liability company, general or limited partnership, or other entity ofwhich Securities or other ownership interests having ordinary voting power toelect a majority of the board of directors or other persons performing similarfunctions are at the time directly or indirectly owned or controlled by suchPerson, one or more of the other Subsidiaries of such Person or any combinationthereof.

 

“Swing Lender” means JPMCB or, if requested bythe Borrower, another Lender designated by the Borrower from among thoseinstitutions identified by the Administrative Agent as permissible SwingLenders.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“TIF Guarantee” means, collectively, anyguarantees now or hereafter entered into by TMC, Borrower or any of theirrespective Subsidiaries or Minority Holdings that are related to or associatedwith a public financing.

 

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

 

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

 

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

 

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

 

“Tranche A Letter of Credit” shall mean anystandby letter of credit issued at the request of the Borrower and for theaccount of the Borrower against the Revolving Credit Tranche A Commitment inaccordance with Section 2.4.

 

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“Tranche A Letter of Credit Obligations” shallmean the sum, as of any date of determination, of (i) the maximum amountwhich the Issuing Lender may be required to pay on such date or at any futuretime under Tranche A Letters of Credit, plus (ii) the aggregate amount ofall payments that have been made by Issuing Lender with respect to the TrancheA Letters of Credit but have not been reimbursed by the Borrower or convertedinto Loans pursuant to Section 2.4 hereof.

 

“Tranche B Letter of Credit” shall mean anystandby letter of credit issued at the request of the Borrower and for theaccount of the Borrower against the Revolving Credit Tranche B Commitment inaccordance with Section 2.4.

 

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

 

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

 

**1.2.  Computation of TimePeriods****. **In this Agreement, in thecomputation of periods of time from a specified date to a later specified date,the word “from” means “from but excluding” and the words “to” and “until” eachmean “to and including.”  Periods of daysreferred to in this Agreement shall be counted in calendar days unless BusinessDays are expressly prescribed.  Anyperiod determined hereunder by reference to a month or months or year or yearsshall end on the day in the relevant calendar month in the relevant year, ifapplicable, on the date numerically corresponding to the first day of suchperiod, provided, that if such period commences on the last day of acalendar month (or on a day for which there is no numerically corresponding dayin the calendar month during which such period is to end), such period shall,unless otherwise expressly required by the other provisions of this Agreement,end on the last day of the calendar month.

 

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

 

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

 

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# **ARTICLE II.AMOUNTS AND TERMS OF LOANS**

# ** **

**2.1.  Loans.**

 

(a)                                  RevolvingCredit Tranche A Loans.  Subject tothe terms and conditions set forth in this Agreement (including, withoutlimitation, Section 2.5), each Lender with a Revolving CreditTranche A Commitment hereby severally and not jointly agrees to make revolvingloans, in Dollars (each individually, a “Revolving Credit Tranche A Loan”and, collectively, the “Revolving Credit Tranche A Loans”) to theBorrower from time to time during the Revolving Credit Period, in an amount notto exceed such Lender’s Pro Rata Share of the Revolving Credit Tranche AAvailability at such time.  All RevolvingCredit Tranche A Loans comprising the same Borrowing under this Agreement shallbe made by the Lenders with a Revolving Credit Tranche A Commitmentsimultaneously and proportionately to their then respective Pro Rata Shares, itbeing understood that no Lender shall be responsible for any failure by anyother Lender to perform its obligation to make a Revolving Credit Tranche ALoan hereunder nor shall the Revolving Credit Tranche A Commitment of anyLender be increased or decreased as a result of any such failure. Subject tothe provisions of this Agreement, the Borrower may repay any outstandingRevolving Credit Tranche A Loan on any day which is a Business Day and anyamounts so repaid may be reborrowed, up to the amount available under this Section 2.1(a) atthe time of such Borrowing, until the Business Day next preceding the RevolvingCredit Termination Date.  Each requestedBorrowing of Revolving Credit Tranche A Loans funded on any Funding Date shallbe in a principal amount of at least $2,000,000 in the case of a LIBOR RateLoan or $1,000,000 in the case of any other Loan and in integral multiples of$500,000 in excess of such amount; provided, however, that if theaggregate Revolving Credit Tranche A Availability at the time of such requestedBorrowing is less than $2,000,000 in the case of a LIBOR Rate Loan or$1,000,000 in the case of any other Loan, then the requested Borrowing shall befor the total amount of the Revolving Credit Tranche A Availability.Notwithstanding any other provision of this Agreement to the contrary, (a) eachRevolving Credit Borrowing denominated in Dollars (whether bearing interest atthe LIBOR Rate or the Base Rate) shall be a Revolving Credit Tranche A Loan andshall be deemed to use the Revolving Credit Tranche A Commitments, unless theRevolving Credit Tranche A Commitments have been fully used and are notavailable at such time for such Borrowing, in which case such Borrowingdenominated in Dollars shall be a Revolving Credit Tranche B Loan and shall bedeemed to use the Revolving Credit Tranche B Commitments, if such RevolvingCredit Tranche B Commitments are available, and (b) each Revolving CreditBorrowing denominated in an Optional Currency shall be a Revolving CreditTranche B Loan and shall be deemed to use the Revolving Credit Tranche BCommitments, if such Revolving Credit Tranche B Commitments are available.

 

(b)                                 Revolving CreditTranche B Loans.  Subject to theterms and conditions set forth in this Agreement (including, withoutlimitation, Section 2.5), each Lender with a Revolving CreditTranche B Commitment hereby severally and not jointly agrees to make revolvingloans, in Dollars and/or, at the Borrower’s option from time to time, subjectto Section 4.2 hereof, in an Optional Currency (each individually,a “Revolving Credit Tranche B Loan” and, collectively, the “RevolvingCredit Tranche B Loans”) to the Borrower from time to time during theRevolving Credit Period, in an amount the Dollar Equivalent of which does notexceed such Lender’s Pro Rata Share of the Revolving Credit Tranche BAvailability at such time.  All RevolvingCredit Tranche B Loans comprising the same Borrowing under this Agreement shallbe made by the Lenders with a Revolving Credit Tranche B Commitment simultaneouslyand proportionately to their then respective Pro Rata Shares, it beingunderstood that no Lender shall be responsible for any failure by any otherLender to perform its obligation to make a Revolving Credit Tranche B Loanhereunder nor shall the Revolving Credit Tranche B Commitment of any Lender beincreased or decreased as a result of any such failure. Subject to theprovisions of this

 

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

 

(c)                                  SwingLoans.

 

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

 

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

 

(iii)                               *Conversionof Swing Loans to Committed Loans*. The Swing Lender (A) may, at any time in its sole discretion withrespect to any outstanding Swing Loans or (B) shall, on any of the datesset forth in clauses (a) – (d) of Section 2.1(c)(ii), onbehalf of the Borrower (which hereby irrevocably directs the Swing Lender toact on its behalf), request each Lender to make, and each Lender hereby agreesto make, a Base Rate Loan,

 

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in an amount (withrespect to each Lender, its “Swing Loan Refund Amount”) equal to suchLender’s Pro Rata Share of the applicable Revolving Credit Commitments withrespect to the aggregate principal amount of the Swing Loans (the “RefundedSwing Loans”) outstanding on the date of such notice, to repay the SwingLender.  Unless any of the eventsdescribed in clause (f) or (g) of Section 10.1 withrespect to the Borrower or TMC shall have occurred and be continuing (in whichcase the procedures of Section 2.1(c)(iv) shall apply), eachLender shall make such Base Rate Loan available to the Administrative Agent atthe Administrative Agent’s Head Office, in immediately available funds, notlater than 12:00 noon (New York time), on the Business Day immediatelyfollowing the date of such request.  TheAdministrative Agent shall pay the proceeds of such Base Rate Loans to the SwingLender, which shall immediately apply such proceeds to repay Refunded SwingLoans.  Effective on the day such BaseRate Loans are made, the portion of the Swing Loans so paid shall no longer beoutstanding as Swing Loans, shall no longer be due as Swing Loans under theNote held by the Swing Lender, and shall be due as Base Rate Loans under therespective Notes issued to the Lenders (including the Swing Lender) inaccordance with their Pro Rata Share of the applicable Revolving CreditCommitments.  The Borrower authorizes theSwing Lender to charge the Borrower’s accounts with the Administrative Agent(up to the amount available in each such account) in order to immediately paythe amount of such Refunded Swing Loans to the extent amounts received from theLenders are not sufficient to repay in full such Refunded Swing Loans.

 

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

 

(v)                                 *Payments on Participated Swing Loans*.  Whenever, at any time after the Swing Lenderhas received from any Lender such Lender’s Swing Loan Refund Amount pursuant toSection 2.1(c)(iii), the Swing Lender receives any payment onaccount of the Swing Loans in which the Lenders have purchased participationspursuant to Section 2.1(c)(iv), the Swing Lender will promptlydistribute to each such Lender its ratable share (determined on the basis ofthe Swing Loan Refund Amounts of all of the Lenders) of such payment(appropriately adjusted, in the case of interest payments, to reflect theperiod of time during which such Lender’s participating interest wasoutstanding and funded); provided, however, that in the eventthat such payment received by the Swing Lender is required to be returned, suchLender will return to the Swing Lender any portion thereof previouslydistributed to it by the Swing Lender.

 

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

 

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circumstance, including,without limitation, (A) any setoff, counterclaim, recoupment, defense orother right which such Lender, the Borrower or any other Person may haveagainst the Swing Lender or any other Person, other than the Swing Lender’sgross negligence or willful misconduct in connection with making any such SwingLoan, (B) the occurrence or continuance of a Potential Event of Default oran Event of Default or the termination or reduction of the Revolving CreditCommitments, (C) any adverse change in the condition (financial orotherwise) of the Borrower or any other Person, (D) any breach of thisAgreement by the Borrower, any other Lender or any other Person, or (E) anyother circumstance, happening or event whatsoever, whether or not similar toany of the foregoing.

 

(d)                                 TermLoan.  Subject to the terms andconditions set forth in this Agreement, each Lender hereby severally and notjointly agrees to lend such Lender’s Pro Rata Share of the Term Loan, inDollars to the Borrower on the Initial Funding Date.  The Term Loan shall be made by the Lenderssimultaneously and proportionately to their then respective Pro Rata Shares, itbeing understood that no Lender shall be responsible for any failure by anyother Lender to perform its obligation to make its portion of the Term Loanhereunder nor shall the Term Loan Commitment of any Lender be increased ordecreased as a result of any such failure. The Term Loan, or any portion thereof, may be either a Base Rate Loan ora LIBOR Rate Loan, as determined by the Borrower in the Notice of Borrowingrelated thereto, any Notice of Conversion/Continuation or as otherwise providedin this Agreement.

 

(e)                                  Noticeof Borrowing.  When the Borrowerdesires to borrow under this Section 2.1, it shall deliver to theAdministrative Agent a Notice of Borrowing, signed by it (i) no later than11:00 a.m. (New York time) on the Business Day immediately preceding theproposed Funding Date, in the case of a Borrowing of Base Rate Loans, (ii) nolater than 11:00 a.m. (New York time) at least three (3) BusinessDays in advance of the proposed Funding Date, in the case of a Borrowing ofEurocurrency Rate Loans denominated in Dollars, (iii) no later than 11:00 a.m.(New York time) at least four (4) Business Days in advance of the proposedFunding Date, in the case of a Borrowing of Eurocurrency Rate Loans denominatedin an Optional Currency and (iv) no later than 10:00 a.m. (New Yorktime) on the proposed Funding Date, in the case of a Borrowing of SwingLoans.  Such Notice of Borrowing shallspecify (i) the proposed Funding Date (which shall be a Business Day), (ii) thetype and amount of the proposed Borrowing in the requested currency, (iii) theRevolving Credit Tranche A Availability, or Revolving Credit Tranche BAvailability, as and if applicable, as of the date of such Notice of Borrowing,(iv) whether the proposed Borrowing will be of Base Rate Loans orEurocurrency Rate Loans, (v) in the case of Eurocurrency Revolving CreditLoans, the currency of the requested Loan and whether it is a Loan using theLIBOR Rate, the EURIBOR Rate or the International Eurocurrency Rate, (vi) inthe case of Eurocurrency Rate Loans, the requested Interest Period, and (vii) instructionsfor the disbursement of the proceeds of the proposed Borrowing.  In lieu of delivering such a Notice of Borrowing(except with respect to a Borrowing of Loans on the Initial Funding Date), theBorrower may give the Administrative Agent telephonic notice of any proposedBorrowing by the time required under this Section 2.1(e), if theBorrower confirms such notice by delivery of the Notice of Borrowing to theAdministrative Agent by facsimile transmission promptly, but in no event laterthan 12:00 noon (New York time) on the same day.  Any Notice of Borrowing (or telephonic noticein lieu thereof, when properly confirmed in accordance with this Section 2.1(e))given pursuant to this Section 2.1(e) shall be irrevocable.

 

(f)                                    Makingof Loans.

 

(i)                                     Promptlyafter receipt of a Notice of Borrowing under Section 2.1(e) (ortelephonic notice in lieu thereof), the Administrative Agent shall notify eachLender (or the Swing Lender in the case of Notice of Borrowing for a SwingLoan) by facsimile transmission, or other similar form of transmission, of theproposed Borrowing (which notice to the Lenders, in

 

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the case of a Borrowing of Eurocurrency Rate Loans,shall be at least three (3) (for such Loans denominated in Dollars) orfour (4) (for such Loans denominated in Optional Currency) Business Daysin advance of the proposed Funding Date for such Loans).  Each Lender (or in the case of a Swing LoanBorrowing, the Swing Lender) shall deposit an amount in the requested currencyequal to its Pro Rata Share of the Borrowing requested by the Borrower with theAdministrative Agent at the Administrative Agent’s Head Office, in immediatelyavailable funds, not later than 12:00 noon (New York time) on the respectiveFunding Date therefor.  Subject to thefulfillment of the conditions precedent set forth in Section 5.1 orSection 5.2, as applicable, the Administrative Agent shall make theproceeds of such amounts received by it available to the Borrower at theAdministrative Agent’s Head Office on such Funding Date (or on the datereceived if later than such Funding Date) and shall disburse such proceeds inaccordance with the Borrower’s disbursement instructions set forth in theapplicable Notice of Borrowing.  Thefailure of any Lender to deposit the amount described above with theAdministrative Agent on the applicable Funding Date shall not relieve any otherLender of its obligations hereunder to make its Loan on such Funding Date.  In the event the conditions precedent setforth in Section 5.1 or 5.2 are not fulfilled as of theproposed Funding Date for any Borrowing, the Administrative Agent shallpromptly return, by wire transfer of immediately available funds, the amountdeposited by each Lender to such Lender.

 

(ii)                                  Unlessthe Administrative Agent shall have been notified by any Lender on the BusinessDay immediately preceding the applicable Funding Date in respect of anyBorrowing that such Lender does not intend to fund its Loan requested to bemade on such Funding Date, the Administrative Agent may assume that each Lenderhas funded its Loan and is depositing the proceeds thereof with theAdministrative Agent on the Funding Date therefor, and the Administrative Agentin its sole discretion may, but shall not be obligated to, disburse acorresponding amount to the Borrower on the applicable Funding Date. If theLoan proceeds corresponding to that amount are advanced to the Borrower by theAdministrative Agent but are not in fact deposited with the AdministrativeAgent by such Lender on or prior to the applicable Funding Date, such Lenderagrees to pay, and if not paid by such Lender on demand, in addition theBorrower agrees to repay, to the Administrative Agent forthwith on demand suchcorresponding amount, together with interest thereon, for each day from thedate such amount is disbursed to or for the benefit of the Borrower until thedate such amount is paid or repaid to the Administrative Agent if paid by theBorrower, at the interest rate applicable to such Borrowing and if paid by suchLender at the Federal Funds Rate.  Ifsuch Lender shall pay to the Administrative Agent the corresponding amount, theamount so paid shall constitute such Lender’s Loan, and if both such Lender andBorrower shall pay and repay such corresponding amount of Administrative Agent’sLoan, the Administrative Agent shall promptly pay the Borrower such correspondingamount.  This Section 2.1(f)(ii) doesnot relieve any Lender of its obligation to make its Loan on any applicableFunding Date.

 

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

 

(a)                                  acquisitionof Real Properties, directly or through a Subsidiary or Minority Holding, bythe Borrower;

 

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

 

(c)                                  investmentspermitted in accordance with Section 9.11; and

 

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(d)                                 othergeneral and working capital needs of the Borrower, inclusive of repayment ofIndebtedness for borrowed money;

 

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

 

**2.3.  Termination, Maturity andExtensions****. **(a) Revolving CreditTermination Date.  (i)  TheRevolving Credit Commitments shall terminate, and all outstanding RevolvingCredit Obligations shall be paid in full, on the Revolving Credit TerminationDate.  Each Lender’s obligation to makeRevolving Credit Loans shall terminate on the Business Day immediatelypreceding the Revolving Credit Termination Date.

 

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

 

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

 

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

 

**2.4.  Letters of Credit.**

 

(a)                                  Letterof Credit Commitment.  Subject to theterms and conditions set forth in this Agreement (including, withoutlimitation, Section 2.5), at any time and from time to time fromthe Initial Funding Date through the day that is thirty (30) days prior to theRevolving Credit Termination Date, the Issuing Lender shall issue such Lettersof Credit in any amount, in Dollars or Optional Currency, as the Borrower mayrequest upon the delivery of a Letter of Credit Request to the Issuing Lender,provided that (i) no Potential Event of Default or Event of Default shallhave occurred and be continuing, (ii) upon issuance of such Letter ofCredit, the Letter of Credit Obligations shall not exceed Two Hundred MillionDollars ($200,000,000.00), (iii) in no event shall the sum of (A) theRevolving Credit Obligations and (B) the amount of the Letter of CreditObligations (after giving effect to all Letters of Credit requested and

 

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any Letters of Credit accepted but unpaid) exceed theMaximum Revolving Credit Amount, (iv) the conditions set forth in Sections5.1 and 5.2, as applicable, shall have been satisfied, and (v) inno event shall any amount drawn under a Letter of Credit be available forreinstatement or a subsequent drawing under such Letter of Credit.  Each Letter of Credit Request shall be executedby an Authorized Financial Officer of Borrower, or such other persons as areidentified pursuant to Section 2.6. The Issuing Lender shall be entitled to conclusively rely on such Person’sauthority to request a Letter of Credit on behalf of Borrower.  The Issuing Lender shall have no duty toverify the authenticity of any signature appearing on a Letter of CreditRequest.  The Borrower assumes all riskswith respect to the use of the Letters of Credit.  Unless the Issuing Lender and the RequisiteLenders otherwise consent, the term of any Letter of Credit shall not exceed aperiod of time commencing on the issuance of the Letter of Credit and ending onthe date which is fifteen (15) days (thirty (30) days in the case of a Letterof Credit denominated in Optional Currency) prior to the Revolving CreditTermination Date; provided, that Letters of Credit denominated inDollars with a maximum aggregate amount of up to $20,000,000 may have a laterexpiration date so long as (I) such expiration date is not later than 180 daysafter the Revolving Credit Termination Date and (II) the Borrower (1) providescash collateral for each such Letter of Credit at least 100 days prior to theRevolving Credit Termination Date or (2) provides a back-to-back letter ofcredit or other credit support satisfactory to the Administrative Agent and theIssuing Lender at least thirty (30) days prior to the Revolving CreditTermination Date.  Any Letter of Creditexpiring after the Revolving Credit Termination Date shall be governed by theterms of this Agreement, which shall survive the Revolving Credit TerminationDate for such purpose.  Unless a Letterof Credit denominated in Optional Currency is requested, each Letter of Creditissued hereunder shall be a Tranche A Letter of Credit and shall be deemed touse the Revolving Credit Tranche A Commitments unless the Revolving CreditTranche A Commitments have been fully used (or partially used with theremainder being inadequate to issue such requested Letter of Credit) and arenot available at such time for the issuance of such Letter of Credit, in whichcase such Letter of Credit shall be a Tranche B Letter of Credit and shall bedeemed to use the Revolving Credit Tranche B Commitments, if available.  Each Letter of Credit denominated in OptionalCurrency issued hereunder shall be a Tranche B Letter of Credit and shall bedeemed to use the Revolving Credit Tranche B Commitments, if available.  Each of the letters of credit described on **Schedule 2.4** that have been (x)issued by JPMCB on or after December 1, 2004, or (y) issued by Fleet asthe “Issuing Lender” under the Existing Revolving Agreement (the “***Fleet Letters of Credit***”)(Bank of America, N.A.. having acquired a 100% interest in the Fleet Letters ofCredit), shall for all purposes be Letters of Credit hereunder.

 

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

 

(c)                                  Issuanceof Letter of Credit.  The IssuingLender shall, if it approves of the content of the Letter of Credit Request(which approval shall not be unreasonably withheld), and subject to theconditions set forth in this Agreement, issue the Letter of Credit on or beforefive (5) Business Days in the case of a Letter of Credit denominated inDollars (ten (10) Business Days in the case of a Letter of

 

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Credit denominated in Optional Currency) followingreceipt of such Letter of Credit Request. Each Letter of Credit shall be in form and substance reasonablysatisfactory to the Issuing Lender.  Uponissuance of a Letter of Credit, the Issuing Lender shall provide notice of theissuance of such Letter of Credit to the Administrative Agent and the Lenderswith Revolving Credit Tranche A Commitments or Revolving Credit Tranche BCommitments, as applicable, and shall provide a copy of such Letter of Creditto Administrative Agent and to any Lender that requests a copy.

 

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

 

(e)                                  Letterof Credit Fees.  With respect to eachLetter of Credit, the Borrower shall pay to the Administrative Agent (i) forthe account of the Issuing Bank, a fronting bank Letter of Credit feecalculated at the rate of one-eighth of one percent (0.125%) per annum of theDollar Equivalent of the amount available to be drawn under such Letter ofCredit (which aggregate fee for any Letter of Credit shall not be less than$1,000.00 in any event), and (ii) for the accounts of the Lenders inaccordance with their respective percentage shares of participation in suchLetter of Credit, a Letter of Credit fee calculated at the rate per annum equalto the Applicable Margin then applicable to Eurocurrency Rate Loans (or twopercent (2%) per annum during the continuation of an Event of Default) on theDollar Equivalent of the amount available to be drawn under such Letter ofCredit.  Such fees shall be payable inquarterly installments in arrears with respect to each Letter of Credit on thefirst day of the calendar quarter following the date of issuance and shallaccrue thereafter from the date of issuance and continuing for each quarter orportion thereof, as applicable, until the earliest date on which (x) theRevolving Credit Commitments shall terminate, (y) the Letter of Credit shallexpire or (z) the Letter of Credit is returned marked “cancelled” along with aletter from the Letter of Credit beneficiary on its letterhead acknowledgingsuch cancellation.  In addition, theBorrower shall pay to the Issuing Lender for its own account within five (5) daysof demand of the Issuing Lender the standard issuance, documentation andservice charges for Letters of Credit issued from time to time by the IssuingLender.

 

(f)                                    Letterof Credit Drawing; Reimbursement.  Inthe event that any amount is drawn under a Letter of Credit by the beneficiarythereof, the Issuing Lender shall promptly notify the Administrative Agent,and, unless the Borrower shall have (i) notified the Administrative Agentand the Issuing Lender prior to 11:00 a.m. (New York time) (A) in thecase of a Letter of Credit denominated in Dollars, on the Business dayimmediately prior to the date of such drawing, that the Borrower intends toreimburse such Issuing Lender for the amount of such drawing with funds otherthan the proceeds of Revolving Credit Loans, or (B) in the case of aLetter of Credit denominated in Optional Currency, at least two (2) BusinessDays prior to the date of such drawing that the Borrower intends to reimbursesuch Issuing Lender for the amount of such drawing in the applicable OptionalCurrency, and (ii) repaid the full amount of such drawing on the date ofany such draw, the Borrower shall be deemed to have timely given a Notice ofBorrowing pursuant to Section 2.1(e) to the AdministrativeAgent, requesting a Base Rate Loan on the date of such drawing in an amountequal to the Dollar Equivalent of such drawing. The Administrative Agent shall promptly notify the Borrower and eachLender of such drawing and deemed Notice of Borrowing by telex, telecopy,telegram, telephone (confirmed in writing) or other similar means oftransmission, provided that failure to deliver such notice to theBorrower shall not in any way relieve the Borrower of any of its Obligationshereunder), and each Lender shall promptly and unconditionally pay to theAdministrative Agent, for the Issuing Lender’s own account, an amount equal tosuch Lender’s Pro Rata Share of such Letter of Credit (to the extent of theamount drawn).  If and to the extent anyLender

 

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shall not make such amount available on the BusinessDay on which such draw is funded, such Lender agrees to pay such amount to theAdministrative Agent forthwith on demand, together with interest thereon, foreach day from the date on which such draw was funded until the date on whichsuch amount is paid to the Administrative Agent, at the Federal FundsRate.  Further, such Lender shall bedeemed to have assigned any and all payments made by the Borrower of principaland interest on its Loans, amounts due with respect to its participations inLetters of Credit and any other amounts due to it hereunder to theAdministrative Agent to fund the amount of any drawn Letter of Credit whichsuch Lender was required to fund pursuant to this Section 2.4(f) untilsuch amount has been funded (as a result of such assignment or otherwise).  The failure of any Lender to make fundsavailable to the Administrative Agent in such amount shall not relieve anyother Lender of its obligation hereunder to make funds available to theAdministrative Agent pursuant to this Section 2.4(f).

 

(g)                                 Fundingof Letter of Credit Participations. If after the issuance of a Letter of Credit pursuant to Section 2.4(c) bythe Issuing Lender, but prior to the funding of any portion thereof by a Lenderin accordance with Section 2.4(f), one of the events described in Sections10.1(f) or 10.1(g) shall have occurred, each Lender will,on the date such Loan pursuant to Section 2.4 was to have been made,purchase an undivided participation interest in the Letter of Credit in anamount equal to its Pro Rata Share of the amount of such Letter of Credit.  Each Lender will immediately transfer to theIssuing Lender in immediately available funds the amount of its participationand upon receipt thereof the Issuing Lender will deliver to such Lender aLetter of Credit participation certificate dated the date of receipt of suchfunds and in such amount.

 

(h)                                 Distributionof Borrower Reimbursement Payments. Whenever at any time after the Issuing Lender has received from anyLender any such Lender’s payment of funds under a Letter of Credit andthereafter the Issuing Lender receives any payment on account thereof, then theIssuing Lender will distribute to such Lender its participation interest insuch amount (appropriately adjusted in the case of interest payments to reflectthe period of time during which such Lender’s participation interest wasoutstanding and funded); provided, however, that in the eventthat such payment received by the Issuing Lender is required to be returned,such Lender will return to the Issuing Lender any portion thereof previouslydistributed by the Issuing Lender to it.

 

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

 

(j)                                     Natureof Lender Obligations.  Borrowerassumes all risks of the acts, omissions, or misuse of any Letter of Credit bythe beneficiary thereof.  NeitherAdministrative Agent, Issuing Lender nor any Lender will be responsible for (i) theform, validity, sufficiency, accuracy, genuineness or legal effect of anyLetter of Credit or any document submitted by any party in connection with theissuance of any Letter of Credit, even if such document should in fact prove tobe in any or all respects invalid, insufficient, inaccurate, fraudulent orforged; (ii) the form, validity, sufficiency, accuracy, genuineness orlegal effect of any instrument transferring or assigning or purporting totransfer or assign any Letter of Credit or the rights or benefits thereunder orproceeds thereof in whole or in part, which may prove to be invalid orineffective for any reason; (iii) absent gross negligence or willfulmisconduct by the Issuing Lender, the failure of any beneficiary of any Letterof Credit to comply fully with the conditions required in order to demandpayment under a Letter of Credit; (iv) errors, omissions, interruptions ordelays in transmission or delivery of any messages, by mail, cable, telegraph,telex or otherwise; (v) errors in interpretation of technical terms; (vi) anyloss or delay in the transmission or otherwise of any document or draftrequired by or from a beneficiary in order to make a disbursement under aLetter of Credit or the proceeds thereof; (vii) for the misapplication bythe beneficiary of any Letter of Credit of the proceeds of

 

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any drawing under such Letter of Credit; and (viii) forany consequences arising from causes beyond the control of Administrative Agentor any Lender.  None of the foregoingwill affect, impair or prevent the vesting of any of the rights or powersgranted to Administrative Agent, Issuing Lender or the Lenders hereunder.  In furtherance and extension and not inlimitation or derogation of any of the foregoing, any act taken or omitted tobe taken by Administrative Agent, Issuing Lender or the other Lenders in goodfaith and absent gross negligence or willful misconduct will be binding onBorrower and will not put Administrative Agent, Issuing Lender or the otherLenders under any resulting liability to Borrower.

 

**2.5.  Maximum Credit Facility****. **Notwithstandinganything in this Agreement to the contrary, in no event shall (i) the sumof the aggregate Revolving Credit Tranche A Obligations and the aggregateTranche A Letter of Credit Obligations exceed the Revolving Credit Tranche ACommitments, (ii) the sum of the aggregate Revolving Credit Tranche BObligations and the aggregate Tranche B Letter of Credit Obligations exceed theRevolving Credit Tranche B Commitments, (iii) the aggregate Term LoanObligations exceed the Term Loan Commitments, or (iv) the sum of theaggregate Revolving Credit Obligations and the aggregate Letter of CreditObligations exceed the Maximum Revolving Credit Amount; provided, however,that any excess that exists pursuant to the foregoing clauses (ii) and (iv) resultingsolely from changes in foreign currency exchange rates shall be deemed to notviolate this Section 2.5, so long as the Borrower complies with theapplicable requirements of Section 4.2(j)(iii).

 

**2.6.  Authorized Agents.**** **On the Closing Dateand from time to time thereafter, the Borrower shall deliver to theAdministrative Agent an Officer’s Certificate setting forth the names of theemployees and agents authorized to request Loans or Letters of Credit and torequest a conversion/continuation of any Loan and containing a specimensignature of each such employee or agent. The employees and agents so authorized shall also be authorized to actfor the Borrower in respect of all other matters relating to the LoanDocuments.  The Administrative Agent andthe Lenders shall be entitled to rely conclusively on such employee’s or agent’sauthority to request such Loan or Letter of Credit or such conversion/continuationuntil the Administrative Agent receives written notice to the contrary.  The Administrative Agent shall have no dutyto verify the authenticity of the signature appearing on any written Notice ofBorrowing, Letter of Credit Request or Notice of Conversion/Continuation or anyother document, and, with respect to an oral request for such a Loan or aLetter of Credit or such conversion/continuation, the Administrative Agentshall have no duty to verify the identity of any person representing himself orherself as one of the employees or agents authorized to make such request orotherwise to act on behalf of the Borrower. None of the Administrative Agent or the Lenders shall incur anyliability to the Borrower or any other Person in acting upon any telephonic orfacsimile notice referred to above which the Administrative Agent or suchLender reasonably believes to have been given by a person duly authorized toact on behalf of the Borrower and the Borrower hereby indemnifies and holdsharmless the Administrative Agent and each other Lender from any loss orexpense the Administrative Agent or the Lenders incur in acting in good faithas provided in this Section 2.6, provided, however,that the Borrower shall not indemnify or hold harmless the Administrative Agentor any other Lender from any loss or expense incurred as the result of theAdministrative Agent’s or such Lender’s gross negligence or willful misconduct.

 

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**2.7.  Negotiated Rate Procedure****. **(a)  NegotiatedRate Loans.  Subject to the terms andconditions set forth herein, from time to time the Borrower may requestNegotiated Rate Quotes in Dollars or an Optional Currency and may (but shallnot have any obligation to) accept Negotiated Rate Quotes and borrow NegotiatedRate Loans; provided that (i) the Dollar Equivalent of theaggregate principal amount of any requested Negotiated Rate Loan shall notexceed the Revolving Credit Availability, (ii) after giving effect to theborrowing of such Negotiated Rate Loans, the Dollar Equivalent of the aggregateprincipal amount of the outstanding Negotiated Rate Loans shall not exceedfifty percent (50%) of the Maximum Revolving Credit Amount and (iii) tothe extent that the requested Negotiated Rate Loan is to be denominated in anOptional Currency, the Dollar Equivalent of the aggregate principal amount ofrequested Negotiated Rate Loan shall not exceed the Revolving Credit Tranche BAvailability.  Notwithstanding any otherprovision of this Agreement to the contrary, (A) each Negotiated Rate Loandenominated in Dollars shall constitute Revolving Credit Tranche A Obligationsand shall be deemed to use the Revolving Credit Tranche A Commitments, exceptto the extent that the Revolving Credit Tranche A Commitments have been fullyused and are not available at such time for such Borrowing, in which case theportion of such Negotiated Rate Loan that can not be accommodated by theRevolving Credit Tranche A Commitments shall constitute Revolving Credit TrancheB Obligations and shall be deemed to use the Revolving Credit Tranche BCommitments, if such Revolving Credit Tranche B Commitments are available, and (B) eachNegotiated Rate Loan denominated in an Optional Currency shall constituteRevolving Credit Tranche B Obligations and shall be deemed to use the RevolvingCredit Tranche B Commitments, if such Revolving Credit Tranche B Commitmentsare available.

 

(b)  Negotiated Rate Request.  To request Negotiated Rate Quotes, theBorrower shall notify the Administrative Agent of such request by telephone, (i) inthe case of a Eurocurrency Negotiated Rate Loan denominated in Dollars, notlater than 11:00 a.m. (New York time) four (4) Business Days beforethe date of the proposed Borrowing, (ii) in the case of a EurocurrencyNegotiated Rate Loan denominated in an Optional Currency, not later than 11:00 a.m.(NewYork time) five (5) Business Days before the date of the proposedBorrowing, and (iii) in the case of a Fixed Rate Loan, not later than10:00 a.m. (New York time) one Business Day before the date of theproposed Borrowing; provided that the Borrower may submit up to (but notmore than) two (2) Negotiated Rate Quote Requests in any thirty (30) dayperiod, and provided further that each Negotiated Rate Quote Request maysolicit Negotiated Rate Quotes for up to three different Interest Periods.  Each such telephonic Negotiated Rate QuoteRequest shall be confirmed promptly by hand delivery or telecopy to theAdministrative Agent of a written Negotiated Rate Quote Request in the form of **Exhibit F** and signed by theBorrower.  Each such Negotiated RateQuote Request shall be accompanied by the officer’s certificate required by Section 5.2(e).  Each such telephonic and written NegotiatedRate Quote Request shall specify the following information in compliance with Section 2.1:

 

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

 

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

 

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

 

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

 

(v)                                 thelocation and number of the Borrower’s account to which funds are to bedisbursed.

 

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

 

(c)                                  NegotiatedRate Quotes.  Each Lender may (butshall not have any obligation to) make one or more Negotiated Rate Quotes tothe Borrower in response to a Negotiated Rate Quote Request.  Each Negotiated Rate Quote by a Lender mustbe substantially in the form of **Exhibit G**and must be received by the Administrative Agent by telecopy, (i) in thecase of a Eurocurrency Negotiated Rate Loan denominated in Dollars, not laterthan 9:30 a.m. (New York time) three (3) Business Days before theproposed date of such Negotiated Rate Borrowing, (ii) in the case of aEurocurrency Negotiated Rate Loan denominated in Optional Currency, not laterthan 9:30 a.m.(New York time) four (4) Business Days before theproposed date of such Negotiated Rate Borrowing, and (iii) in the case ofa Fixed Rate Loan, not later than 9:30 a.m. (New York time) on theproposed date of such Negotiated Rate Borrowing.  Negotiated Rate Quotes that do not conformsubstantially to **Exhibit G**may be rejected by the Administrative Agent, and the Administrative Agent shallnotify the applicable Lender as promptly as practicable.  Negotiated Rate Loans to be funded pursuantto a Negotiated Rate Quote may, as provided in Section 13.1(h), befunded by a Lender’s Designated Bank.  ALender making a Negotiated Rate Quote may, but shall not be required to,specify in its Negotiated Rate Quote whether the related Negotiated Rate Loansare intended to be funded by such Lender’s Designated Bank, as provided in Section 13.1(h).  Each Negotiated Rate Quote shall specify (1) theidentity of the Lender and the contact person at such Lender for suchNegotiated Rate Quote, (2) the currency and principal amount (which shallbe a minimum of the Dollar Equivalent of $5,000,000 and an integral multiple ofthe Dollar Equivalent of $1,000,000 and which may equal the entire principalamount of the Negotiated Rate Borrowing requested by the Borrower) of theNegotiated Rate Loan or Loans that the Lender is willing to make, (3) theNegotiated Rate or Rates at which the Lender is prepared to make such Loan orLoans (expressed as a percentage rate per annum in the form of a decimal to nomore than four decimal places) and (4) the Interest Period applicable toeach such Loan and the last day thereof.

 

(d)                                 Transmissionof Quotes to Borrower.  TheAdministrative Agent shall, promptly after the deadline for the receipt ofquotes in respect of any Negotiated Rate Quote Request, notify the Borrower bytelecopy of the Negotiated Rate and the principal amount specified in eachNegotiated Rate Quote and the identity of the Lender that shall have made suchNegotiated Rate Quote.

 

(e)                                  BorrowerAcceptance.  Subject only to theprovisions of this paragraph, the Borrower may accept or reject any NegotiatedRate Quote.  The Borrower shall notifythe Administrative Agent by telephone, confirmed by telecopy in a form approvedby the Administrative Agent, whether and to what extent it has decided toaccept or reject each Negotiated Rate Quote, (i) in the case of aEurocurrency Negotiated Rate Loan denominated in Dollars, not later than 10:30 a.m.(New York time) three (3) Business Days before the date of the proposedNegotiated Rate Borrowing, (ii) in the case of a Eurocurrency NegotiatedRate Loan denominated in an Optional Currency, not later than 10:30 a.m.(NewYork time) four (4) Business Days before the date of the proposedNegotiated Rate Borrowing, and (iii) in the case of a Fixed Rate Loan, notlater than 10:30 a.m. (New York time) on the proposed date of theNegotiated Rate Borrowing; provided that (A) the failure of theBorrower to give such notice shall be deemed to be a rejection of eachNegotiated Rate Quote, (B) the Borrower shall not accept a Negotiated RateQuote made at a particular Negotiated Rate for a particular Interest Period ifthe Borrower rejects a Negotiated Rate Quote made at a lower Negotiated Ratefor the applicable Interest Period, (C) the aggregate amount of theNegotiated Rate Quotes accepted by the Borrower shall not exceed the aggregateamount of the requested Negotiated Rate Borrowing specified in the relatedNegotiated Rate Quote Request, (D) to the extent necessary to comply withclause (C) above, the Borrower may accept Negotiated Rate Quotes at thesame Negotiated Rate in part, which acceptance, in the case of multiple

 

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Negotiated Rate Quotes at such Negotiated Rate, shallbe made pro rata in accordance with the amount of each such Negotiated RateQuote, rounded to Dollar Equivalent of the nearest $1,000,000 increment, and (E) exceptpursuant to clauses (C) and (D) above, no Negotiated Rate Quote shallbe accepted for a Negotiated Rate Loan unless such Negotiated Rate Loan is in aminimum principal amount of the Dollar Equivalent of $5,000,000 and an integralmultiple of the Dollar Equivalent of $1,000,000; providedfurtherthat if a Negotiated Rate Loan must be in an amount less than the DollarEquivalent of $5,000,000 because of the provisions of clauses (C) and (D) above,such Negotiated Rate Loan may be for a minimum of the Dollar Equivalent of$1,000,000 or any integral multiple thereof, and in calculating the pro rataallocation of acceptances of portions of multiple Negotiated Rate Quotes at aparticular Negotiated Rate pursuant to clause (D) the amounts shall berounded to integral multiples of the Dollar Equivalent of $1,000,000 in amanner determined by the Borrower.  Anotice given by the Borrower pursuant to this paragraph shall be irrevocable.

 

(f)                                    Noticeof Borrower Acceptance.  TheAdministrative Agent shall promptly notify each quoting Lender by telecopywhether or not its Negotiated Rate Quote has been accepted (and, if so, theamount and Negotiated Rate so accepted), and each successful bidder willthereupon become bound, subject to the terms and conditions hereof, to make theNegotiated Rate Loan in respect of which its Negotiated Rate Quote has beenaccepted.  A Lender who is notified thatit has been selected to make a Negotiated Rate Loan may designate itsDesignated Bank (if any) to fund such Negotiated Rate Loan on its behalf, asdescribed in Section 13.1(h). Any Designated Bank which funds a Negotiated Rate Loan shall on andafter the time of such funding become the obligee in respect of such NegotiatedRate Loan and be entitled to receive payment thereof when due.

 

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

 

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

 

(i)                                     OtherTerms.  Any Negotiated Rate Loan shall not reduce the Revolving CreditCommitment of the Lender making such Negotiated Rate Loan, and each such Lendershall continue to be obligated to fund its Pro Rata Share of all ratableBorrowings under this Agreement.

 

**2.8.  Sharing Event****. **(a) Upon theoccurrence of a Sharing Event, automatically (and without the taking of anyaction) (x) all then outstanding Eurocurrency Rate Loans denominated in anOptional Currency (other than Negotiated Rate Loans) shall be automaticallyconverted into Loans denominated in Dollars (in an amount equal to the DollarEquivalent, as determined by the Administrative Agent on the date of such conversion,of the aggregate principal amount of the such Eurocurrency Rate Loans on thedate such Sharing Event first occurred, which Loans denominated in Dollars (i) shallthereafter be deemed to be Base Rate Loans and (ii) unless the SharingEvent resulted solely from a termination of the Revolving Credit Commitments,shall be immediately due and payable on the date such Sharing Event hasoccurred) and (y) unless the Sharing Event resulted solely from a terminationof the Revolving Credit Commitments, all accrued and unpaid interest and otheramounts owing with respect to such Eurocurrency Rate Loans shall be immediatelydue and payable in Dollars, in an amount equal to the Dollar Equivalent of suchaccrued and unpaid interest and other amounts.

 

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(b)                                 Uponthe occurrence of a Sharing Event, and after giving effect to any automaticconversion pursuant to Section 2.8(a), each Lender shall (andhereby unconditionally and irrevocably agrees to) purchase and sell (in eachcase in Dollars) undivided participating interests in all Loans (other thanNegotiated Rate Loans) outstanding to, and any unpaid amounts the IssuingLender has disbursed under a Letter of Credit owing by, the Borrower in amountssuch that each Lender shall have a share of the outstanding Loans (other thanNegotiated Rate Loans) and unpaid amounts the Issuing Lender has disbursedunder a Letter of Credit then owing by the Borrower equal to its Pro Rata Shareof the Revolving Credit Commitments (although if because of fluctuations incurrency exchange rates any Lender would be required to purchase suchparticipations after giving effect to which such Lender’s Loans and Letter ofCredit participations under Section 2.4(d) (includingparticipations therein purchased pursuant to this Section 2.8)would exceed such Lender’s Revolving Credit Commitment, then suchparticipations shall be in an amount after giving effect to which such Lender’sLoans and Letter of Credit participations under Section 2.4(d) (includingparticipations therein purchased pursuant to this Section 2.8)would equal such Lender’s Revolving Credit Commitment).  Upon any such occurrence, the AdministrativeAgent shall notify each Lender and shall specify the amount of Dollars requiredfrom such Lender in order to effect the purchases and sales by the variousLenders of participating interests in the amounts required above (together withaccrued interest with respect to the period for the last interest payment datethrough the date of the Sharing Event plus any additional amounts payable bythe Borrowers pursuant to Section 12.1 in respect of such accruedbut unpaid interest); provided, in the event that a Sharing Event shallhave occurred, each Lender shall be deemed to have purchased, automatically andwithout request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to theAdministrative Agent (in immediately available funds in Dollars) the net amountsas specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so receivedto the various Lenders in such amounts as are needed to effect the purchasesand sales of participations as provided above. Promptly following receipt thereof, each Lender which has soldparticipations in any of its Loans and Letter of Credit participations under Section 2.4(d) (throughthe Administrative Agent) will deliver to each Lender (through theAdministrative Agent) which has so purchased a participating interest a participationcertificate dated the date of receipt of such funds and in such amount.  It is understood that the amount of fundsdelivered by each Lender shall be calculated on a net basis, giving effect toboth the sales and purchases of participations by the various Lenders asrequired above.

 

(c)                                  Uponthe occurrence of a Sharing Event (i) no further Loans shall be made, (ii) allamounts from time to time accruing with respect to, and all amounts from timeto time payable on account of, any outstanding Eurocurrency Rate Loansdenominated in Optional Currency (including, without limitation, any interestand other amounts which were accrued but unpaid on the date of such purchase)shall be converted to Loans denominated in Dollars in accordance with Section 2.8(a) andbe payable immediately in Dollars as if such Eurocurrency Rate Loans hadoriginally been made in Dollars and shall be distributed by the relevantLenders (or their affiliates) to the Administrative Agent for the account ofthe Lenders which made such Loans or are participating therein and (iii) theRevolving Credit Commitments of the Lenders shall be automaticallyterminated.  Notwithstanding anything tothe contrary contained above, the failure of any Lender to purchase itsparticipating interest in any Loans upon the occurrence of a Sharing Eventshall not relieve any other Lender of its obligation hereunder to purchase itsparticipating interests in a timely manner, but no Lender shall be responsiblefor the failure of any other Lender to purchase the participating interest tobe purchased by such other Lender on any date.

 

(d)**                                **Ifany amount required to be paid by any Lender pursuant to Section 2.8(b) isnot paid to the Administrative Agent within one (1) Business Day followingthe date upon which such Lender receives notice from the Administrative Agentof the amount of its participations required to be purchased pursuant to said Section 2.8(b),such Lender shall also pay to the Administrative Agent on demand an

 

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amount equal to the product of (i) the amount so required to bepaid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Rate during theperiod from and including the date of request for payment to the date on whichsuch payment is immediately available to the Administrative Agent times (iii) a fraction the numerator ofwhich is the number of days that elapsed during such period and the denominatorof which is 360.  If any such amountrequired to be paid by any Lender pursuant to Section 2.8(b) isnot in fact made available to the Administrative Agent within three (3) BusinessDays following the date upon which such Lender receives notice from theAdministrative Agent as to the amount of participations required to bepurchased by it, the Administrative Agent shall be entitled to recover fromsuch Lender on demand, such amount with interest thereon calculated from suchrequest date at the rate per annum applicable to Base Rate Loans hereunder.  A certificate of the Administrative Agentsubmitted to any Lender with respect to any amounts payable by any Lenderpursuant to this Section 2.8 shall be deemed conclusive absentmanifest error.  Amounts payable underthis Section 2.8 shall be paid to the Administrative Agent for theaccount of the relevant Lenders; providedthat, if the Administrative Agent (in its sole discretion) has elected to fundon behalf of such Lender the amounts owing to such Lenders, then the amountsshall be paid to the Administrative Agent for its own account.

 

(e)                                  Whenever, at any timeafter the relevant Lenders have received from any Lenders purchases ofparticipations in any Loans pursuant to this Section 2.8, theLenders receive any payment on account thereof, such Lenders will distribute tothe Administrative Agent, for the account of the various Lenders participatingtherein, such Lenders’ participating interests in such amounts (appropriatelyadjusted, in the case of interest payments, to reflect the period of timeduring which such participations were outstanding) in like funds as received; provided, however,that in the event that such payment received by any Lenders are required to bereturned, the Lenders who received previous distributions in respect of theirparticipating interests therein will return to the respective Lenders anyportion thereof previously so distributed to them in like funds as such paymentis required to be returned by the respective Lenders.

 

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

 

(g)                                 Notwithstandinganything to the contrary contained elsewhere in this Agreement, upon anypurchase of participations as required above, each Lender which has purchasedsuch participations shall be entitled to receive from the Borrower anyincreased costs and indemnities directly from the Borrower to the same extentas if it were the direct Lender as opposed to a participant therein.  The Borrower acknowledges and agrees that,upon the occurrence of a Sharing Event and after giving effect to therequirements of this Section 2.8, increased Taxes may be owing bythe Borrower pursuant to Section 12.1, which Taxes shall be paid(to the extent provided in Section 12.1) by the Borrower, withoutany claim that the increased Taxes are not payable because same resulted fromthe participations effected as otherwise required by this Section 2.8.

 

**2.9.  Increase of RevolvingCredit Commitment****. **Unless a Potential Event ofDefault or an Event of Default has occurred and is continuing, the Borrower, bywritten notice to the Administrative

 

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

 

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

 

# **ARTICLE III.PAYMENTS AND PREPAYMENTS**

# ** **

**3.1.  Prepayments; Reductions inRevolving Credit Commitments.**

 

(a)                                  VoluntaryPrepayments.  The Borrower may, atany time and from time to time, prepay the Loans, in part or in their entirety,subject to the following limitations; provided that the Borrower shallnot have the right to prepay any Negotiated Rate Loan without the prior consentof the Lender thereof.  The Borrowershall give at least one (1) Business Day’s prior written notice in thecase of Loans denominated in Dollars and four (4) Business Days’ priorwritten notice in the case of Loans denominated in Optional Currency to theAdministrative Agent (which the Administrative Agent shall promptly transmit toeach Lender) of any prepayment to be made prior to the occurrence of an Eventof Default, which notice of prepayment shall specify the date (which shall be aBusiness Day) of prepayment.  When noticeof prepayment is delivered as provided herein, the outstanding principal amountof the Loans to be prepaid on the prepayment date specified in the notice shallbecome due and payable on such prepayment date. Each voluntary partial prepayment of the Loans shall be in a minimumamount of the Dollar Equivalent of $1,000,000. Eurocurrency Rate Loans may be prepaid in part or in their entirety onlyupon payment of the amounts described in Section 4.2(f).  Amounts prepaid with respect to the Term Loanpursuant to this Section 3.1(a) may not be reborrowed.

 

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(b)                                 VoluntaryReductions In Revolving Credit Commitments. The Borrower may, upon at least five (5) Business Days’ priorwritten notice to the Administrative Agent (which the Administrative Agentshall promptly transmit to each Lender), at any time and from time to time,terminate in whole or permanently reduce in part the Revolving CreditCommitments; provided that (i) the Borrower shall first have madewhatever payment may be required to reduce the sum of the Revolving CreditObligations and the Letter of Credit Obligations to an amount less than orequal to the aggregate Revolving Credit Commitments as reduced or terminated,which amount shall become due and payable on the date specified in such notice,(ii) the Revolving Credit Tranche A Commitments as reduced or terminatedshall not be in an amount less than the sum of (A) the aggregate RevolvingCredit Tranche A Obligations and (B) the aggregate Tranche A Letter ofCredit Obligations, (iii) the Revolving Credit Tranche B Commitments asreduced or terminated shall not be in an amount less than the sum of (A) theaggregate Revolving Credit Tranche B Obligations and (B) the aggregateTranche B Letter of Credit Obligations and (iv) reductions to theRevolving Credit Commitments shall be allocated on a pro rata basis between theRevolving Credit Tranche A Commitments and the Revolving Credit Tranche BCommitments.  Any partial reduction ofthe Revolving Credit Commitments shall be in an aggregate minimum amount of$1,000,000, and shall reduce the applicable Revolving Credit Commitment of eachLender proportionately in accordance with its applicable Pro Rata Share; provided,however, that without terminating the Revolving Credit Commitments, theRevolving Credit Commitments in the aggregate shall not be reduced below$150,000,000.  Any notice of terminationor reduction given to the Administrative Agent under this Section 3.1(b) shallspecify the date (which shall be a Business Day) of such termination orreduction and, with respect to a partial reduction, the aggregate principalamount thereof.  No reduction ortermination of the Revolving Credit Commitments may be reinstated.

 

(c)                                  NoPenalty.  The prepayments andpayments in respect of reductions and terminations described in clauses (a) and(b) of this Section 3.1 may be made without premium or penalty(except as provided in Section 4.2(f)).

 

(d)                                 MandatoryPrepayment.  If at any time from andafter the Closing Date:  (i) theBorrower merges or consolidates with another Person and the Borrower is not thesurviving entity, or (ii) the Borrower or any Consolidated Subsidiary orany Minority Holding sells, transfers, assigns or conveys assets, the bookvalue (of the Borrower) of which (computed in accordance with GAAP but withoutdeduction for depreciation), in the aggregate of all such sales, transfers,assignments, or conveyances would cause the Capitalization Value immediatelyafter such sale to be less than 75% of the Capitalization Value set forth inthe Compliance Certificate delivered pursuant to Section 5.1(j); provided,that for purposes of this clause (ii) only, the phrase “sells, transfers,assigns or conveys” shall not include (A) sales or conveyances among theBorrower and any Consolidated Subsidiaries, (B) mortgages secured by RealProperty, or (C) sales or conveyances of Securities in the Borrower or TMCor in newly-formed Subsidiaries or Minority Holdings in connection with theacquisition of Real Property; (the date any such event in (i) or (ii) shalloccur being the “Prepayment Date”) the Revolving Credit Commitments andTerm Loan Commitments shall be terminated and the Borrower shall be required toprepay the Loans in their entirety and return any outstanding Letters of Creditas if the Prepayment Date were the Revolving Credit Termination Date and theTerm Loan Maturity Date.  The Borrowershall make such prepayment on the Prepayment Date together with interestaccrued to the date of the prepayment on the principal amount prepaid.  In connection with the prepayment of any Loanprior to the maturity thereof, the Borrower shall also pay any applicableexpenses pursuant to Section 4.2(f). Each such prepayment shall beapplied to prepay ratably the Loans of the Lenders.  Amounts prepaid pursuant to this Section 3.1(d) maynot be reborrowed.

 

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**3.2****.  Payments.**

 

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

 

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

 

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

 

(B)                                second,as the Borrower so designates.

 

In the event that the Administrative Agent (at its sole discretion, asprovided in Section 2.1(f)(ii) shall have advanced any Loan onbehalf of any Lender for which the Administrative Agent has not been reimbursedby the Borrower or Lender, then any payment to be made to such Lender underthis Agreement shall first be paid to the Administrative Agent until theAdministrative Agent has received all principal of and interest on any portionof the Loans which the Administrative Agent may have advanced on behalf of suchLender.  Unless otherwise designated bythe Borrower, all principal payments in respect of Loans shall be applied first,to repay outstanding Base Rate Loans, second, to repay outstandingEurocurrency Rate Loans, with those Eurocurrency Rate Loans which have earlierexpiring Interest Periods being repaid prior to those which have later expiringInterest Periods and third, subject to Section 3.1(a), torepay outstanding Negotiated Rate Loans, with those Negotiated Rate Loans whichhave earlier expiring Interest Periods being repaid prior to those which havelater expiring Interest Periods.

 

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

 

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

 

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

 

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

 

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

 

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

 

In the event that the Administrative Agent (at its sole discretion, asprovided in Section 2.1(f)(ii)) shall have advanced any Loan onbehalf of any Lender for which the Administrative Agent has not been reimbursedby the Borrower or Lender, then any payment to be made to such Lender underthis Agreement shall first be paid to the Administrative Agent until theAdministrative Agent has received all principal of and interest on any portionof the Loans which the Administrative Agent may have advanced on behalf of suchLender.  The order of priority set forthin this Section 3.2(b)(ii) and the related provisions of thisAgreement are set forth solely to determine the rights and priorities of theAdministrative Agent, the other Lenders and other Holders as amongthemselves.  The order of priority setforth in clauses (B) through (E) of this Section 3.2(b)(ii) mayat any time and from time to time be changed by the Requisite Lenders withoutnecessity of notice to or consent of or approval by the Borrower, any Holderwhich is not a Lender, or any other Person; provided, however, nosuch change shall favor one Lender over any other Lender.  The order of priority as to payments due tothe Administrative Agent with respect to Loans made on behalf of another Lendermay be changed only with the prior written consent of the Administrative Agent.

 

(iii)                               Upon the occurrence andduring the continuation of an Event of Default, the Administrative Agent, inits sole discretion subject only to the terms of this Section 3.2(b)(iii),may pay from the proceeds of Loans made to the Borrower hereunder, whether madefollowing a request by the Borrower pursuant to Section 2.1 or adeemed request as provided in this Section 3.2(b)(iii), all amountspayable by the Borrower hereunder, including, without limitation, amountspayable with respect to payments of principal, interest and fees, allreimbursements for expenses pursuant to Section 13.2 and amountsthat may be drawn under Letters of Credit. The Borrower hereby irrevocably authorizes the Lenders, upon theoccurrence and during the continuation of an Event of Default, to make Loans,which Loans shall be Base Rate Loans, in each case, upon notice from theAdministrative Agent as described in the following sentence for the purpose ofpaying principal, interest and fees due from the Borrower, reimbursing expensespursuant to Section 13.2, paying amounts that are drawn underLetters of Credit and paying any and all other amounts due and payable by theBorrower hereunder or under the Notes, and agrees that all such Loans so madeshall be deemed to have been requested by it pursuant to Section 2.1as of the date of the aforementioned notice. If demanded by Administrative Agent in its absolute and sole discretionafter the occurrence of an Event of Default, Borrower will deposit with andpledge to Administrative Agent cash in an amount equal to the amount of allLetter of Credit Obligations.  Suchamounts will be pledged to and held by Administrative Agent for the benefit ofthe Lenders as security for any Letter of Credit Obligations and all otherObligations.  Upon any draws underLetters of Credit, at Administrative Agent’s sole discretion, AdministrativeAgent may apply any such amounts to the repayment of amounts drawn thereunderand upon the expiration of the Letters of Credit any remaining amounts will beapplied to the payment of all other Obligations or if there are no outstandingObligations and the Lenders have no further obligation to make Loans or issueLetters of Credit, such proceeds deposited by Borrower will be released toBorrower.  The Administrative Agent shallrequest Loans on behalf of the Borrower as described in this section bynotifying the Lenders by facsimile transmission or other similar form oftransmission (which notice the Administrative Agent shall thereafter promptlytransmit to the Borrower), of the amount and Funding Date of the proposed Borrowingand that such Borrowing is being requested on the Borrower’s behalf pursuant tothis Section 3.2(b)(iii).  On

 

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the proposed FundingDate, the Lenders shall make the requested Loans in accordance with theprocedures and subject to the conditions specified in Section 2.1.

 

(iv)                              Subjectto Section 3.2(b)(v), the Administrative Agent shall promptlydistribute to each other Lender at its primary address set forth on theappropriate signature page hereof or the signature page to theAssignment and Acceptance by which it became a Lender, or at such other addressas a Lender or other Holder may request in writing, such funds as such Personmay be entitled to receive, subject to the provisions of Article XI;provided that the Administrative Agent shall under no circumstances bebound to inquire into or determine the validity, scope or priority of anyinterest or entitlement of any Holder and may suspend all payments or seekappropriate relief (including, without limitation, instructions from theRequisite Lenders or an action in the nature of interpleader) in the event ofany doubt or dispute as to any apportionment or distribution contemplatedhereby.

 

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

 

(A)                              theforegoing provisions of this Section 3.2(b)(v) shall applyonly with respect to the proceeds of payments of Obligations and shall notaffect the conversion or continuation of Loans pursuant to Section 4.1(c);

 

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

 

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

 

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

 

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Rate Loans other thanthose constituting Non Pro Rata Loans or Cure Loans and, third, ratablyto Base Rate Loans constituting Cure Loans.

 

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

 

(c)                                  Paymentson Non-Business Days.  Whenever anypayment to be made by the Borrower hereunder or under the Notes is stated to bedue on a day which is not a Business Day, the payment shall instead be due onthe next succeeding Business Day (or, in the case of certain Eurocurrency RateLoans, on the preceding Business Day as set forth in the definition of “InterestPeriod”).

 

(d)                                 ObligationsAbsolute.  The obligations of theBorrower to the Lenders under this Agreement (and of the Lenders to makepayments to the Issuing Lender with respect to Letters of Credit) shall beabsolute, unconditional and irrevocable, and shall be paid and performedstrictly in accordance with the terms of this Agreement, under allcircumstances whatsoever, including, without limitation, the followingcircumstances:  (i) any lack ofvalidity or enforceability of this Agreement, any Letter of Credit or any ofthe other Loan Documents; (ii) any improper use which may be made of anyLetter of Credit or any improper acts or omissions of any beneficiary ortransferee of any Letter of Credit in connection therewith; (iii) theexistence of any claim, set-off, defense or any right which the Borrower or anyof its Subsidiaries or Affiliates may have at any time against any beneficiaryor any transferee of any Letter of Credit (or persons or entities for whom anysuch beneficiary or any such transferee may be acting) or the Lender (otherthan the defense of payment to the Lenders in accordance with the terms of thisAgreement) or any other person, whether in connection with any Letter ofCredit, this Agreement, any other Loan Document, or any unrelated transaction; (iv) anydraft, demand, certificate, statement or any other documents presented underany Letter of Credit proving to be insufficient, forged, fraudulent or invalidin any respect or any statement therein being untrue or inaccurate in anyrespect whatsoever; (v) any breach of any agreement between Borrower orany of its Subsidiaries or Affiliates and any beneficiary or transferee of anyLetter of Credit; (vi) any irregularity in the transaction with respect towhich any Letter of Credit is issued, including any fraud by the beneficiary orany transferee of such Letter of Credit; (vii) payment by the IssuingLender under any Letter of Credit against presentation of a sight draft,demand, certificate or other document which does not comply with the terms ofsuch Letter of Credit, provided that such payment shall not have constitutedgross negligence or willful misconduct on the part of the Issuing Lender; (viii) anynon-application or misapplication by the beneficiary of a Letter of Credit ofthe proceeds of such Letter of Credit; (ix) the legality, validity, form,regularity or enforceability of the Letter of Credit; (x) the failure of anypayment by Issuing Lender to conform to the terms of a Letter of Credit (if, inIssuing Lender’s good faith judgment, such payment is determined to beappropriate); (xi) the surrender or impairment of any security for theperformance or observance of any of the terms of any of the Loan Documents;(xii) the occurrence of any Event of Default or Potential Event of Default; and(xiii) any other circumstance or happening whatsoever, whether or not similarto any of the foregoing, provided that such other circumstances or happeningsshall not have been the result of gross negligence or willful misconduct on thepart of the Issuing Lender.

 

(e)                                  Distributionof Payments.  If in the opinion ofthe Administrative Agent the distribution of any amount received by it in suchcapacity hereunder, under the Notes or under any of the other Loan Documentsmight involve it in liability, it may refrain from making distribution untilits right to make distribution shall have been adjudicated by a court ofcompetent jurisdiction.  If a court ofcompetent jurisdiction shall adjudge that any amount received and distributedby the Administrative Agent is to be repaid, each Person to whom any suchdistribution shall have been made shall either repay to the AdministrativeAgent its proportionate share of the amount so adjudged to be repaid or shallpay over the same in such manner and to such Persons as shall be determined bysuch court.

 

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**3.3.  Promise to Repay; Evidenceof Indebtedness.**

 

(a)                                  Promiseto Repay.  The Borrower herebyunconditionally promises and agrees to pay (i) to the Administrative Agentfor the account of each Lender, the then unpaid principal amount of eachRevolving Credit Loan on the Revolving Credit Termination Date; (ii) to theAdministrative Agent for the account of each Lender, the then unpaid principalamount of the Term Loan on the Term Loan Maturity Date, (iii) to theAdministrative Agent for the account of each Lender of an outstandingNegotiated Rate Loan, the then unpaid principal amount of each Negotiated RateLoan on the last day of the Interest Period applicable to such Loan and (iv) tothe Swing Lender, the then unpaid principal amount of each Swing Loan on orbefore the earlier of (x) the Revolving Credit Termination Date, (y) the lastday of any calendar quarter, and (z) the fourth Business Day after such SwingLoan is made; provided that on each date that a Borrowing is made, theBorrower shall repay all Swing Loans then outstanding.  The Borrower hereby promises to pay to theAdministrative Agent for the account of each Lender and the Swing Lender, allunpaid interest accrued thereon, in accordance with the terms of this Agreementand the Notes.  The Borrower shallexecute and deliver to each Lender on the Closing Date, a Revolving Credit Noteand a Term Loan Note, evidencing the Loans to each Lender requesting a Note onor prior to the Closing Date and thereafter shall execute and deliver suchother Notes as are requested to evidence (x) any Negotiated Rate Loans or SwingLoans, as requested by the Administrative Agent or the Lender making suchNegotiated Rate Loan, or (y) the Loans owing to the Lenders after giving effectto any assignment thereof pursuant to Section 13.1, all in form andsubstance acceptable to the Administrative Agent and the parties to suchassignment (all such promissory notes and all amendments thereto, replacementsthereof and substitutions therefor being collectively referred to as the “Notes”;and “Note” means any one of the Notes). In connection with the issuance of any Note that replaces, in whole orin part, an existing Note, the existing replaced Note shall be returned to theBorrower marked “Cancelled” or “Replaced” upon request by the Borrower.  In the event that such replaced Note is notreturned within twenty (20) days after the issuance of a replacement Note (or,in the case of Note relating to a Negotiated Rate Loan, within twenty (20) daysafter the repayment of such Negotiated Rate Loan) and the request for return ismade, the Borrower shall be entitled to receive an affidavit from the Lenderthat was issued the Note, including an indemnity agreement, reasonablysatisfactory to the Borrower, with respect to such unreturned Note.

 

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

 

(c)                                  ControlAccount.  The Register maintained bythe Administrative Agent pursuant to Section 13.1(c) shallinclude a control account, and a subsidiary account for each Lender, in whichaccounts (taken together) shall be recorded (i) the date and amount ofeach Borrowing made hereunder, the type of Loan comprising such Borrowing, anyInterest Period applicable thereto and the Negotiated Rate, if applicable, (ii) theeffective date and amount of each Assignment and Acceptance delivered to andaccepted by it and the parties thereto, (iii) the amount of any principalor interest due and payable or to become due and payable from the Borrower toeach Lender hereunder or under the Notes and (iv) the amount of any sumreceived by the Administrative Agent from the Borrower hereunder and eachLender’s share thereof.

 

(d)                                 EntriesBinding.  The entries made in theRegister and each Loan Account shall be conclusive and binding for allpurposes, absent manifest error.

 

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**3.4.  Currency Matters****. **Dollars are thecurrency of account and payment for each and every sum at any time due from theBorrower hereunder; provided that: (a) except as expressly provided in this Agreement, each repaymentof a Revolving Credit Tranche B Obligation, Tranche B Letter of CreditObligation or a part thereof shall be made in the currency in which suchRevolving Credit Tranche B Obligation or Tranche B Letter of Credit Obligation,as the case may be, is denominated at the time of that repayment; (b) eachpayment of interest shall be made in the currency in which the principal orother sum in respect of which such interest is payable is denominated; (c) eachpayment of any fees shall be in Dollars; (d) each payment in respect ofcosts, expenses and indemnities shall be made in the currency in which the samewere incurred; and (e) any amount expressed to be payable in an OptionalCurrency shall be paid in such Optional Currency.  No payment to the Administrative Agent or anyLender (whether under any judgment or court order or otherwise) shall dischargethe obligation or liability in respect of which it was made unless and untilthe Administrative Agent or such Lender shall have received payment in full inthe currency in which such obligation or liability was incurred, and to theextent that the amount of any such payment shall, on actual conversion intosuch currency, fall short of such obligation or liability, actual or contingent,expressed in that currency, the Borrower agrees to indemnify and hold harmlessthe Administrative Agent or such Lender, as the case may be, with respect tothe amount of the shortfall, with such indemnity surviving the termination ofthis Agreement and any legal proceeding, judgment or court order pursuant towhich the original payment was made which resulted in the shortfall.  To the extent the Administrative Agent or anyLender receives payment of any Obligation in a currency other than the currencyrequired to be paid hereunder, each of the Administrative Agent and such Lendershall take all reasonable actions to convert such currency into the currency inwhich the underlying liability was incurred, at the Administrative Agent’s orsuch Lender’s spot rate of exchange, within one (1) Business Day afterreceipt of payment by the Borrower, provided, if reasonable methodsand/or markets do not exist for making such exchange, then the AdministrativeAgent or such Lender, as the case may be, will make such exchange within one (1) BusinessDay of the date on which making such exchange is, in the Administrative Agent’sor such Lender’s reasonable determination, commercially possible, and, provided further, nothing contained hereinshall in any manner limit the Borrower’s obligations to pay all Obligations inthe currency required under this Agreement, nor shall it be construed as theAdministrative Agent’s or any Lender’s consent to the Borrower paying anyObligation in any currency other than as set forth in clauses (a) – (e) ofthis Section 3.4.

 

# **ARTICLE IV.INTEREST AND FEES**

# ** **

**4.1.  Interest on the Loans andother Obligations.**

 

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

 

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

 

(ii)                                  Ifa Eurocurrency Revolving Credit Loan or a Eurocurrency Term Loan, at a rate perannum equal to the sum of (A) the Eurocurrency Rate determined for theapplicable Interest Period, plus (B) the then Applicable Margin forEurocurrency Rate Loans;

 

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

 

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

 

The applicable basis for determining the rate of interest on the Loansshall be selected by the Borrower at the time a Notice of Borrowing or a Noticeof Conversion/Continuation is delivered by the Borrower to the AdministrativeAgent or at the time of acceptance of one or more Negotiated Rate Quotes by theBorrower; provided, however, that the Borrower may not select theEurocurrency Rate as the applicable basis for determining the rate of intereston such a Loan if at the time of such selection an Event of Default or aPotential Event of Default has occurred and is continuing and furtherprovided,that from and after the occurrence of an Event of Default, each LIBOR Rate Loan(other than a Negotiated Rate Loan) then outstanding may, at the AdministrativeAgent’s option, convert to a Base Rate Loan. If on any day any Revolving Credit Loan or Term Loan is outstanding withrespect to which notice has not been timely delivered to the AdministrativeAgent in accordance with the terms of this Agreement specifying the basis fordetermining the rate of interest on that day, then the Borrower shall be deemedto have submitted a Notice of Conversion/Continuation with respect to the fullamount of such LIBOR Loan requesting a Base Rate Loan.  From and after the occurrence of an Event ofDefault, the Administrative Agent may, or upon request of the Requisite Lendersholding Revolving Credit Tranche B Commitments shall, require that eachRevolving Credit Loan denominated in Optional Currency then outstanding berepaid by means of a Base Rate Borrowing in the amount of the Dollar Equivalentof such Revolving Credit Loan denominated in Optional Currency.

 

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

 

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

 

(c)                                  Conversionor Continuation.  (i) TheBorrower shall have the option (A) to convert at any time all or any partof outstanding Base Rate Loans to LIBOR Rate Loans; (B) to convert all orany part of outstanding LIBOR Rate Loans having Interest Periods which expireon the same date to Base Rate Loans on such expiration date; or (C) tocontinue all or any part of outstanding Eurocurrency Rate Loans having InterestPeriods that expire on the same date, as Eurocurrency Rate Loans, and thesucceeding Interest Period of such continued Loans, shall commence on suchexpiration date; provided, however, no such outstanding Loan maybe continued as a Eurocurrency Rate Loan, or be converted into, a LIBOR RateLoan (i) if the continuation of, or the conversion into, would violate anyof the provisions of Section 4.2 or (ii) if an Event ofDefault or Potential Event of Default has occurred and is continuing.  Any conversion into a LIBOR Rate Loan orcontinuation of Eurocurrency Rate Loans under this Section 4.1(c) shallbe in a minimum amount of $2,000,000 (the Dollar Equivalent of $1,000,000 inthe case of a Loan

 

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

 

(ii)                                  Toconvert or continue a Loan under Section 4.1(c)(i), the Borrowershall deliver a Notice of Conversion/Continuation to the Administrative Agentno later than 11:00 a.m. (New York time) at least three (3) (forLoans denominated in Dollars) or four (4) (for Loans denominated inOptional Currency) Business Days in advance of the proposed conversion/continuationdate.  A Notice ofConversion/Continuation shall specify (A) the proposedconversion/continuation date (which shall be a Business Day), (B) theprincipal amount of the Loan to be converted/continued, (C) whether suchLoan shall be converted and/or continued, and (D) in the case of aconversion to a LIBOR Rate Loan or continuation of a Eurocurrency Rate Loan,the requested Interest Period.  In lieuof delivering a Notice of Conversion/Continuation, the Borrower may give theAdministrative Agent telephonic notice of any proposed conversion/continuationby the time required under this Section 4.1(c)(ii), if the Borrowerconfirms such notice by delivery of the Notice of Conversion/Continuation tothe Administrative Agent by facsimile transmission promptly, but in no eventlater than 12:00 p.m. (New York time) on the same day.  Promptly after receipt of a Notice ofConversion/Continuation under this Section 4.1(c)(ii) (ortelephonic notice in lieu thereof), the Administrative Agent shall notify each Lenderby facsimile transmission, or other similar form of transmission, of theproposed conversion/continuation.  AnyNotice of Conversion/Continuation for conversion to, or continuation of, a Loan(or telephonic notice in lieu thereof) given pursuant to this Section 4.1(c)(ii) shallbe irrevocable, and the Borrower shall be bound to convert or continue inaccordance therewith.  In the event noNotice of Conversion/Continuation is delivered at least three (3) (forLoans denominated in Dollars) or four (4) (for Loans denominated inOptional Currency)  Business Days inadvance of the proposed conversion/continuation date with respect tooutstanding Eurocurrency Rate Loans, then (a) as to Eurocurrency RateLoans denominated in an Optional Currency, the Borrower shall repay suchEurocurrency Rate Loans at the end of such Interest Period, and (b) as toEurocurrency Rate Loans denominated in Dollars, such Eurocurrency Rate Loanshall be automatically converted to a Base Rate Loan on the last day of thefirst Interest Period relating thereto. The Administrative Agent shall notify the Lenders promptly when any suchautomatic conversion contemplated by this Section 4.1(c)(ii) isscheduled to occur.

 

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

 

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

 

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(e)                                  Computationof Interest.  Interest on allObligations shall be computed on the basis of the actual number of days elapsedin the period during which interest accrues and a year of 360 days (forNegotiated Rate Loans and Eurocurrency Rate Loans) or 365 or 366 days, asapplicable (for all other Obligations). In computing interest on any Loan, the date of the making of the Loan orthe first day of an Interest Period, as the case may be, shall be excluded andthe date of payment or the expiration date of an Interest Period, as the casemay be, shall be included; provided, however, if a Loan is repaidon the same day on which it is made, one (1) day’s interest shall be paidon such Loan.

 

(f)                                    EurocurrencyRate Information.  Upon thereasonable request of the Borrower from time to time, the Administrative Agentshall promptly provide to the Borrower such information with respect to theapplicable Eurocurrency Rate as may be so requested.

 

**4.2.  Special ProvisionsGoverning Eurocurrency Rate Loans.**

 

(a)                                  Amountof Eurocurrency Rate Loans.  EachEurocurrency Rate Loan (excluding any Negotiated Rate Loans) shall be in aminimum principal amount of the Dollar Equivalent of $2,000,000 (or the DollarEquivalent of $1,000,000 in the case of any Eurocurrency Rate Loan denominatedin an Optional Currency) and in integral multiples of the Dollar Equivalent of$1,000,000 (or the Dollar Equivalent of $500,000 in the case of anyEurocurrency Rate Loan denominated in an Optional Currency) in excess of thatamount. There shall be no more than fifteen (15) Eurocurrency Rate Borrowingsdenominated in Dollars (exclusive of Negotiated Rate Loans) and five (5) EurocurrencyRate Borrowings (exclusive of Negotiated Rate Loans) denominated in OptionalCurrency outstanding at any one time.

 

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

 

(c)                                  Determinationof Eurocurrency Interest Rate.  Assoon as practicable on the second LIBOR Business Day or the second TARGETSettlement Date, as the case may be, prior to the first day of each InterestPeriod (the “Interest Rate Determination Date”), the AdministrativeAgent shall determine (pursuant to the procedures set forth in the definitionof “Eurocurrency Rate”) the interest rate which shall apply to the EurocurrencyRate Loans for which an interest rate is then being determined for theapplicable Interest Period and shall promptly give notice thereof (in writingor by telephone confirmed in writing) to the Borrower and to each Lender.  The Administrative Agent’s determinationshall be presumed to be correct, absent manifest error, and shall be bindingupon the Borrower.

 

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

 

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

 

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

 

(iii)                               the Requisite Lendersadvise the Administrative Agent that the applicable Eurocurrency Rate forEurocurrency Rate Loans comprising such Borrowing will not adequately

 

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

 

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

 

(e)                                  Illegality.  (i)                              Ifat any time any Lender determines (which determination shall, absent manifesterror, be final and conclusive and binding upon all parties) that the making orcontinuation of any Eurocurrency Rate Loan has become unlawful or impermissibleby compliance by that Lender with any law, governmental rule, regulation ororder of any Governmental Authority (whether or not having the force of law andwhether or not failure to comply therewith would be unlawful or would result incosts or penalties), then, and in any such event, such Lender may give noticeof that determination, in writing, to the Borrower and the AdministrativeAgent, and the Administrative Agent shall promptly transmit the notice to eachother Lender.

 

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

 

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

 

(iv)                              Notwithstandingthe foregoing, in the event that any Lender gives such a notice, at theBorrower’s sole election, the Borrower may identify an Eligible Assignee notgiving such a notice to whom the Lender which has given such a notice shallassign its interest in the Loans at par pursuant to the terms of an Assignmentand Acceptance substantially in the form attached as **Exhibit A**, subject to the consent of theAdministrative Agent and the Issuing Lender (such consent not to beunreasonably withheld or delayed).

 

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

 

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liquidation or reemployment of deposits or other fundsacquired by such Lender to fund or maintain such Lender’s Eurocurrency RateLoans or Negotiated Rate Loan to the Borrower but excluding losses or expensesincurred as the result of such Lender’s gross negligence or willful misconduct)which such Lender may sustain (i) if for any reason a Borrowing,conversion into LIBOR Rate Loans or continuation of Eurocurrency Rate Loansdoes not occur on a date specified therefor in a Notice of Borrowing or aNotice of Conversion/Continuation given by, or a Negotiated Rate Quote acceptedby, the Borrower or in a telephonic request by it for borrowing orconversion/continuation or a successive Interest Period does not commence afternotice therefor is given pursuant to Section 4.1(c), including,without limitation, pursuant to Section 4.2(d), (ii) if forany reason any Eurocurrency Rate Loan or Negotiated Rate Loan is prepaid(including, without limitation, mandatorily pursuant to Section 3.1(d))on a date which is not the last day of the applicable Interest Period, (iii) asa consequence of a required conversion of a LIBOR Rate Loan to a Base Rate Loanas a result of any of the events indicated in Section 4.2(d), or (iv) asa consequence of any failure by the Borrower to repay a Eurocurrency Rate Loanor Negotiated Rate Loan when required by the terms of this Agreement,including, without limitation, an amount equal to daily interest for theunexpired portion of such Interest Period on the Eurocurrency Rate Loan or portionthereof so repaid or converted at a per annum rate equal to the excess, if any,of (A) the interest rate calculated on the basis of the Eurocurrency Rateapplicable to such Eurocurrency Rate Loan minus (B) the Eurocurrency Ratein effect as of such repayment or conversion which has a maturity date mostclosely approximating the last day of such existing Interest Period.  Such amount shall be reduced to present valueby using the Eurocurrency Rate for the new interest period and the number ofdays remaining in the unexpired portion of the Interest Period inquestion.  The Lender making demand forsuch compensation shall deliver to Administrative Agent who shall forward tothe Borrower, concurrently with such demand, a written statement setting forthin reasonable detail such losses, expenses and liabilities, and such statementshall be conclusive as to the amount of compensation due to that Lender, absentmanifest error.

 

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

 

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

 

(i)                                     Adjusted Eurocurrency Rate. Any failure by Administrative Agent to take into account the ReservePercentage when calculating interest due on Eurocurrency Rate Loans shall notconstitute, whether by course of dealing or otherwise, a waiver byAdministrative Agent or the Lenders of their right to collect such amount forany future period.

 

(j)                                     Optional Currencies.

 

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

 

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

 

(ii)                                  *Denominations*. In the event that any portion of the funds available under the terms ofthis Agreement is denominated in an Optional Currency, the Dollar Equivalent ofsuch portion of the funds shall be calculated pursuant to the definition of “Dollar Equivalent.” The amount so determinedshall then be added to the amount already outstanding in Dollars for thepurpose of determining the remaining availability of funds under Sections2.1 and 4.2(j)(i) and any required repayments under Section 4.2(j)(iii).

 

(iii)                               *Repayment*.  The Administrative Agent shall, on thefifth Business Day of each calendar month, each date of a Sharing Event, andeach date that is two (2) days prior to any Funding Date of a Borrowing ofOptional Currency, calculate the Dollar Equivalent of all Borrowingsdenominated in Optional Currency.  If atany such time the Dollar Equivalent of the aggregate principal amountoutstanding of the sum of (A) all Revolving Credit Tranche B Obligationsand (B) all Tranche B Letter of Credit Obligations shall exceed the lesserof $175,000,000 or the Revolving Credit Tranche B Commitments due to currencyfluctuations, the Borrower shall, upon demand by the Administrative Agent, payor cause to be paid within two (2) Business Days of any such demand madeby the Administrative Agent, such amounts as are sufficient to eliminate suchexcess and to reduce the Dollar Equivalent of the aggregate principal amountoutstanding of the sum of (I) the Revolving Credit Tranche B Obligations and(II) the Tranche B Letters of Credit Obligations to an amount equal to thelesser of $175,000,000 or the amount of the Revolving Credit Tranche BCommitments.

 

(iv)                              *Funding*. Each Lender may make any Eurocurrency Rate Loan denominated in anOptional Currency by causing any of its domestic or foreign branches or foreignaffiliates to make such Eurocurrency Rate Loan (whether or not such branch oraffiliate is named as a lending office on the signature pages hereof); provided that in such event the obligation ofthe Borrower to repay such Eurocurrency Rate Loan shall nevertheless be to suchLender and shall, for all purposes of this Agreement (including withoutlimitation for purposes of the definition of “RequisiteLenders”) be deemed made by such Lender, to the extent of such EurocurrencyRate Loan, for the account of such branch or affiliate.

 

**4.3.  Fees.**

 

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

 

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

 

(b)                                 Administrative Agent’s Fee. The Borrower shall pay to the Administrative Agent, for theAdministrative Agent’s own account, an annual Administrative Agent’s fee asprovided in the Fee Letter. The Administrative Agent’s fee shall be payablequarterly in advance on the Closing Date and on the first day of each calendarquarter after the Closing Date for the following calendar quarter or portionthereof.  The Administrative Agent’s feefor any partial calendar quarter shall be prorated.

 

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

 

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

 

(e)                                  Limitation on Interest. Notwithstanding anything in this Agreement or the other Loan Documentsto the contrary, all agreements between or among the Borrower and the Lendersand the Administrative Agent, whether now existing or hereafter arising andwhether written or oral, are hereby limited so that in no contingency, whetherby reason of acceleration of the maturity of any of the Obligations orotherwise, shall the interest contracted for, charged or received by theLenders exceed the maximum amount permissible under applicable law.  If, from any circumstance whatsoever,interest would otherwise be payable to the Lenders in excess of the maximumlawful amount, the interest payable to the Lenders shall be reduced to themaximum amount permitted under applicable law; and if from any circumstance theLenders shall ever receive anything of value deemed interest by applicable lawin excess of the maximum lawful amount, an amount equal to any excessiveinterest shall be applied to the reduction of the principal balance of theObligations and to the payment of interest or, if such excessive interestexceeds the unpaid balance of principal of the Obligations, such excess shallbe refunded to the Borrower.  Allinterest paid or agreed to be paid to the Lenders shall, to the extentpermitted by applicable law, be amortized, prorated, allocated and spreadthroughout the full period until payment in full of the principal of theObligations (including the period of any renewal or extension thereof) so thatthe interest thereon for such full period shall not exceed the maximum amountpermitted by applicable law.  This section shallcontrol all agreements between the Borrower and the Lenders and theAdministrative Agent.

 

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

# ** **

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

 

(a)                                  Documents.  TheAdministrative Agent shall have received on or before the Initial Funding Dateall of the following:

 

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

 

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

 

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

 

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

 

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

 

(d)                                 Interim Liabilities and Equity. Except as disclosed to the Administrative Agent and the Lenders or aspermitted under the Existing Revolving Agreement and the Original Term LoanAgreement, since September 30, 2004, Borrower shall not have (i) enteredinto any material (as determined in good faith by the Administrative Agent)commitment or transaction, including, without limitation, transactions forborrowings and Capital Expenditures, which are not in the ordinary course ofthe Borrower’s business, (ii) declared or paid any dividends or otherdistributions which are not in the ordinary course of the Borrower’s business, (iii) establishedany new compensation or employee benefit plans or made any change to anyexisting compensation or employee benefit plan, in each case, that is materialto the Borrower’s financial condition or prospects, or (iv) redeemed anyequity Securities in the Borrower or TMC.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**5.2**.  **Conditions Precedent toAll****Subsequent Loans and Letters of Credit**.  The obligation of eachLender to make any Loan requested to be made by it and of the Issuing Lender toissue any Letter of Credit requested to be issued by it on any date after theInitial Funding Date is subject to the following conditions precedent as ofeach such date:

 

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

 

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

 

(c)                                  No Legal Impediments. No law, regulation, order, judgment ordecree of any Governmental Authority shall, and the Administrative Agent shallnot have received any notice that litigation is pending or threatened which islikely to, (i) enjoin, prohibit or restrain the making of the

 

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requested Loan or the issuance of the requested Letterof Credit or (ii) impose or result in the imposition of a Material AdverseEffect.

 

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

 

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

 

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

 

# **ARTICLE VI.REPRESENTATIONS AND WARRANTIES**

# ** **

**6.1**.  **Representations****and Warranties of theBorrower**.  Inorder to induce the Lenders to enter into this Agreement and to issue theLetters of Credit and make the Loans and the other financial accommodations tothe Borrower described herein, each of the Borrower and TMC hereby representsand warrants to Administrative Agent and each Lender that the followingstatements, insofar as such statements are applicable to it, its Subsidiariesor its properties, are true, correct and complete:

 

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

 

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

 

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

 

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

 

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

 

(ii)                                  The execution, delivery and performanceof each of the Loan Documents which must be executed in connection with thisAgreement by the Borrower or TMC and to which the Borrower or TMC is a partyand the consummation of the transactions contemplated thereby are within theBorrower’s partnership powers and TMC’s corporate powers, have been dulyauthorized by all necessary partnership action (and, in the case of TMC actingindividually or on behalf of the Borrower in connection therewith, allnecessary corporate action thereof) and such authorization has not beenrescinded.  No other partnership orcorporate action or proceedings on the part of the Borrower or TMC is necessaryto consummate such transactions.

 

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

 

(c)                                  Subsidiaries; Ownership of Capital Stockand Partnership Interests.  (i) Part I of **Schedule 6.1-C**specifies, as of December 6, 2004, each Person in which the Borrower holdsa direct or indirect partnership, or other equity interest indicating thenature and amount of such interest with respect to each person and accuratelysets forth the correct legal name of such Person and the jurisdiction of itsincorporation or formation.  There havebeen no material changes to the information specified on Part I of **Schedule 6.1-C** from December 6,2004 through the Closing Date other than changes disclosed in filings with theSecurities and Exchange Commission and changes resulting from internalreorganizations.  Part II of **Schedule 6.1-C** setsforth, as of September 30, 2004, the authorized, issued and outstandingshares or interests of each class of Securities of the Borrower and TMC.  There have been no material changes to theinformation specified on Part II of **Schedule 6.1-C**from September 30, 2004 through the Closing Date other than changesdisclosed in filings with the Securities and Exchange Commission and changesresulting from redemptions of OP Units for shares of common stock of TMC or theissuance or vesting of shares of common stock of TMC pursuant to employee,officer or director benefit plans.  As ofSeptember 30, 2004, none of the issued and outstanding Securities of theBorrower or TMC is subject to any vesting, redemption, or repurchase agreement,and there are no warrants or options outstanding with respect to suchSecurities, except as noted on **Schedule 6.1-C**.  The outstanding Capital Stock of TMC is duly

 

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

 

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

 

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

 

(e)                                  Governmental Consents. The execution, delivery and performance of each of the Loan Documents towhich the Borrower or TMC is a party do not and will not require anyregistration with, consent or approval of, or notice to, or other action to,with or by any Governmental Authority, except (i) filings, consents ornotices which have been made, obtained or given and (ii) filings with theSecurities and Exchange Commission that will be made in accordance withapplicable Requirements of Law.

 

(f)                                    Governmental Regulation. Neither Borrower nor TMC is subject to regulation under the PublicUtility Holding Company Act of 1935, the Federal Power Act, the InterstateCommerce Act, or the Investment Company Act of 1940, or any other federal orstate statute or regulation which limits their respective ability to incurindebtedness or their respective ability to consummate the transactionscontemplated by this Agreement.

 

(g)                                 Financial Position. Complete and accurate copies of the financial statements and materialsas described in Section 5.1(i) have been delivered to theAdministrative Agent.  All financialstatements included in such materials were prepared in all material respects inconformity with GAAP, except as otherwise noted therein, and fairly present inall material respects the respective Consolidated financial positions, and theConsolidated results of operations and cash flows for each of the periodscovered thereby of TMC and the Borrower and its Consolidated Subsidiaries as atthe respective dates thereof.  NeitherBorrower nor any of its Consolidated Subsidiaries has any ContingentObligation, contingent liability or liability for any taxes, long-term leasesor commitments, not reflected in its audited financial statements delivered tothe Administrative Agent on or prior to the Closing Date or otherwise disclosedto the Administrative Agent and the Lenders in writing, which will have or is reasonablylikely to have a Material Adverse Effect. As of the Closing Date, except for assets under capital leases and

 

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assets of joint ventures that are Consolidated asvariable interest entities in accordance with GAAP, TMC, Borrower and theirrespective Subsidiaries own all of the assets reflected in the Consolidatedbalance sheet of the Borrower as of September 30, 2004****oracquired since that date except the minority interests reflected therein (exceptproperty and assets sold or otherwise disposed of (x) in the ordinary course ofbusiness since that date or (y) as permitted under the Existing RevolvingAgreement and the Original Term Loan Agreement), subject to no rights ofothers, including any mortgages, leases, conditional sales agreements, titleretention agreements, liens or other encumbrances except Liens permitted by Section 9.2.  Without limiting the foregoing, Borrower andits Subsidiaries have good and marketable fee simple title to all Real Propertyreasonably necessary for the operation of its business in whole, free from allliens or encumbrances of any nature whatsoever, except for Liens permitted by Section 9.2.  The Borrower or one of its Subsidiaries, asthe case may be, has, in each case, title insurance in such amounts andcoverages as are customarily carried by REITs substantially similar to theBorrower and in any event no less than the amounts required by the applicablelender(s) providing financing for such Real Property.

 

(h)                                 Indebtedness.  **Schedule 6.1-H** setsforth, as of the Closing Date, all Indebtedness for borrowed money of theBorrower and its respective Subsidiaries not disclosed in the financialstatements delivered pursuant to Section 5.1(i) and, except asset forth on **Schedule 6.1-H**,there are no defaults in the payment of principal or interest on any suchIndebtedness and no payments thereunder have been deferred or extended beyondtheir stated maturity.

 

(i)                                     Litigation; Adverse Effects. Except as set forth in **Schedule 6.1-I**,there is no action, suit, proceeding, Claim, investigation or arbitrationbefore or by any Governmental Authority or private arbitrator pending or, tothe knowledge of the Borrower, threatened against TMC, the Borrower, or any ofits respective Subsidiaries, or any Property of any of them (i) challengingthe validity or the enforceability of any of the Loan Documents, (ii) asof the Closing Date, which will or is reasonably likely to result in anyMaterial Adverse Effect, or (iii) as of the Closing Date, under theRacketeering Influenced and Corrupt Organizations Act or any similar federal orstate statute where such Person is a defendant in a criminal indictment thatprovides for the forfeiture of assets to any Governmental Authority as apotential criminal penalty.  There is nomaterial loss contingency within the meaning of GAAP which has not beenreflected in the Consolidated financial statements of the Borrower.  Neither the Borrower nor TMC or anySubsidiary of the Borrower or TMC is (a) in violation of any applicableRequirements of Law which violation will have or is reasonably likely to have aMaterial Adverse Effect, or (B) subject to or in default with respect toany final judgment, writ, injunction, restraining order or order of any nature,decree, rule or regulation of any court or Governmental Authority whichwill have or is reasonably likely to have a Material Adverse Effect.

 

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

 

(k)                                  Tax Examinations. All deficiencies which have been asserted against the Borrower or TMC asa result of any federal, state, local or foreign tax examination for eachtaxable year in respect of which an examination has been conducted have beenfully paid or finally settled or are being contested in good faith, and noissue has been raised in any such examination which, by application of similarprinciples, reasonably can be expected to result in assertion of a materialdeficiency for any other year not so examined which has not been reserved forin the financial statements of the Borrower or TMC, as applicable, to theextent, if any, required by GAAP. Neither Borrower nor TMC has taken any reporting positions for which itdoes not have a reasonable basis nor anticipates any further material taxliability with respect to the years which have not been closed pursuant toapplicable law.

 

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

 

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

 

(m)                               Performance. Neither the Borrower nor TMC nor any of their Subsidiaries has receivedany notice, citation or allegation, nor has actual knowledge, that (i) itis in default in the performance, observance or fulfillment of any of theobligations, covenants or conditions contained in any Contractual Obligationapplicable to it, (ii) any of its Properties is in violation of anyRequirements of Law or (iii) any condition exists which, with the givingof notice or the lapse of time or both, would constitute a default with respectto any such Contractual Obligation, in each case, except where such default orviolation, if any, will not have or is not reasonably likely to have a MaterialAdverse Effect.

 

(n)                                 Disclosure.  Therepresentations and warranties of the Borrower and TMC contained in the LoanDocuments, and all certificates and other documents delivered to theAdministrative Agent pursuant to the terms thereof, do not contain any untruestatement of a material fact or omit to state a material fact necessary inorder to make the statements contained herein or therein, in light of thecircumstances under which they were made, not materially misleading.  Neither the Borrower nor TMC hasintentionally withheld any fact from the Administrative Agent or the otherLenders in regard to any matter which will have or is reasonably likely to havea Material Adverse Effect.  Notwithstandingthe foregoing, the Lenders acknowledge that neither the Borrower nor TMC shallhave liability under this clause (n) with respect to its projections of futureevents.

 

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

 

(p)                                 Environmental Matters.

 

(i)                                     Except as disclosed on **Schedule 6.1-P** andexcept where failure is not reasonably likely to have a Material AdverseEffect:

 

(A)                              the operations of the Borrower, TMC, eachof their respective Subsidiaries, and their respective Properties comply in allmaterial respects with all applicable Environmental, Health or SafetyRequirements of Law;

 

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

 

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

 

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

 

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

 

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

 

(F)                                 TMC, the Borrower nor any of theirSubsidiaries has sent or directly arranged for the transport of any Contaminantto any site listed or proposed for listing on the NPL, CERCLIS or any similarstate list;

 

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

 

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

 

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

 

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

 

(K)                               no Property of the Borrower or anySubsidiary of the Borrower is subject to any Environmental Property TransferAct, or to the extent such acts are applicable to any such Property, theBorrower and/or such Subsidiary whose Property is subject thereto has fullycomplied with the requirements of such acts; and

 

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

 

(ii)                                  the Borrower and each of its Subsidiariesare conducting and will continue to conduct their respective businesses andoperations and maintain each Real Property in compliance in all materialrespects with applicable Environmental, Health or Safety Requirements of Lawand no such Person has been, and no such Person has any reason to believe thatit or any Property will be, subject to Liabilities and Costs arising out of orrelating to environmental, health or safety matters that would result in aMaterial Adverse Effect.

 

(q)                                 ERISA.  As of theClosing Date, neither the Borrower nor TMC nor any ERISA Affiliate maintains orcontributes to any Benefit Plan or Multiemployer Plan other than those listedon **Schedule 6.1-Q**hereto.  Each Plan which is intended tobe qualified under Section 401(a) of the Internal Revenue Code ascurrently in effect: (i) has been determined by the IRS to be so qualifiedor is entitled to rely on a favorable IRS opinion letter, (ii) has beensubmitted to the IRS for such determination letter within the applicableremedial amendment period under section 401(b) of the InternalRevenue Code, or (iii) the applicable remedial amendment period has notexpired.  As of the Closing Date, exceptas disclosed in **Schedule 6.1-Q**,neither the Borrower nor TMC nor any of their respective Subsidiaries maintainsor contributes to any “employee welfare benefit plan” within the meaning of Section 3(l)of ERISA which provides benefits to employees after termination of employmentother than as required by Section 601 of ERISA or a similar statelaw.  Each of the Borrower, TMC and theirrespective Subsidiaries is in compliance with the responsibilities, obligationsand duties imposed on it by ERISA, the Internal Revenue Code and regulationspromulgated thereunder with respect to all Plans, except where failure to socomply would not be reasonably likely to result in liability to the Borrower orany of its ERISA Affiliates of an amount in excess of $5,000,000.  No Benefit Plan has incurred any accumulatedfunding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) ofthe Internal Revenue Code) whether or not waived.  Neither the Borrower nor TMC nor any ERISAAffiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i) hasengaged in a nonexempt prohibited transaction described in Sections 406 ofERISA or 4975 of the Internal Revenue Code with respect to which such Personsare reasonably likely to be subject to any liability individually or in theaggregate in excess of $5,000,000 or (ii) has taken or failed to take anyaction which would constitute or result in an ERISA Termination Event that isreasonably likely to result in liability to the Borrower or any ERISA Affiliateof an amount in excess of $5,000,000. Neither the Borrower nor TMC nor any ERISA Affiliate is subject to anyliability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA.  Neither the Borrower nor TMC nor any ERISAAffiliate has incurred any liability to the PBGC which remains outstandingother than the payment of premiums, and there are no premium payments whichhave become due which are unpaid.  Schedule Bto the most recent annual report filed with the Department of Labor (i.e. Form 5500)with respect to each Benefit Plan and furnished to the Administrative Agent iscomplete and accurate in all

 

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material respects. Since the date of each such Schedule B, there has been no materialadverse change in the funding status or financial condition of the Benefit Planrelating to such Schedule B. Neither the Borrower nor TMC nor any ERISA Affiliate has (i) failedto make a required contribution or payment to a Multiemployer Plan or (ii) madea complete or partial withdrawal under Sections 4203 or 4205 of ERISA from aMultiemployer Plan, in each case, where such failure or withdrawal couldreasonably be expected to result in liability to the Borrower or an ERISAAffiliate of an amount in excess of $5,000,000. Neither the Borrower nor TMC nor any ERISA Affiliate has failed to makea required installment or any other required payment under Section 412 ofthe Internal Revenue Code on or before the due date for such installment orother payment.  Neither the Borrower norTMC nor any ERISA Affiliate is required to provide security to a Benefit Planunder Section 401(a)(29) of the Internal Revenue Code due to a BenefitPlan amendment that results in an increase in current liability for the planyear.  As of the Closing Date, except asdisclosed on **Schedule 6.1-Q**,neither the Borrower nor TMC nor any of their respective Subsidiaries has,solely by reason of the transactions contemplated hereby, any obligation tomake any payment to any employee pursuant to any Plan or existing contract orarrangement.

 

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

 

(s)                                  Solvency.  After givingeffect to the Loans to be made or Letters of Credit to be issued on the InitialFunding Date or such other date as Loans or Letters of Credit requestedhereunder are made or issued, and the disbursement of the proceeds of suchLoans pursuant to the Borrower’s instructions, each of the Borrower and TMC isSolvent.

 

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

 

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

 

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

 

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

 

# **ARTICLE VII.REPORTING COVENANTS**

# ** **

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

 

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

 

**7.1**.  **Borrower AccountingPractices**.  The Borrower shall maintain, and cause TMCand each of their respective Subsidiaries to maintain, a system of accountingestablished and administered in accordance with sound business practices topermit preparation of Consolidated and Consolidating financial statements in****conformity****with GAAP, andeach of the financial statements and reports described below shall be preparedfrom such system and records and in form reasonably satisfactory to theAdministrative Agent.

 

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

 

(a)                                  Quarterly Reports.

 

(i)                                     Quarterly Financial Reports. As soon as practicable, and in any event within sixty (60) days afterthe end of each fiscal quarter in each Fiscal Year (other than the last fiscalquarter in each Fiscal Year), an unaudited Consolidated balance sheet of theBorrower and the related Consolidated statements of income and cash flow of theBorrower (to be prepared and delivered quarterly in conjunction with the otherreports delivered hereunder at the end of each fiscal quarter) for each suchfiscal quarter, in each case in form and substance satisfactory to theAdministrative Agent and, in comparative form, the corresponding figures forthe corresponding periods of the previous Fiscal Year, certified by anAuthorized Financial Officer of TMC as fairly presenting the Consolidated andConsolidating financial position of TMC and the Borrower as of the datesindicated and the results of its operations and cash flow for the monthsindicated in accordance with GAAP, subject to normal quarterly adjustments.

 

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

 

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

 

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Officer signatory thereto has reviewed the terms ofthe Loan Documents, and has made, or caused to be made under his/hersupervision, a review in reasonable detail of the transactions and Consolidatedand Consolidating financial condition of the Borrower, TMC and their respectiveSubsidiaries, during the fiscal quarter covered by such reports, that suchreview has not disclosed the existence during or at the end of such fiscalquarter, and that such officer does not have knowledge of the existence as ofthe date of such Officer’s Certificate, of any condition or event whichconstitutes an Event of Default or Potential Event of Default or mandatoryprepayment event as described in Section 3.1(d) of thisAgreement, or, if any such condition or event existed or exists, and specifyingthe nature and period of existence thereof and what action the Borrower, TMC orany of their Subsidiaries has taken, is taking and proposes to take withrespect thereto; (2) the calculations (in the form of **Schedule 7.2**hereto or otherwise with such specificity as the Administrative Agent mayreasonably request) for the period then ended which demonstrate compliance withthe covenants and financial ratios set forth in Articles VIII and IXand, when applicable, that no Event of Default described in Section 10.1exists, (3) a schedule of changes, if any, in the Borrower’soutstanding Indebtedness, including the amount, maturity, and interest rate, aswell as such other information regarding such Indebtedness as may be reasonablyrequested by the Administrative Agent, since the last date on which such a schedule wassubmitted, and (4) a schedule of Combined EBITDA.

 

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

 

(b)                                 Annual Reports.

 

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

 

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

 

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

 

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

 

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

 

**7.3**.  **Events of Default**.  Promptlyupon the Borrower obtaining knowledge (a) of any condition or event whichconstitutes an Event of Default or Potential Event of Default, or becomingaware that any Lender or the Administrative Agent has given any notice withrespect to a claimed Event of Default or Potential Event of Default under thisAgreement; (b) that any Person has given any notice to the Borrower, TMCor any Subsidiary of the Borrower or TMC or taken any other action with respectto a claimed default or event or condition of the type referred to in Section 10.1(e);or (c) of any condition or event which has or is reasonably likely to havea Material Adverse Effect, the Borrower shall deliver to the AdministrativeAgent an Officer’s Certificate specifying (i) the nature and period ofexistence of any such claimed default, Event of Default, Potential Event ofDefault, condition or event, (ii) the notice given or action taken by suchPerson in connection therewith, and (iii) what action the Borrower hastaken, is taking and proposes to take with respect thereto.

 

**7.4**.  **Lawsuits**.  (i) Promptlyupon the Borrower’s obtaining knowledge of the institution of, or writtenthreat of, any action, suit, proceeding, governmental investigation orarbitration against or affecting the Borrower, TMC or any of their respectiveSubsidiaries of the type described in Section 6.l(i) of thisAgreement not previously disclosed pursuant to Section 6.1(i), theBorrower shall give written notice thereof to the Administrative Agent andprovide such other information as may be reasonably available to enable eachLender and the Administrative Agent and its counsel to evaluate such matters; (ii) assoon as practicable and in any event within forty-five (45) days after the endof each fiscal quarter of the Borrower, the Borrower shall provide a writtenquarterly report to the Administrative Agent covering the institution of, orwritten threat of, any action, suit, proceeding, governmental investigation or 

 

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

 

**7.5**.  **Insurance**.  Assoon as practicable following the end of the calendar year and in any event by February 15thof the following calendar year, the Borrower shall deliver to theAdministrative Agent (i) a report in form and substance reasonablysatisfactory to the Administrative Agent outlining all material insurancecoverage maintained as of the date of such report by the Borrower, TMC andtheir respective Subsidiaries and the duration of such coverage and (ii) thecertificate of an Authorized Financial Officer that all premiums with respectto such coverage have been paid when due.

 

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

 

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

 

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

 

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

 

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

 

(e)                                  within fifteen (15) Business Days afterthe filing of the same with the IRS, a copy of each funding waiver requestfiled with respect to any Benefit Plan and all written communications receivedby the Borrower or TMC or any ERISA Affiliate from the IRS with respect to suchrequest;

 

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

 

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

 

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

 

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

 

(i)                                     within fifteen (15) Business Days afterthe Borrower or TMC or any ERISA Affiliate receives notice from a MultiemployerPlan regarding the imposition of material withdrawal liability, copies of eachsuch notice;

 

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

 

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

 

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

 

**7.7**.  **Environmental Notices**.  TheBorrower shall notify the Administrative Agent in writing, promptly upon anysenior employee of the Borrower or TMC responsible for the environmentalmatters at any Property of the Borrower learning thereof, of any of thefollowing (together with any material documents and correspondence received orsent in connection therewith):

 

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

 

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

 

(c)                                  notice that any Property of the Borroweror any of its Subsidiaries is subject to an Environmental Lien if the claim towhich such Environmental Lien relates would result in a Material AdverseEffect;

 

(d)                                 notice of a material violation by theBorrower or any of its Subsidiaries of any Environmental, Health or SafetyRequirement of Law which is reasonably likely to result in a Material AdverseEffect;

 

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(e)                                  any condition which might reasonablyresult in a violation by the Borrower or any Subsidiary of the Borrower of anyEnvironmental, Health or Safety Requirement of Law, which violation wouldresult in a Material Adverse Effect;

 

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

 

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

 

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

 

**7.8**.  **Labor Matters**.  TheBorrower shall notify the Administrative Agent in writing, promptly upon theBorrower’s learning thereof, of any labor dispute to which the Borrower or TMCor any of their respective Subsidiaries may become a party (including, withoutlimitation, any strikes, lockouts or other disputes relating to any Property ofsuch Persons and other facilities) which is reasonably likely to result in aMaterial Adverse Effect.

 

**7.9**.  **Notices of Asset Salesand/or Acquisitions**.  The Borrower shall deliver tothe Administrative Agent written notice of each of the following on a quarterlybasis for the quarter then ended, together with the quarterly or annual reportsdelivered under Sections 7.2(a) or 7.2(b), as applicable: (a) asale, transfer or other disposition of assets, in a single transaction orseries of related transactions, for consideration in excess of $100,000,000, (b) anacquisition of assets, in a single transaction or series of relatedtransactions, for consideration in excess of $100,000,000, and (c) thegrant of a Lien with respect to assets, in a single transaction or series ofrelated transactions, in connection with Indebtedness aggregating an amount inexcess of $100,000,000.

 

**7.10**.  **Tenant Notifications**.  The Borrower shall promptlynotify the Administrative Agent upon obtaining knowledge of the bankruptcy orcessation of operations of any tenant to which greater than 5% of the Borrower’sand its Subsidiaries’ share of consolidated minimum rent is attributable.

 

**7.11**.  **Other Reports**.  The Borrower shall deliver orcause to be delivered to the Administrative Agent (i) within ten (10) daysof the filing or delivery to its shareholders, copies of all public financialstatements, proxy statements, reports, notices and other materials, if any,sent or made available generally by the Borrower or TMC to its respectiveSecurities holders or filed with the Commission concerning materialdevelopments in the business of the Borrower or TMC or any Subsidiary(excluding any regular 10-Q or 10-K filings, but including anyrevisions or amendments thereto), and (ii) within ten (10) days ofreceipt thereof, all notifications received by the Borrower or TMC or theirSubsidiaries pursuant to the Securities Exchange Act and the rules promulgatedthereunder.

 

**7.12**.  **Other Information**.  Promptlyupon receiving a request therefor from the Administrative Agent, the Borrowershall prepare and deliver to the Administrative Agent such other informationwith respect to the Borrower, TMC and their respective Subsidiaries, on aConsolidated basis (including without limitation, property operatingstatements, cash flow statements and balance sheets), as from time to time maybe reasonably requested by the Administrative Agent.

 

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

 

# **ARTICLE VIII.AFFIRMATIVE COVENANTS**

# ** **

The Borrower and TMC each covenants and agrees that solong as any Revolving Credit Commitments or any Loans are outstanding andthereafter until payment in full of all of the Obligations (other thanindemnities pursuant to Section 13.3 not yet due) and the return ofany outstanding Letters of Credit, (other than any Letters of Creditcollateralized pursuant to Section 2.4(a)) unless the RequisiteLenders shall otherwise give prior written consent:

 

**8.1**.  **Existence, Etc**.  TheBorrower shall, and shall cause each of TMC and their respective Subsidiariesto, at all times maintain its corporate existence or existence as a limitedliability company, limited partnership or joint venture, as applicable, andpreserve and keep, or cause to be preserved and kept, in full force and effectits rights and franchises material to its businesses, except where the loss ortermination of such rights and franchises or the termination of existence of aSubsidiary is not likely to have a Material Adverse Effect.

 

**8.2**.  **Powers; Conduct ofBusiness**.  The Borrower shall remain qualified, andshall cause TMC and each of their respective Subsidiaries to qualify and remainqualified, to do business and maintain its good standing in each jurisdictionin which the nature of its business and the ownership of its Property requiresit to be so qualified and in good standing, except where the failure to remainso qualified or in good standing is not likely to have a Material AdverseEffect.

 

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

 

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

 

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

 

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

 

**8.6****.  Inspection ofProperty; Books and Records; Discussion**.  The Borrower shall permit, and cause TMCand each of their respective Subsidiaries to permit, upon no less than three (3) daysprior notice, any authorized representative(s) designated by either theAdministrative Agent or any other Lender, to visit and inspect any of the RealProperties, to examine, audit, check and make copies of their respectivefinancial and accounting records, books, journals, orders, receipts and anycorrespondence and other data relating to their respective businesses or thetransactions contemplated hereby (including, without limitation, in connectionwith environmental compliance, hazard or liability), and to discuss theiraffairs, finances and accounts with their Authorized Financial Officers and independentcertified public accountants, all with a representative of the Borrowerpresent, and at such reasonable times during normal business hours, as often asmay be reasonably requested, so long as such inspections do not unreasonablyinterfere with the daily operations of the Borrower.  Each such visitation and inspection shall beat such visitor’s expense.  The Borrowershall keep and maintain, and cause TMC and their respective Subsidiaries tokeep and maintain, in all material respects proper books of record and accountin which entries in conformity with GAAP shall be made of all dealings andtransactions in relation to their respective businesses and activities.

 

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

 

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

 

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

 

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**8.10****.  Distributions ofIncome to the Borrower**.  The Borrower shall cause all of itsSubsidiaries to promptly distribute to the Borrower (but not less frequentlythan once each fiscal quarter of the Borrower, unless otherwise approved by theAdministrative Agent), whether in the form of dividends, distributions orotherwise, all profits, proceeds or other income relating to or arising fromits Subsidiaries’ use, operation, financing, refinancing, sale or otherdisposition of their respective Properties after (a) the payment by eachSubsidiary of its debt service and operating expenses for such quarter and (b) theestablishment of reasonable reserves for the payment of operating expenses notpaid on at least a quarterly basis and capital improvements to be made to suchSubsidiary’s assets and properties approved by such Subsidiary in the ordinarycourse of business consistent with its past practices.

 

**8.11****.  Variable RateDebt**.  Borrowershall cause fifty percent (50%) or more of Total Adjusted OutstandingIndebtedness (excluding Contingent Obligations and the Revolving CreditObligations) to bear interest (i) by reference to a rate of interest thatis fixed until the earlier of the final maturity of such Indebtedness or theRevolving Credit Termination Date, or (ii) by reference to a floating orvariable rate of interest which is hedged or otherwise capped pursuant to aninterest rate swap, cap or other agreement that has a tenor equal to theearlier of the maturity date of such floating-rate Indebtedness or theRevolving Credit Maturity Date, and contains other terms and conditionscustomarily entered into by borrowers in order to provide protection against,or minimize the impact of, increasing floating rates of interest.

 

**8.12****.  PropertyManagement**.  TheBorrower and its Affiliates shall at all times provide property managementservices to Real Properties to which at least 75% of the Capitalization Valueis attributable.

 

# **ARTICLE IX.NEGATIVE COVENANTS**

# ** **

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

 

**9.1****.  Sales of Assets**.**  **Exceptfor a Permitted Disposition or as otherwise provided in this Agreement, neitherBorrower nor TMC nor any of their respective Subsidiaries shall sell, assign,transfer, lease, convey or otherwise dispose of any Property, directly orindirectly, whether now owned or hereafter acquired, or any income or profitstherefrom, or enter into any agreement to do so which would result in aMaterial Adverse Effect or would cause an Event of Default or Potential Eventof Default.

 

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

 

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

 

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

 

(c)          Customary Permitted Liens; and

 

(d)         Liens encumbering the CVS Portfolio;

 

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

 

**9.3****.  Conduct ofBusiness**.  Exceptas permitted under Section 9.11(a)(vii), neither the Borrower norTMC nor any of their respective Subsidiaries shall engage in any business,enterprise or activity other than (a) the Business, and (b) anybusiness or activities which are substantially similar, related or incidentalthereto. In any event neither the Borrower nor TMC shall engage in any activitythat shall cause TMC to be disqualified as a REIT under the Internal RevenueCode.

 

**9.4****.  Transactions withPartners and Affiliates**.  Neither Borrower nor any of itsSubsidiaries shall directly or indirectly enter into or permit to exist anytransaction (including, without limitation, the purchase, sale, lease or exchangeof any Property or the rendering of any service) with any Affiliate of theBorrower which is not its Subsidiary, on terms that are determined by the Boardof Directors (or its equivalent) of TMC (except in the case of non-materialtransactions, in which case the determination shall be made by officers of suchentities engaging in such transaction) to be less favorable to the Borrower orany of its Subsidiaries, as applicable, than those that might be obtained in anarm’s-length transaction at the time from Persons who are not such anAffiliate.  Nothing contained in this Section 9.4shall prohibit (a) increases in compensation and benefits for officers andemployees of the Borrower or any of its Subsidiaries which are customary in theindustry or consistent with the past business practice of the Borrower or suchSubsidiary; provided, that no Event of Default or Potential Event ofDefault has occurred and is continuing; (b) payment of customary partners’indemnities; (c) performance of any obligations arising under the LoanDocuments or (d) dividends or other distributions to equity holderspermitted by the terms of this Agreement.

 

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

 

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occurred and is continuing or would occur after givingeffect thereto (including, without limitation, an Event of Default or PotentialEvent of Default resulting from a breach of Sections 8.12, 9.1 or9.11).

 

**9.6****.  MarginRegulations; Securities Laws**.  Neither Borrower nor any of itsSubsidiaries shall use all or any portion of the proceeds of any creditextended under this Agreement to purchase or carry Margin Stock, except to theextent permitted by Section 2.2.

 

**9.7****.  ERISA**.  Except as would not bereasonably likely to subject the Borrower or any ERISA Affiliate to liabilityin excess of $5,000,000, the Borrower and TMC shall not and shall not permitany of their respective ERISA Affiliates to:

 

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

 

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

 

(c)                                  fail to pay timely required contributionsor annual installments due with respect to any waived funding deficiency to anyBenefit Plan;

 

(d)                                 terminate any Benefit Plan which wouldresult in any liability of the Borrower, TMC or any ERISA Affiliate under TitleIV of ERISA;

 

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

 

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

 

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

 

**9.8****.  OrganizationalDocuments**.  NeitherBorrower, TMC nor any of their respective Subsidiaries shall amend, modify orotherwise change any of the terms or provisions in any of their respectiveOrganizational Documents as in effect on the Closing Date, except amendments toeffect (a) a change of name of the Borrower, TMC or a Subsidiary; provided,that in the case of the Borrower or TMC, the Borrower shall have provided theAdministrative Agent with prior written notice of any such name change, (b) changesto the TMLP Partnership Agreement relating to the acquisition of Real Propertyor interests in an owner of Real Property with respect to which theconsideration paid to the seller thereof includes limited partnership interestsin the Borrower, or (c) changes that (x) are not otherwise prohibitedunder, or would not otherwise violate, this Agreement or any other LoanDocument, and (y) would not reasonably be expected to have a Material AdverseEffect.

 

**9.9****.  Fiscal Year**.  Neither Borrower, TMC norany of their Consolidated Subsidiaries shall change their respective FiscalYear for accounting or tax purposes from a period consisting of the 12-monthperiod ending on December 31 of each calendar year.

 

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**9.10****.  Indebtedness**.  None of the Borrower, TMC,any of their respective Subsidiaries, or any Minority Holdings shall directlyor indirectly create, incur, assume or otherwise become or remain directly orindirectly liable with respect to any Indebtedness, except Indebtedness whichwould not cause the Leverage Ratio to exceed sixty-five percent (65%) as of thedate of incurrence of such Indebtedness. For purposes of this Section 9.10,the Leverage Ratio as of the date of any incurrence of Indebtedness shall becalculated by giving proforma effect to all acquisitions anddispositions for consideration in excess of $50,000,000 or changes in TotalAdjusted Outstanding Indebtedness, occurring since the date of the then mostrecent quarterly financial statements of TMC and the Borrower, including, withoutlimitation, by giving proforma effect to the application of theproceeds of such incurrence of Indebtedness.

 

**9.11****.  Investments.**

 

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

 

(i)                                     Investments in Cash and Cash Equivalents;

 

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

 

(iii)                               Investments received in connection with the bankruptcyor reorganization of suppliers and lessees and in settlement of delinquentobligations of, and other disputes with, lessees and suppliers arising in theordinary course of business;

 

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

 

(v)                                 Investments held as of the Closing Date;

 

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

 

(vii)                           Investments (whether owned as of the Closing Date orthereafter) either directly or in any Person primarily engaged in any businessunrelated to Borrower’s Business, which individually or in the aggregate do notexceed five percent (5%) of Capitalization Value (it being understood that anyincrease in the value of an Investment or a decline in the Capitalization Valuefollowing the consummation of such Investment shall be disregarded for purposesof determining compliance with this clause (vii)); and

 

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

 

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

 

**9.12****.  OtherFinancial Covenants.**

 

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

 

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

 

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

 

(d)                                 Consolidated Interest Coverage Ratio. For the immediately preceding consecutive four fiscal quarters, theratio of (i) Combined EBITDA to (ii) Combined Interest Expense, shallnot be less than 1.8 to 1.0.

 

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

 

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

 

(ii)                                  So long as TMC qualifies, or has takenall actions necessary to qualify as a REIT, during any fiscal year of TMC, theBorrower may pay cash dividends to TMC and other holders of OP Units withrespect to any one (1) year period ending on the last day of a fiscalquarter to the extent necessary for TMC to distribute, and TMC may sodistribute, cash dividends to its shareholders in an aggregate amount not toexceed the greater of (A) Permitted REIT Distributions or (B) 85% ofFFO; and

 

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

 

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distribute, and TMC may so distribute, cash dividendsto its shareholders in an aggregate amount not to exceed the Permitted REITDistributions;

 

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

 

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

 

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

 

**9.14****.  Negative PledgeClauses**.  Fromand after the date hereof, except as set forth herein, neither the Borrower norTMC will, and will not permit any Subsidiary, to enter into any agreement (a) containingany provision prohibiting the creation or assumption of any Lien upon itsproperties, revenues or assets, whether now owned or hereafter acquired, (otherthan with respect to (i) prohibitions on liens set forth (x) in a mortgageon a particular property, or (y) in any document or instrument relating to aLien permitted under Section 9.2 to the extent such prohibitionrelates only to the assets securing such Lien, (ii) customary restrictionson the assignment of or granting a lien on a particular lease, sublease,license or contract set forth in such lease, sublease, license or contractentered into in the ordinary course of business, (iii) restrictions on thepledge of interests in joint ventures contained in the applicable joint ventureagreement, (iv) restrictions on Liens set forth in other agreements forunsecured Indebtedness so long as such restrictions are not materially morerestrictive than the provisions of this Agreement or (v) customaryrestrictions and conditions relating to a sale of Property permitted under Section 9.1pending the consummation of such sale), or (b) expressly restricting theability of the Borrower or TMC to amend or modify this Agreement or any of theother Loan Documents.

 

**9.15****.  Restriction onPrepayment of Indebtedness**.  After the occurrence and during thecontinuance of any Event of Default, neither TMC, Borrower nor any of theirrespective Subsidiaries shall, without the prior written consent of theAdministrative Agent, prepay, redeem or purchase the principal amount, in wholeor in part, of any Indebtedness other than the Obligations; provided, however,that this Section 9.15 shall not prohibit the prepayment ofIndebtedness which is financed solely from the proceeds of a new loan whichwould otherwise be permitted by the terms of Section 9.10.

 

# **ARTICLE X.EVENTS OF DEFAULT; RIGHTS AND REMEDIES**

# ** **

**10.1****.  Events of Default**.  Each of the followingoccurrences shall constitute an Event of Default under this Agreement:

 

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

 

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

 

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

 

(c)                                  Breach of Representation or Warranty. Any representation or warranty made by the Borrower to the AdministrativeAgent or any other Lender herein or by the Borrower, TMC or any of theirrespective Subsidiaries in any of the other Loan Documents, in any Letter ofCredit Request, or in any statement or certificate at any time given by anysuch Person pursuant to any of the Loan Documents shall be false or misleadingin any material respect on the date as of which made or repeated.

 

(d)                                 Other Defaults. The Borrower shall default in the performance of or compliance with anyterm, covenant or agreement contained in this Agreement (other than asidentified in paragraphs (a), (b) or (c) of this Section 10.1),or any default or event of default (other than as identified in paragraphs (a),(b) or (c) of this Section 10.1) shall occur under any ofthe other Loan Documents, and such default or event of default shall continuefor thirty (30) days after receipt of written notice from the AdministrativeAgent thereof; provided, however, that if such default issusceptible of cure but cannot reasonably be cured within such thirty (30) dayperiod and Borrower shall promptly commence to cure such default within suchthirty (30) day period and thereafter diligently and expeditiously proceed tocure the same, such thirty (30) day period shall be extended for such time asis reasonably necessary for Borrower in the exercise of due diligence to curesuch default, such additional period not to exceed thirty (30) days; providedfurther that so long as Borrower has complied with the foregoing cureprovisions, an Event of Default shall not be deemed to have occurred withrespect to Section 9.12 if Borrower shall cure such default withinan additional period not to exceed thirty (30) days (such that for suchprovision only Borrower shall have a maximum aggregate potential cure period ofninety (90) days).

 

(e)                                  Defaults and Acceleration of OtherIndebtedness. (i) TheBorrower or TMC or their Subsidiaries shall fail to pay any principal orinterest due when and as the same shall become due and payable, or shalldefault in any other monetary obligation or cause any other monetary default inrespect of (x) any recourse Indebtedness (other than the Obligations) of theBorrower or TMC or their Subsidiaries aggregating $30,000,000 or more (subjectto any applicable grace period for such Indebtedness), or (y) any non-recourseIndebtedness of the Borrower or TMC or their Subsidiaries aggregating$300,000,000 or more (subject to any applicable grace period for suchIndebtedness); or (ii) any non-monetary breach, default or event ofdefault shall occur, or any other condition shall exist, under any instrument,agreement or indenture pertaining to (1) any recourse Indebtedness (otherthan the Obligations) of the Borrower or TMC or their Subsidiaries aggregating$30,000,000 or more, or (2) any non-recourse Indebtedness of the Borroweror TMC or their Subsidiaries aggregating $300,000,000 or more, and in the caseof either (1) or (2), such Indebtedness shall be declared to be due andpayable (by acceleration or otherwise) or required to be prepaid, redeemed orotherwise repurchased by the Borrower or TMC or any of their Subsidiaries(other than by a regularly scheduled required prepayment, non-default mandatoryprepayment, or a voluntary prepayment made at Borrower’s option) prior to thestated maturity thereof.

 

(f)                                    Involuntary Bankruptcy; Appointment ofReceiver, Etc.

 

(i)                                     An involuntary case shall be commencedagainst the Borrower or TMC or any of their Subsidiaries or Affiliates to whichindividually or in the aggregate as to such Subsidiaries and Affiliates morethan $100,000,000 of the Capitalization Value is attributable, and the petitionshall not be dismissed, stayed or discharged within sixty (60) days aftercommencement of the case; or a court having jurisdiction in the premises shallenter a decree or order for relief in respect of the Borrower or TMC or any oftheir respective Subsidiaries or Affiliates in an involuntary case, under anyapplicable bankruptcy, insolvency or other similar law now or hereinafter ineffect; or any other similar relief shall be granted under any applicablefederal,

 

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

 

(ii)                                  A decree or order of a court havingjurisdiction in the premises for the appointment of a receiver, liquidator,sequestrator, trustee, custodian or other officer having similar powers overthe Borrower or TMC or any of their respective Subsidiaries or Affiliates towhich individually or in the aggregate as to such Subsidiaries and Affiliatesmore than $100,000,000 of the Capitalization Value is attributable, or over allor a substantial part of the Property of any of TMC, the Borrower or any ofsuch Subsidiaries or Affiliates shall be entered; or an interim receiver,trustee or other custodian of any of TMC, the Borrower or any of suchSubsidiaries or Affiliates or of all or a substantial part of the Property ofany of TMC, the Borrower or any of such Subsidiaries or Affiliates shall beappointed or a warrant of attachment, execution or similar process against anysubstantial part of the Property of any of TMC, the Borrower or any of such Subsidiariesor Affiliates shall be issued and any such event shall not be stayed,dismissed, bonded or discharged within sixty (60) days after entry, appointmentor issuance; or the respective board of directors of any of TMC, the Borroweror partners of the Borrower or the board of directors, partners or similarmanager of TMC or any of the Borrowers’ or TMC’s Subsidiaries or Affiliates towhich individually or in the aggregate as to such Subsidiaries and Affiliatesmore than $100,000,000 of the Capitalization Value is attributable (or anycommittee thereof) adopts any resolution or otherwise authorizes any action toapprove any of the foregoing.

 

(g)                                 Voluntary Bankruptcy; Appointment ofReceiver, Etc.  Any of TMC, the Borrower, or any of theirrespective Subsidiaries or Affiliates to which individually or in the aggregateas to such Subsidiaries and Affiliates more than $100,000,000 of theCapitalization Value is attributable, shall commence a voluntary case under anyapplicable bankruptcy, insolvency or other similar law now or hereafter ineffect, or shall consent to the entry of an order for relief in an involuntarycase, or to the conversion of an involuntary case to a voluntary case, underany such law, or shall consent to the appointment of or taking possession by areceiver, trustee or other custodian for all or a substantial part of itsProperty; or any of TMC, the Borrower or any of such Subsidiaries or Affiliatesto which individually or in the aggregate as to such Subsidiaries andAffiliates more than $100,000,000 of the Capitalization Value is attributableshall make any assignment for the benefit of creditors or shall be unable orfail, or admit in writing its inability, to pay its debts as such debts becomedue.

 

(h)                                 Judgments.  Any moneyjudgment (other than a money judgment covered by insurance as to which theinsurance company has acknowledged coverage), writ or warrant of attachment, orsimilar process against the Borrower or TMC or any of their respectiveSubsidiaries or any of their respective assets involving in any event an amountindividually or in the aggregate in excess of $30,000,000 (other than withrespect to Claims arising out of non-recourse Indebtedness) is entered andshall remain undischarged, unvacated, unbonded or unstayed for a period ofsixty (60) days or in any event later than five (5) days prior to the dateof any proposed sale thereunder.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**10.2****.  Rights andRemedies.**

 

(a)                                  Acceleration and Termination. Upon the occurrence of any Event of Default described in Sections10.1(f) or 10.1(g), the Revolving Credit Commitments, the TermLoan Commitments and the obligation to issue Letters of Credit shallautomatically and immediately terminate and the unpaid principal amount of, andany and all accrued interest on, the Obligations shall automatically becomeimmediately due and payable, without presentment, demand, or protest or otherrequirements of any kind (including, without limitation, valuation andappraisement, diligence, presentment, notice of intent to demand or accelerateand of acceleration), all of which are hereby expressly waived by the Borrower;and upon the occurrence and during the continuance of any other Event ofDefault, the Administrative Agent may, in the Administrative Agent’s reasonablediscretion, and shall, at the request of the Requisite Lenders, by writtennotice to the Borrower, (i) declare that the Revolving Credit Commitmentsand the Term Loan Commitments are terminated, whereupon the Revolving CreditCommitments, the Term Loan Commitments and the obligation of each Lender tomake, convert or continue any Loan or issue any Letter of Credit hereundershall immediately terminate, and/or (ii) require the Borrower to providecash collateral in an amount equal to all Letter of Credit Obligations and/or (iii) declarethe unpaid principal

 

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amount of and any and all accrued and unpaid intereston the obligations to be, and the same shall thereupon be, immediately due andpayable, without any other presentment, demand, or protest or otherrequirements of any kind (including, without limitation, valuation andappraisement, diligence, presentment, notice of intent to demand or accelerateand of acceleration), all of which are hereby expressly waived by theBorrower.  The Administrative Agent mayalso exercise its rights and remedies pursuant to Section 3.2(b)(iii).  In case any one or more of the Events ofDefault shall have occurred and be continuing, and whether or not theAdministrative Agent or the Requisite Lenders shall have accelerated thematurity of the Loans pursuant to this Section 10.2(a), theAdministrative Agent on behalf of the Lenders may, and upon direction from theRequisite Lenders shall, proceed to protect and enforce their rights andremedies under this Agreement, the Notes or any of the other Loan Documents bysuit in equity, action at law or other appropriate proceeding, whether for thespecific performance of any covenant or agreement contained in this Agreementand the other Loan Documents or any instrument pursuant to which theObligations are evidenced, including to the full extent permitted by applicablelaw the obtaining of the exparte appointment of a receiver, and,if such amount shall have become due, by declaration or otherwise, proceed toenforce the payment thereof or any other legal or equitable right.

 

(b)                                 Rescission.  If at anytime after termination of the Revolving Credit Commitments and the Term LoanCommitments and/or acceleration of the maturity of the Loans, the Borrowershall pay all arrears of interest and all payments on account of principal ofthe Loans or with respect to Letters of Credit which shall have become dueotherwise than by acceleration (with interest on principal and, to the extentpermitted by law, on overdue interest, at the rates specified in thisAgreement) and all Events of Default and Potential Events of Default (otherthan nonpayment of principal of and accrued interest on the Loans due andpayable solely by virtue of acceleration) shall be remedied or waived pursuantto Section 13.7, then upon the written consent of the RequisiteLenders and written notice to the Borrower, the termination of the RevolvingCredit Commitments and the Term Loan Commitments and/or the acceleration andthe consequences thereof may be rescinded and annulled; but such action shallnot affect any subsequent Event of Default or Potential Event of Default orimpair any right or remedy consequent thereon. The provisions of the preceding sentence are intended merely to bind theLenders to a decision which may be made at the election of the RequisiteLenders; they are not intended to benefit the Borrower and do not give theBorrower the right to require the Lenders to rescind or annul any accelerationhereunder, even if the conditions set forth herein are met.

 

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

 

# **ARTICLE XI.THE AGENT**

# ** **

**11.1****.  Appointment. **(a)                   Fleet hereby resigns asadministrative agent under the Existing Revolving Agreement and each Lenderhereby designates and appoints JPMCB as the Administrative Agent of such Lenderunder this Agreement.  Each Lender herebyirrevocably authorizes Administrative Agent to take such actions on its behalfunder the provisions of this Agreement and the Loan Documents and to exercisesuch powers as are set forth herein or therein together with such other powersas are reasonably incidental thereto. The Administrative Agent hereby agrees that it shall administer thisAgreement and the other Loan Documents and service the Loans with the samedegree of care as Administrative Agent would use in servicing a loan of similarsize and type for its own account.  TheAdministrative Agent agrees to act as such on the express conditions containedin this Article XI.  The

 

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Administrative Agent may exercise its powers andexecute its duties by or through employees or agents and shall be entitled totake, and to rely on, advice of counsel concerning all matters pertaining toits rights and duties under this Agreement and the other Loan Documents. TheAdministrative Agent may utilize the services of such Persons as theAdministrative Agent may reasonably determine, and all reasonable fees andexpenses of any such Persons shall be paid by the Borrower.  Neither the Administrative Agent nor any ofits shareholders, directors, officers or employees nor any other Personassisting them in their duties nor any agent, or employee thereof, shall beliable to any of the Lenders for any waiver, consent or approval given or anyaction taken, or omitted to be taken, in good faith by it or them hereunder orunder any of the other Loan Documents, or in connection herewith or therewith,or be responsible for the consequences of any oversight or error of judgmentwhatsoever, except that the Administrative Agent or such other Person, as thecase may be, may be liable for losses due to its willful misconduct or grossnegligence.  For the purposes of carryingout the provisions and exercising the rights, remedies, powers and privilegesgranted by or referred to in this Agreement and the Loan Documents, each of theLenders, subject to the other terms of this Agreement and the Loan Documents,hereby irrevocably constitutes and appoints the Administrative Agent to enforcethe Loan Documents and to exercise such powers, rights and remedies under thisAgreement and the Loan Documents as are delegated to Administrative Agent bythe terms hereof or thereof, together with all such powers, rights and remediesas are reasonably incidental thereto, on behalf of and for the benefit of theLenders.

 

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

 

**11.2****.  Nature ofDuties. **TheAdministrative Agent shall not have any duties or responsibilities except thoseexpressly set forth in this Agreement or in the Loan Documents.  The duties of the Administrative Agent shallbe mechanical and administrative in nature. The Administrative Agent shall not have by reason of this Agreement afiduciary, trustee or agency relationship in respect of any Holder.  Nothing in this Agreement or any of the LoanDocuments, expressed or implied, is intended to or shall be construed to imposeupon the Administrative Agent any obligations in respect of this Agreement orany of the Loan Documents except as expressly set forth herein or therein.  The Administrative Agent hereby agrees thatits duties shall include (i) providing copies of documents received by theAdministrative Agent from the Borrower pursuant to this Agreement (a) whichreference or discuss a Potential Event of Default or an Event of Default and (b) anyother documents which are reasonably requested by any Lender and (ii) promptlynotifying each Lender upon its obtaining actual knowledge of the occurrence ofany Event of Default hereunder.

 

**11.3****.  Right toRequest Instructions. **TheAdministrative Agent may at any time request instructions from the Lenders withrespect to any actions or approvals which by the terms of any of the LoanDocuments the Administrative Agent is permitted or required to take or togrant, and, except where an action or approval is expressly required under thisArticle XI or Section 10.2 hereof, such AdministrativeAgent shall be absolutely entitled to refrain from taking any action or to withholdany approval and shall not be under any liability whatsoever to any Person forrefraining from any action or withholding any approval under any of the LoanDocuments until it shall have received (or, pursuant to

 

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

 

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

 

**11.5****.  Indemnification. **To the extent that theAdministrative Agent is not reimbursed and indemnified by the Borrower, theLenders will reimburse and indemnify the Administrative Agent in its capacity asAdministrative Agent and not in its capacity as Lender hereunder, for andagainst any and all liabilities, obligations, losses, damages, penalties,actions, judgments, suits, and reasonable costs, expenses or disbursements ofany kind or nature whatsoever which may be imposed on, incurred by, or assertedagainst it in any way relating to or arising out of the Loan Documents or anyaction taken or omitted by such Administrative Agent under and in accordancewith the Loan Documents, in proportion to each Lender’s Pro Rata Share; provided,however, that no Lender shall be liable for any portion of suchliabilities, obligations, losses, damages, penalties, actions, judgments,suits, costs, expenses and disbursements resulting from Administrative Agent’sgross negligence or willful misconduct. The Administrative Agent agrees to refund to the Lenders any of theforegoing amounts paid to it by the Lenders which amounts are subsequentlyrecovered by the Administrative Agent from the Borrower or any other Person onbehalf of the Borrower.  The obligationsof the Lenders under this Section 11.5 shall survive the payment infull of the Loans and all other Obligations and the termination of thisAgreement.

 

**11.6****.  AdministrativeAgent Individually. **Withrespect to its Pro Rata Share of the Revolving Credit Commitments hereunder, ifany, and the Loans made by it or Letters of Credit issued by it, if any, theAdministrative Agent shall have and may exercise the same rights and powershereunder and is subject to the same obligations and liabilities as and to theextent set forth herein for any other Lender. The terms “Lenders” or “Requisite Lenders” or any similar terms shall,unless the context clearly otherwise indicates, include JPMCB in its individualcapacity as a Lender or as one of the Requisite Lenders.  JPMCB and each of its Affiliates may acceptdeposits from, lend money to, and generally engage in any kind of banking,trust or other business with the Borrower, TMC or any of their respectiveSubsidiaries as if JPMCB were not acting as the Administrative Agent pursuanthereto.

 

**11.7.  Successor AdministrativeAgent.**

 

(a)                                  Resignation and Removal. The Administrative Agent may resign from the performance of all itsfunctions and duties hereunder at any time by giving at least thirty (30)Business Days’ prior written notice to the Borrower and the other Lenders,unless applicable law requires a shorter notice period or that there be nonotice period, in which instance such applicable law shall control.  Any Administrative Agent may be removed atthe direction of the Requisite Lenders, in the event of the gross negligence orwillful misconduct of the Administrative Agent. Such resignation or removal shall take

 

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

 

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

 

(c)                                  Appointment by Retiring AdministrativeAgent.  If a successor Administrative Agent shall nothave been appointed within the thirty (30) Business Day or shorter periodprovided in paragraph(a) of this Section 11.7, theretiring Administrative Agent shall then appoint a successor AdministrativeAgent selected from among the Lenders who shall serve as Administrative Agentuntil such time, if any, as the Lenders appoint, subject to the Borrower’sapproval, a successor Administrative Agent as provided in paragraph (b) ofthis Section 11.7.

 

(d)                                 Rights of the Successor and RetiringAdministrative Agents.  Upon the acceptance of anyappointment as Administrative Agent hereunder by a successor AdministrativeAgent, such successor Administrative Agent shall thereupon succeed to andbecome vested with all the rights, powers, privileges and duties of theretiring Administrative Agent, and the retiring Administrative Agent shall bedischarged from its duties and obligations as Administrative Agent under thisAgreement.  After any retiringAdministrative Agent’s resignation hereunder as Administrative Agent, theprovisions of this Article XI shall inure to its benefit as to anyactions taken or omitted to be taken by it while it was the AdministrativeAgent under this Agreement.

 

**11.8****.  RelationsAmong the Lenders. **NoLender may (i) accelerate its portion of the Obligations, (ii) enforceits portion of the Obligations prior to the maturity thereof, (iii) terminateits Revolving Credit Commitment, or (iv) terminate its Term Loan Commitment,except, in each case, in accordance with Section 10.2(a).

 

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

 

**11.10.  ****NoRepresentations. **TheAdministrative Agent shall not be responsible for the execution, validity orenforceability of this Agreement, the Notes, any of the other Loan Documents orany instrument at any time constituting, or intended to constitute, collateralsecurity for the Notes, or for the value of any such collateral security or forthe validity, enforceability or collectability of any such amounts owing withrespect to the Notes, or for any recitals or statements, warranties orrepresentations made herein or in any of the other Loan Documents or in anycertificate or instrument hereafter furnished to it by or on behalf of theBorrower or TMC or any of their respective Subsidiaries, or be bound toascertain or inquire as to the performance or observance of any of the terms,conditions, covenants or agreements herein or in any other of the LoanDocuments.  The Administrative Agentshall not be bound to ascertain whether any notice, consent, waiver or requestdelivered to it by the Borrower or TMC or any holder of any of the Notes shallhave been duly authorized or is true, accurate and complete.  Except as expressly set forth herein, theAdministrative Agent shall not have any duty to disclose, and shall not beliable for the failure to disclose, any information relating to the Borrower,TMC or any of their Subsidiaries that is communicated to or obtained by thebank serving as Administrative Agent or any of

 

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

 

**11.11****.  Co-Agents. **The Co-Documentation Agents, theCo-Syndication Agents and the Co-Arrangers shall not have any additional rightsor obligations under the Loan Documents, except for those rights, if any, as aLender.

 

# **ARTICLE XII.YIELD PROTECTION**

# ** **

**12.1****.  Taxes.**

 

(a)                                  Payment of Taxes. Any and all payments by the Borrower hereunder or under any Note orother document evidencing any Obligations shall be made, in accordance with Section 3.2,free and clear of and without reduction for any and all present or futuretaxes, levies, imposts, deductions, charges, withholdings, and all stamp ordocumentary taxes, excise taxes, ad valorem taxes and other taxes imposed onthe value of the Property, charges or levies which arise from the execution,delivery or registration, or from payment or performance under, or otherwisewith respect to, any of the Loan Documents or the Revolving Credit Commitments,the Term Loan and all other liabilities with respect thereto excluding, in thecase of each Lender, taxes imposed on or measured by net income or overallgross receipts and capital and franchise taxes imposed on it by (i) theUnited States, (ii) the Governmental Authority of the jurisdiction inwhich such Lender’s Applicable Lending Office is located or any politicalsubdivision thereof or (iii) the Governmental Authority in which suchPerson is organized, managed and controlled or any political subdivisionthereof (all such non-excluded taxes, levies, imposts, deductions, charges andwithholdings being hereinafter referred to as “Taxes”).  If the Borrower shall be required by law towithhold or deduct any Taxes from or in respect of any sum payable hereunder orunder any such Note or document to any Lender, (x) the sum payable to suchLender shall be increased as may be necessary so that after making all requiredwithholding or deductions (including withholding or deductions applicable toadditional sums payable under this Section 12.1) such Lenderreceives an amount equal to the sum it would have received had no suchwithholding or deductions been made, (y) the Borrower shall make suchwithholding or deductions, and (z) the Borrower shall pay the full amountwithheld or deducted to the relevant taxation authority or other authority inaccordance with applicable law. Notwithstanding the foregoing, in the event that any Lender is orbecomes so subject to such Taxes, at the Borrower’s sole election, the Borrowermay identify an Eligible Assignee not so subject to such Taxes to whom theLender which is so subject shall assign its interest in the Loans at parpursuant to the terms of an Assignment and Acceptance substantially in the formattached as **Exhibit A**.

 

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

 

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

 

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

 

(d)                                 Foreign Bank Certifications. (i)  Each Lender that is notcreated or organized under the laws of the United States or a politicalsubdivision thereof shall deliver to the Borrower and the Administrative Agenton the Closing Date or the date on which such Lender becomes a Lender pursuantto Section 13.1 hereof, to the extent it is legally able to do so,a true and accurate certificate executed in duplicate by a duly authorizedofficer of such Lender to the effect that such Lender is eligible to receivepayments hereunder and under the Notes without deduction or withholding ofUnited States federal income tax (I) under the provisions of an applicable taxtreaty concluded by the United States (in which case the certificate shall beaccompanied by two duly completed copies of IRS Form W-8BEN (or anysuccessor or substitute form or forms)) or (II) under Sections 1442(c)(1) and1442(a) of the Internal Revenue Code (in which case the certificate shallbe accompanied by two duly completed copies of IRS Form W-8ECI (orany successor or substitute form or forms)).

 

(ii)                                  Uponwritten request of Administrative Agent or as otherwise required hereunder,each Lender further agrees to deliver to the Borrower and the AdministrativeAgent from time to time a true and accurate certificate executed in duplicateby a duly authorized officer of such Lender before or promptly upon theoccurrence of any event requiring a change in the most recent certificatepreviously delivered by it to the Borrower and the Administrative Agentpursuant to this Section 12.1(d). Each certificate required to bedelivered pursuant to this Section 12.1(d)(ii) shall certifyas to one of the following:

 

(A)                              thatsuch Lender can continue to receive payments hereunder and under the Noteswithout deduction or withholding of United States federal income tax;

 

(B)                                thatsuch Lender cannot continue to receive payments hereunder and under the Noteswithout deduction or withholding of United States federal income tax asspecified therein but does not require additional payments pursuant to Section 12.1(a) becauseit is entitled to recover the full amount of any such deduction or withholdingfrom a source other than the Borrower; or

 

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

 

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

 

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to the Borrower and Administrative Agent, unless any change in treaty,law, regulation, or official interpretation thereof which would render suchform inapplicable or which would prevent the Lender from duly completing anddelivering such form has occurred prior to the date on which any such deliverywould otherwise be required and the Lender promptly advises the Borrower thatit is not capable of receiving payments hereunder and under the Notes withoutany deduction or withholding of United States federal income tax.  Notwithstanding anything to the contrarycontained in this Section 12.1, (x) the Borrower shall beentitled, to the extent it is required to do so by law, to deduct or withholdincome or similar taxes imposed by the United States (or any politicalsubdivision or taxing authority thereof or therein) from interest, fees orother amounts payable hereunder for the account of any Lender which is not aUnited States person for United States federal income tax purposes to theextent that such Lender has not provided to the Borrower IRS forms thatestablish a complete exemption from such deduction or withholding and(y) the Borrowers shall not be obligated pursuant to Sections 12.1(a) or12.1(b) hereof to gross-up payments to be made to a Lender orotherwise indemnify a Lender in respect of income or similar taxes imposed bythe United States to the extent that (1) the obligation to withhold suchamounts existed on the date that such Lender became a party to this Agreementor (2) the obligation to pay such additional amounts would not have arisenbut for the failure by such Lender to comply with this Section 12.1(d).  In the event that any Lender notifies theBorrower of withholding obligations pursuant to clause (C) of this Section 12.1(d),at the Borrower’s sole election, the Borrower may identify an Eligible Assigneewith the consent of the Administrative Agent, which is not subject to suchwithholding obligations to whom the notifying Lender shall assign its interestin the Loans at par pursuant to the terms of an Assignment and Acceptancesubstantially in the form attached as **Exhibit A**and otherwise in accordance with the terms and conditions of Section 13.1.

 

**12.2****.  IncreasedCapital. **If after thedate hereof any Lender determines that (i) the adoption or implementationof or any change in or in the interpretation or administration of any law orregulation or any guideline or request from any central bank or otherGovernmental Authority or quasi-governmental authority exercising jurisdiction,power or control over any Lender or banks or financial institutions generally(whether or not having the force of law), compliance with which affects orwould affect the amount of capital required or expected to be maintained bysuch Lender or any corporation controlling such Lender and (ii) the amountof such capital is increased by or based upon the making or maintenance by anyLender of its Loans, the issuance of Letters of Credit, any Lender’sparticipation in or obligation to participate in the Loans, Letters of Creditor other advances made hereunder or the existence of any Lender’s obligation tomake Loans or to issue Letters of Credit, then, in any such case, within thirty(30) days after written demand by such Lender (with a copy of such demand tothe Administrative Agent), the Borrower shall pay to the Administrative Agentfor the account of such Lender, from time to time as specified by such Lender,additional amounts sufficient to compensate such Lender or such corporationtherefore.  Such demand shall beaccompanied by a statement as to the amount of such compensation and include abrief summary of the basis for such demand. Such statement shall be conclusive and binding for all purposes, absentmanifest error.  Notwithstanding theforegoing, in the event of any such demand, at the Borrower’s sole election,the Borrower may identify an Eligible Assignee not making such a demand to whomthe demanding Lender shall assign its interest in the Loans at par pursuant tothe terms of an Assignment and Acceptance substantially in the form attached as**Exhibit A**, subject to theconsent of the Administrative Agent and the Issuing Lender (such consent not tobe unreasonably withheld or delayed).

 

**12.3****.  Change inLegal Restrictions. **Ifafter the date hereof any Lender determines that the adoption or implementationof or any change in or in the interpretation or administration of any law orregulation or any guideline or request from any central bank or otherGovernmental Authority or quasi-governmental authority exercising jurisdiction,power or control over any Lender, or over banks or financial institutionsgenerally (whether or not having the force of law), compliance with which:

 

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

 

(b)                                 does or will impose, modify, or holdapplicable, in the reasonable determination of a Lender, any reserve (otherthan reserves taken into account in calculating the Eurocurrency Rate), specialdeposit, compulsory loan, FDIC insurance or similar requirement against assetsheld by, or deposits or other liabilities in or for the account of, advances orloans by, commitments made, or other credit extended by, or any otheracquisition of funds by, a Lender or any Applicable Lending Office orEurocurrency Affiliate of that Lender;

 

and the result of any of the foregoing is to increase the cost to thatLender of making, renewing or maintaining the Loans or its Revolving CreditCommitment or Term Loan Commitment or issuing or participating in Letters ofCredit or to reduce any amount receivable thereunder; then, in any such case,within thirty (30) days after written demand by such Lender (with a copy ofsuch demand to the Administrative Agent), the Borrower shall pay to theAdministrative Agent for the account of such Lender, from time to time asspecified by such Lender, such amount or amounts as may be necessary tocompensate such Lender or its Eurocurrency Affiliate for any such additionalcost incurred or reduced amount received. Such demand shall be accompanied by a statement as to the amount of suchcompensation and include a brief summary of the basis for such demand.  Such statement shall be conclusive andbinding for all purposes, absent manifest error.  Notwithstanding the foregoing, in the eventof any such demand, at the Borrower’s sole election, the Borrower may identifyan Eligible Assignee not making such a demand to whom the demanding Lendershall assign its interest in the Loans at par pursuant to the terms of anAssignment and Acceptance substantially in the form attached as **Exhibit A**.

 

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

 

# **ARTICLE XIII.MISCELLANEOUS**

# ** **

**13.1****.  Assignments.**

 

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

 

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

 

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amount of $5,000,000, (ii) each such assignmentshall be to an Eligible Assignee with the consent of the Administrative Agentand the Issuing Lender (such consent not to be unreasonably withheld ordelayed), and, so long as no Event of Default has occurred and is continuing,the Borrower, (such consent not to be unreasonably withheld or delayed by theBorrower and shall be deemed to be given if the Borrower does not provide aresponse within five (5) Business Days after such request, providedthat such request shall state, in capital letters, that “FAILURE TO RESPOND TOTHIS REQUEST WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT, SHALL BE DEEMEDCONSENT TO THE ENCLOSED REQUEST.”) (provided that the consent of the Borrowershall not be required with respect to an assignment to an Eligible Assigneedescribed in clause (i) of the definition thereof), and (iii) theparties to each such assignment shall execute and deliver to the AdministrativeAgent, for its acceptance and recording in the Register, an Assignment andAcceptance. Upon such execution, delivery, acceptance and recording in theRegister, from and after the effective date specified in each Assignment andAcceptance and agreed to by the Administrative Agent, (A) the assigneethereunder shall, in addition to any rights and obligations hereunder held byit immediately prior to such effective date, if any, have the rights andobligations hereunder that have been assigned to it pursuant to such Assignmentand Acceptance and shall, to the fullest extent permitted by law, have the samerights and benefits hereunder as if it were an original Lender hereunder, (B) theassigning Lender shall, to the extent that rights and obligations hereunderhave been assigned by it pursuant to such Assignment and Acceptance, relinquishsuch rights and be released from such obligations under this Agreement and theassigning Lender shall (if all of its Revolving Credit Commitment, itsNegotiated Rate Loans and its portion of the Term Loan are being assigned)cease to be a party hereto and (C) if requested by the assignee orassignor thereunder, the Borrower shall execute and deliver to the assignee andthe assignor (to the extent the assignor retains a Revolving Credit Commitment,a Negotiated Rate Loan or a portion of the Term Loan) a Note or Notesevidencing its obligations to such assignee with respect to the Loans upon thecancellation or amendment of the original thereby being replaced.  If after the occurrence and continuance of anEvent of Default the Administrative Agent does not hold any portion of theLoans, such Administrative Agent shall offer to resign as Administrative Agenthereunder.  Notwithstanding anythingherein to the contrary, in the event that the Administrative Agent shall at anytime hold a Revolving Credit Commitment less than $25,000,000 (other than as aresult of pro-rata reductions in the Revolving Credit Commitments pursuant to Section 3.1),then such Administrative Agent shall promptly provide written notice thereof tothe Lenders and the Requisite Lenders shall have the right, to be exercisedwithin fifteen (15) days of delivery of such notice by such AdministrativeAgent, to elect to remove such Administrative Agent as Administrative Agent andreplace such Administrative Agent, subject to the terms of Section 11.7.

 

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

 

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

 

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been completed and is in compliance with thisAgreement and in substantially the form of **Exhibit A**hereto, (i) accept such Assignment and Acceptance, (ii) record theinformation contained therein in the Register and (iii) give prompt noticethereof to the Borrower and the other Lenders. Notwithstanding the foregoing, there shall be no processing orrecordation fee due in connection with an assignment by a Lender to anAffiliate of such Lender.

 

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

 

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

 

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

 

(h)                                 Designated Lenders. Any Lender (each, a “Designating Lender”) may at any timedesignate one Designated Bank to fund Negotiated Rate Loans on behalf of suchDesignating Lender subject to the terms of this Section 13.1(h) andthe provisions in Section 13.1(b) and Section 13.1(g) shallnot apply to such designation.  No Lendermay designate more than one (1) Designated Bank.  The parties to each such designation shallexecute and deliver to the Administrative Agent for its acceptance aDesignation Agreement.  Upon such receiptof an appropriately completed Designation Agreement executed by a DesignatingLender and a designee representing that it is a Designated Bank, theAdministrative Agent will accept such Designation Agreement and will giveprompt notice thereof to the Company, whereupon, (i) the Borrower shall,if requested by the Designated Lender, execute and deliver to the DesignatingBank a Designated Bank Note payable to the order of the Designated Bank (suchNote to be subject to the provisions of Section 3.3(a) thatapply to other Notes evidencing Negotiated Rate Loans, (ii) from and afterthe effective date specified in the Designation Agreement, the Designated Bankshall become a party to this Agreement with a right to make Negotiated RateLoans on behalf of its Designating Lender pursuant to Section 2.7after the Borrower has accepted a Negotiated Rate Loan (or portion thereof) ofsuch Designating Lender, and (iii) the Designated Bank shall not berequired to make payments with respect to any obligations in this Agreementexcept to the extent of excess cash flow of such Designated Bank which is nototherwise required to repay obligations of such Designated Bank which are thendue and payable; *provided, however*, thatregardless of such designation and assumption by the Designated Bank, the DesignatingLender shall be and remain obligated to the Borrower, the

 

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Administrative Agent and the other Lenders for eachand every of the obligations of the Designating Lender and its relatedDesignated Bank with respect to this Agreement, including, without limitation,any indemnification obligations hereunder and any sums otherwise payable to theBorrower by the Designated Bank.  EachDesignating Lender shall serve as the administrative agent of the DesignatedBank and shall on behalf of, and to the exclusion of, the Designated Bank: (i) receiveany and all payments made for the benefit of the Designated Bank and (ii) giveand receive all communications and notices and take all actions hereunder,including, without limitation, votes, approvals, waivers, consents andamendments under or relating to this Agreement and the other LoanDocuments.  Any such notice,communication, vote, approval, waiver, consent or amendment shall be signed bythe Designating Lender as administrative agent for the Designated Bank andshall not be signed by the Designated Bank on its own behalf but shall bebinding on the Designated Bank to the same extent as if actually signed by theDesignated Bank.  The Borrower, theAdministrative Agent, and Lenders may rely thereon without any requirement thatthe Designated Bank sign or acknowledge the same.  No Designated Bank may assign or transfer allor any portion of its interest hereunder or under any other Loan Document,other than assignments to the Designating Lender which originally designatedsuch Designated Bank.

 

**13.2****.  Expenses.**

 

(a)                                  Generally.  The Borroweragrees upon demand to pay, or reimburse the Administrative Agent for all of itsrespective reasonable external audit and investigation expenses and for thereasonable fees, expenses and disbursements of counsel to the AdministrativeAgent (but not of other legal counsel) and for all other reasonable out-ofpocket costs and expenses of every type and nature incurred by the AdministrativeAgent in connection with (i) the audit and investigation of theConsolidated Businesses, the Real Properties and other Properties of theConsolidated Businesses in connection with the preparation, negotiation, andexecution of the Loan Documents; (ii) the preparation, negotiation,execution, syndication and interpretation of this Agreement (including, withoutlimitation, the satisfaction or attempted satisfaction of any of the conditionsset forth in Article V), the Loan Documents, and the making of theLoans hereunder or the issuance of Letters of Credit; (iii) the ongoingadministration of this Agreement and the Loans, including consultation withattorneys in connection therewith and with respect to the Administrative Agent’srights and responsibilities under this Agreement and the other Loan Documents; (iv) theprotection, collection or enforcement of any of the Obligations or theenforcement of any of the Loan Documents; (v) the commencement, defense orintervention in any court proceeding relating in any way to the Obligations,the Borrower, TMC, this Agreement or any of the other Loan Documents; (vi) theresponse to, and preparation for, any subpoena or request for documentproduction with which the Administrative Agent or any other Lender is served ordeposition or other proceeding in which any Lender is called to testify, ineach case, relating in any way to the Obligations, a Real Property, theBorrower, TMC, any of the Consolidated Businesses, this Agreement or any of theother Loan Documents; and (vii) any amendments, consents, waivers,assignments, restatements, or supplements to any of the Loan Documents and thepreparation, negotiation, and execution of the same.

 

(b)                                 After Default. The Borrower further agrees to pay or reimburse the Administrative Agentand each of the Lenders upon demand for all out-of-pocket costs and expenses,including, without limitation, reasonable attorneys’ fees (including allocatedcosts of internal counsel and costs of settlement) incurred by such entityafter the occurrence of an Event of Default (i) in enforcing any LoanDocument or obligation or any security therefor or exercising or enforcing anyother right or remedy available by reason of such Event of Default; (ii) inconnection with any refinancing or restructuring of the credit arrangementsprovided under this Agreement in the nature of a “work-out” or in anyinsolvency or bankruptcy proceeding; (iii) in commencing, defending orintervening in any litigation or in filing a petition, complaint, answer, motionor other pleadings in any legal proceeding relating to the Obligations, a RealProperty, any of the Consolidated Businesses and related to or arising out ofthe transactions

 

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

 

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

 

**13.4****.  Change inAccounting Principles. **Ifany change in the accounting principles used in the preparation of the mostrecent financial statements referred to in Section 7.1 or 7.2are hereafter required or permitted by the rules, regulations, pronouncementsand opinions of the Financial Accounting Standards Board or the AmericanInstitute of Certified Public Accountants (or successors thereto or agencieswith similar functions) and are adopted by the Borrower or TMC with theagreement of its independent certified public accountants and such changesresult in a change in the method of calculation of any of the covenants,standards or terms found in Article IX, the parties hereto agree toenter into negotiations in order to amend such provisions so as to equitablyreflect such changes with the desired result that the criteria for evaluatingcompliance with such covenants, standards and terms by the Borrower and TMCshall be the same after such changes as if such changes had not been made; provided,however, that no change in GAAP that would affect the method ofcalculation of any of the covenants, standards or terms shall be given effectin such calculations until such provisions are amended, in a mannersatisfactory to the Administrative Agent and the Borrower, to so reflect suchchange in accounting principles.

 

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

 

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including, but not limited to, indebtedness evidenced by certificatesof deposit, whether matured or unmatured (but not including trust accounts))and any other Indebtedness at any time held or owing by such Lender to or forthe credit or the account of the Borrower against and on account of theObligations of the Borrower then due to such Lender, including, but not limitedto, all Loans and all claims of any nature or description arising out of or inconnection with this Agreement, irrespective of whether or not (i) suchLender shall have made any demand hereunder or (ii) the AdministrativeAgent, at the request or with the consent of the Requisite Lenders, shall havedeclared the principal of and interest on the Loans and other amounts duehereunder to be due and payable as permitted by Article X and eventhough such obligations may be contingent or unmatured.  Each Lender agrees that it shall not, unlessthe Loans have been accelerated pursuant to Section 10.2(a),without the express consent of the Requisite Lenders, and that it shall, to theextent it is lawfully entitled to do so, upon the request of the RequisiteLenders, exercise its setoff rights hereunder against any accounts of theBorrower or TMC now or hereafter maintained with such Lender.

 

**13.6****.  RatableSharing. **The Lendersagree among themselves that (i) with respect to all amounts received bythem which are applicable to the payment of the Obligations (other than amountsreceived in respect of any Negotiated Rate Loan) equitable adjustment will bemade so that, in effect, all such amounts will be shared among them ratably inaccordance with their Pro Rata Shares, whether received by voluntary payment,by the exercise of the right of setoff or banker’s lien, by counterclaim orcross-action or by the enforcement of any or all of the Obligations, (ii) ifany of them shall by voluntary payment or by the exercise of any right ofcounterclaim, setoff, banker’s lien or otherwise, receive payment of aproportion of the aggregate amount of the Obligations held by it, which isgreater than the amount which such Lender is entitled to receive hereunder, theLender receiving such excess payment shall purchase, without recourse orwarranty, an undivided interest and participation (which it shall be deemed tohave done simultaneously upon the receipt of such payment) in such Obligationsowed to the others so that all such recoveries with respect to such Obligationsshall be applied ratably in accordance with their Pro Rata Shares; provided,however, that if all or part of such excess payment received by thepurchasing party is thereafter recovered from it, those purchases shall berescinded and the purchase prices paid for such participations shall bereturned to such party to the extent necessary to adjust for such recovery, butwithout interest except to the extent the purchasing party is required to payinterest in connection with such recovery. The Borrower agrees that any Lender so purchasing a participation fromanother Lender pursuant to this Section 13.6 may, to the fullestextent permitted by law, exercise all its rights of payment (including, subjectto Section 13.5, the right of setoff) with respect to suchparticipation as fully as if such Lender were the direct creditor of theBorrower in the amount of such participation.

 

**13.7****.  Amendmentsand Waivers.**

 

(a)                                  General Provisions. Unless otherwise provided for or required in this Agreement, noamendment or modification of any provision of this Agreement or any of theother Loan Documents shall be effective without the written agreement of theRequisite Lenders (which the Requisite Lenders shall have the right to grant orwithhold in their sole discretion) and the Borrower; provided, however,that Borrower’s agreement shall not be required for any amendment or modificationof Sections 11.1 through 11.8 (other than such Sections thereofon which the Borrower is entitled to rely or which the Borrower is entitled toenforce).  Unless otherwise provided forin this Agreement, no termination or waiver of any provision of this Agreementor any of the other Loan Documents, or consent to any departure by the Borroweror TMC therefrom, other than those specifically reserved to the AdministrativeAgent or the other Lenders, shall be effective without the written concurrence ofthe Requisite Lenders, which the Requisite Lenders shall have the right togrant or withhold in their sole discretion. All amendments, waivers and consents not specifically reserved to theAdministrative Agent or the other Lenders in Sections 13.7(b), 13.7(c) and13.7(d) and in other provisions of this Agreement shall require onlythe

 

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approval of the Requisite Lenders.  Any waiver or consent shall be effective onlyin the specific instance and for the specific purpose for which it wasgiven.  In the event that any Lenderfails to fund its Pro Rata Share of any Loan requested by the Borrower whichsuch Lender is obligated to fund under the terms of this Agreement, to performits obligations under Section 2.4 of this Agreement, or to pay anyother amount payable by such Lender, then in addition to the other rights andremedies that may be available to Administrative Agent or the Borrower, suchLender’s right to participate in the administration of the Loan Documents,including, without limitation, any rights to consent to or direct any action orinaction of Administrative Agent pursuant to this Agreement or the other LoanDocuments, or to be taken into account in the calculation of Requisite Lenders,or to exercise rights under Sections 13.7(b) or 13.7(c), shall besuspended during the pendency of such failure. No notice to or demand on the Borrower in any case shall entitle theBorrower to any other or further notice or demand in similar or other circumstances.  Any such action by the Requisite Lendersshall be binding upon all of the Lenders and the Administrative Agent.  In connection with any proposed amendment orwaiver for which the consent of the Requisite Lenders has been obtained but theconsent of one or more other Lenders whose consent is required shall not havebeen obtained, the Borrower may identify an Eligible Assignee to which suchnon-consenting Lender shall assign its interest in the Loans and its RevolvingCredit Commitment at par value pursuant to an Assignment and Acceptancesubstantially in the form attached as **Exhibit A**,subject to the consent of the Administrative Agent and the Issuing Lender (suchconsent not to be unreasonably withheld or delayed).

 

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

 

(i)                                     increasein the amount of such Lender’s Revolving Credit Commitments or Term LoanCommitment;

 

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

 

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

 

(iv)                              additionof new currencies to be available as “Optional Currency” under the definitionthereof.

 

(c)                                  Amendments, Consents and Waivers by AllLenders.  Any amendment, modification, termination,waiver or consent with respect to any of the following provisions of thisAgreement shall be effective only by a written agreement, signed by eachLender:

 

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

 

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

 

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(iii)                               increase the MaximumRevolving Credit Amount to any amount in excess of $1,000,000,000 (except asprovided in Section 2.9).

 

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

 

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

 

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

 

(vii)                           release of the Guaranty.

 

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

 

**13.8****.  Notices. **Unless otherwise specificallyprovided herein, any notice or other communication herein required or permittedto be given shall be in writing and may be personally served, sent by facsimiletransmission or by courier service or United States certified mail and shall bedeemed to have been given when delivered in person or by courier service, uponreceipt of a facsimile transmission (or, in the case of any notices pursuant toSection 7.11, by electronic transmission pursuant to proceduresapproved by the Administrative Agent), or three (3) Business Days afterdeposit in the United States mail with postage prepaid and properlyaddressed.  Notices to the AdministrativeAgent pursuant to Articles II, III or XI shall not beeffective until received by the Administrative Agent.  For the purposes hereof, the addresses of theparties hereto (until notice of a change thereof is delivered as provided inthis Section 13.8) shall be as set forth below each party’s name onthe signature pages hereof or the signature page of

 

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

 

**13.9****.  Survivalof Warranties and Agreements. **Allrepresentations and warranties made herein and all obligations of the Borrowerin respect of taxes, indemnification and expense reimbursement shall survivethe execution and delivery of this Agreement and the other Loan Documents, themaking and repayment of the Loans and the termination of this Agreement andshall not be limited in any way by the passage of time or occurrence of anyevent.  Notwithstanding the foregoing,however, such representations, warranties and obligations shall terminate andbe of no further force and effect two years after payment in full of the Loans.

 

**13.10.  ****Failureor Indulgence Not Waiver; Remedies Cumulative. **Subject to the terms of Section 13.7(d) ofthis Agreement, no failure or delay on the part of the Administrative Agent orany other Lender in the exercise of any power, right or privilege under any ofthe Loan Documents shall impair such power, right or privilege or be construedto be a waiver of any default or acquiescence therein, nor shall any single orpartial exercise of any such power, right or privilege preclude other orfurther exercise thereof or of any other right, power or privilege.  All rights and remedies existing under theLoan Documents are cumulative to and not exclusive of any rights or remediesotherwise available.

 

**13.11****.  Marshaling;Payments Set Aside. **Noneof the Administrative Agent or any other Lender shall be under any obligationto marshal any assets in favor of the Borrower or any other party or against orin payment of any or all of the Obligations. To the extent that the Borrower makes a payment or payments to theAdministrative Agent or any other Lender or any such person exercises itsrights of setoff, and such payment or payments or the proceeds of suchenforcement or setoff or any part thereof are subsequently invalidated,declared to be fraudulent or preferential, set aside or required to be repaidto a trustee, receiver or any other party, then to the extent of such recovery,the obligation or part thereof originally intended to be satisfied, and allright and remedies therefor shall be revived and continued in full force andeffect as if such payment had not been made or such enforcement or setoff hadnot occurred.

 

**13.12****.  Severability. **In case any provision in orobligation under this Agreement or the other Loan Documents shall be invalid,illegal or unenforceable in any jurisdiction, the validity, legality andenforceability of the remaining provisions or obligations, or of such provisionor obligation in any other jurisdiction, shall not in any way be affected orimpaired thereby.

 

**13.13****.  Headings. **Section headings in thisAgreement are included herein for convenience of reference only and shall notconstitute a part of this Agreement or be given any substantive effect.

 

**13.14****.  GoverningLaw. **THIS AGREEMENT SHALLBE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETODETERMINED, IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THESTATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.

 

**13.15****.  Limitationof Liability. **No claimmay be made by any Lender, the Administrative Agent, or any other Personagainst any Lender (acting in any capacity hereunder) or the Affiliates,directors, officers, employees, attorneys or agents of any of them for anyconsequential or punitive damages in respect of any claim for breach ofcontract or any other theory of liability arising out of or related to thetransactions contemplated by this Agreement, or any act, omission or eventoccurring in connection therewith; and each Lender and the Administrative Agenthereby waives, releases and agrees not to sue upon any such claim for any suchdamages, whether or not accrued and whether or not known or suspected to existin its favor.  In addition, no claim maybe made by any Lender, the Administrative

 

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

 

**13.16****.  Successorsand Assigns. **This Agreementand the other Loan Documents shall be binding upon the parties hereto and theirrespective successors and assigns and shall inure to the benefit of the partieshereto and their successors and permitted assigns.  Notwithstanding the foregoing, Borrower maynot assign or transfer any of its rights or obligations under any of the LoanDocuments without the prior written consent of each of the Lenders (and anysuch assignment or transfer without such consent shall be null and void).

 

**13.17****.  CertainConsents and Waivers.**

 

(a)                                  Personal Jurisdiction.  (i) EACHOF THE LENDERS AND BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELFAND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURTOR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVINGJURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION ORPROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THERELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHERARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION ORENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY ANDUNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION ORPROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THEEXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE BORROWER (IN SUCH CAPACITY, THE “PROCESS AGENT”) AGREES TOACCEPT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCHSERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN EVERYRESPECT.  EACH OF THE LENDERS AND THEBORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BECONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THEJUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  EACH OF THE LENDERS (AS TO COURTS IN NEW YORKSTATE ONLY) AND THE BORROWER, WITH RESPECT TO COURTS IN NEW YORK STATE, WAIVESIN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THECOURT CONSIDERING THE DISPUTE.

 

(ii)                                  THEBORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE RIGHT TO PROCEEDAGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION NECESSARY ORAPPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE OTHER LENDERS TO ENFORCEA JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE ADMINISTRATIVE AGENT ORANY OTHER LENDER.  THE BORROWER AGREESTHAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHTBY THE ADMINISTRATIVE AGENT OR ANY LENDER TO ENFORCE A JUDGMENT OR OTHER COURTORDER IN FAVOR OF THE ADMINISTRATIVE AGENT OR ANY LENDER.  THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVETO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCEA PROCEEDING DESCRIBED IN THIS SECTION.

 

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

 

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

 

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

 

**13.18.  ****Counterparts;Effectiveness; Inconsistencies. **This Agreement and any amendments, waivers, consents, or supplementshereto may be executed in counterparts, each of which when so executed anddelivered shall be deemed an original, but all such counterparts together shallconstitute but one and the same instrument. This Agreement shall become effective against the Borrower and eachLender on the Closing Date.  ThisAgreement and each of the other Loan Documents shall be construed to the extentreasonable to be consistent one with the other, but to the extent that theterms and conditions of this Agreement are actually inconsistent with the termsand conditions of any other Loan Document, this Agreement shall govern.  In the event the Lenders enter into anyco-lender agreement with the Administrative Agent pertaining to the Lenders’respective rights with respect to voting on any matter referenced in thisAgreement or the other Loan Documents on which the Lenders have a right to voteunder the terms of this Agreement or the other Loan Documents, such co-lenderagreement shall be construed to the extent reasonable to be consistent withthis Agreement and the other Loan Documents, but to the extent that the termsand conditions of such co-lender agreement are actually inconsistent with theterms and conditions of this Agreement and/or the other Loan Documents, suchco-lender agreement shall govern. Notwithstanding the foregoing, any rights reserved to the AdministrativeAgent under this Agreement and the other Loan Documents shall not be varied orin any way affected by such co-lender agreement and the rights and obligationsof the Borrower under the Loan Documents shall not be varied in any way by suchco-lender agreement.

 

**13.19****.  Limitationon Agreements. **Allagreements between the Borrower, the Administrative Agent and each Lender inthe Loan Documents are hereby expressly limited so that in no event shall anyof the Loans or other amounts payable by the Borrower under any of the LoanDocuments be directly or indirectly secured (within the meaning of RegulationU) by Margin Stock.

 

**13.20****.  Confidentiality. **Subject to Section 13.1(e),the Lenders shall hold all nonpublic information obtained pursuant to therequirements of this Agreement, and identified as such by the Borrower, inaccordance with such Lender’s customary procedures for handling confidentialinformation of this nature and in accordance with safe and sound bankingpractices (provided that such Lender may share such information with itsAffiliates, officers, directors, employees, accountants, attorneys and otheradvisors in accordance with such Lender’s customary procedures for handlingconfidential information of

 

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this nature and provided further that such Person shall hold suchinformation confidential) and in any event the Lenders may make disclosurereasonably required by a bona fide offeree, transferee or participant inconnection with the contemplated transfer or by any actual or prospectivecounterparty (or its advisors) to any swap transaction relating to the Borroweror as required or requested by any Governmental Authority or representativethereof or pursuant to legal process and shall require any such offeree,transferee or counterparty to agree (and require any of its offerees,transferees or participants to agree) to comply with this Section 13.20.  In no event shall any Lender be obligated orrequired to return any materials furnished by the Borrower; provided, however,each offeree shall be required to agree that if it does not become a transfereeit shall return all materials furnished to it by the Borrower or any Lender inconnection with this Agreement.  This Section 13.20and any and all confidentiality agreements entered into between any Lender andthe Borrower shall survive the execution of this Agreement.  Nonpublic information shall not include anyinformation which is or subsequently becomes publicly available other than as aresult of a disclosure of such information by such Lender, or prior to thedelivery to such Lender is within the possession of such Lender if suchinformation is not known by such Lender to be subject to anotherconfidentiality agreement with or other obligations of secrecy to Borrower, oris disclosed with the prior approval of Borrower.  Nothing herein shall prohibit the disclosureof nonpublic information to the extent necessary to enforce the Loan Documents. Notwithstanding anything to the contraryset forth herein or in any other written or oral understanding or agreement towhich the parties hereto are parties or by which they are bound, the partieshereto acknowledge and agree that (i) any obligations of confidentialitycontained herein and therein do not apply and have not applied from thecommencement of discussions between the parties to the tax treatment and taxstructure of the transactions contemplated by the Loan Documents (and anyrelated transactions or arrangements), and (ii) each party (and each ofits employees, representatives, or other agents) may disclose to any and allparties as required, without limitation of any kind, the tax treatment and taxstructure of the transactions contemplated by the Loan Documents and allmaterials of any kind (including opinions or other tax analyses) that areprovided to such party relating to such tax treatment and tax structure, allwithin the meaning of Treasury Regulation Section 1.6011-4; provided,however, that each party recognizes that the privilege each has tomaintain, in its sole discretion, the confidentiality of a communicationrelating to the transactions contemplated by the Loan Documents, including aconfidential communication with its attorney or a confidential communicationwith a federally authorized tax practitioner under Section 7525 of theInternal Revenue Code, is not intended to be affected by the foregoing.

 

**13.21****.  Disclaimers. **The Administrative Agent and theother Lenders shall not be liable to any contractor, subcontractor, supplier,laborer, architect, engineer, tenant or other party for services performed ormaterials supplied in connection with any work performed on the RealProperties, including any TI Work.  TheAdministrative Agent and the other Lenders shall not be liable for any debts orclaims accruing in favor of any such parties against the Borrower or others oragainst any of the Real Properties. Borrower is not nor shall be an agent of any of the Administrative Agentor the other Lenders for any purposes and none of the Lenders nor theAdministrative Agent shall be deemed partners or joint venturers with theBorrower or any of its Affiliates as a result of the consummation of the transactioncontemplated by this Agreement.  None ofthe Administrative Agent or the other Lenders shall be deemed to be in privityof contract with any contractor or provider of services to any Real Property,nor shall any payment of funds directly to a contractor or subcontractor orprovider of services be deemed to create any third-party beneficiary status orrecognition of same by any of the Administrative Agent or the other Lenders,and the Borrower agrees to hold the Administrative Agent and the other Lendersharmless from any of the damages and expenses resulting from such aconstruction of the relationship of the parties or any assertion thereof solelyto the extent, if any, that the Borrower has requested that the AdministrativeAgent or any other Lender deal directly with or make any payments directly tosuch a contractor or provider of services.

 

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**13.22****.  EntireAgreement. **ThisAgreement, taken together with all of the other Loan Documents, embodies theentire agreement and understanding among the parties hereto and supersedes allprior agreements and understandings, written and oral, relating to the subjectmatter hereof.

 

**13.23****.  ReplacementNotes. **Upon receipt ofevidence reasonably satisfactory to Borrower of the loss, theft, destruction ormutilation of any Note, and in the case of any such loss, theft or destruction,upon delivery of an indemnity agreement reasonably satisfactory to Borrower or,in the case of any such mutilation, upon surrender and cancellation of theapplicable Note, Borrower will execute and deliver, in lieu thereof, areplacement Note, identical in form and substance to the applicable Note anddated as of the date of the applicable Note and upon such execution anddelivery all references in the Loan Documents to such Note shall be deemed torefer to such replacement Note.

 

**13.24****.  USAPatriot Act. **Each Lenderhereby notifies the Borrower and TMC that pursuant to the requirements of theUSA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,2001)) (the “Act”), it is required to obtain, verify and recordinformation that identifies the Borrower and TMC, which information includesthe names and addresses of the Borrower and TMC and other information that willallow such Lender to identify the Borrower and TMC in accordance with the Act.

 

**13.25.  TransitionalArrangements.**

 

(a)                                   ExistingRevolving Agreement and Original Term Loan Agreement Superseded.  This Agreement shall supersede each of theAmended Agreements in its entirety, except as provided in this Section 13.25.  On the Closing Date, the rights andobligations of the parties under each of the Amended Agreements and the “Notes”defined in each of the Amended Agreements shall be subsumed within and be governedby this Agreement and the Notes; provided**however,that any of the “Obligations” (as defined in each of the Amended Agreements)outstanding under each of the Amended Agreements shall, for purposes of thisAgreement, be Obligations hereunder.  TheLenders’ interests in such Obligations, and participations in such Letters ofCredit shall be reallocated on the Closing Date in accordance with each Lender’sapplicable Pro Rata Share.

 

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

 

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

 

 

[Remainder of Page IntentionallyLeft Blank]

 

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

 
| THE BORROWER: | THE MILLS LIMITED PARTNERSHIP, a Delaware  limited  partnership |
|---------------|-----------------------------------------------------------------|
|          |                                                            |
|          | By:                                                             | THE MILLS CORPORATION, a Delaware  corporation,  its General Partner |
|          |                                                            |   |
|          |                                                            | By: | /s/ M. SCOTT DECAIN |   |
|          |                                                            |   | Name: | M. Scott DeCain |
|          |                                                            |   | Title: | Senior Vice President,  Capital Markets |
|          |                                                            |
|          |                                                            |
|          | Notice Address:                                                 |
|          | The Mills Limited Partnership                                   |
|          | 1300 Wilson  Boulevard, Suite 400                          |
|          | Arlington, VA  22209                                            |
|          | Attn: Thomas E. Frost                                           |
|          | Facsimile: 703/526-5198                                         |
|               |                                                                 |  |  |  |  |

 

 

Signature Page to Amendedand RestatedRevolving Credit Agreement

 

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| TMC (for purposes of its  agreements contained  herein): | THE MILLS CORPORATION, a Delaware  corporation |
|----------------------------------------------------------|------------------------------------------------|
|                                                     | By:                                            | /s/ M. SCOTT DECAIN |   |
|                                                     |                                           | Name: | M. Scott DeCain |
|                                                     |                                           | Title: | Senior Vice President,  Capital Markets |
|                                                     |                                           |
|                                                     |                                           |
|                                                     | Notice Address:                                |
|                                                     | The Mills Limited Partnership                  |
|                                                     | 1300 Wilson  Boulevard, Suite 400         |
|                                                     | Arlington, VA  22209                           |
|                                                     | Attn: Thomas E. Frost                          |
|                                                     | Facsimile: 703/526-5198                        |
|                                                          |                                                |  |  |  |

 

Signature Page to Amendedand RestatedRevolving Credit Agreement

 

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| ADMINISTRATIVE AGENT  | JPMORGAN CHASE BANK, N.A., FORMERLY |
|-----------------------|-------------------------------------|
| SWING LENDER, ISSUING |                                | KNOWN AS JPMORGAN CHASE BANK |   |
| LENDER, AND LENDER:   |                                |   |   |
|                  |                                | By: | /s/ CHARLES HOAGLAND |   |
|                  |                                |   | Name: | Charles Hoagland |
|                  |                                |   | Title: | Vice President |
|                  |                                |   |   |   |
|                  |                                |   |   |   |
|                  |                                | Notice Address, Domestic |
|                  |                                | Lending Office and Eurocurrency |
|                  |                                | Lending Office: |
|                  |                                | 270 Park Avenue |
|                  |                                | New York, NY 10017 |
|                  |                                | Attn: Charles Hoagland |
|                  |                                | Facsimile: 212/270-0213 |
|                       |                                     |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| CO-SYNDICATION AGENT | BANK OF AMERICA, N.A. |
|----------------------|-----------------------|
| AND LENDER:          |                  |   |   |
|                 |                  |   |   |
|                 |                  | By: | /s/ MICHAEL W. EDWARDS |   |
|                 |                  |   | Name: | Michael W. Edwards |
|                 |                  |   | Title: | Senior Vice President |
|                 |                  |   |   |   |
|                 |                  |   |   |   |
|                 |                  | Notice Address, Domestic |
|                 |                  | Lending Office and Eurocurrency |
|                 |                  | Lending Office: |
|                 |                  | 231 S LaSalle Street |
|                 |                  | IL1-231 10-35 |
|                 |                  | Chicago, IL 60604 |
|                 |                  | Attn: Michael Edwards |
|                 |                  | Facsimile: 312/924-4970 |
|                      |                       |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| CO-SYNDICATION AGENT | EUROHYPO AG, NEW YORK BRANCH |
|----------------------|------------------------------|
| AND LENDER:          |                         |   |   |
|                 |                         |   |   |
|                 |                         | By: | /s/ BEN J. MARCIANO |   |
|                 |                         |   | Name: | Ben J. Marciano |
|                 |                         |   | Title: | Managing Director |
|                 |                         |   |   |   |
|                 |                         |   |   |   |
|                 |                         | By: | /s/ JEFF PAGE |   |
|                 |                         |   | Jeff Page |
|                 |                         |   | Vice President |
|                 |                         |   |   |   |
|                 |                         |   |   |   |
|                 |                         | Notice Address: |
|                 |                         | Eurohypo AG, New York Branch |
|                 |                         | 123 North Wacker Drive, Suite 2300 |
|                 |                         | Chicago, IL 60606 |
|                 |                         | Attn: Ryan Huddlestun |
|                 |                         | Facsimile: 312/267-8875 |
|                 |                         |   |
|                 |                         | with copy to: |
|                 |                         |   |
|                 |                         | Eurohypo AG, New York Branch |
|                 |                         | 1114 Avenue of the Americas |
|                 |                         | New York, NY 10036 |
|                 |                         | Attn: Legal Director |
|                 |                         |   |
|                 |                         | Domestic Lending Office and Eurocurrency |
|                 |                         | Lending Office: |
|                 |                         | Eurohypo AG, New York Branch |
|                 |                         | 1114 Avenue of the Americas |
|                 |                         | New York, NY 10036 |
|                 |                         | Attn: Legal Director |
|                      |                              |  |  |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | KEY BANK, NATIONAL ASSOCIATION      |
|---------|--------|-------------------------------------|
|    |   |                                |   |
|    |   |                                |   |
|    |   | By:                                 | /s/ GREGORY W. LANE |   |
|    |   |                                | Name: | Gregory W. Lane |
|    |   |                                | Title: | Assistant Vice President |
|    |   |                                |   |   |
|    |   |                                |   |   |
|    |   | Notice Address:                     |
|    |   | 101 Federal Street, Suite 1900 |
|    |   | Boston, MA  02110                   |
|    |   | Attn: Jeffry M.  Morrison           |
|    |   | Facsimile: 617/204-5169             |
|    |   |                                |
|    |   | Domestic Lending Office             |
|    |   | and Eurocurrency Lending Office:    |
|    |   | 127 Public Square                   |
|    |   | Cleveland, OH 44114                 |
|    |   | Attn: Diana D’Aquila           |
|    |   | Facsimile: 216/689-3566             |
|         |        |                                     |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | WACHOVIA BANK, NATIONAL ASSOCIATION |                |
|---------|--------|-------------------------------------|---------------------|
|    |   |                                |                |
|    |   | By:                                 | /s/ CYNTHIA A. BEAN |   |
|    |   |                                | Name:               | Cynthia A. Bean |
|    |   |                                | Title:              | Vice President |
|    |   |                                |                |   |
|    |   | Notice Address:                     |
|    |   | 191 Peachtree Street, NE GA-8057    |
|    |   | Atlanta, GA 80303-1740              |
|    |   | Attn: Cathy Casey                   |
|    |   | Facsimile: 404/332-4066             |
|    |   |                                |
|    |   | with copy to:                       |
|    |   |                                |
|    |   | 201 S. College St., CP9, NC 1183    |
|    |   | Charlotte, NC 28288                 |
|    |   | Attn: Dianne Taylor                 |
|    |   | Facsimile: 704/715-0094             |
|    |   |                                |
|    |   | Domestic Lending Office:            |
|    |   | Wachovia  Bank                      |
|    |   | 301 S.  College Street, NC0172      |
|    |   | Charlotte, NC 28288                 |
|    |   |                                |
|    |   | Eurocurrency Lending Office:        |
|    |   | Wachovia Bank, NA London Branch     |
|    |   | 3 Bishopsgate                       |
|    |   | London EC2N 3AB                     |
|    |   | United Kingdom                      |
|         |        |                                     |                     |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | CITICORP NORTH AMERICA, INC.    |             |
|---------|--------|---------------------------------|------------------|
|    |   |                            |             |
|    |   | By:                             | /s/ DAVID BOUTON |   |
|    |   |                            | Name:            | David Bouton |
|    |   |                            | Title:           | Vice President |
|    |   |                            |             |   |
|    |   |                            |             |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 390 Greenwich Street            |
|    |   | New York, NY 10013              |
|    |   | Attn: Blake Gronich             |
|    |   | Facsimile: 212/723-8547         |
|         |        |                                 |                  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | HYPO REAL ESTATE CAPITAL        |                |
|---------|--------|---------------------------------|---------------------|
|    |   | CORPORATION                     |                |
|    |   |                            |                |
|    |   | By:                             | /s/ EVAN F. DENNER  |   |
|    |   |                            | Name:               | Evan F. Denner |
|    |   |                            | Title:              | Managing Director |
|    |   |                            |                |   |
|    |   | By:                             | /s/ MEGGAN W. WALSH |   |
|    |   |                            | Name:               | Meggan W. Walsh |
|    |   |                            | Title:              | Managing Director |
|    |   |                            |                |   |
|    |   |                            |                |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 622 Third Avenue, 29th  Floor   |
|    |   | New York, NY 10017              |
|    |   | Attn: Christine Elcik           |
|    |   | Facsimile: 212/671-6458         |
|    |   |                            |
|    |   | with copy to:                   |
|    |   |                            |
|    |   | 622 Third Avenue, 29 th  Floor  |
|    |   | New York, NY 10017              |
|    |   | Attn: Pavlina Jiroutkova        |
|    |   | Facsimile: 212/671-6434         |
|    |   |                            |
|    |   | and:                            |
|    |   |                            |
|    |   | 622 Third Avenue, 29 th  Floor  |
|    |   | New York, NY 10017              |
|    |   | Attn: Maria Ortiz               |
|    |   | Facsimile: 212/671-6329         |
|         |        |                                 |                     |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | MORGAN STANLEY BANK             |              |
|---------|--------|---------------------------------|-------------------|
|    |   |                            |              |
|    |   | By:                             | /s/ DANIEL TWENGE |   |
|    |   |                            | Name:             | Daniel Twenge |
|    |   |                            | Title:            | Vice President, Morgan Stanley Bank |
|    |   |                            |              |   |
|    |   |                            |              |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 1633 Broadway, 25 th  Floor     |
|    |   | New York, NY 10019              |
|    |   | Attn: Erma Dell’Aquila     |
|    |   | Facsimile: 212/537-1867         |
|    |   |                            |
|    |   | with copy to:                   |
|    |   | 1633 Broadway, 25 th  Floor     |
|    |   | New York, NY 10019              |
|    |   | Attn: Edward Henley             |
|    |   | Facsimile: 212/537-1866         |
|         |        |                                 |                   |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | ROYAL BANK OF CANADA                       |                 |
|---------|--------|--------------------------------------------|----------------------|
|    |   |                                       |                 |
|    |   | By:                                        | /s/ GORDON MACARTHUR |   |
|    |   |                                       | Name:                | Gordon MacArthur |
|    |   |                                       | Title:               | Authorized Signatory |
|    |   |                                       |                 |   |
|    |   |                                       |                 |   |
|    |   | Notice Address, Domestic                   |
|    |   | Lending Office and Eurocurrency            |
|    |   | Lending Office:                            |
|    |   | One Liberty Plaza, 3rd Floor               |
|    |   | 165 Broadway                               |
|    |   | New York, NY 10006-1404                    |
|    |   | Attn: Manager, Loans Administration        |
|    |   | Facsimile: 212/428-2372                    |
|    |   |                                       |
|    |   | A copy of notices should also be faxed to: |
|    |   | Julita Tyszewicz                           |
|    |   | CTM Group                                  |
|    |   | 416/842-4020                               |
|         |        |                                            |                      |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | U.S. BANK NATIONAL ASSOCIATION  |
|---------|--------|---------------------------------|
|    |   |                            |   |
|    |   | By:                             | /s/ MICHAEL RAARUP |   |
|    |   |                            | Name: | Michael Raarup |
|    |   |                            | Title: | Senior Vice President |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 800 Nicollet Mall, 3rd Floor    |
|    |   | BC-MN-H03A                      |
|    |   | Minneapolis, MN  55402          |
|    |   | Attn: Barbara  DeVahl           |
|    |   | Facsimile:  612/303-2270        |
|         |        |                                 |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | COMMERZBANK AG, NEW YORK AND  GRAND CAYMAN BRANCHES |
|---------|--------|-----------------------------------------------------|
|    |   |                                                |   |
|    |   | By:                                                 | /s/ CHRISTIAN BERRY |   |
|    |   |                                                | Name: | Christian Berry |
|    |   |                                                | Title: | Vice President |
|    |   |                                                |   |   |
|    |   |                                                |   |   |
|    |   | By:                                                 | /s/ DOUGLAS TRAYNOR |   |
|    |   |                                                | Name: | Douglas Traynor |
|    |   |                                                | Title: | Senior Vice President |
|    |   |                                                |   |   |
|    |   |                                                |   |   |
|    |   | Notice Address, Domestic                            |
|    |   | Lending Office and Eurocurrency                     |
|    |   | Lending Office:                                     |
|    |   | 2 World Financial Center                            |
|    |   | New York, NY 10281                                  |
|    |   | Attn: Christian  Berry                              |
|    |   | Facsimile:  212/266-7565                            |
|         |        |                                                     |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | ING REAL ESTATE FINANCE (USA) LLC |
|---------|--------|-----------------------------------|
|    |   |                              |   |
|    |   | By:                               | /s/ DANIEL SLIWAK |   |
|    |   |                              | Name: | Daniel Sliwak |
|    |   |                              | Title: | Vice President |
|    |   |                              |   |   |
|    |   |                              |   |   |
|    |   | Notice Address, Domestic          |
|    |   | Lending Office and Eurocurrency   |
|    |   | Lending Office:                   |
|    |   | 230 Park Avenue                   |
|    |   | New York, NY 10169                |
|    |   | Attn: Alexander Joerg             |
|    |   | Facsimile: 212/883-2734           |
|    |   |                              |
|    |   | with copy to:                     |
|    |   |                              |
|    |   | 230 Park Avenue                   |
|    |   | New York, NY 10169                |
|    |   | Attn: Daniel Sliwak               |
|    |   | Facsimile: 212/883-2734           |
|    |   |                              |
|    |   | and:                              |
|    |   |                              |
|    |   | 1325 Avenue of the Americas       |
|    |   | New York, NY 10019                |
|    |   | Attn: Mark LaGreca                |
|    |   | Facsimile: 646/424-8251           |
|         |        |                                   |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | MERRILL LYNCH CAPITAL CORPORATION      |
|---------|--------|----------------------------------------|
|    |   |                                   |   |
|    |   | By:                                    | /s/ JOHN C. ROWLAND |   |
|    |   |                                   | Name: | John C. Rowland |
|    |   |                                   | Title: | Vice President |
|    |   |                                   |   |   |
|    |   |                                   |   |   |
|    |   | Notice Address, Domestic               |
|    |   | Lending Office and Eurocurrency        |
|    |   | Lending Office:                        |
|    |   | 4 World Financial Center, 16 th  Floor |
|    |   | New York, NY 10080                     |
|    |   | Attn: John Rowland                     |
|    |   | Facsimile: 212/738-1186                |
|         |        |                                        |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | PB CAPITAL CORPORATION          |
|---------|--------|---------------------------------|
|    |   |                            |   |
|    |   | By:                             | /s/ JONATHAN OH |   |
|    |   |                            | Name: | Jonathan Oh |
|    |   |                            | Title:  Vice President |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | By:                             | /s/ MICHAEL E. ASHEROFF |   |
|    |   |                            | Name:  Michael E. Asheroff |
|    |   |                            | Title:    Associate |
|    |   |                            |   |
|    |   |                            |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 590 Madison Avenue              |
|    |   | New York, NY 10022              |
|    |   | Attn: Michael Asheroff          |
|    |   | Facsimile: 212/756-5536         |
|         |        |                                 |  |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | BAYERISCHE LANDESBANK,  NEW YORK BRANCH |
|---------|--------|-----------------------------------------|
|    |   |                                    |   |
|    |   | By:                                     | /s/ GEORGE GNAD |   |
|    |   |                                    | Name: | George Gnad |
|    |   |                                    | Title: | Senior Vice President |
|    |   |                                    |   |   |
|    |   |                                    |   |   |
|    |   | By:                                     | /s/ NORMAN MCCLAVE |   |
|    |   |                                    | Name: | Norman McClave |
|    |   |                                    | Title: | First Vice President |
|    |   |                                    |   |   |
|    |   | Notice Address, Domestic                |
|    |   | Lending Office and Eurocurrency         |
|    |   | Lending Office:                         |
|    |   | 560 Lexington Avenue                    |
|    |   | New York, NY 10022                      |
|    |   | Attn: Pat Sanchez                       |
|    |   | Facsimile: 212/310-9930                 |
|    |   |                                    |
|    |   | with copy to:                           |
|    |   |                                    |
|    |   | 560 Lexington Avenue                    |
|    |   | New York, NY 10022                      |
|    |   | Attn: G. Schnepf                        |
|    |   | Facsimile: 212/230-9151                 |
|         |        |                                         |  |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | BRANCH BANKING & TRUST CO. |
|---------|--------|-------------------------------------|
|    |   |                                |   |
|    |   | By:                                 | /s/ RONALD P. GUDBRANDSEN |   |
|    |   |                                | Name: | Ronald P. Gudbrandsen |
|    |   |                                | Title: | Senior Vice President |
|    |   |                                |   |   |
|    |   |                                |   |   |
|    |   | Notice Address, Domestic            |
|    |   | Lending Office and Eurocurrency     |
|    |   | Lending Office:                     |
|    |   | 1909 K Street, N.W., 2nd Floor      |
|    |   | Washington, D.C. 20006-1152         |
|    |   | Attn: Divina S. Tamayo              |
|    |   | Facsimile: 202/835-9285             |
|         |        |                                     |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | CALYON NEW YORK BRANCH          |
|---------|--------|---------------------------------|
|    |   |                            |   |
|    |   | By:                             | /s/ JOHN A. WAIN |   |
|    |   |                            | Name: | John A. Wain |
|    |   |                            | Title: | Managing Director |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | By:                             | /s/ DANIEL J. REDDY |   |
|    |   |                            | Name: | Daniel J. Reddy |
|    |   |                            | Title: | Director |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 1301 Avenue of the Americas,    |
|    |   | Real Estate Dept., 18 th  Floor |
|    |   | New York, NY 10019-6022         |
|    |   | Attn: Daniel Reddy              |
|    |   | Facsimile: 212/261-3813         |
|         |        |                                 |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | LASALLE BANK NATIONAL ASSOCIATION |
|---------|--------|-----------------------------------|
|    |   |                              |   |
|    |   | By:                               | /s/ ROBERT E. GOECKEL |   |
|    |   |                              | Name: | Robert E. Goeckel |
|    |   |                              | Title: | Assistant Vice President |
|    |   |                              |   |   |
|    |   |                              |   |   |
|    |   | Notice Address, Domestic          |
|    |   | Lending Office and Eurocurrency   |
|    |   | Lending Office:                   |
|    |   | 135 S. LaSalle Street #1225       |
|    |   | Chicago, IL 60603                 |
|    |   | Attn: Robert Goeckel              |
|    |   | Facsimile: 312/904-6691           |
|         |        |                                   |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | MANUFACTURERS AND TRADERS  TRUST COMPANY |
|---------|--------|------------------------------------------|
|    |   |                                     |   |
|    |   | By:                                      | /s/ MATTHEW LIND |   |
|    |   |                                     | Name: | Matthew Lind |
|    |   |                                     | Title: | Vice President |
|    |   |                                     |   |   |
|    |   |                                     |   |   |
|    |   | Notice Address, Domestic                 |
|    |   | Lending Office and Eurocurrency          |
|    |   | Lending Office:                          |
|    |   | One Fountain Plaza, 2nd Floor            |
|    |   | Buffalo, NY 14203                        |
|    |   | Attn: Renee Davis                        |
|    |   | Facsimile: 716/848-7881                  |
|         |        |                                          |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | EMIGRANT SAVINGS BANK           |
|---------|--------|---------------------------------|
|    |   |                            |   |
|    |   | By:                             | /s/ JANSEN NOYES |   |
|    |   |                            | Name: | Jansen Noyes |
|    |   |                            | Title: | Senior Vice President |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | By:                             | /s/ MICHAEL A. WALSH |   |
|    |   |                            | Name: | Michael A. Walsh |
|    |   |                            | Title: | First Vice President |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 5 East 42nd Street              |
|    |   | New York, NY 10017              |
|    |   | Attn: Jansen Noyes              |
|    |   | Facsimile: 212/850-4608         |
|         |        |                                 |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | KBC BANK NV                         |
|---------|--------|-------------------------------------|
|    |   |                                |   |
|    |   | By:                                 | /s/ JEAN-PIERRE DIELS |   |
|    |   |                                | Name: | Jean-Pierre Diels |
|    |   |                                | Title: | First Vice President |
|    |   |                                |   |   |
|    |   |                                |   |   |
|    |   | By:                                 | /s/ KENNETH D. CONNOR |   |
|    |   |                                | Name: | Kenneth D. Connor |
|    |   |                                | Title: | Vice President, Real Estate |
|    |   |                                |   |   |
|    |   |                                |   |   |
|    |   | Notice Address, Domestic            |
|    |   | Lending Office and Eurocurrency     |
|    |   | Lending Office:                     |
|    |   | 125 West 55 th Street,  10 th Floor |
|    |   | New York, NY 10019                  |
|    |   | Attn: Kenneth D. Connor             |
|    |   | Facsimile: 212/541-0740             |
|         |        |                                     |  |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | PNC BANK, NATIONAL ASSOCIATION           |
|---------|--------|------------------------------------------|
|    |   |                                     |   |
|    |   | By:                                      | /s/ WILLIAM R. LYNCH, III |   |
|    |   |                                     | Name: | William R. Lynch, III |
|    |   |                                     | Title: | Senior Vice President |
|    |   |                                     |   |   |
|    |   |                                     |   |   |
|    |   | Notice Address:                          |
|    |   | One PNC Plaza, Mailstop P1-POPP-19-2     |
|    |   | Pittsburgh, PA 15222                     |
|    |   | Attn: Charlene Markoff                   |
|    |   | Facsimile: 412/768-5754                  |
|    |   |                                     |
|    |   | Domestic Lending Office                  |
|    |   | and Eurocurrency Lending Office:         |
|    |   | PNC Bank, National Association           |
|    |   | 249 Fifth Avenue, Mailstop: P1-POPP-19-2 |
|    |   | Pittsburgh, PA 15222                     |
|         |        |                                          |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

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| LENDER: |   | WELLS FARGO BANK,  NATIONAL ASSOCIATION |
|---------|--------|-----------------------------------------|
|    |   |                                    |   |
|    |   | By:                                     | /s/ ERIN P. PEART |   |
|    |   |                                    | Name: | Erin P. Peart |
|    |   |                                    | Title: | Senior Vice President |
|    |   |                                    |   |   |
|    |   |                                    |   |   |
|    |   | Notice Address and Domestic             |
|    |   | Lending Office:                         |
|    |   | 1750 H Street, N.W., Suite 400     |
|    |   | Washington, D.C. 20006                  |
|    |   | Attn: Erin Peart                        |
|    |   | Facsimile: 202/429-2984                 |
|    |   |                                    |
|    |   | Eurocurrency (LIBOR) Lending Office:    |
|    |   | 2020 East Park Place, Suite 100    |
|    |   | El Segundo, CA 90245                    |
|    |   | Attn: Puree Rhein                       |
|    |   | Facsimile: 310/615-1014                 |
|         |        |                                         |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

----

 
| LENDER: |   | SOVEREIGN BANK                  |
|---------|--------|---------------------------------|
|    |   |                            |   |
|    |   | By:                             | /s/ KATHERINE FELPEL |   |
|    |   |                            | Name: | Katherine Felpel |
|    |   |                            | Title: | Assistant Vice President |
|    |   |                            |   |   |
|    |   |                            |   |   |
|    |   | Notice Address, Domestic        |
|    |   | Lending Office and Eurocurrency |
|    |   | Lending Office:                 |
|    |   | 75 State Street                 |
|    |   | MA 1 SST 04-11                  |
|    |   | Boston, MA 02109                |
|    |   | Attn: T. Gregory Donohue        |
|    |   | Facsimile: 617/757-5652         |
|         |        |                                 |  |  |  |

 

Signature Page to SecondAmended and RestatedRevolving Credit and Term Loan Agreement

 

----

 

 

**EXHIBIT A**

 

**FORM OF**

 

**ASSIGNMENTAND ACCEPTANCE**

 

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

 

For an agreed consideration, the Assignorhereby irrevocably sells and assigns to the Assignee, and the Assignee herebyirrevocably purchases and assumes from the Assignor, subject to and inaccordance with the Standard Terms and Conditions and the Credit Agreement, asof the Effective Date (i) all of the Assignor’s rights and obligations inits capacity as a Lender under the Credit Agreement and any other documents orinstruments delivered pursuant thereto to the extent related to the amount andpercentage interest identified below of all of such outstanding rights and obligationsof the Assignor under the respective facilities identified below (includingwithout limitation any letters of credit, guarantees, and swingline loansincluded in such facilities), and (ii) to the extent permitted to beassigned under applicable law, all claims, suits, causes of action and any otherright of the Assignor (in its capacity as a Lender) against any Person, whetherknown or unknown, arising under or in connection with the Credit Agreement, anyother documents or instruments delivered pursuant thereto or the loantransactions governed thereby or in any way based on or related to any of theforegoing, including, but not limited to, contract claims, tort claims,malpractice claims, statutory claims and all other claims at law or in equityrelated to the rights and obligations sold and assigned pursuant to clause (i) above(the rights and obligations sold and assigned pursuant to clauses (i) and (ii) abovebeing referred to herein collectively as the “***AssignedInterest***”).  Such sale andassignment is without recourse to the Assignor and, except as expresslyprovided in this Assignment and Acceptance, without representation or warrantyby the Assignor.

 
| 1.     |   | Assignor: |   |                                                                                                                                                                                                                                              |   |
|--------|--------|-----------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
|   |   |      |   |                                                                                                                                                                                                                                              |
| 2.     |   | Assignee: |   |                                                                                                                                                                                                                                              |   |
|   |   |      |   | [and is an  Affiliate/Approved Fund of                                  (1)] |
|   |   |      |   |                                                                                                                                                                                                                                              |
| 3.     |   | Borrower: |   | The Mills  Limited Partnership                                                                                                                                                                                                                    |

 

----

(1) Select Lender as applicable.

 

1

----

 
| 4.     |   | Administrative  Agent: |   | JPMorgan  Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as the  administrative agent under the Credit Agreement                                                                                                                                                                                                   |
|--------|--------|------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                          |
| 5.     |   | Credit  Agreement:     |   | The Second  Amended and Restated Revolving Credit and Term Loan Agreement, dated as of December     ,  2004, by and among The Mills Limited Partnership, the Lenders named therein  and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as  Administrative Agent for the Lenders. |
|   |   |                   |   |                                                                                                                                                                                                                                                                                                                          |
| 6.     |   | Assigned Interest:     |   |                                                                                                                                                                                                                                                                                                                          |

 
| **Facility Assigned**                  | ** ** | **Dollar Equivalent of  and Optional Currency  Aggregate Amount of  Commitment/Loans for  all Lenders (including  any Letter of Credit  Disbursements) *** | ** ** | **Dollar Equivalent of  and Optional  Currency Amount of  Commitment/Loans  Assigned *** | ** ** | **Percentage  Assigned of  Commitment/Loans  (2)** | ** ** |
|----------------------------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------|------------|----------------------------------------------------|------------|
| Revolving  Credit Tranche A Commitment |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
| Revolving  Credit Tranche B Commitment |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
| Revolving  Credit Tranche A Loans      |       |                                                                                                                                                       |       |                                                                                     |       |                                               |       |
| Base Rate  Loans                       |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
| LIBOR Rate  Loans                      |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
| Revolving  Credit Tranche B Loans      |       |                                                                                                                                                       |       |                                                                                     |       |                                               |       |
| Base Rate  Loans                       |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
| LIBOR Rate  Loans                      |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
| EURIBOR Rate  Loans                    |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   |   |
|                                   |       | €                                                                                                                                                     |       |                                                                                     | €     |                                               |       |   | % |
| International  Eurocurrency Rate Loans |       | $                                                                                                                                                          |       |                                                                                     | $          |                                               |       |   | % |
|                                   |       | £                                                                                                                                                     |       |                                                                                     | £     |                                               |       |   |   |

 

----

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

 

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

 

2

----

 
| Term Loan                           |   |                |   |   |                |   |   |
|-------------------------------------|--------|---------------------|--------|--------|---------------------|--------|--------|
| Base Rate  Loans                    |   | $                   |   |   | $                   |   |   |   | % |
| LIBOR Rate  Loans                   |   | $                   |   |   | $                   |   |   |   | % |
| Negotiated  Rate Loans              |   |                |   |   |                |   |   |
| Eurocurrency                        |   | $                   |   |   | $                   |   |   |   |   |
| Negotiated  Rate Loans              |   | [€][£]    |   |   | [€][£]    |   |   | % |
| Fixed Rate  Loans                   |   | $  [€][£] |   |   | $  [€][£] |   |   |   | % |
| Letter of  Credit                   |   | $                   |   |   |                |   |   |   |   |
| participations  interest            |   | [€][£]    |   |   | $                   |   |   | % |
| Swing Loan  participations interest |   | $                   |   |   | $                   |   |   |   | % |
|                                     |        |                     |        |        |                     |        |        |  |  |  |

 
| [7.                                   Trade Date:                 |   |                                        ](3) |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                                        |   |                                                                                                                                                                                                                                           |
| 8.                                       Fee: |   | The [Assignor/Assignee] shall pay the  Administrative Agent the fee required by the Credit Agreement prior to the  Effective Date.                                                                                                             |

 

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

 

 

[REMAINDER OF THIS PAGEINTENTIONALLY LEFT BLANK]

 

 

----

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

 

3

----

 

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

 
|   | ASSIGNOR           |
|--------|--------------------|
|   | [NAME OF ASSIGNOR] |
|   |               |
|   | By:                |   |   |
|   |               | Name: |
|   |               | Title: |
|   |               |   |
|   | ASSIGNEE           |
|   | [NAME OF ASSIGNEE] |
|   |               |
|   | By:                |   |   |
|   |               | Name: |
|   |               | Title: |

 

 

4

----

 

Consented to and Accepted:

 
| **JPMORGAN CHASE BANK, N.A.**                                                            |       |
|------------------------------------------------------------------------------------------|------------|
| (formerly known as JPMorgan  Chase Bank),acting in its capacity as Administrative  Agent |       |
|                                                                                     |
|                                                                                     |
|                                                                                     |       |
| By:                                                                                      |       |   |   |
|                                                                                     | Name:      |   |
|                                                                                     | Title:     |   |
|                                                                                     |       |
| **JPMORGAN CHASE BANK, N.A.**                                                            |       |
| (formerly known as  JPMorgan Chase Bank),acting in its capacity  as Issuing Lender       |       |
|                                                                                     |
|                                                                                     |       |   |   |
| By:                                                                                      |       |   |   |
|                                                                                     | Name:      |   |
|                                                                                     | Title:     |   |
|                                                                                     |       |
| [Consented to:                                                                           |       |
|                                                                                     |       |
| **THE MILLS LIMITED PARTNERSHIP**, Delaware                                              | ** ** |
| limited partnership                                                                      |       |
|                                                                                     |       |
|                                                                                     | By:        | THE MILLS CORPORATION, a Delaware |   |
|                                                                                     |       | corporation, its General Partner |   |
|                                                                                     |       |   |   |
|                                                                                     | By:        |   |   |   |
|                                                                                     |       | Name: |   |
|                                                                                     |       | Title:](1) |   |
|                                                                                          |            |  |  |  |  |  |  |

 

----

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

 

5

----

 

ANNEX 1

 

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

 

STANDARD TERMS AND CONDITIONSFORASSIGNMENT AND ACCEPTANCE

 

1.                                       Representationsand Warranties.

 

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

 

1.2.                              Assignee.  The Assignee (a) represents and warrantsthat (i) it has full power and authority, and has taken all actionnecessary, to execute and deliver this Assignment and Acceptance and toconsummate the transactions contemplated hereby and to become a Lender underthe Credit Agreement, (ii) it satisfies the requirements, if any,specified in the Credit Agreement that are required to be satisfied by it inorder to acquire the Assigned Interest and become a Lender, (iii) from andafter the Effective Date, it shall be bound by the provisions of the CreditAgreement as a Lender thereunder and, to the extent of the Assigned Interest,shall have the obligations of a Lender thereunder, (iv) it has received acopy of the Credit Agreement, together with copies of the most recent financialstatements delivered pursuant to Section 7.2(a) and (b) of theCredit Agreement and, to the extent no financial statements have been deliveredunder Section 7.2(b), the financial statements referred to in Section 5.1(i) ofthe Credit Agreement and such other documents and information as it has deemedappropriate to make its own credit analysis and decision to enter into thisAssignment and Acceptance

 

6

----

 

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

 

2.   Payments.  Fromand after the Effective Date, the Administrative Agent shall make all paymentsin respect of the Assigned Interest (including payments of principal, interest,fees and other amounts) to the Assignor for amounts which have accrued to butexcluding the Effective Date and to the Assignee for amounts which have accruedfrom and after the Effective Date.

 

3.                                       GeneralProvisions.  This Assignment and Acceptance shall be bindingupon, and inure to the benefit of, the parties hereto and their respectivesuccessors and assigns.  This Assignmentand Acceptance may be executed in any number of counterparts, which togethershall constitute one instrument. Delivery of an executed counterpart of a signature page of thisAssignment and Acceptance by telecopy shall be effective as delivery of amanually executed counterpart of this Assignment and Acceptance.  This Assignment and Acceptance shall begoverned by, and construed in accordance with, the laws of the State of NewYork.

 

7

----

 

**EXHIBIT B-****1**

 

**FORM OFREVOLVING CREDIT NOTE**

 
| $                               |   |                   ,  2004 |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------------------------------------|

 

FOR VALUE RECEIVED, THEMILLS LIMITED PARTNERSHIP, a Delaware limited partnership (the “***Borrower***”),unconditionally promises to pay to the order of                                 (the “***Lender***”),on the Revolving Credit Termination Date (as defined in the Credit Agreementreferred to below) the principal sum of, or the Dollar Equivalent of which isequal to,                                      DOLLARS ($                     )or, if less, the aggregate unpaid principal amount of all Revolving CreditLoans made by the Lender pursuant to the Second Amended and Restated RevolvingCredit and Term Loan Agreement, dated as of December         ,2004 (as amended, supplemented, amended and restated or otherwise modified fromtime to time, the “***CreditAgreement***”), among the Borrower, the various financialinstitutions (including the Lender) from time to time party thereto, JPMorganChase Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrativeagent for the Lenders (“***AdministrativeAgent***”) and the other parties thereto. Unless otherwise defined,terms used herein have the meanings provided in the Credit Agreement.

 

The Borrower alsopromises to pay interest on the unpaid principal amount hereof from time totime outstanding from and including the date hereof until maturity (whether byacceleration or otherwise) and, after maturity, until paid, at the rates perannum and on the dates specified in the Credit Agreement.

 

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

 

This Revolving CreditNote is one of the Notes referred to in, and evidences Indebtedness incurredunder, the Credit Agreement, to which reference is made for a description ofthe security, if any, for this Revolving Credit Note and for a statement of theterms and conditions on which the Borrower is permitted and required to makeprepayments and repayments of principal of the Indebtedness evidenced by thisRevolving Credit Note and on which such Indebtedness may be declared to be orshall automatically become immediately due and payable and is entitled to thebenefits of, and is subject to the terms set forth in, the Credit Agreement.The principal of this Revolving Credit Note is payable in the amounts and underthe circumstances, and its maturity is subject to acceleration upon the terms,set forth in the Credit Agreement.

 

The Borrower herebyirrevocably authorizes each Lender to make (or cause to be made) appropriatenotations on the grid attached to such Lender’s Revolving Credit Note (or onany continuation of such grid), which notations, if made, shall evidence, interalia, the date of, the outstanding principal of, and the interest rateand Interest Period (if any) applicable to, the Revolving Credit Loansevidenced hereby. Such notations shall, to the extent not inconsistent with thenotations made by the Administrative Agent in the Register, be conclusive andbinding on the Borrower in the absence of manifest error; provided, however, thatthe failure of any Lender to make any such notations shall not limit orotherwise affect any Obligations of the Borrower.

 

1

----

 

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

 

**THIS REVOLVING CREDIT NOTE SHALLBE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETODETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORKWITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.**

 
|   | THE MILLS LIMITED PARTNERSHIP, a |
|--------|----------------------------------|
|   | Delaware limited partnership     |
|   |                             |
|   | By:                              | THE MILLS CORPORATION, its General Partner |
|   |                             |   |
|   |                             | By: |   |   |
|   |                             | Name: |
|   |                             | Title: |

 

2

----

 

REVOLVING CREDIT LOANS ANDPRINCIPAL PAYMENTS

 
| ** ** | ** ** | **Amount of  Revolving Credit Loan  Made** | ** ** | **Interest  Period  (If  Applicable)** | ** ** | **Amount of  Principal Repaid** | ** ** | **Unpaid  Principal Balance**         | ** ** | **Total**  | ** **     | **Notation  Made By** | ** **      |
|------------|------------|--------------------------------------------|------------|----------------------------------------|------------|---------------------------------|------------|---------------------------------------|------------|------------|----------------|-----------------------|-----------------|
| **Date**   | ** ** | **Base  Rate**                             | ** ** | **LIBOR Rate**                         | ** ** | **EURIBOR  Rate**               | ** ** | **International  Eurocurrency  Rate** | ** ** | ** ** | **Base  Rate** | ** **            | **LIBOR  Rate** | ** ** | **EURIBOR  Rate** | ** ** | **International  Eurocurrency  Rate** | ** ** | **Base  Rate** | ** ** | **LIBOR  Rate** | ** ** | **EURIBOR  Rate** | ** ** | **International Eurocurrency Rate** | ** ** | ** ** | ** ** |
|       |       |                                       |       |                                   |       |                            |       |                                  |       |       |           |                  |            |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |
|       |       |                                       |       |                                   |       |                            |       |                                  |       |       |           |                  |            |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |   |

 

 

 

 

 

3

----

 

**EXHIBIT B-****2**

 

**FORM OFTERM LOAN NOTE**

 
|                                                                                                                                                                |   | New York, NY                                                                                                   |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------|
| $                            |   |                   ,  2004 |

 

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

 

The Borrower alsopromises to pay interest on the unpaid principal amount hereof from time totime outstanding from and including the date hereof until maturity (whether byacceleration or otherwise) and, after maturity, until paid, at the rates perannum and on the dates specified in the Credit Agreement.

 

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

 

This Term Loan Note isone of the Notes referred to in, and evidences Indebtedness incurred under, theCredit Agreement, to which reference is made for a description of the security,if any, for this Term Loan Note and for a statement of the terms and conditionson which the Borrower is permitted and required to make prepayments andrepayments of principal of the Indebtedness evidenced by this Term Loan Noteand on which such Indebtedness may be declared to be or shall automaticallybecome immediately due and payable and is entitled to the benefits of, and issubject to the terms set forth in, the Credit Agreement. The principal of thisTerm Loan Note is payable in the amounts and under the circumstances, and itsmaturity is subject to acceleration upon the terms, set forth in the CreditAgreement.

 

The Borrower herebyirrevocably authorizes each Lender to make (or cause to be made) appropriatenotations on the grid attached to such Lender’s Term Loan Note (or on anycontinuation of such grid), which notations, if made, shall evidence, interalia, the date of, the outstanding principal of, and the interest rateand Interest Period (if any) applicable to, the Term Loans evidenced hereby.Such notations shall, to the extent not inconsistent with the notations made bythe Administrative Agent in the Register, be conclusive and binding on theBorrower in the absence of manifest error; provided, however, that the failureof any Lender to make any such notations shall not limit or otherwise affectany Obligations of the Borrower.

 

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

 

1

----

 

**THIS TERM LOAN NOTE SHALL BEINTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TOITS CONFLICT OF LAWS PRINCIPLES.**

 
|   | THE MILLS LIMITED PARTNERSHIP, a  Delaware limited partnership |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   | By:                                                            | THE MILLS CORPORATION, its  General Partner |
|   |                                                           |   |
|   |                                                           | By: |   |   |
|   |                                                           | Name: |
|   |                                                           | Title: |

 

2

----

 

TERM LOANS AND PRINCIPALPAYMENTS

 
| **Date**   | ** ** | **Amount of Term Loan  Made, Converted or  Continued** | ** ** | **Interest  Period (If  Applicable)** | ** ** | **Amount of Principal  Repaid** | ** ** | **Unpaid Principal  Balance** | ** ** | **Total**       | ** ** | **Notation  Made  By:** | ** ** |
|------------|------------|--------------------------------------------------------|------------|---------------------------------------|------------|---------------------------------|------------|-------------------------------|------------|-----------------|------------|-------------------------|------------|
| ** ** | ** ** | **Base Rate**                                          | ** ** | **LIBOR  Rate**                       | ** ** | ** **                      | ** ** | **Base Rate**                 | ** ** | **LIBOR  Rate** | ** ** | **Base Rate**           | ** ** | **LIBOR  Rate** | ** ** | ** ** | ** ** | ** ** | ** ** |
| ** ** | ** ** | ** **                                             | ** ** | ** **                            | ** ** | ** **                      | ** ** | ** **                    | ** ** | ** **      | ** ** | ** **              | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** |
| ** ** | ** ** | ** **                                             | ** ** | ** **                            | ** ** | ** **                      | ** ** | ** **                    | ** ** | ** **      | ** ** | ** **              | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** |
| ** ** | ** ** | ** **                                             | ** ** | ** **                            | ** ** | ** **                      | ** ** | ** **                    | ** ** | ** **      | ** ** | ** **              | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** |
| ** ** | ** ** | ** **                                             | ** ** | ** **                            | ** ** | ** **                      | ** ** | ** **                    | ** ** | ** **      | ** ** | ** **              | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** | ** ** |

 

 

 

3

----

 

**EXHIBIT C**

 

**FORM OFNOTICE OF BORROWING**

 

JPMorgan Chase Bank, N.A.

(formerly known as JPMorgan Chase Bank),as Administrative Agent1111 Fannin, 10th FloorHouston, Texas 77002Attention:  Loan and Agency Services

 

THE MILLS LIMITED PARTNERSHIP

 

Gentlemen and Ladies:

 

This Notice of Borrowingis delivered to you pursuant to Section 2.1(e) of the Second Amendedand Restated Revolving Credit and Term Loan Agreement, dated as of December    ,2004 (as amended, supplemented, amended and restated or otherwise modified fromtime to time, the “***CreditAgreement***”), among The Mills Limited Partnership, a Delawarelimited partnership (the “***Borrower***”),the various financial institutions from time to time party thereto, JPMorganChase Bank, N.A. (formerly known as JPMorgan Chase Bank), as administrativeagent for the Lenders (“***AdministrativeAgent***”) and the other parties thereto. Unless otherwise definedherein or the context otherwise requires, terms used herein have the meaningsprovided in the Credit Agreement.

 

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

 
| (A)    |   | Type  of Borrowing(1)             |   |   |   |
|--------|--------|-----------------------------------|--------|--------|--------|
|   |   |                              |   |   |   |
| (B)    |   | Funding  Date(2)                  |   |   |   |
|   |   |                              |   |   |   |
| (C)    |   | Principal  Amount of Borrowing(3) |   |   |   |

 

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

 

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

 

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

 

1

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| (D)    |   | [Type  of Optional Currency(4)                                                                                                                |   |   | ]      |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------|
|   |   |                                                                                                                                          |   |   |   |
| (E)    |   | Interest  Rate Basis(5)                                                                                                                       |   |   | ]      |
|   |   |                                                                                                                                          |   |   |   |
| (F)    |   | [Interest  Period and the last day thereof(6)                                                                                                 |   |   | ]      |
|   |   |                                                                                                                                          |   |   |   |
| (G)    |   | [Number of One Week Interest Periods  Requested to Consolidate LIBOR Rate Loans in Calendar Year (inclusive, if  applicable, of this request) |   |   | ]      |

 

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

 

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

 

The Borrower herebyacknowledges that, pursuant to Section 5.1 or 5.2 of the Credit Agreement,as applicable, each of the delivery of this Notice of Borrowing and theacceptance by the Borrower of the proceeds of the Loans requested herebyconstitute a representation and warranty by the Borrower that, on the datehereof and on the Funding Date, and immediately before and after giving effect theretoand to the application of the proceeds therefrom, all the

 

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(4) Sterling or Euros.

 

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

 

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

 

2

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

 

The Borrower agrees thatif prior to the Funding Date any matter certified to herein by it will not betrue and correct at such time as if then made, it will immediately so notifythe Administrative Agent. Except to the extent, if any, that prior to theFunding Date the Administrative Agent shall receive written notice to thecontrary from the Borrower, each matter certified to herein shall be deemed tobe certified as true and correct on the Funding Date as if then made. Theproceeds of the Loan will be used for purposes permitted by the CreditAgreement.

 

Please wire transfer theproceeds of the Borrowing in the requested currency to the accounts [of thefollowing persons(7) [listed below in the name of the Borrower anddenominated in the currency in which the amount is borrowed](8) at thefinancial institutions indicated respectively:

 

Person to bePaid

 
| Amount to be        | Name, Account No., |
|---------------------|--------------------|
| Transferred         | Address, etc.      |
|                |               |
| [$][€][£] |               |   |   |   |
|                |               |   |
|                | Attention:         |   |   |
|                | Account No.:       |   |   |
|                |               |   |   |
| [$][€][£] |               |   |   |   |   |
|                |               |   |   |
|                |               | Attention: |   |   |
|                | Account No.:       |   |   |
|                     |                    |  |  |  |  |  |  |  |

 

 

{*Remainder of page left intentionally blank)*

 

 

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(7) For Loans denominated in Dollars.

 

(8) For Loans denominated in Optional Currency.

 

3

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

 

 
|   | THE MILLS LIMITED PARTNERSHIP, a  Delaware limited partnership |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   | By:                                                            | THE MILLS CORPORATION, its  General Partner |
|   |                                                           |   |
|   |                                                           | By: |   |   |
|   |                                                           | Name: |   |   |
|   |                                                           | Title: |   |   |
|        |                                                                |  |  |  |  |  |

 

4

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**EXHIBIT D**

 

**FORM OFNOTICE OF CONVERSION/CONTINUATION**

 

JPMorgan Chase Bank, N.A.

(formerly known as JPMorgan Chase Bank),as Administrative Agent1111 Fannin, 10th FloorHouston, Texas 77002

Attention:  Loan and AgencyServices

 

THE MILLSLIMITED PARTNERSHIP

 

Gentlemen and Ladies:

 

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

 

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

 

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

 

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

 

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

 

(3) Date of conversion must be a LIBORBusiness Day.

 

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

 

1

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

 

(3)                                  Continue asEurocurrency [Revolving Credit] [Term] Loans [$][€][£]                                 (6) inaggregate principal amount of Eurocurrency [Revolving Credit] [Term] Loans witha current Interest Period from                               and ending                              .  The succeeding Interest Period for suchEurocurrency [Revolving Credit] [Term] Loans is requested to be                  (7) [Thenumber of one week Interest Periods, inclusive of this request, requested thisyear to consolidate LIBOR Rate Loans is                 ].

 

The Borrower hereby:

 

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

 

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

 

Except to the extent, ifany, that prior to the time of the continuation or conversion requested herebythe Administrative Agent shall receive written notice to the contrary from theBorrower, each matter certified to herein shall be deemed to be certified astrue and correct on the date of such continuation or conversion as if thenmade.

 

*(Remainder of page intentionallyleft blank)*

 

 

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

 

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

 

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

 

2

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The Borrower has causedthis Notice of Conversion/Continuation to be executed and delivered, and thecertification and warranties contained herein to be made, by its dulyauthorized officer this          day of                            ,200  .

 

 
|   | THE MILLS LIMITED PARTNERSHIP, a  Delaware limited partnership |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   | By:                                                            | THE MILLS CORPORATION,  its General Partner |
|   |                                                           |   |
|   |                                                           | By: |   |   |
|   |                                                           | Name: |   |   |
|   |                                                           | Title: |   |   |
|        |                                                                |  |  |  |  |  |

 

3

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**EXHIBIT E**

 

**FORM OFLETTER OF CREDIT REQUEST**

 

JPMorgan Chase Bank, N.A.

(formerly known as JPMorgan Chase Bank),as Administrative Agent1111 Fannin, 10th FloorHouston, Texas 77002

Attention:  Loan and AgencyServices

 

THE MILLSLIMITED PARTNERSHIP

 

Gentlemen and Ladies:

 

This Letter of CreditRequest is delivered to you pursuant to Sections 2.4 (a) and (b) ofthe Second Amended and Restated Revolving Credit and Term Loan Agreement, datedas of December   , 2004 (as amended, supplemented, amended andrestated or otherwise modified from time to time, the “***Credit Agreement***”),among The Mills Limited Partnership, a Delaware limited partnership (the “***Borrower***”), thevarious financial institutions from time to time party thereto, JPMorgan ChaseBank, N.A. (formerly known as JPMorgan Chase Bank), as administrative agent forthe Lenders (“***AdministrativeAgent***”) and the other parties thereto. Unless otherwise definedherein or the context otherwise requires, terms used herein have the meaningsprovided in the Credit Agreement.

 

The Borrower herebyrequests that a Letter of Credit be issued under Section 2.4 of the CreditAgreement as follows:

 
| Principal Amount:           |   | [$][€][£] |   |   |
|-----------------------------|--------|---------------------|--------|--------|
| Beneficiary:                |   |                |   |
| Requested Issuance Date:(1) |   |                |   |
| Requested Expiration:(2)    |   |                |   |
| Purpose:                    |   |                |   |

 

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

 

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

 

1

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

 

The Borrower herebyacknowledges that, pursuant to Section 5.1 or 5.2 of the Credit Agreement,as applicable, each of the delivery of this Letter of Credit Request and theacceptance by the Borrower of the Letter of Credit requested hereby constitutea representation and warranty by the Borrower that, on the date of issuance ofsuch Letter of Credit, and immediately before and after giving effect theretoand to the application of the proceeds therefrom, all conditions set forth in Section 5.1or Section 5.2 of the Credit Agreement, as applicable, have beensatisfied.

 

The Borrower agrees thatif prior to the time of the issuance of the Letter of Credit requested herebyany matter certified to herein by it will not be true and correct at such timeas if then made, it will immediately so notify the Administrative Agent. Exceptto the extent, if any, that prior to the time of the issuance of the Letter ofCredit requested hereby the Administrative Agent shall receive written noticeto the contrary from the Borrower, each matter certified to herein shall bedeemed once again to be certified as true and correct at the date of issuanceof such Letter of Credit as if then made. The Letter of Credit will be used forpurposes permitted by the Credit Agreement.

 

(*Remainder of page intentionally left blank*)

 

2

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The Borrower has causedthis Letter of Credit Request to be executed and delivered, and thecertification and warranties contained herein to be made, by its dulyauthorized officer this          day of              ,200  .

 

 
|   | THE MILLS LIMITED  PARTNERSHIP,  a Delaware limited partnership |
|--------|-----------------------------------------------------------------|
|   |
|   |
|   |                                                            |
|   | By:                                                             | THE MILLS CORPORATION,  its General Partner |
|   |                                                            |   |
|   |                                                            |   |
|   |                                                            | By: |   |   |
|   |                                                            | Name: |   |   |
|   |                                                            | Title: |   |   |
|        |                                                                 |  |  |  |  |  |

 

3

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**EXHIBIT F**

 

**FORM OF**

 

**NEGOTIATEDRATE QUOTE REQUEST**

 

           ,200  

 

JPMorgan Chase Bank, N.A.

(formerly known as JPMorgan Chase Bank), as Administrative Agentfor the Lenders party to the Second Amended and RestatedRevolving Credit and Term Loan Agreement referred to below1111 Fannin, 10th FloorHouston, Texas 77002

Attention:  Loan and AgencyServices

 

Re:                               Negotiated Rate QuoteRequest

 

Ladies and Gentlemen:

 

Reference is hereby made to that certainSecond Amended and Restated Revolving Credit and Term Loan Agreement dated asof December    , 2004 (as the same may be amended,supplemented, amended and restated or otherwise modified from time to time, the“***Credit Agreement***”,capitalized terms used herein and not otherwise defined shall have the meaningsgiven to them therein), among The Mills Limited Partnership (the “***Borrower***”), theLenders named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorganChase Bank), as Administrative Agent for the Lenders.

 

The Borrower hereby requests Negotiated RateQuotes under the Credit Agreement pursuant to Section 2.7 thereof and, inconnection therewith, sets forth below the information relating to suchBorrowings (the “***Proposed Borrowing***”) asrequired pursuant to the terms of the Credit Agreement:

 

(i)                                     The funding date(which shall be a Business Day) of the Proposed Borrowing is                ,200  .

 

(ii)                                  The aggregate amountof the Proposed Borrowing is        .(1)

 

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(1) For amounts denominated in Optional Currency, specify theamount in the requested Optional Currency. The Dollar Equivalent of the requested amount shall (i) not exceedthe Revolving Credit Availability, (ii) after giving effect to theborrowing of Negotiated Rate Loans, the aggregate principal amount of theoutstanding Negotiated Rate Loans shall not exceed 50% of the Maximum RevolvingCredit Amount, and (iii) not exceed, to the extent such amount is to bedenominated in Optional Currency, the Revolving Credit Tranche B Availability.

 

1

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(iii)                                 The Proposed Borrowingwill be a [Eurocurrency Negotiated Rate Loan] [Fixed Rate Loan].

 

[(iv)                            The type of OptionalCurrency requested is [Sterling] [Euros].](2)

 

([i]v)                      The requested Interest Periodsfor the Proposed Borrowing are as follows:(3)

 
| **Start of Interest Period** | ** ** | **End Date of Interest Period** | ** ** | **Duration in months** |
|------------------------------|------------|---------------------------------|------------|------------------------|
| ** **                   | ** ** | ** **                      | ** ** | ** **             |

 

 

 

 

Upon any acceptance of a Negotiated RateQuote by the Borrower, the Administrative Agent is hereby directed to disbursethe proceeds of the Negotiated Rate Loans comprising the Proposed Borrowing onthe funding date therefor as set forth on ***Schedule 1***attached hereto and made a part hereof, whereupon the proceeds of suchNegotiated Rate Loans shall be deemed received by or for the benefit of theBorrower.

 

The Borrower hereby certifies that theconditions precedent contained in Sections 5.1 and 5.2 of the Credit Agreementare satisfied on the date hereof and will be satisfied on the funding date ofthe Proposed Borrowing.  The ComplianceCertificate as to pro forma covenant compliance required by Section 5.2(e) ofthe Credit Agreement is attached hereto.

 
|   |   | THE MILLS LIMITED PARTNERSHIP, a  Delaware limited partnership |                                        |
|--------|--------|----------------------------------------------------------------|---------------------------------------------|
|   |   |                                                           |                                        |
|   |   | By:                                                            | THE MILLS CORPORATION,  its General Partner |   |
|   |   |                                                           |                                        |   |
|   |   | By:                                                            |                                        |   |
|   |   | Name:                                                          |                                        |   |
|   |   | Title:                                                         |                                        |   |
|        |        |                                                                |                                             |  |  |  |  |  |

 

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(2) Include if Optional Currency requested.

 

(3) Such Interest Period shall be 1, 2, 3 or 6 months.

 

2

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**SCHEDULE 1**

**to**

**NegotiatedRate Quote Request**

 

**dated                , 200  **

 

**[Insertdisbursement directions]**

 

 

3

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**[AttachCompliance Certificate]**

 

 

4

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**EXHIBIT G**

**FORM OF**

 

**NEGOTIATEDRATE QUOTE**

 

                   , 200   

 

JPMorgan Chase Bank, N.A.

(formerly known as JPMorgan Chase Bank),as Administrative Agentfor the Lenders party to the Second Amended and RestatedRevolving Credit and Term Loan Agreement referred to below1111 Fannin, 10th FloorHouston, Texas 77002

Attention:  Loan and AgencyServices

 

Re:                               Negotiated Rate Quote

 

Ladies and Gentlemen:

 

Reference is hereby made to that certainSecond Amended and Restated Revolving Credit and Term Loan Agreement dated asof December   , 2004 (as the same may be amended, supplemented,amended and restated or otherwise modified from time to time, the “***Credit Agreement***”,capitalized terms used herein and not otherwise defined shall have the meaningsgiven to them therein), among The Mills Limited Partnership (the “***Borrower***”), theLenders named therein and JPMorgan Chase Bank, N.A. (formerly known as JPMorganChase Bank), as Administrative Agent for the Lenders.

 

The lender designated herein (the “***Lender***”) hereby makesa Negotiated Rate Quote, pursuant to Section 2.7 of the Credit Agreementand, in connection therewith, sets forth below the information relating to suchBorrowing (the “***Proposed Borrowing***”) asrequired pursuant to the terms of the Credit Agreement:

 

(i)                                     The name of theLender is                        .The contact information for such Lender is as follows:

 

[Name]

[Address]

[Telephone]

[Telecopy]

 

1

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(ii)                                  The principal amountof the Proposed Borrowing is [$][€][£]                   .(1)

 

(iii)                               The Negotiated Rate orRates at which the Lender is prepared to make such Loan or Loans is/are asfollows:

 
| **Currency** | ** ** | **Loan  Amount** | ** ** | **Rate** | ** ** | **Interest Period  Beginning** | ** ** | **Interest Period  Ending** | ** ** | **Duration(2)** | ** ** |
|--------------|------------|------------------|------------|----------|------------|--------------------------------|------------|-----------------------------|------------|-----------------|------------|

 

 

 

 

 

 
|   | [LENDER] |
|--------|----------|
|   |     |
|   | By:      |   |   |
|   | Name:    |
|   | Title:   |

 

 

 

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(1)The principal amount shall be a minimum of the Dollar Equivalent of$5,000,000 and an integral multiple of the Dollar Equivalent of $1,000,000 andmay equal the entire principal amount of the Negotiated Rate Loan requested bythe Borrower.

 

(2)Such Interest Period shall be 1, 2, 3 or 6 months.

 

2

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**EXHIBIT H**

 

**FORM OFSECOND AMENDED AND RESTATED GUARANTY**

 

FOR AND IN CONSIDERATION OF the sum of Tenand No/100 Dollars ($10.00) and other good and valuable consideration paid ordelivered to the undersigned **THE MILLS CORPORATION,**aDelaware corporation (hereinafter referred to as “***Guarantor***”), the receipt and sufficiencywhereof are hereby acknowledged by Guarantor, and for the purpose of seeking toinduce **JPMORGAN CHASE BANK, N.A.** (formerly known as JPMorgan Chase Bank),****a national banking association, as administrative agent andas a Lender (hereinafter referred to as “***Lender***,” which term shall also include eachother Lender which may now or hereafter become party to the Second Amended andRestated Revolving Credit and Term Loan Agreement, dated of even date herewithamong Borrower (as defined below), JPMorgan Chase Bank, N.A. (formerly known asJPMorgan Chase Bank), for itself and as administrative agent, the other Lendersnow or hereafter a party thereto and the other parties thereto (the “***Credit Agreement***”)and shall also include any such individual Lender acting as AdministrativeAgent for all of the Lenders or any other holder of a Note), to extend Loans orLetters of Credit or otherwise provide financial accommodations to **THE MILLS LIMITED PARTNERSHIP,**a Delaware limitedpartnership (“***Borrower***”),which Loans, Letters of Credit and provision of financial accommodationsGuarantor acknowledges will be to the direct interest, advantage and benefit ofGuarantor, Guarantor does hereby absolutely, unconditionally and irrevocablyguarantee (as this agreement may be amended, supplemented, restated or modifiedfrom time to time, this “***Guaranty***”)to Lender:

 

(a) the full and prompt payment whendue, whether by acceleration or otherwise, either before or after maturitythereof, of the Notes, together with interest as provided in the Notes,together with any replacements, supplements, amendments, renewals,modifications, consolidations, restatements and extensions thereof; and

 

(b) the full and prompt payment andperformance of all obligations of Borrower to Lender under the terms of theCredit Agreement, together with any replacements, supplements, renewals,modifications, consolidations, restatements and extensions thereof; and

 

(c) the full and prompt payment andperformance of any and all other obligations of Borrower to Lender under anyother agreements, documents or instruments now or hereafter evidencing,securing or otherwise relating to the indebtedness evidenced by the Notes orthe Credit Agreement (the Notes, the Credit Agreement and said otheragreements, documents and instruments are hereinafter collectively referred toas the “***Loan Documents***”and individually referred to as a “***Loan Document***”).  All terms used herein and not otherwisedefined herein shall have the meanings set forth in the Credit Agreement.

 

1.                                       Agreement toPay and Perform; Costs of Collection. Guarantor does hereby agree that ifany of the Notes is not paid by Borrower in accordance with its terms, or ifany and all sums which are now or may hereafter become due from Borrower toLender under the Loan Documents are not paid by Borrower in accordance withtheir terms, or if any and all other obligations of Borrower to Lender underthe Notes and the Loan Documents are not performed by Borrower in accordancewith their terms, Guarantor will, on demand by the Administrative Agent, makesuch payments and perform such obligations. Guarantor further agrees to payLender on demand all reasonable costs and expenses (including court costs and reasonableattorneys’ fees and disbursements) paid or incurred by Lender in endeavoring tocollect the indebtedness guaranteed hereby, to enforce any of the otherobligations of Borrower guaranteed hereby, or any portion thereof, or toenforce this Guaranty, and

 

1

----

 

until paid to Lender, such sums shall bear interest at the default rateof interest set forth in Section 4.1(d) of the Credit Agreement (orany successor provision thereto) unless collection from Guarantor of interestat such rate would be contrary to applicable law, in which event such sumsshall bear interest at the highest rate which may be collected from Guarantorunder applicable law.

 

2.                                       Reinstatementof Refunded Payments. If, for any reason, any payment to Lender of any ofthe obligations guaranteed hereunder is required to be refunded by Lender toBorrower, or paid or turned over to any other Person, including, withoutlimitation, by reason of the operation of bankruptcy, reorganization, receivershipor insolvency laws or similar laws of general application relating to creditors’rights and remedies now or hereafter enacted, Guarantor agrees to pay theamount so required to be refunded, paid or turned over (the “***Turnover Payment***”),the obligations of Guarantor shall not be treated as having been discharged bythe original payment to Lender giving rise to the Turnover Payment, and thisGuaranty shall be treated as having remained in full force and effect for anysuch Turnover Payment so made by Lender, as well as for any amounts nottheretofore paid to Lender on account of such obligations.

 

3.                                            Rightsof Lender to Deal with Collateral, Borrower and Other Persons. Guarantorhereby consents and agrees that Lender may at any time, and from time to time,without thereby releasing Guarantor from any liability hereunder and withoutnotice to or further consent from Guarantor, either with or withoutconsideration: release or surrender any Lien or other security of any kind ornature whatsoever held by it or by any Person on its behalf or for its account,securing any indebtedness or liability hereby guaranteed; substitute for anycollateral so held by it, other collateral of like kind, or of any kind; modifythe terms of the Notes or the Loan Documents; extend or renew the Notes for anyperiod; grant releases, compromises and indulgences with respect to the Notesor the Loan Documents and to any Persons now or hereafter liable thereunder orhereunder; release any other guarantor, surety, endorser or accommodation partyof the Notes or any other Loan Documents; or take or fail to take any action ofany type whatsoever. No such action which Lender shall take or fail to take inconnection with the Notes or the Loan Documents, or any of them, or any securityfor the payment of the indebtedness of Borrower to Lender or for theperformance of any obligations or undertakings of Borrower, nor any course ofdealing with Borrower or any other Person, shall release Guarantor’sobligations hereunder, affect this Guaranty in any way or afford Guarantor anyrecourse against Lender. The provisions of this Guaranty shall extend and beapplicable to all replacements, supplements, renewals, amendments, extensions,consolidations, restatements and modifications of the Notes and the LoanDocuments, and any and all references herein to the Notes and the LoanDocuments shall be deemed to include any such replacements, supplements,renewals, extensions, amendments, consolidations, restatements or modificationsthereof. Without limiting the generality of the foregoing, Guarantoracknowledges and agrees that this Guaranty shall extend and be applicable toeach new or replacement note delivered by Borrower pursuant to Section 13.1of the Credit Agreement.

 

4.                                       No Contestwith Lender; Subordination. So long as any obligation hereby guaranteedremains unpaid or undischarged, Guarantor will not, by paying any sumrecoverable hereunder (whether or not demanded by Lender) or by any means or onany other ground, claim any set-off or counterclaim against Borrower in respectof any liability of Guarantor to Borrower or, in proceedings under federalbankruptcy law or insolvency proceedings of any nature, prove in competitionwith Lender in respect of any payment hereunder or be entitled to have thebenefit of any counterclaim or proof of claim or dividend or payment by or onbehalf of Borrower or the benefit of any other security for any obligationhereby guaranteed which, now or hereafter, Lender may hold or in which it mayhave any share. Guarantor hereby expressly waives any right of contributionfrom or indemnity against Borrower, whether at law or in equity, arising fromany payments made by Guarantor pursuant

 

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to the terms of this Guaranty, and Guarantor acknowledges that, untilthe indefeasible payment in full of the Obligations and the termination of theRevolving Credit Commitments, Guarantor has no right whatsoever to proceedagainst Borrower for reimbursement of any such payments. In connection with theforegoing, Guarantor expressly waives, until the indefeasible payment in fullof the Obligations and the termination of the Revolving Credit Commitments, anyand all rights of subrogation to Lender against Borrower (it being understood thatGuarantor is not waiving any right of subrogation that it may otherwise havebut only is waiving the exercise thereof as provided above), and Guarantorhereby waives any rights to enforce any remedy which Lender may have againstBorrower and any rights to participate in any collateral for Borrower’sobligations under the Loan Documents. Guarantor hereby subordinates any and allindebtedness of Borrower now or hereafter owed to Guarantor to all indebtednessof Borrower to Lender (including any indebtedness accruing after thecommencement of a case under any chapter of Title 11, U.S.C.A. as amended fromtime to time or any successor statute), and agrees with Lender that (a) fromand after the occurrence and during the continuance of a Potential Event ofDefault or Event of Default, Guarantor shall not demand or accept any paymentfrom Borrower on account of such indebtedness, (b) Guarantor shall notclaim any offset or other reduction of Guarantor’s obligations hereunderbecause of any such indebtedness, and (c) Guarantor shall not take anyaction to obtain any interest in any of the security described in andencumbered by the Loan Documents because of any such indebtedness; provided,however, that, if Lender so requests, such indebtedness shall be collected, enforcedand received by Guarantor as trustee for Lender and be paid over to Lender onaccount of the indebtedness of Borrower to Lender, but without reducing oraffecting in any manner the liability of Guarantor under the other provisionsof this Guaranty except to the extent the principal amount of such outstandingindebtedness shall have been reduced by such payment.

 

5.                                       Waiver ofDefenses. Guarantor hereby agrees that its obligations hereunder shall notbe affected or impaired by, and hereby waives and agrees not to assert or takeadvantage of any defense based on:

 

(a)                                  any statute oflimitations in any action hereunder or for the collection of the Notes or forthe payment or performance of any obligation hereby guaranteed;

 

(b)                                 the incapacity, lackof authority, death or disability of Borrower or any other Person, or thefailure of Lender to file or enforce a claim against the estate (either inadministration, bankruptcy or in any other proceeding) of Borrower or Guarantoror any other Person;

 

(c)                                  the dissolution ortermination of existence of Borrower or Guarantor;

 

(d)                                 the voluntary orinvoluntary liquidation, sale or other disposition of all or substantially allof the assets of Borrower;

 

(e)                                  the voluntary orinvoluntary receivership, insolvency, bankruptcy, assignment for the benefit ofcreditors, reorganization, assignment, composition, or readjustment of, or anysimilar proceeding affecting, Borrower, Guarantor, or any of Guarantor’sSubsidiaries or any of their respective properties or assets;

 

(f)                                    the damage,destruction, condemnation, foreclosure or surrender of all or any part of theProperty;

 

(g)                                 the failure of Lenderto give notice of the existence, creation or incurring of any new or additionalindebtedness or obligation of Borrower or of any action or nonaction on thepart

 

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of any other Person whomsoever in connection with any obligation herebyguaranteed;

 

(h)                                 any failure or delayof Lender to commence an action against Borrower or any other Person, to assertor enforce any remedies against Borrower under the Notes or the Loan Documents,or to realize upon any security;

 

(i)                                     any failure of anyduty on the part of Lender to disclose to Guarantor any facts it may now orhereafter know regarding Borrower, the Property or any of the Improvements,whether such facts materially increase the risk to Guarantor or not;

 

(j)                                     failure to acceptor give notice of acceptance of this Guaranty by Lender;

 

(k)                                  failure to make orgive notice of presentment and demand for payment of any of the indebtedness orperformance of any of the obligations hereby guaranteed;

 

(1)                                  failure to make orgive protest and notice of dishonor or of default to Guarantor or to any otherparty with respect to the indebtedness or performance of obligations herebyguaranteed;

 

(m)                               any and all othernotices whatsoever to which Guarantor might otherwise be entitled;

 

(n)                                 any lack of diligenceby Lender in collection, protection or realization upon any collateral securingthe payment of the indebtedness or performance of obligations herebyguaranteed;

 

(o)                                 the invalidity orunenforceability of the Notes or any of the Loan Documents;

 

(p)                                 the compromise,settlement, release or termination of any or all of the obligations of Borrowerunder the Notes or the Loan Documents;

 

(q)                                 any transfer byBorrower or any other Person of all or any part of the security, if any,encumbered by the Loan Documents;

 

(r)                                    the failure ofLender to perfect any security or to extend or renew the perfection of any security;or

 

(s)                                  to the fullest extentpermitted by law, any other legal, equitable or surety defenses whatsoever towhich Guarantor might otherwise be entitled, it being the intention that theobligations of Guarantor hereunder are absolute, unconditional and irrevocable.

 

6.                                       Guaranty ofPayment and Performance and Not of Collection. This is a guaranty ofpayment and performance and not of collection. The liability of Guarantor underthis Guaranty shall be primary, direct and immediate and not conditional orcontingent upon the pursuit of any remedies against Borrower or any otherPerson, nor against securities or Liens available to Lender, its successors,successors in title, endorsees or assigns. Guarantor hereby waives any right torequire that an action be brought against Borrower or any other Person or torequire that resort be had to any security or to any balance of any depositaccount or credit on the books of Lender in favor of Borrower or any otherPerson.

 

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7.                                       Rights andRemedies of Lender. In the event of the occurrence of an Event of Defaultunder the Notes or the Loan Documents, or any of them, Lender shall have theright to enforce its rights, powers and remedies thereunder or hereunder orunder any other agreement, document or instrument now or hereafter evidencing,securing or otherwise relating to the indebtedness evidenced by the Notes orcontemplated or secured by the Loan Documents, in any order, and all rights,powers and remedies available to Lender in such event shall be nonexclusive andcumulative of all other rights, powers and remedies provided thereunder orhereunder or by law or in equity. Accordingly, Guarantor hereby authorizes andempowers Lender upon the occurrence and during the continuance of any Event ofDefault under the Notes or the Loan Documents, at its sole discretion, andwithout notice to Guarantor, to exercise any right or remedy which Lender mayhave, including, but not limited to, judicial foreclosure, exercise of rightsof power of sale, acceptance of a deed or assignment in lieu of foreclosure,appointment of a receiver to collect rents and profits, exercise of remediesagainst personal property, or enforcement of any assignment of leases, as toany security, whether real, personal or intangible. At any public or privatesale of any security or collateral for any indebtedness or any part thereofguaranteed hereby, whether by foreclosure or otherwise, Lender may, in itsdiscretion, purchase all or any part of such security or collateral so sold oroffered for sale for its own account and may apply against the amount bidtherefor all or any part of the balance due it pursuant to the terms of theNotes or the Loan Documents without prejudice to Lender’s remedies hereunder againstGuarantor for deficiencies. If the indebtedness guaranteed hereby is partiallypaid by reason of the election of Lender to pursue any of the remediesavailable to Lender, or if such indebtedness is otherwise partially paid, thisGuaranty shall nevertheless remain in full force and effect, and Guarantorshall remain liable for the entire balance of the indebtedness guaranteedhereby even though any rights which Guarantor may have against Borrower may, bedestroyed or diminished by the exercise of any such remedy.

 

8                                          Applicationof Payments. Guarantor hereby authorizes Lender, without notice toGuarantor, to apply all payments and credits received from Borrower or fromGuarantor and its Subsidiaries or realized from any security in such manner andin such priority as set forth in the Credit Agreement to the indebtedness,obligation and undertakings which are the subject of this Guaranty.

 

9.                                       BusinessFailure, Bankruptcy or Insolvency. In the event of the business failure ofGuarantor or if there shall be pending any bankruptcy or insolvency case orproceeding with respect to Guarantor under federal bankruptcy law or any otherapplicable law or in connection with the insolvency of Guarantor, or if aliquidator, receiver, or trustee shall have been appointed for Guarantor orGuarantor’s properties or assets, Lender may file such proofs of claim andother papers or documents as may be necessary or advisable in order to have theclaims of Lender allowed in any proceedings relative to Guarantor, or any ofGuarantor’s properties or assets, and, irrespective of whether the indebtednessor other obligations of Borrower guaranteed hereby shall then be due andpayable, by declaration or otherwise, Lender shall be entitled and empowered tofile and prove a claim for the whole amount of any sums or sums owing withrespect to the, indebtedness or other obligations of Borrower guaranteedhereby, and to collect and receive any moneys or other property payable ordeliverable on any such claim. Guarantor covenants and agrees that upon thecommencement of a voluntary or involuntary bankruptcy proceeding by or againstBorrower, Guarantor shall not seek a supplemental stay or otherwise pursuant to11 U.S.C. §105 or any other provision of the Bankruptcy Reform Act of 1978, as amended,or any other debtor relief law (whether statutory, common law, case law, orotherwise) of any jurisdiction whatsoever, now or hereafter in effect, whichmay be or become applicable, to stay, interdict, condition, reduce or inhibitthe ability of Lender to enforce any rights of Lender against Guarantor byvirtue of this Guaranty or otherwise.

 

10.                                 Representations andWarranties. Guarantor hereby represents and warrants to each

 

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Lender that the representations and warranties contained in Article VIof the Credit Agreement, insofar as the representations and warrantiescontained therein are applicable to it, its Subsidiaries and its properties,are true and correct in all material respects, each such representation, andwarranty set forth in such Article (insofar as applicable as aforesaid)and all other terms of the Credit Agreement to which reference is made therein,together with all related definitions and ancillary provisions, being herebyincorporated into this Guaranty by reference as though specifically set forthin this Article.

 

11.                                 AffirmativeCovenants. Guarantor covenants and agrees that, so long as any portion ofthe Obligations shall remain unpaid, any other obligation guaranteed hereunderremains undischarged or any Lender shall have any outstanding Revolving CreditCommitments or obligation to issue Letters of Credit, it will, unless theRequisite Lenders shall otherwise consent in writing, perform, comply with andbe bound by all of the agreements, covenants and obligations contained in Article VII,VIII and IX of the Credit Agreement which are applicable to Guarantor, itsSubsidiaries or its properties, each such agreement, covenant and obligationcontained in such Articles and all other terms of the Credit Agreement,including without limitation Borrower’s right to cure certain Potential Eventsof Default as set forth in Section 10.1 of the Credit Agreement, to whichreference is made herein, together with all related definitions and ancillaryprovisions, being hereby incorporated into this Guaranty by reference as thoughspecifically set forth in this Article.

 

12.                                 Rights of Set-off.Regardless of the adequacy of any collateral or other means of obtainingrepayment of the obligations guaranteed hereunder, during the continuance ofany Event of Default hereunder or under the Notes or the Loan Documents, eachLender may at any time and without notice to Guarantor set-off and apply thewhole or any portion or portions of any or all deposits (general or specific,time or demand, provisional or final, regardless of currency, maturity, or thebranch of Lender where the deposits are held) now or hereafter held by suchLender and other sums credited by or due from such Lender to Guarantor or subjectto withdrawal by Guarantor against amounts payable under this Guaranty, whetheror not (a) any other Person or Persons could also withdraw moneytherefrom; (b) such Lender shall have made any demand hereunder or (c) theAdministrative Agent, at the request or with the consent of the RequisiteLenders, shall have declared the principal of and interest on the Loans andother amounts due hereunder or under the Loan Document to be due and payable aspermitted by the Credit Agreement and even though such obligations may becontingent or unmatured.

 

13.                                 Changes in Writing;No Revocation. This Guaranty may not be changed orally, and no obligationof Guarantor hereunder can be released or waived by Lender except by a writingsigned by a duly authorized officer of Lender. This Guaranty shall beirrevocable by Guarantor until all indebtedness guaranteed hereby has beencompletely repaid, the obligation to issue Letters of Credit has terminated andall obligations and undertakings of Borrower under, by reason of, or pursuantto the Notes and the Loan Documents have been completely performed.

 

14.                                 Notices. Unlessotherwise specifically provided herein, any notice or other communicationherein required or permitted to be given shall be in writing and may bepersonally served, sent by facsimile transmission or by courier service orUnited States certified mail and shall be deemed to have been given whendelivered in person or by courier service, upon receipt of a facsimiletransmission, or four (4) Business Days after deposit in the United Statesmail with postage prepaid and properly addressed. For the purposes hereof, theaddresses of the Lender shall be in care of Administrative Agent at its addressfor notices set forth in the Credit Agreement and the address of Guarantorshall be as set forth below the Guarantor’s name on the signature page hereof(until notice of a change thereof is delivered as provided in Section 13.8of the Credit Agreement).

 

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15.                                 Governing Law, EntireAgreement, etc.**THIS GUARANTY SHALL BEINTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEWYORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.**

 

16.                                 Forum Selection andConsent to Jurisdiction.

 

(a) Personal Jurisdiction. **EACH OF THE LENDERS AND GUARANTOR IRREVOCABLY AND UNCONDITIONALLYSUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANYNEW YORK STATE COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANYCOURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANYACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTALTO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS CREDITAGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FORRECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETOIRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCHACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR,TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE GUARANTOR (IN SUCHCAPACITY, THE “*PROCESS AGENT*”)AGREES TO ACCEPT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCHCOURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDINGSERVICE IN EVERY RESPECT. EACH OF THE LENDERS AND THE GUARANTOR AGREES THAT AFINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BEENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNERPROVIDED BY LAW. EACH OF THE LENDERS (AS TO COURTS IN NEW YORK STATE ONLY) ANDTHE GUARANTOR, WITH RESPECT TO COURTS IN NEW YORK STATE, WAIVES IN ALL DISPUTESANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERINGTHE DISPUTE.**

 

(b)                                 **THEGUARANTOR AGREES THAT THE LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THEGUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION NECESSARY OR APPROPRIATETO ENABLE THE LENDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED INFAVOR OF THE LENDER. THE GUARANTOR AGREES THAT IT WILL NOT ASSERT ANYPERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE LENDER TO ENFORCE AJUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. THE GUARANTOR WAIVES ANYOBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THELENDER****MAY COMMENCE APROCEEDING DESCRIBED IN THIS SECTION.**

 

(i)                                     Service ofProcess. **EACH LENDER (WITH RESPECT TO NEW YORK STATEONLY) AND THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANYOF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OFCOPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, FOR THEGUARANTOR TO THE PROCESS AGENT (FOR GUARANTOR) OR THE GUARANTOR’S NOTICEADDRESS SPECIFIED**

 

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**BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPONRECEIPT.  EACH LENDER (WITH RESPECT TONEW YORK STATE ONLY) AND THE GUARANTOR WITH RESPECT TO COURTS IN NEW YORKSTATE, IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANYOBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUMNONCONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OFANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS CREDIT AGREEMENT OR ANYOTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALLAFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALLLIMIT THE RIGHT OF THE LENDER TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THECOURTS OF ANY OTHER JURISDICTION.**

 

17.                            Waiver of Jury Trial.**EACH LENDER AND THE GUARANTOR IRREVOCABLY WAIVESTRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS CREDIT AGREEMENTOR ANY OTHER LOAN DOCUMENT.**

 

18.                                 Successors andAssigns. The provisions of this Guaranty shall be binding upon Guarantorand its successors, successors in title, legal representatives, and assigns,and shall inure to the benefit of Lender, its successors, successors in title,legal representatives and assigns.

 

19.                                 Assignment byLender. This Guaranty is assignable by Lender in whole or in part inconjunction with any assignment of the Notes or portions thereof made incompliance with the provisions of the Credit Agreement, and any assignmenthereof or any transfer or assignment of the Notes or portions thereof by Lendershall operate to vest in any such assignee the rights and powers, in whole orin part, as appropriate, herein conferred upon and granted to Lender.

 

20.                                 Severability.If any term or provision of this Guaranty shall be determined to be illegal orunenforceable, all other terms and provisions hereof shall nevertheless remaineffective and shall be enforced to the fullest extent permitted by law.

 

21.                                 Disclosure.Guarantor agrees that in addition to disclosures made in accordance withstandard banking practices, any Lender may disclose information obtained bysuch Lender pursuant to this Guaranty to assignees or participants andpotential assignees or participants hereunder; provided, however,that all such disclosures shall be subject to the confidentiality provisionsset forth in Section 13.20 of the Credit Agreement.

 

22.                                 No UnwrittenAgreements. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THEPARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUSOR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORALAGREEMENTS BETWEEN THE PARTIES.

 

23.                                 Time of the Essence.Time is of the essence with respect to each and every covenant, agreement andobligation of Guarantor under this Guaranty.

 

24.                                 Condition ofBorrower. Guarantor warrants and represents that it is fully aware of thefinancial condition of the Borrower and is executing and delivering thisGuaranty based solely upon Guarantor’s own independent investigation of allmatters pertinent hereto, and that Guarantor is not relying in any manner uponany representation or statement of any Lender. Guarantor warrants,

 

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represents and agrees that Guarantor is in a position to obtain, andGuarantor hereby assumes full responsibility for obtaining, any additionalinformation concerning the financial condition of the Borrower and any othermatter pertinent hereto, and that Guarantor is not relying upon any Lender tofurnish, and shall have no right to require any Lender to obtain or disclose,any information with respect to the indebtedness or obligations guaranteedhereby, the financial condition or character of the Borrower or the ability ofthe Borrower to pay the indebtedness or perform the obligations guaranteedhereby, the existence of any collateral or security for any or all of suchindebtedness or obligations, the existence or nonexistence of any otherguaranties of all or any part of such indebtedness or obligations, any actionsor non-action on the part of any Lender, the Borrower or any other Person, orany other matter, fact or occurrence whatsoever. By execution this Guaranty,Guarantor acknowledges and knowingly accepts the full range of risksencompassed within a contract of guaranty.

 

25.                                 No Assignment byGuarantor. Guarantor shall not assign or transfer any of its rights orobligations under this Guaranty or any of the Loan Documents without the priorwritten consent of each of the Lenders (and any such assignment or transfershall be null and void).

 

26.                                 Statement ofDischarge. Upon the payment in full of the indebtedness guaranteed herebyand upon the termination of the Lender’s obligations to advance Loans or issueLetters of Credit to Borrower, the Agent shall, upon the written request ofGuarantor, deliver a statement to the Guarantor that the Guarantor’sobligations under this Guaranty have been discharged and satisfied and thatthis Guaranty is terminated (subject to reinstatement as provided herein).

 

27.                                 Original GuarantiesSuperceded.  This Guaranty shallsupercede (i) that certain Amended and Restated Guaranty, dated as of June 26,2003, by the Guarantor in favor of Fleet National Bank, as administrative agentand as a lender, and each of the other lenders party to the Existing RevolvingAgreement (as defined in the Credit Agreement), as reaffirmed by the Guarantorin that certain Reaffirmation of Guaranty, dated as of October 15, 2004(collectively, the “***RevolvingCredit Guaranty***”), guaranteeing the payment and performance ofthe obligations under the Existing Revolving Agreement, and (ii) thatcertain Guaranty, dated as of October 15, 2004 (the “***Term Loan Guaranty***”),by the Guarantor in favor of JPMorgan Chase Bank, N.A. (formerly known asJPMorgan Chase Bank), as administrative agent and as a lender and each of theother lenders party to the Original Term Loan Agreement (as defined in theCredit Agreement), guaranteeing the payment and performance of the obligationsof the Borrower under the Original Term Loan Agreement, each in its entirety.  On the Closing Date, the rights andobligations of the Guarantor under each of the Revolving Credit Guaranty andthe Term Loan Guaranty shall be subsumed within and be governed by thisGuaranty.

 

[SIGNATURES BEGIN ON FOLLOWINGPAGE]

 

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IN WITNESS WHEREOF, Guarantor has executedthis Guaranty as of the     th day of December, 2004.

 

 
|   | THE MILLS CORPORATION                 |
|--------|---------------------------------------|
|   |                                  |
|   | By:                                   |   |   |
|   |                                  | Name: |
|   |                                  | Title: |
|   |                                  |
|   | Notice Address:                       |
|   | The Mills Corporation                 |
|   | 1300 Wilson Boulevard, Suite 400 |
|   | Arlington, Virginia 22209             |
|   | Attn: Thomas Frost                    |
|   | Facsimile: (703) 526-5198             |

 

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Administrative Agent joins in the executionof this Guaranty for the sole and limited purpose of evidencing its agreementto waiver of the right to trial by jury contained in Section 17 hereof andSection 13.17 of the Credit Agreement.

 

 
|   | JPMORGAN CHASE BANK, N.A. (formerly known  as JPMorgan Chase Bank), as Administrative Agent  for Lenders |
|--------|----------------------------------------------------------------------------------------------------------|
|   |                                                                                                     |
|   |                                                                                                     |
|   | By:                                                                                                      |   |   |
|   |                                                                                                     | Name: |
|   |                                                                                                     | Title: |

 

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**EXHIBIT I**

 

**FORM OF**

 

**DESIGNATEDBANK NOTE**

 

 
| $      | New York,  New York                                                                                                                  |
|--------|--------------------------------------------------------------------------------------------------------------------------------------|
|   |                    ,200     |

 

FOR VALUE RECEIVED, The Mills LimitedPartnership (the “***Borrower***”), promises to payto the order of                              (the “***Lender***”) the DollarEquivalent of the unpaid principal amount of each Negotiated Rate Loan made bythe Lender to the Borrowers pursuant to the Second Amended and RestatedRevolving Credit and Term Loan Agreement, dated as of December    ,2004 (as the same may be amended, supplemented, amended and restated orotherwise modified from time to time, the “***Credit Agreement***”),among the Borrower, the institutions from time to time party thereto as lendersand JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),****as Administrative Agent, on the dates specified in theCredit Agreement.  The Borrower promisesto pay interest on the unpaid principal amount of each such Negotiated RateLoan on the dates and at the rate or rates provided for in the CreditAgreement.  All such payments ofprincipal and interest shall be made in the currency in which the NegotiatedRate Loan was made and as specified in the Credit Agreement in same day orother immediately available funds at the office of the Administrative Agent (assuch term is defined in the Credit Agreement).

 

All Negotiated Rate Loans made by the Lender,the respective types and maturities thereof and all repayments of the principalthereof shall be recorded by the Lender and, if the Lender so elects inconnection with any transfer or enforcement hereof, appropriate notations toevidence the foregoing information with respect to each such Loan thenoutstanding may be endorsed by the Lender on the schedule attached hereto,or on a continuation of such schedule attached to and made a part hereof; *provided* that the failure of the Lender to make any suchrecordation or endorsement shall not affect the obligations of the Borrowerhereunder or under the Credit Agreement.

 

This Designated Bank Note is one of theDesignated Bank Notes referred to in the Credit Agreement.  Terms used but not otherwise defined hereinshall have the meanings given to them in the Credit Agreement.  Reference is made to the Credit Agreement forprovisions for the prepayment hereof, the acceleration of the maturity hereofupon the happening of certain events and certain waivers by the Borrower.

 

THIS DESIGNATED BANK NOTE SHALL BEINTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED,IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TOCONFLICTS OF LAW PRINCIPLES.

 
|   | THE MILLS LIMITED PARTNERSHIP, a  Delaware limited partnership |
|--------|----------------------------------------------------------------|

 

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|   |   |
|--------|--------|
|   | By:    | THE MILLS CORPORATION,  its General Partner |
|   |   |   |
|   |   | By: |   |   |
|   |   | Name: |
|   |   | Title: |

 

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NEGOTIATED RATE LOANS ANDPAYMENTS OF PRINCIPAL

 

 
| **Date** | ** ** | **Amount of  Negotiated  Rate Loan** | ** ** | **Type of  Negotiated  Rate Loan** | ** ** | **Amount of  Principal  Repaid** | ** ** | **Maturity Date** | ** ** | **Notation  Made By** | ** ** |
|----------|------------|--------------------------------------|------------|------------------------------------|------------|----------------------------------|------------|-------------------|------------|-----------------------|------------|
|     |       |                                 |       |                               |       |                             |       |              |       |                  |       |

 

 

 

 

 

 

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**EXHIBIT J**

 

**FORM OF**

 

**DESIGNATIONAGREEMENT**

 

Dated                         , 200   

 

Reference is hereby made to the SecondAmended and Restated Revolving Credit and Term Loan Agreement dated as of December    ,2004 (as the same may be amended, supplemented, amended and restated orotherwise modified from time to time, the “***Credit Agreement***”),among The Mills Limited Partnership (the “***Borrower***”),the Lenders named therein and JPMorgan Chase Bank, N.A. (formerly known asJPMorgan Chase Bank), as Administrative Agent for the Lenders.  Terms used but not otherwise defined hereinshall have the meanings given to them in the Credit Agreement.

 

[NAME OF DESIGNOR] (the “***Designor***”)and [NAME OF DESIGNEE] (the “***Designee***”)agree as follows:

 

1.                                       The Designorhereby designates the Designee, and the Designee hereby accepts suchdesignation, to have a right to make Negotiated Rate Loans pursuant to Section 2.7of the Credit Agreement.  Any assignmentby Designor to Designee of its rights to make a Negotiated Rate Loan pursuantto such Article II shall be effective at the time of the funding of suchNegotiated Rate Loan and not before such time.

 

2.                                       Except as setforth in Section 7 below (solely with respect to the Designor), none ofthe Designor, any other Lender or the Administrative Agent makes anyrepresentation or warranty or assumes any responsibility pursuant to thisDesignation Agreement with respect to (a) any statements, warranties****or representations made in or in connection with any LoanDocument or any other instrument or document furnished pursuant thereto or theexecution, legality, validity, enforceability, genuineness, sufficiency orvalue of any Loan Document or any other instrument and document furnishedpursuant thereto or (b) the financial condition of the Borrower or theperformance or observance by the Borrower of any of their obligations under anyLoan Document or any other instrument or document furnished pursuant thereto.

 

3.                                       The Designee (a) confirmsthat it has received a copy of each Loan Document, together with copies of thefinancial statements referred to in the Credit Agreement and such otherdocuments and information as it has deemed appropriate to make its own creditanalysis and decision to enter into this Designation Agreement; (b) agreesthat it will independently and without reliance upon the Administrative Agent,J.P. Morgan Securities Inc., the Issuing Lender, the Swing Lender, any otheragent named in the Credit Agreement, the Designor or any other Lender and basedon 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 underany Loan Document; (c) confirms that it is a Designated Bank; (d) appointsand authorizes the Administrative Agent to take such action as agent on itsbehalf and to exercise such powers and discretion under any Loan Document asare delegated to the Administrative Agent by the terms thereof, together withsuch powers and discretion as are reasonably incidental thereto; and

 

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(e) agrees to be bound by each and every provision of each LoanDocument and further agrees that it will perform in accordance with their termsall of the obligations which by the terms of any Loan Document are required tobe performed by it as a Designated Bank, including any and all obligations setforth in Section 13.1(h) of the Credit Agreement.

 

4.                                      The Designeehereby appoints Designor as Designee’s agent and attorney in fact, and grantsto Designor an irrevocable power of attorney, to receive payments made for thebenefit of Designee under the Credit Agreement, to deliver and receive allcommunications and notices under the Credit Agreement and other Loan Documentsand to exercise on Designee’s behalf all rights to vote and to grant and makeapprovals, waivers, consents or amendments to or under the Credit Agreement orother Loan Documents.  Any documentexecuted by the Designor on the Designee’s behalf in connection with the CreditAgreement or other Loan Documents shall be binding on the Designee to the sameextent as if actually signed by the Designee. The Borrower, the Administrative Agent and each of the other Lenders mayrely on and are third-party beneficiaries of the preceding provisions entitledto directly enforce the same.

 

5.                                      Following theexecution of this Designation Agreement by the Designor and Designee, it willbe delivered to the Administrative Agent for acceptance and recording by theAdministrative Agent.  The effective datefor this Designation Agreement (the “***Effective Date***”)shall be the date of acceptance hereof by the Administrative Agent, unlessotherwise specified on the signature page hereto.

 

6.                                      The Designorunconditionally agrees to pay or reimburse the Designee for, and save theDesignee harmless against, all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind or nature whatsoever which may be imposed or asserted by any of theparties to the Loan Documents against the Designee, in its capacity as such, inany way relating to or arising out of this Designation Agreement or any otherLoan Documents or any action taken or omitted by the Designee hereunder orthereunder.

 

7.                                      Upon suchacceptance and recording by the Administrative Agent, as of the Effective Date,the Designee shall be a party to the Credit Agreement with a right to makeNegotiated Rate Loans as a Lender pursuant to Section 2.7 of the CreditAgreement and the rights and obligations of a Lender related thereto; *provided, however*, that the Designee shall not be requiredto make payments with respect to such obligations except to the extent ofexcess cash flow of the Designee which is not otherwise required to repayobligations of the Designee which are then due and payable.  Notwithstanding the foregoing, the Designor,as agent for the Designee, shall be and remain obligated to the Borrower, theAdministrative Agent, and the other Lenders for each and every of theobligations of the Designee and the Designor with respect to the CreditAgreement and any sums otherwise payable to the Borrower by the Designee.

 

8.                                      This DesignationAgreement shall be governed by, and construed in accordance with, the laws ofthe State of New York without regard to its conflict of laws principles.

 

9.                                      This DesignationAgreement may be executed in any number of counterparts and by differentparties hereto in separate counterparts, each of which when so executed shallbe deemed to be an original and all of which taken together shall constituteone and the same agreement.  Delivery ofan executed counterpart of a signature page to this Designation Agreementby facsimile transmission shall be effective as delivery of a manually executedcounterpart of this Designation Agreement.

 

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IN WITNESS WHEREOF, the Designor and theDesignee, intending to be legally bound, have caused this Designation Agreementto be executed by their officers thereunto duly authorized as of the date firstabove written.

 
| Effective Date:                                                                                                                                                             |                        , 200    |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        | [NAME OF DESIGNOR], as                                                                                                                                  |
|                                                                                                                                                                        | Designor                                                                                                                                                |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        | By:                                                                                                                                                     |   |   |
|                                                                                                                                                                        | Name:                                                                                                                                                   |
|                                                                                                                                                                        | Title:                                                                                                                                                  |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        | [NAME OF DESIGNEE], as                                                                                                                                  |
|                                                                                                                                                                        | Designee                                                                                                                                                |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        | By:                                                                                                                                                     |   |   |
|                                                                                                                                                                        | Name:                                                                                                                                                   |
|                                                                                                                                                                        | Title:                                                                                                                                                  |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        | Applicable Lending Office (and (address for  notices):                                                                                                  |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        | [ADDRESS]                                                                                                                                               |
|                                                                                                                                                                        |                                                                                                                                                    |
| Accepted this              day                                                                                       |                                                                                                                                                    |
| of                       ,  200      |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |
| JPMORGAN CHASE BANK, N.A.  (formerly known as JPMorgan Chase Bank),  as Administrative Agent                                                                                |                                                                                                                                                    |
|                                                                                                                                                                        |
|                                                                                                                                                                        |
|                                                                                                                                                                        |                                                                                                                                                    |
| By:                                                                                                                                                                         |                                                                                                                                                    |   |   |
| Name:                                                                                                                                                                       |                                                                                                                                                    |
| Title:                                                                                                                                                                      |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |
|                                                                                                                                                                        |                                                                                                                                                    |   |
|                                                                                                                                                                             |                                                                                                                                                         |  |  |  |  |  |  |

 

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