Exhibit 10.1 

Execution Version

THIS RESTRUCTURING SUPPORT AGREEMENT IS THE PRODUCT OF SETTLEMENT DISCUSSIONS AMONG THE PARTIES THERETO. ACCORDINGLY, THIS RESTRUCTURING SUPPORT AGREEMENT IS PROTECTED BY RULE 408 OF THE FEDERAL RULES OF EVIDENCE AND ANY OTHER APPLICABLE STATUTES OR DOCTRINES PROTECTING THE USE OR DISCLOSURE OF CONFIDENTIAL SETTLEMENT DISCUSSIONS.

THIS RESTRUCTURING SUPPORT AGREEMENT IS NOT AN OFFER OR ACCEPTANCE WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE.

THIS RESTRUCTURING SUPPORT AGREEMENT DOES NOT PURPORT TO SUMMARIZE ALL OF THE TERMS, CONDITIONS, REPRESENTATIONS, WARRANTIES, AND OTHER PROVISIONS WITH RESPECT TO THE TRANSACTIONS DESCRIBED HEREIN, WHICH TRANSACTIONS WILL BE SUBJECT TO THE COMPLETION OF DEFINITIVE DOCUMENTS INCORPORATING THE TERMS SET FORTH HEREIN AND THE CLOSING OF ANY TRANSACTION SHALL BE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN SUCH DEFINITIVE DOCUMENTS AND THE APPROVAL RIGHTS OF THE PARTIES SET FORTH HEREIN AND IN SUCH DEFINITIVE DOCUMENTS.

RESTRUCTURING SUPPORT AGREEMENT

This RESTRUCTURING SUPPORT AGREEMENT (including all exhibits, annexes, and schedules hereto in accordance with Section ‎15.03, in each case, as may be amended, amended and restated, supplemented, or otherwise modified from time to time, in accordance with the terms hereof, this “Agreement”) is made and entered into as of June 11, 2021 (the “Execution Date”), by and among the following parties (each of the following described in sub-clauses (i) through (v) of this preamble, collectively, the “Parties”):¹

RECITALS

WHEREAS, the Parties have in good faith and at arms’ length negotiated or been apprised of certain restructuring and recapitalization transactions with respect to the Company Parties’ capital structure on the terms set forth in this Agreement and as specified in the term sheet attached hereto as Exhibit B (the “Restructuring Term Sheet”), the DIP Credit Agreement attached hereto as Exhibit C, the New Term Loan Exit Facility Term Sheet attached hereto as Exhibit D, and the Backstop Commitment Agreement attached hereto as Exhibit E (collectively, the “Restructuring Transactions”);

WHEREAS, the Company Parties intend to implement the Restructuring Transactions, including through the commencement of voluntary cases under chapter 11 of the Bankruptcy Code (the “Chapter 11 Cases”) filed under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (as amended, the “Bankruptcy Code”), in the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”);

WHEREAS, the Parties agree that this Agreement and the Restructuring Transactions are the product of good faith, arm’s-length negotiations among all of the Parties; and

WHEREAS, the Parties desire to express their mutual support and commitment to take certain actions in support of the Restructuring Transactions, including with respect to the consummation of the Plan on the terms and conditions contained in this Agreement and the Restructuring Term Sheet.

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, severally, and not jointly, intending to be legally bound hereby, agrees as follows:

AGREEMENT

1.01.    Definitions. The following terms shall have the following definitions:

“2015 Credit Agreement” means that certain Term Loan Agreement, dated as December 10, 2015 (as amended, supplemented, or otherwise modified on or prior to the date hereof, including by that certain Amendment No. 1 to Term Loan Agreement, dated January 22, 2018, and that certain Amendment No. 2 to Term Loan Agreement, dated August 13, 2020) by and among WPG LP, as borrower, certain Company Parties as guarantors, GLAS USA LLC and Americas LLC (as successor to PNC Bank, National Association), as collateral and administrative agent, and the lenders party thereto.

“2015 Credit Facility” means the credit facility under the 2015 Credit Agreement.

“2015 Credit Facility Claim” means any Claim arising under, derived from, secured by, based on, or related to the 2015 Credit Facility or any other agreement, instrument or document executed at any time in connection therewith and any guaranty thereof.

“2018 Credit Agreement” means that certain Revolving Credit and Term Loan Agreement, dated as of January 22, 2018 (as amended, supplemented, or otherwise modified on or prior to the date hereof, including by that certain Amendment No. 1, dated August 13, 2020) by and among WPG LP, as borrower, certain Company Parties as guarantors, Bank of America, N.A. as collateral and administrative agent, and the lenders party thereto.

“2018 Credit Facility” means those certain credit facilities under the 2018 Credit Agreement.

“2018 Credit Facility Claim” means any Claim arising under, derived from, secured by, based on, or related to the 2018 Credit Facility or any other agreement, instrument or document executed at any time in connection therewith and any guaranty thereof.

“Acceptable Alternative Restructuring Proposal” means any Alternative Restructuring Proposal that provides for (A) the payment in full in Cash on the Effective Date of (i) Administrative Claims, (ii) DIP Claims, (iii) 2015 Credit Facility Claims, (iv) 2018 Credit Facility Claims, (v) Weberstown Term Loan Facility Claims, (vi) Unsecured Notes Claims (in each case, including, postpetition interest at the default contract rate, where applicable), (vii) General Unsecured Claims, and (viii) the Backstop Base Premium, and (B) additional value in an amount not less than the value of either Cash or New Common Equity provided to Holders of Existing Equity Interests under the Equitization Restructuring, as compared to Cash or non-Cash consideration provided to Holders of Existing Equity Interests under such Acceptable Alternative Restructuring Proposal; provided that the Company shall have the right to assess the value of New Common Equity or non-Cash consideration, as applicable, in its sole discretion; provided, however, that if the Company so elects to assess the value of New Common Equity or non-Cash consideration, it shall do so with respect to each of the Alternative Restructuring Proposal and the Equitization Restructuring.

“Ad Hoc Lender Group” means the group or committee of Consenting 2018 Credit Facility Lenders, Consenting 2015 Credit Facility Lenders, and Consenting Weberstown Lenders, as applicable, represented by Wachtell, Lipton, Rosen & Katz and PJT Partners LP.

“Agent” means any administrative agent, collateral agent, or similar Entity under the 2015 Credit Facility, the 2018 Credit Facility, and/or the Weberstown Term Loan Facility, including any successors thereto.

“Agents/Trustees” means, collectively, all of the Agents and Trustees.

“Agreement” has the meaning set forth in the preamble to this Agreement and, for the avoidance of doubt, includes all the exhibits, annexes, and schedules hereto in accordance with Section ‎15.03 (including the Restructuring Term Sheet).

“Agreement Effective Date” means the date on which the conditions set forth in ‎Section 2 have been satisfied or waived by the appropriate Party or Parties in accordance with this Agreement.

“Agreement Effective Period” means, with respect to a Party, the period from the Agreement Effective Date to the Termination Date applicable to that Party.

“Alternative Restructuring Proposal” means any inquiry, proposal, offer, bid, term sheet, discussion, or agreement with respect to a sale, disposition, new-money investment, restructuring, reorganization, merger, amalgamation, acquisition, consolidation, dissolution, debt investment, equity investment, repurchase, refinancing, extension or repayment of a material portion of the Company’s or the Company Party’s funded debt, liquidation, tender offer, recapitalization, plan of reorganization, share exchange, business combination, or similar transaction involving any one or more Company Parties or the debt, equity, or other interests in any one or more Company Parties that is an alternative to one or more of the Restructuring Transactions.

“Backstop Approval Order” shall have the meaning given to such term in the Backstop Commitment Agreement; provided that such order shall be consistent with this Agreement.

“Backstop Base Premium” shall have the meaning given to such term in the Backstop Commitment Agreement.

“Backstop Commitment Agreement” means the backstop commitment agreement in substantially the form attached hereto as Exhibit E, as may be amended, modified, or supplemented from time to time, in accordance with its terms, which will govern certain matters related to the Equity Rights Offering, consistent with this Agreement.

“Backstop Equity Premium” shall have the meaning given to such term in the Backstop Commitment Agreement.

“Backstop Parties” means the Plan Sponsor and certain of its related funds, as signatories to the Backstop Commitment Agreement, solely in their capacity as such.

“Bankruptcy Code” has the meaning set forth in the recitals to this Agreement.

“Bankruptcy Court” has the meaning set forth in the recitals to this Agreement.

“Bidding Procedures” means the bidding procedures or equivalent establishing procedures by which parties may submit and the Company Parties will consider Alternative Restructuring Proposals, including all documents required to implement such bidding procedures or equivalent, and so long as the class of Unsecured Notes Claims votes to accept the Plan, the Bidding Procedures will consider Alternative Restructuring Proposals where Cash value distributable to Existing Equity Interests (as defined in the Restructuring Term Sheet) matches dollar for dollar equal irrespective of the total amount of value or form of consideration distributed to holders of Claims that are senior to Existing Equity Interests.

“Business Day” means any day other than a Saturday, Sunday, or a legal holiday, as defined in Bankruptcy Rule 9006(a).

“Cash” or “$” means the legal tender of the United States of America or the equivalent thereof, including bank deposits, checks, and cash equivalents, as applicable.

“Chapter 11 Cases” has the meaning set forth in the recitals to this Agreement.

“Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the Debtors.

“Company Claims/Interests” means any Claim against, or Interest in, a Company Party, including the 2015 Credit Facility Claims, the 2018 Credit Facility Claims, the DIP Claims, the Unsecured Notes Claims, and the Weberstown Term Loan Facility Claims.

“Company Parties” has the meaning set forth in the recitals to this Agreement.

“Confidentiality Agreement” means an executed confidentiality agreement, including with respect to the issuance of a “cleansing letter” or other public disclosure of material non-public information agreement, in connection with any proposed Restructuring Transactions.

“Confirmation Order Milestone” means the milestone described in Section ‎4.01(g).

“Confirmation Order” means the order of the Bankruptcy Court confirming the Plan and Plan Supplement under section 1129 of the Bankruptcy Code; provided that such order shall be consistent with this Agreement.

“Consenting 2015 Credit Facility Lenders” has the meaning set forth in the recitals to this Agreement.

“Consenting 2018 Credit Facility Lenders” has the meaning set forth in the recitals to this Agreement.

“Consenting Ad Hoc Lenders” means the members of the Ad Hoc Lender Group that are party to this Agreement.

“Consenting Stakeholders” means collectively, the Consenting 2015 Credit Facility Lenders, the Consenting 2018 Credit Facility Lenders, the Consenting Unsecured Noteholders, and the Consenting Weberstown Lenders, which for the avoidance of doubt, shall include the Consenting Ad Hoc Lender Group and the Plan Sponsor.

“Consenting Unsecured Noteholders” has the meaning set forth in the recitals to this Agreement.

“Consenting Weberstown Term Lenders” has the meaning set forth in the recitals to this Agreement.

“Counsel to the Ad Hoc Lender Group” means Wachtell, Lipton, Rosen & Katz

“Counsel to the Company Parties” means Kirkland & Ellis LLP.

“Counsel to the Plan Sponsor” means Davis Polk & Wardwell LLP.

“Debtors” means the Company Parties that commence Chapter 11 Cases.

“Definitive Documents” means the documents listed in Section ‎3.01 of this Agreement.

“DIP Claims” means any Claim arising under, derived from, secured by, based on, or related to the DIP Facility or any other agreement, instrument or document executed at any time in connection therewith and any guaranty thereof.

“DIP Commitment Parties” means the parties listed on Exhibit G.

“DIP Commitments” means (i) prior to the closing date under the DIP Credit Agreement, the commitments of the DIP Commitment Parties pursuant to Section ‎5.02(a), and (ii) after the closing date under the DIP Credit Agreement, the “Commitments” as defined in the DIP Credit Agreement.

“DIP Credit Agreement” means the credit agreement evidencing the DIP Facility, substantially in the form of Exhibit C.

“DIP Facility” means the term loan credit facility provided for in the DIP Credit Agreement.

“DIP Final Order” means the Final Order entered by the Bankruptcy Court authorizing use of cash collateral, and entry into and performance of the DIP Credit Agreement.

“DIP Interim Order” means the interim order entered by the Bankruptcy Court authorizing use of cash collateral, and entry into and performance of the DIP Credit Agreement.

“DIP Orders” means, collectively, the DIP Interim Order and the DIP Final Order.

“Disclosure Statement” means the disclosure statement for the Plan, including all exhibits, schedules, supplements, modifications, and amendments thereto, including the ballots and solicitation procedures, that is prepared and distributed in accordance with the Bankruptcy Code, the Bankruptcy Rules, and any other applicable law and approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code; provided that such Disclosure Statement shall be consistent with this Agreement.

“Disclosure Statement Order” means an order of the Bankruptcy Court approving the Disclosure Statement, the Solicitation Materials, and the solicitation of the Plan; provided that such order shall be consistent with this Agreement.

“Effective Date Milestone” means the milestone described in Section ‎4.01(h).

“Entity” shall have the meaning set forth in section 101(15) of the Bankruptcy Code.

“Equitization Restructuring” shall have the meaning set forth in the Restructuring Term Sheet.

“Equity Rights Offering” shall have the meaning set forth in the Restructuring Term Sheet.

“Equity Rights Offering Amount” shall have the meaning set forth in the Restructuring Term Sheet.

“Equity Rights Offering Documents” means collectively, the Backstop Commitment Agreement and any and all other agreements, documents, and instruments delivered or entered into in connection with the Equity Rights Offering, including the Equity Rights Offering Procedures.

“Equity Rights Offering Procedures” means those certain rights offering procedures with respect to the Equity Rights Offering, which shall be set forth in the Equity Rights Offering Documents.

“Execution Date” has the meaning set forth in the preamble to this Agreement.

“Final Order” means, as applicable, an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with respect to the relevant subject matter that has not been reversed, modified, or amended, vacated or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, stay, reargument or rehearing has expired and as to which no appeal, petition for certiorari or motion for new trial, stay, reargument, or rehearing shall then be pending or (ii) if an appeal, writ of certiorari, new trial, stay, reargument or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court (or other court of competent jurisdiction) shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, stay, reargument, or rehearing shall have been denied, or resulted in no modification of such order, and such time to take any further appeal, petition for certiorari or move for a new trial, stay, reargument or rehearing shall have expired, as a result of which such order shall have become final in accordance with Bankruptcy Rule 8002; provided, that the possibility that a motion under rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules may be filed relating to such order, shall not cause an order not to be a Final Order.

“First Day Pleadings” means the first-day pleadings that the Company Parties determine are necessary or desirable to file on or immediately after the Petition Date, which shall not include the DIP Orders or any pleadings related thereto.

“Interests” means, collectively, the shares (or any class thereof), common stock, preferred stock, limited liability company interests, and any other equity, ownership, or profits interests of any Company Party, and options, warrants, rights, or other securities or agreements to acquire or subscribe for, or which are convertible into the shares (or any class thereof) of, common stock, preferred stock, limited liability company interests, or other equity, ownership, or profits interests of any Company Party (in each case whether or not arising under or in connection with any employment agreement).

“Joinder” means a joinder to this Agreement substantially in the form attached hereto as Exhibit G.

“Law” means any federal, state, local, or foreign law (including common law), statute, code, ordinance, rule, regulation, order, ruling, or judgment, in each case, that is validly adopted, promulgated, issued, or entered by a governmental authority of competent jurisdiction (including the Bankruptcy Court).

“Material Executory Contract” means any executory contract that requires any Company Party to use, sell, or lease property other than in the ordinary course of business, consistent with the Company Party’s historical practices.

“Material Lease” means either a (a) New Material Lease or (b) Renewal Material Lease, as applicable.

“Milestones” has the meaning set forth in ‎Section 4.

“New Common Equity” means the common equity interests of Reorganized WPG to be issued upon the Plan Effective Date in accordance with the Plan.

“New Common Equity Documents” means any and all documentation required to implement, issue, and distribute the New Common Equity.

“New Governance Documents” means any document that may be included with the Plan Supplement with respect to the governance of any of the reorganized Company Parties following the consummation of the Restructuring Transactions, and any certificates of formation, charters, certificates or articles of incorporation, bylaws, operating agreements, limited liability company agreements or other applicable organizational documents or charter documents and any shareholder agreements or other shareholder documents, in each case, on the terms set forth in the New Governance Term Sheet and otherwise in accordance with this Agreement.

“New Governance Term Sheet” means that certain corporate governance term sheet setting forth the terms of the New Governance Documents, as contemplated by the Restructuring Term Sheet, to be included in the Plan Supplement, and any modification, supplement, or amendment thereto in accordance with the terms hereof and thereof.

“New Material Lease” means any lease (i) with respect to more than 15,000 square feet of gross leasable area of collateral owned by the Company Parties, (ii) that would require a tenant improvement, tenant allowance, landlord work, or free rent in lieu of tenant allowance pursuant to the terms of such lease in excess of $1,000,000 in the aggregate, or (iii) that would require only the payment of percentage rent and have a term of at least 60 months or greater.

“New Term Loan Exit Facility” shall have the meaning set forth in the Restructuring Term Sheet.

“New Term Loan Exit Facility Documents” means the credit agreement, security agreements, mortgages, pledge agreements, and all other collateral, guarantee, intercreditor, and ancillary documents governing the New Term Loan Exit Facility, in each case consistent with the New Term Loan Exit Facility Term Sheet and this Agreement.

“New Term Loan Exit Facility Term Sheet” means the term sheet setting forth the material terms for the New Term Loan Exit Facility, attached as Exhibit D hereto.

“Parties” has the meaning set forth in the preamble to this Agreement.

“Permitted Transfer” means each transfer of any Company Claims/Interests that meet the requirements of Section ‎9.01 hereof.

“Permitted Transferee” means each transferee of any Company Claims/Interests who meets the requirements of Section ‎9.01 hereof.

“Petition Date” means the first date any of the Company Parties commences a Chapter 11 Case.

“Plan” means the joint plan of reorganization filed by the Debtors under chapter 11 of the Bankruptcy Code that embodies the Restructuring Transactions; provided that the such Plan shall be consistent with this Agreement, including all exhibits and other documents and instruments related thereto.

“Plan Effective Date” means the occurrence of the effective date of the Plan according to its terms.

“Plan Sponsor” means Strategic Value Partners, LLC and affiliated funds in their capacity as holders of 2018 Credit Facility Claims, 2015 Credit Facility Claims, Weberstown Term Loan Facility Claims, and Unsecured Notes Claims.

“Plan Sponsor Advisors” means, collectively Davis Polk & Wardwell LLP, Evercore Group L.L.C., Agora Advisors, Inc., and Raider Hill Advisors, L.L.C, as advisors to the Plan Sponsor, and such other advisors to the Plan Sponsor that are reasonably acceptable as between the Company Parties and the Plan Sponsor.

“Plan Supplement” means the compilation of documents and forms and/or term sheets of documents, agreements, schedules, and exhibits to the Plan that will be filed by the Debtors with the Bankruptcy Court. The Debtors shall have the right to alter, amend, modify, or supplement the documents contained in the Plan Supplement as set forth in this Plan and in accordance with this Agreement (and subject to the consent, approval and consultation rights set forth herein).

“Qualified Marketmaker” means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers Company Claims/Interests (or enter with customers into long and short positions in Company Claims/Interests), in its capacity as a dealer or market maker in Company Claims/Interests and (b) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt).

“Renewal Material Lease” means any lease (i) with respect to more than 15,000 square feet of gross leasable area of collateral owned by the Company Parties, (ii) that would require a tenant improvement, tenant allowance, landlord work, or free rent in lieu of tenant allowance pursuant to the terms of such lease in excess of $1,000,000 in the aggregate, or (iii) results in a decrease in annual rents of over $100,000 from the expiring amount.

“Reorganized WPG” means WPG Inc., any successor or assign thereto, by merger, consolidation, reorganization, or otherwise, or such other entity as may be designated as such, and which holds all or a portion of the direct and indirect assets and properties of WPG Inc. or WPG LP, in the form of a corporation, limited liability company, partnership, or other form, as the case may be, on and after the Plan Effective Date.

“Required Consenting Ad Hoc Lenders” means, as of the relevant date, Consenting Ad Hoc Lenders holding at least 80% of the aggregate outstanding principal amount of the 2018 Credit Facility Claims, 2015 Credit Facility Claims, and Weberstown Term Loan Facility Claims that are held by the Consenting Ad Hoc Lenders.

“Required Consenting Stakeholders” means, collectively, the Required Consenting Ad Hoc Lenders, and the Plan Sponsor.

“Requisite DIP Commitment Parties” means, as of the date of determination, the DIP Commitment Parties holding at least a simple majority, by aggregate principal amount, of the DIP Commitments held by the DIP Commitment Parties, as of such date.

“Restructuring Expenses” means the reasonable and documented fees and expenses of (a) the Plan Sponsor, including the reasonable and documented fees and expenses of Davis Polk & Wardwell LLP, Evercore Group L.L.C., Agora Advisors, Inc., and Raider Hill Advisors, L.L.C., and (b) the Ad Hoc Lender Group, including the reasonable and documented fees and expenses of Wachtell, Lipton, Rosen & Katz and PJT Partners LP, and, in each case, local counsel.

“Restructuring Term Sheet” has the meaning set forth in the recitals to this Agreement.

“Restructuring Transactions” has the meaning set forth in the recitals to this Agreement.

“Rules” means Rule 501(a)(1), (2), (3), and (7) of the Securities Act.

“Securities Act” means the Securities Act of 1933, 15 U.S.C. §§ 77a–77aa, or any similar federal, state, or local law, as now in effect or hereafter amended, and the rules and regulations promulgated thereunder.

“Solicitation Materials” means all solicitation materials with respect to the Plan, including the Disclosure Statement and related ballots thereto.

“Specified Extension Mortgage Loans” means those certain property‑level mortgage loans associated with the following affiliates of the Company Parties: Palms Crossing Town Center, LLC, Arbor Walk Mall, LLC, ATC Glimcher, LLC, and Grand Central Parkersburg LLC.

“Specified Forbearance Mortgage Loans” means those certain property-level mortgage loans associated with the following affiliates of Company Parties: Canyon View Marketplace, LLC, Forest Plaza, LLC, Lakeline Plaza, LLC, White Oaks Plaza, LLC, Muncie Plaza, LLC and Lakeline Village, LLC, MOG Crossing, LLC, Arbor Walk Mall, LLC, Palms Crossing Town Center, LLC, BRE/Pearlridge LLC, Pearlridge Uptown II LLC, and ATC Glimcher, LLC.

“Specified Material Executory Contracts” means the following executory contracts: (i) the limited partnership agreements related to (a) WPG-OC JV, LP, (b) WPG-OC JV II, LP, (c) WPG-OF JV III, LP, (d) WPG-OC JV IV, LP, (e) WPG-OC JV V, LP, (f) WPG-OC JV VI, LP, and (g) WPG-OC JV VII, LP; (ii) the Separation and Distribution Agreement, dated May 27, 2014, by and among various Simon entities and WPG Inc. and WPG LP; and (iii) any new or amendment to an existing reciprocal easement agreement where, with respect to an amendment, the intent is to extend the term by more than five (5) years from its current expiration date or to otherwise materially increase the monetary obligations of the Company Parties or any of its subsidiaries under the applicable reciprocal easement agreement.

“Specified Refinancing Mortgage Loans” means those certain property‑level mortgage loans associated with the following affiliates of Company Parties: Palms Crossing Town Center, LLC and Arbor Walk Mall, LLC.

“Substitute/Replacement Guarantor Mortgage Loans” means those certain property‑level mortgage loans associated with the following affiliates of Company Parties: BRE/Pearlridge, LLC, Pearlridge Uptown II LLC, SDQ III Fee, LLC and SDQ III Retail, LLC on substantially the same terms in effect as of the date hereof.

“Termination Date” means, as to any Party, the date on which termination of this Agreement as to such Party is effective in accordance with Sections ‎12.01, ‎12.02, ‎12.03, or ‎12.04, as applicable.

“Termination Event” means the events set forth in ‎Section 12 of this Agreement.

“Toggle Election Notice” means a notice sent to the Plan Sponsor stating that the Company Parties are electing to pursue an Acceptable Alternative Restructuring Proposal; provided, that no such notice shall qualify as a Toggle Election Notice unless such Acceptable Alternative Restructuring Proposal is binding and does not contain any financing or due diligence conditions.

“Toggle Restructuring” shall have the meaning set forth in the Restructuring Term Sheet.

“Transfer” means to sell, resell, reallocate, use, pledge, assign, transfer, hypothecate, participate, donate or otherwise encumber or dispose of, directly or indirectly (including through derivatives, options, swaps, pledges, forward sales, or other transactions).

“Transfer Agreement” means an executed form of the transfer agreement providing, among other things, that a transferee is bound by the terms of this Agreement and substantially in the form attached hereto as Exhibit H.

“Trustee” means any indenture trustee, collateral trustee, or other trustee or similar entity under the Unsecured Notes.

“Unsecured Notes” means those certain 5.95% Senior Unsecured Notes due 2024, pursuant to that certain Indenture dated as of March 24, 2015, as supplemented on August 4, 2017, by and among WPG LP, as issuer, and U.S. Bank National Association, as trustee.

“Unsecured Notes Claims” means any Claim arising under, derived from, secured by, based on, or related to the Unsecured Notes or any other agreement, instrument or document executed at any time in connection therewith and any guaranty thereof.

“Weberstown Term Loan Agreement” means that certain senior secured term loan facility under that certain Senior Secured Term Loan Agreement, dated as of June 8, 2016 (as amended, supplemented, or otherwise modified on or prior to the date hereof, including by that certain First Amendment and Waiver to Senior Secured Term Loan Agreement, dated December 23, 2016, that certain Second Amendment and Waiver to Senior Secured Term Loan Agreement, dated April 10, 2018, and that certain Third Amendment to Senior Secured Term Loan Agreement, dated August 13, 2020) by and between WTM Stockton, LLC and WPG LP as borrowers, GLAS USA LLC and Americas LLC (as successor to Huntington National Bank), as collateral and administrative agent, and the lenders party thereto.

“Weberstown Term Loan Facility” means the credit facility under the Weberstown Term Loan Agreement.

“Weberstown Term Loan Facility Claim” means any Claim arising under, derived from, secured by, based on, or related to the Weberstown Term Loan Facility or any other agreement, instrument or document executed at any time in connection therewith and any guaranty thereof.

“WPG LP” means Washington Prime Group, L.P., an Indiana limited partnership.

1.02.    Interpretation. For purposes of this Agreement:

(a)    in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender;

(b)    capitalized terms defined only in the plural or singular form shall nonetheless have their defined meanings when used in the opposite form;

(c)    unless otherwise specified, any reference herein to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions;

(d)    unless otherwise specified, any reference herein to an existing document, schedule, or exhibit shall mean such document, schedule, or exhibit, as it may have been or may be amended, restated, supplemented, or otherwise modified from time to time; provided that any capitalized terms herein which are defined with reference to another agreement, are defined with reference to such other agreement as of the date of this Agreement, without giving effect to any termination of such other agreement or amendments to such capitalized terms in any such other agreement following the date hereof;

(e)    unless otherwise specified, all references herein to “Sections” are references to Sections of this Agreement;

(f)    the words “herein,” “hereof,” and “hereto” refer to this Agreement in its entirety rather than to any particular portion of this Agreement;

(g)    captions and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Agreement;

(h)    references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable limited liability company Laws; and

(i)    the use of “include” or “including” is without limitation, whether stated or not.

Section 2.      Effectiveness of this Agreement. This Agreement shall become effective and binding upon each of the Parties at 12:00 a.m., prevailing Eastern Time, on the Agreement Effective Date, which is the date on which all of the following conditions have been satisfied or waived in accordance with this Agreement:

(a)    each of the Company Parties shall have executed and delivered counterpart signature pages of this Agreement to counsel to each of the Parties;

(b)    the following shall have executed and delivered counterpart signature pages of this Agreement:

(i)    holders of at least 62.0% of the aggregate outstanding principal amount of the 2015 Credit Facility;

(ii)    holders of at least 74.5% of the aggregate outstanding principal amount of 2018 Credit Facility;

(iii)    holders of 100% of the aggregate outstanding principal amount of the Weberstown Term Loan Facility; and

(iv)    holders of at least 66.67% of the aggregate outstanding principal amount of Unsecured Notes;

(c)    Counsel to the Company Parties shall have given notice to Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor in the manner set forth in Section ‎15.11 hereof (by email or otherwise) that the other conditions to the Agreement Effective Date set forth in this ‎Section 2 have occurred;

(d)    the Company Parties shall have paid in full all Restructuring Expenses incurred and invoiced at least two (2) Business Days prior to the Agreement Effective Date that were not previously paid by the Company Parties; and

(e)    the Consenting Stakeholders shall provide signature pages to the Company Parties in unredacted form; provided, that the Company Parties and Counsel to the Company Parties shall not make any public disclosure of any kind with respect to the Restructuring or other matters covered by this Agreement without the consent of the Required Consenting Stakeholders and shall not disclose the identity of or individual holdings of any Consenting Stakeholders (including the signature pages hereto, which shall not be publicly disclosed or filed), in each case, without the prior written consent of such Consenting Stakeholder, the order of a Bankruptcy Court or other court with competent jurisdiction, or as required by applicable Law.

Section 3.      Definitive Documents.

3.01.    The Definitive Documents governing the Restructuring Transactions shall include the following:

(a)    the Plan, provided, however, that any plan that provides for the payment of the 2018 Credit Facility Claims, 2015 Credit Facility Claims, and Weberstown Term Loan Facility Claims, in full, in Cash, (including, in each case, default interest, if applicable) shall be deemed reasonably acceptable to the Consenting Ad Hoc Lenders;²

(b)    the Confirmation Order;

(c)    the DIP Orders, the DIP Credit Agreement, and the other DIP Documents and related documentation;

(d)    the Disclosure Statement;

(e)    the Disclosure Statement Order;

(f)    the First Day Pleadings, and all orders sought pursuant thereto;

(g)    the New Governance Documents;

(h)    the New Term Loan Exit Facility Documents;

(i)    the Plan Supplement;

(j)    the New Common Equity Documents;

(k)    the Bidding Procedures;

(l)    the Equity Rights Offering Documents;

(m)    the Backstop Commitment Agreement, and all documents required to implement the Backstop Commitment Agreement;

(n)    any and all documents required to implement, issue, and distribute the New Common Equity;

(o)    any other document necessary to implement or consummate the Restructuring Transactions; and

(p)    any other material agreements, motions, pleadings, briefs, applications, orders, and other filings with the Bankruptcy Court related to the Restructuring Transactions.

3.02.    The Definitive Documents not executed or in a form attached to this Agreement as of the Execution Date, including all exhibits, annexes, schedules, amendments, and supplements relating to such Definitive Documents, remain subject to negotiation and completion. Upon completion, the Definitive Documents and every other document, deed, agreement, filing, notification, letter, or instrument related to the Restructuring Transactions shall contain terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement, including, for the avoidance of doubt, as they may be modified, amended, or supplemented in accordance with ‎Section 13. Further:

(a)    the Definitive Documents not executed or in a form attached to this Agreement, as of the Execution Date shall at all times be consistent with this Agreement and all exhibits, annexes, and schedules hereto and otherwise in form and substance reasonably acceptable to the Company Parties, the Plan Sponsor, and solely as such affects their rights, obligations, or treatment in any material aspect, the Required Consenting Ad Hoc Lenders;

(b)    the Backstop Commitment Agreement, Backstop Approval Order, and the New Governance Documents shall be acceptable to the Plan Sponsor;

(c)    the New Term Loan Exit Facility Documents shall be in form and substance acceptable to the Required Consenting Ad Hoc Lenders and the Plan Sponsor; and

(d)    the DIP Credit Agreement and DIP Orders (Exhibit C and Exhibit I, respectively) shall be consistent with the terms of this Agreement and otherwise in form and substance acceptable to the Requisite DIP Commitment Parties. The other DIP Documents shall be in form and substance reasonably acceptable to the Requisite DIP Commitment Parties. The DIP Orders shall be reasonably acceptable to the Required Consenting Ad Hoc Lenders.

Section 4.       Milestones.

4.01.    The Company Parties shall implement the Restructuring Transactions in accordance with the following milestones (the “Milestones”), unless extended or waived in writing (which may be by email among counsel) by the Company Parties and the Plan Sponsor; provided, that if any such Milestone falls on a date which is not a Business Day, such Milestone shall be automatically extended to the first Business Day thereafter; provided, further, that the Confirmation Order Milestone shall not be extended beyond 150 days after the Petition Date, and the Effective Date Milestone shall not be extended beyond 180 days after the Petition Date, in each case without the consent of the Required Consenting Ad Hoc Lenders:

(a)    prior to the Petition Date, the Backstop Commitment Agreement shall have been executed;

(b)    no later than June 14, 2021, the Petition Date shall have occurred;

(c)    no later than 2 calendar days after the Petition Date, the Debtors shall have filed the Plan and the Disclosure Statement with the Bankruptcy Court;

(d)    no later than 5 calendar days after the Petition Date, the Bankruptcy Court shall have entered the DIP Interim Order;

(e)    no later than 30 calendar days after the Petition Date, or such other date as agreed by the Plan Sponsor and the Company Parties, the Bankruptcy Court shall have entered the Backstop Approval Order;

(f)    no later than 45 calendar days after the Petition Date, the Bankruptcy Court shall have entered the DIP Final Order;

(g)    no later than 60 calendar days after the Petition Date, the Bankruptcy Court shall have entered the Confirmation Order; provided that the Confirmation Order Milestone shall be extended to 74 calendar days after the Petition Date in the event the Company Parties have received a binding Acceptable Alternative Restructuring Proposal with no financial or due diligence conditions and deliver the Toggle Election Notice, which such extension shall be valid for so long as the Company Parties are pursuing confirmation of such Acceptable Alternative Restructuring Proposal through the Toggle Restructuring or the Equitization Restructuring; and

(h)    no later than 15 calendar days after the entry of the Confirmation Order, the Plan Effective Date shall have occurred.

Section 5.    Commitments of the Consenting Stakeholders.

5.01.    General Commitments, Forbearances, and Waivers.

(a)    Affirmative Commitments. During the Agreement Effective Period, each Consenting Stakeholder, severally, and not jointly, agrees, in respect of all of its Company Claims/Interests presently owned and hereafter acquired (for so long as it remains the beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial holders thereof), to:

(i)    support the Restructuring Transactions and timely vote to accept the Plan by delivering its duly executed and completed ballot(s) accepting the Plan on a timely basis following the commencement of the Solicitation and its actual receipt of the Disclosure Statement and other related Solicitation Materials;

(ii)    to the extent it is permitted to elect whether to opt out of the releases set forth in the Plan, elect not to opt out of the releases set forth in the Plan by timely delivering its duly executed and completed ballot(s) indicating such election;

(iii)    not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any vote or election referred to in clauses (i) and (ii);

(iv)    use commercially reasonable efforts to give, subject to applicable Laws, any notice, order, instruction, or direction to the applicable Agents/Trustees necessary to give effect to the Restructuring Transactions; provided that such Consenting Stakeholder shall not be required to provide such Agent/Trustee with any indemnities or similar undertakings in connection with taking any such action;

(v)    use its commercially reasonable efforts and work in good faith to take all steps reasonably necessary to consummate the Restructuring Transactions in accordance with this Agreement;

(vi)    support, and not oppose, entry of the DIP Orders, to the extent consistent with the terms of this Agreement;

(vii)    negotiate in good faith any additional or alternative provisions or agreements to address any legal, financial, or structural impediment that may arise that would reasonably be expected to prevent, hinder, impede, delay, or are necessary to effectuate the consummation of the Restructuring Transactions; and

(viii)    negotiate in good faith and use commercially reasonable efforts to execute and implement the Definitive Documents that are consistent with this Agreement to which it is required to be a party.

(b)    Negative Commitments. Notwithstanding anything to the contrary herein, during the Agreement Effective Period, each Consenting Stakeholder agrees, in respect of all of its Company Claims/Interests presently owned and hereafter acquired (for so long as it remains the beneficial or record owner thereof, or the nominee, investment manager, or advisor for beneficial holders thereof) that it shall not directly or indirectly, and shall not direct any other Entity to:

(i)    object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Plan, or any provision thereof, or other Restructuring Transactions;

(ii)    take any other actions in contravention of this Agreement, the Restructuring Term Sheet, or the Definitive Documents, or to the material detriment of the Restructuring Transactions;

(iii)    propose, file, support, solicit, initiate, negotiate, facilitate, propose, continue, respond to, or vote for any Alternative Restructuring Proposal;

(iv)    propose, file, or support a pleading with the Bankruptcy Court seeking entry of an order authorizing any use of cash collateral or debtor-in-possession financing other than as proposed in the DIP Orders;

(v)    file any motion, pleading, or other document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement, the Restructuring Term Sheet, the Restructuring Transactions, or the Plan;

(vi)    exercise any right or remedy for the enforcement, collection, or recovery of any of the Company Claims/Interests other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement;

(vii)    initiate, or cause to be initiated on its behalf, any litigation or proceeding of any kind with respect to the Chapter 11 Cases, this Agreement, or the other Restructuring Transactions contemplated herein against the Company Parties or the other Parties other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement;

(viii)    exercise, or direct any other person to exercise, any right or remedy for the enforcement, collection, or recovery of any of Claims against or Interests in the Company Parties; 

(ix)    directly or indirectly, through any Entity, seek, solicit, propose, support, assist, engage in negotiations in connection with or participate in the formulation, preparation, filing, or prosecution of any Alternative Restructuring Proposal or object to or take any other action that would reasonably be expected to prevent, interfere with, delay, or impede the solicitation, approval of the Disclosure Statement, or the confirmation and consummation of the Plan and the Restructuring Transactions;

(x)    prior to the expiration of the Confirmation Order Milestone, object to, delay, impede, or take any other action to interfere with the Company Parties’ efforts detailed in Section ‎8.02(b);

(xi)    object to, delay, impede, or take any other action to interfere with the Company Parties’ ownership and possession of their assets, wherever located, or interfere with the automatic stay arising under section 362 of the Bankruptcy Code; or

(xii)    object to or commence any legal proceeding challenging the liens, claims, or adequate protection granted or proposed to be granted to the holders of Claims under the DIP Orders or the prepetition liens and claims of any Consenting Stakeholder.

5.02.    Commitments with Respect to the DIP Facility.

(a)    Subject to the conditions set forth in the DIP Credit Agreement and the DIP Orders, each of the DIP Commitment Parties, severally and not jointly, agrees to provide (or cause any of its designees to provide) its allocable share of the DIP Facility as set forth in Exhibit F attached hereto on the terms and conditions set forth in the DIP Credit Agreement; provided, that upon termination or expiration of this Agreement in accordance with its terms prior to the closing of the DIP Credit Agreement, the commitments of the DIP Commitment Parties made pursuant to this Section ‎‎5.02(a) with respect to the DIP Facility shall terminate.

5.03.    Commitments with Respect to Real Estate Matters. During the Agreement Effective Period, each Consenting Stakeholder, severally and not jointly, agrees to consent to the Company Parties and their affiliates entering into the following, subject to any standard for the exercise of such consent that is set forth in the Restructuring Term Sheet:

(a)    reasonable and customary forbearance agreements, and any necessary additional documents attendant thereto, related to the Specified Forbearance Mortgage Loans;

(b)    all documents necessary to authorize the granting of supplemental unsecured guarantees, by WPG-OC JV, L.P. or WPG‑OC JV IV, L.P. related to the Substitute/Replacement Guarantor Mortgage Loans;

(c)    all documents necessary to refinance the Specified Refinancing Mortgage Loans; and

(d)    all documents necessary to extend the Specified Extension Mortgage Loans.

Section 6.    Additional Provisions Regarding the Consenting Stakeholders’ Commitments. Notwithstanding anything contained in this Agreement, nothing in this Agreement shall:

(a)    be construed to prohibit any Consenting Stakeholder from appearing as a party in interest in any matter to be adjudicated in a Chapter 11 Case, so long as such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of delaying, interfering, or impeding, directly or indirectly, the Restructuring Transactions;

(b)    affect the ability of any Consenting Stakeholder to consult with any other Consenting Stakeholder, the Company Parties, or any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), so as long as such consultation and any communications in connection therewith are not inconsistent with this Agreement or any applicable Confidentiality Agreement, and are not for the purpose of delaying, interfering, or impeding, directly or indirectly, the Restructuring Transactions;

(c)    impair or waive the rights of any Consenting Stakeholder to assert or raise any objection permitted under this Agreement in connection with the Restructuring Transactions;

(d)    prevent any Consenting Stakeholder from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with this Agreement;

(e)    be construed to prohibit any Consenting Stakeholder from either itself or through any representatives or agents, soliciting, initiating, negotiating, facilitating, proposing, continuing, or responding to any proposal to purchase or sell Company Claims/Interests, so long as such Consenting Stakeholder complies with ‎Section 9; or

(f)    prohibit any Consenting Stakeholder from taking any other action that is not inconsistent with this Agreement.

Section 7.     Commitments of the Company Parties.

7.01.    Affirmative Commitments. Except as set forth in ‎Section 8, during the Agreement Effective Period, the Company Parties agree to, and to cause their subsidiaries (if applicable) to:

(a)    support and take all steps reasonably necessary and desirable to consummate the Restructuring Transactions in accordance with this Agreement;

(b)    support and take all steps necessary to facilitate solicitation of the Plan in accordance with this Agreement;

(c)    to the extent any legal, tax, or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring Transactions contemplated herein, take all steps reasonably necessary and desirable to address any such impediment;

(d)    use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring Transactions or the Definitive Documents as provided herein, subject to the terms of the Backstop Commitment Agreement;

(e)    negotiate in good faith and use commercially reasonable efforts to execute and deliver the Definitive Documents and any other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement;

(f)    use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders to the extent reasonably prudent;

(g)    provide Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor a reasonable opportunity (which to the extent reasonably practicable under the circumstances, shall be no less than two (2) Business Days) to review draft copies of all First Day Pleadings and any Definitive Documents, as applicable, prior to the date that the Company Parties intend to file such documents or pleadings with the Bankruptcy Court;

(h)    provide a reasonable opportunity (which to the extent reasonably practicable under the circumstances, shall be no less than two (2) Business Days) to counsel to any Consenting Stakeholder materially affected by a Definitive Document to review draft copies of such Definitive Documents that the Company Parties intend to file with Bankruptcy Court;

(i)    provide to each of the Consenting Stakeholders, and each of their respective professionals:

(i)    reasonable access to the Company Parties’ books and records on reasonable advance notice to the Company Parties’ representatives during regular business hours and without disruption to the operation of the Company Parties’ business,

(ii)    reasonable access to the management and advisors of the Company Parties on reasonable advance notice to such persons during regular business hours and without disruption to the operation of the Company Parties’ business, and

(iii)    timely and reasonable responses to all reasonable diligence requests;

(j)    oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the filing of timely objections or written responses) to the extent such opposition or objection is reasonably necessary to facilitate the implementation of the Restructuring Transactions;

(k)    oppose and object to any motion, application, adversary proceeding or cause of action:

(i)    seeking the entry of an order directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code);

(ii)    seeking the entry of an order converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code;

(iii)    seeking entry of an order dismissing the Chapter 11 Cases; or

(iv)    seeking entry of an order modifying or terminating the Company Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable;

(l)    upon reasonable request of any of the Consenting Stakeholders, reasonably and promptly inform Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor of:

(i)    the material business and financial (including liquidity) performance of the Company Parties;

(ii)    the status and progress of the Restructuring Transactions, including progress in relation to the negotiations of the Definitive Documents; and

(iii)    the status of obtaining any necessary authorizations (including any consents) from each Consenting Stakeholder, any competent judicial body, governmental authority, banking, taxation, supervisory, regulatory body, or any stock exchange;

(m)    inform Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor as soon as reasonably practicable after becoming aware of:

(i)    any matter or circumstance, that they know, or believe is likely, to be a material impediment to the implementation or consummation of the Restructuring Transactions;

(ii)    any notice of any commencement of any material involuntary insolvency proceedings, material legal suit for payment of debt; and

(iii)    a breach of this Agreement (including a breach by any Company Party);

(n)    pay in Cash all Restructuring Expenses within seven (7) calendar days of receipt of invoice, regardless of whether the Restructuring Transactions are or have been consummated, or such other time set forth in a Court order;

(o)    use commercially reasonable efforts to, and cause its relevant subsidiaries to, obtain consent from the property-level mortgage lenders and joint venture partners (including, O’Connor Mall Partners, L.P. and its relevant affiliates), as necessary, to accommodate a tax-efficient post‑emergence legal entity structure; and

(p)    except if the Plan Sponsor agrees otherwise, or if necessary to effectuate the Restructuring Transactions, take such actions as necessary to ensure that WPG LP continues to be treated as a partnership for U.S. federal income tax purposes.

7.02.    Negative Commitments. Except as set forth in ‎Section 8, during the Agreement Effective Period, each of the Company Parties shall (and shall cause their subsidiaries to) not directly or indirectly:

(a)    object to, delay, impede, or take any other action to interfere with acceptance, implementation, or consummation of the Restructuring Transactions;

(b)    take any action that is inconsistent in any material respect with, or is intended or could reasonably be expected to frustrate or impede approval, implementation and consummation of the Restructuring Transactions described in, this Agreement or the Plan;

(c)    modify the Plan or any Definitive Document, in whole or in part, in a manner that is not consistent with this Agreement in all material respects;

(d)    file any motion, pleading, or Definitive Document with the Bankruptcy Court or any other court (including any modifications or amendments thereof) that, in whole or in part, is not materially consistent with this Agreement or the Plan;

(e)    (i) operate its business outside the ordinary course (other than changes in the operations resulting from or relating to the Restructuring Transactions or the filing of the Chapter 11 Cases), taking into account the Restructuring Transactions, or (ii) engage in material merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness (including, as a result of the refinancing of existing mortgage indebtedness, but excluding the Specified Refinancing Mortgage Loans), or other similar transaction or transfer any material asset or right of the Company Parties, or any material asset or right used in the business of the Company Parties to any person or entity outside the ordinary course of business, in each of cases (i) and (ii), without the reasonable consent of the Required Consenting Stakeholders;

(f)    except to the extent required by this Agreement or, with the consent of the Plan Sponsor, as necessary to effectuate the Restructuring Transactions, take, or fail to take, any action that would cause a change to the tax status (including, the status of any Company Party as a “real estate investment trust” within the meaning of Section 856 of the Internal Revenue Code of 1986, as amended) or classification of any Company Party;

(g)    enter into, amend, modify, renew, or terminate any Material Lease or any Material Executory Contract that is a Specified Material Executory Contract without the reasonable consent of the Plan Sponsor; provided that the Plan Sponsor shall be deemed to have consented to a request to enter into, amend, modify, renew, or terminate any such Material Lease or any such Material Executory Contract if the Plan Sponsor does not approve or disapprove of such transaction within five (5) business days from receipt of all required and reasonable information and documentation relating thereto and a written request (by email to an approved designee of the Plan Sponsor) to approve or disapprove of such transaction, plus two (2) additional business days following receipt of a second written request (by email to an approved designee of the Plan Sponsor) to approve or disapprove of such transaction; provided, further, that the Plan Sponsor’s consent, reasonable or otherwise, shall not be required to terminate a Material Lease in the event that the (x) Material Lease is terminated by the Company Party upon a monetary default or a material non-monetary default by the tenant under such Material Lease, (y) tenant under such Material Lease is subject to a bankruptcy proceeding and elects to reject such Material Lease under such bankruptcy proceeding, or (z) tenant terminates such Material Lease pursuant to its rights under such Material Lease;

(h)    propose, file, or support a pleading with the Bankruptcy Court seeking entry of an order authorizing any use of cash collateral or debtor‑in‑possession financing other than as proposed in the DIP Orders; or

(i)    initiate, or cause to be initiated on its behalf, any litigation or proceeding of any kind with respect to these Chapter 11 Cases, this Agreement, or the other Restructuring Transactions contemplated herein against any other Parties other than to enforce this Agreement or any Definitive Document or as otherwise permitted under this Agreement.

Section 8.    Additional Provisions Regarding Company Parties’ Commitments.

8.01.    Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require a Company Party or the board of directors, board of managers, or similar governing body of a Company Party, after consulting with counsel, to take any action or to refrain from taking any action with respect to the Restructuring Transactions to the extent taking or failing to take such action would be inconsistent with applicable Law or its fiduciary obligations under applicable Law, and any such action or inaction pursuant to this Section ‎8.01 shall not be deemed to constitute a breach of this Agreement. The Company Parties shall give written notice to the Consenting Stakeholders within two (2) Business Days of any determination in accordance with this Section ‎8.01 to take or refrain from taking any action. This Section ‎8.01 shall not impede any Party’s right to terminate this Agreement pursuant to Section ‎12.01(h).

8.02.    Notwithstanding anything to the contrary in this Agreement (but subject to Section ‎8.01), each Company Party and its respective directors, officers, employees, investment bankers, attorneys, accountants, consultants, and other advisors or representatives shall have the rights to:

(a)    provide access to non-public information concerning any Company Party to any Entity or enter into Confidentiality Agreements or nondisclosure agreements with any Entity; provided that if the Company Parties decide to make a written proposal or counterproposal to any party relating to any Alternative Restructuring Proposal, the Company Parties shall provide notice to the Plan Sponsor and the Consenting Ad Hoc Lenders contemporaneously with taking any such action;

(b)    prior to the expiration of the Confirmation Order Milestone, the Company Parties may, directly or indirectly:

(i)      (x) actively initiate, solicit, and induce any Acceptable Alternative Restructuring Proposals, or (y) consider, develop, facilitate, and respond to any Alternative Restructuring Proposals (or inquiries or indications of interest with respect thereto); or

(ii)    otherwise cooperate with, assist, participate in, or facilitate any inquiries, proposals, discussions, or negotiation of Alternative Restructuring Proposals; provided that if the Company Parties receive an Alternative Restructuring Proposal, or any update to an Alternative Restructuring Proposal from the counterparty thereto, then the Company Parties shall, and in each case subject to any confidentiality provisions contained therein:

a.    within two (2) Business Days of receiving such proposal, provide Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor with such Alternative Restructuring Proposal; provided that after submission by the Plan Sponsor of a proposal in any postpetition bidding process, then the Company Parties may, in their sole discretion, elect not to provide Counsel to the Plan Sponsor and Counsel to the Ad Hoc Lender Group with such Alternative Restructuring Proposal;

b.    upon written request, provide Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor with timely updates as to the status and progress of such Alternative Restructuring Proposals; and

c.    respond to reasonable information requests and questions from Counsel to the Ad Hoc Lender Group and Counsel to the Plan Sponsor relating to such Alternative Restructuring Proposal; and

(iii)    continue discussions or negotiations with holders of Claims against or Interests in a Company Party (including any Consenting Stakeholder), any other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee), or any other Entity regarding the Restructuring Transactions or an Alternative Restructuring Proposal (in each case, consistent with the terms hereof).

8.03.    As soon as reasonably practicable (and in any case within one (1) Business Day) after the delivery of the Toggle Election Notice, the Company Parties shall publicly disclose the material terms of such Acceptable Alternative Restructuring Proposal by filing material documentation thereof with the Bankruptcy Court or otherwise.

8.04.    Nothing in this Agreement shall:

(a)    impair or waive the rights of any Company Party to assert or raise any objection, to the extent not inconsistent with this Agreement, in connection with the Restructuring Transactions or implementation thereof;

(b)    affect the ability of any Company Party to consult with any Consenting Stakeholder;

(c)    prevent any Company Party from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; or

(d)    prohibit any Company Party from taking any action that is not inconsistent with this Agreement.

Section 9.      Transfer of Interests and Securities.

9.01.    During the Agreement Effective Period, no Consenting Stakeholder shall Transfer any ownership (including any beneficial ownership as defined in the Rule 13d-3 under the Securities Exchange Act of 1934, as amended) in any Company Claims/Interests to any affiliated or unaffiliated party, including any party in which it may hold a direct or indirect beneficial interest, unless:

(a)    in the case of any Company Claims/Interests, the authorized transferee is either: (i) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (ii) a non-U.S. person in an offshore transaction as defined under Regulation S under the Securities Act, (iii) an accredited investor (as defined in the Rules), (iv) with respect to the 2015 Credit Facility Claims, the 2018 Credit Facility Claims or the Weberstown Facility Claims, an Eligible Assignee (as defined in the 2015 Credit Agreement, the 2018 Credit Agreement or the Weberstown Credit Agreement, as applicable), or (v) a Consenting Stakeholder;

(b)    either (i) the transferee executes and delivers to Counsel to the Company Parties, Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor, at or before the time of the proposed Transfer, a Transfer Agreement or (ii) the transferee is a Consenting Stakeholder and the transferee provides notice of such Transfer (including the amount and type of Company Claim/Interest Transferred) to Counsel to the Company Parties at or before the time of the proposed Transfer; and

(c)    with respect to the Transfer of any Company Claims/Interests, such Transfer shall not violate the terms of any order entered by the Bankruptcy Court with respect to the preservation of net operating losses or other tax attributes.

9.02.    Upon compliance with the requirements of Section ‎9.01, the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of the rights and obligations in respect of such transferred Company Claims/Interests. Any Transfer in violation of Section ‎9.01 shall be void ab initio. Any Consenting Stakeholder that effectuates a transfer in accordance with this ‎Section 9 shall have no liability under this Agreement arising from or related to the failure of the transferee to comply with the terms of this Agreement.

9.03.    This Agreement shall in no way be construed to preclude the Consenting Stakeholders from acquiring additional Company Claims/Interests; provided, however, that (a) such additional Company Claims/Interests shall automatically and immediately upon acquisition by a Consenting Stakeholder be deemed subject to the terms of this Agreement (regardless of when or whether notice of such acquisition is given to Counsel to the Company Parties or counsel to any other Consenting Stakeholder) and (b) such Consenting Stakeholder must provide notice of such acquisition (including the amount and type of Company Claim/Interest acquired) to Counsel to the Company Parties, Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor, within one (1) Business Day of such acquisition.

9.04.    This ‎Section 9 shall not impose any obligation on any Company Party to issue any “cleansing letter” or otherwise publicly disclose information for the purpose of enabling a Consenting Stakeholder to Transfer any of its Company Claims/Interests. Notwithstanding anything to the contrary herein, to the extent a Company Party and another Party have entered into a Confidentiality Agreement, the terms of such Confidentiality Agreement shall continue to apply and remain in full force and effect according to its terms, and this Agreement does not supersede any rights or obligations otherwise arising under such Confidentiality Agreements.

9.05.    Notwithstanding Section ‎9.01, a Consenting Stakeholder may Transfer any Company Claims/Interests to a Qualified Marketmaker, and a Qualified Marketmaker that acquires any Company Claims/Interests with the purpose and intent of acting as a Qualified Marketmaker for such Company Claims/Interests shall not be required to execute and deliver a Transfer Agreement in respect of such Company Claims/Interests if:

(a)    such Qualified Marketmaker subsequently transfers such Company Claims/Interests (by purchase, sale assignment, participation, or otherwise) within five (5) Business Days of its acquisition to a transferee that is an entity that is not an affiliate, affiliated fund, or affiliated entity with a common investment advisor;

(b)    the transferee otherwise is a Permitted Transferee under Section ‎9.01; and

(c)    the Transfer otherwise is a Permitted Transfer under Section ‎9.01. Notwithstanding the foregoing, to the extent that a Consenting Stakeholder is acting in its capacity as a Qualified Marketmaker, it may Transfer (by purchase, sale, assignment, participation, or otherwise) any right, title or interests in Company Claims/Interests that the Qualified Marketmaker acquires from a holder of the Company Claims/Interests who is not a Consenting Stakeholder without the requirement that the transferee be a Permitted Transferee.

9.06.    Notwithstanding anything to the contrary in this ‎Section 9, the restrictions on Transfers set forth in this ‎Section 9 shall not apply to the grant of any liens or encumbrances on any claims and interests in favor of a bank or broker-dealer holding custody of such claims and interests in the ordinary course of business and which lien or encumbrance is released upon the Transfer of such claims and interests.

9.07.    Additional Consenting Stakeholders. Any holder of Company Claims/Interests that is not a party to this Agreement as of the Agreement Effective Date may, at any time after the Agreement Effective Date, become a Consenting Stakeholder by executing and delivering a Joinder to Counsel to the Company Parties, Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor, pursuant to which such Entity shall be bound by the terms of this Agreement.

Section 10.    Representations and Warranties of Consenting Stakeholders. Each Consenting Stakeholder severally, and not jointly, represents and warrants that, as of the date such Consenting Stakeholder executes and delivers this Agreement and as of the Plan Effective Date:

(a)    it is the beneficial or record owner of the face amount of the Company Claims/Interests or is the nominee, investment manager, or advisor for beneficial holders of the Company Claims/Interests reflected in, and, having made reasonable inquiry, is not the beneficial or record owner of any Company Claims/Interests other than those reflected in, such Consenting Stakeholder’s signature page to this Agreement or a Transfer Agreement, as applicable (as may be updated pursuant to ‎Section 9);

(b)    it has the full power and authority to act on behalf of, vote and consent to matters concerning, such Company Claims/Interests;

(c)    such Company Claims/Interests are free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition, transfer, or encumbrances of any kind, that would adversely affect in any way such Consenting Stakeholder’s ability to perform any of its obligations under this Agreement at the time such obligations are required to be performed;

(d)    it has the full power to vote, approve changes to, and transfer all of its Company Claims/Interests referable to it as contemplated by this Agreement subject to applicable Law; and

(e)    solely with respect to holders of Company Claims/Interests, (i) it is either (A) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (B) not a U.S. person (as defined in Regulation S of the Securities Act), or (C) an accredited investor (as defined in the Rules); (ii) any securities acquired by the Consenting Stakeholder in connection with the Restructuring Transactions will have been acquired for investment and not with a view to distribution or resale in violation of the Securities Act; (iii) understands that the securities contemplated by this Agreement have not been registered under the Securities Act as of the date hereof and may not be resold without registration under the Securities Act except pursuant to a specific exemption from the registration provisions of the Securities Act; and (iv) is not acquiring the securities contemplated by this Agreement as a result of any advertisement, article, notice, or other communication regarding such securities published in any newspaper, magazine, or similar media or broadcast over television, radio, or presented at any seminar or any other general solicitation or general advertisement.

Section 11.    Mutual Representations, Warranties, and Covenants. Each of the Parties, severally and not jointly, represents, warrants, and covenants to each other Party, as of the date such Party executes and delivers this Agreement, on the Plan Effective Date:

(a)    it is validly existing and in good standing under the Laws of the state of its organization, and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;

(b)    except as expressly provided in this Agreement, the Plan, and the Bankruptcy Code, no consent or approval is required by any other person or Entity in order for it to effectuate the Restructuring Transactions contemplated by, and perform its respective obligations under, this Agreement;

(c)    the entry into and performance by it of, and the transactions contemplated by, this Agreement do not, and will not, conflict in any material respect with any Law or regulation applicable to it or with any of its articles of association, memorandum of association, or other constitutional documents;

(d)    except as expressly provided in this Agreement, it has (or will have, at the relevant time) all requisite corporate or other power and authority to enter into, execute, and deliver this Agreement and to effectuate the Restructuring Transactions contemplated by, and perform its respective obligations under, this Agreement; and

(e)    except as expressly provided by this Agreement, it is not party to any restructuring or similar agreements or arrangements regarding the Debtors with the other Parties to this Agreement that have not been disclosed to all Parties to this Agreement.

Section 12.    Termination Events.

12.01.    Consenting Stakeholder Termination Events. This Agreement may be terminated (a) with respect to the Consenting Ad Hoc Lenders, by the Required Consenting Ad Hoc Lenders, or (b) with respect to the Plan Sponsor, by the Plan Sponsor, in each case, by the delivery to Counsel to the Company Parties, Counsel to the Ad Hoc Lender Group, and Counsel to the Plan Sponsor of a written notice in accordance with Section ‎15.11 hereof upon the occurrence of any of the following events:

(a)    the breach in any material respect by a Company Party of any of the representations, warranties, obligations, or covenants of the Company Parties set forth in this Agreement or any Definitive Documents that (i) is adverse to the Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for seven (7) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section ‎15.11 hereof detailing any such breach;

(b)    the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling, judgment, or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days; provided, that this termination right may not be exercised by any Party that sought or requested such ruling or order in contravention of any obligation set out in this Agreement;

(c)    the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting Stakeholders):

(i)    converting one or more of the Chapter 11 Cases of a Company Party to a case under chapter 7 of the Bankruptcy Code;

(ii)    appointing a trustee, receiver, or an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code in one or more of the Chapter 11 Cases of a Company Party;

(iii)    dismissing the Chapter 11 Cases;

(iv)    rejecting this Agreement; or

(v)    approving any (a) plan of reorganization (or disclosure statement related thereto) in the Chapter 11 Cases inconsistent with the terms of this Agreement or (b) Definitive Documents inconsistent in any material respect with this Agreement in a manner that directly and adversely impacts the treatment of the terminating Consenting Stakeholders;

(d)    the Bankruptcy Court enters an order denying confirmation of the Plan, and the Bankruptcy Court does not enter a Confirmation Order reasonably acceptable to the Required Consenting Stakeholders within ten (10) Business Days;

(e)    the entry of an order by the Bankruptcy Court or any other court of competent jurisdiction reversing, vacating, reconsidering, or dismissing the Confirmation Order, or any of the DIP Orders, and the Bankruptcy Court does not enter a revised Confirmation Order or DIP Order, as applicable, reasonably acceptable to the Required Consenting Stakeholders within ten (10) Business Days;

(f)    subject to Section 7.02(g) in its entirety, the entrance, amendment, modification, renewal, or termination of any Material Lease, or any amendment of the foregoing, without the consent of (i) the Plan Sponsor (such consent not to be unreasonably withheld) and (ii) to the extent such action would materially and adversely affect the interests of any Consenting Stakeholder, the reasonable consent of such Consenting Stakeholder whose interests are affected;

(g)    any of the Company Parties enters into any key employee incentive plan or key employee retention plan, any new or amended agreement regarding executive compensation, or other compensation agreement, in each case, outside of the ordinary course of business without obtaining the prior written consent of the Required Consenting Ad Hoc Lenders and the Plan Sponsor (in each case, such consent not to be unreasonably withheld);

(h)    with respect to the Plan Sponsor, the failure to comply with or achieve any one of the Milestones, and with respect to the Required Consenting Ad Hoc Lenders, the failure to comply with or achieve the Confirmation Order Milestone or the Effective Date Milestone, in each case as such Milestones may be extended or waived pursuant to Section ‎4.01;

(i)    the occurrence and continuation of any event of default under the DIP Credit Agreement that is not cured in accordance with the terms of the DIP Credit Agreement;

(j)    any Company Party challenges the principal amount, perfection, priority, and/or validity of any 2015 Credit Facility Claim, 2018 Credit Facility Claim, Weberstown Term Loan Facility Claim, or Unsecured Notes Claim held by a Consenting Stakeholder, or any liens associated with such claims;

(k)    an order is entered by the Bankruptcy Court granting relief from the automatic stay imposed by Section 362 of the Bankruptcy Code authorizing any party to proceed against any material asset of a Company Party that is a borrower or guarantor in respect of any of the Existing Debt Agreements;

(l)    the Bankruptcy Court enters an order in the Chapter 11 Cases terminating any of the Company Parties’ exclusive right to file a plan or plans of reorganization pursuant to Section 1121 of the Bankruptcy Code;

(m)    the board of directors, board of managers, or such similar governing body of any Company Party determines, pursuant to Section ‎8.01, after consulting with counsel, (i) that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of its fiduciary duties or applicable Law or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal and any Company Party, and (a) makes a public announcement that it intends to accept an Alternative Restructuring Proposal or (b) enters into a definitive agreement with respect to an Alternative Restructuring Proposal; provided that no Consenting Stakeholder may terminate this Agreement solely pursuant to this Section ‎12.01(m) if such Alternative Restructuring Proposal is an Acceptable Alternative Restructuring Proposal that is binding and does not contain any financing or due diligence condition; or

(n)    the Backstop Commitment Agreement has been terminated in accordance with its terms; provided that if the Backstop Commitment Agreement is terminated by the Company Parties upon the material breach of the Backstop Parties, neither the Backstop Equity Premium, the Backstop Base Premium, nor the Backstop Termination Premium shall be earned by the Backstop Parties; provided, further that, following delivery of a Toggle Election Notice, no Consenting Stakeholder may terminate this Agreement pursuant to this Section ‎12.01(n) solely because the Backstop Commitment Agreement has been terminated by the Company Parties; or

(o)    solely as to the Consenting Ad Hoc Lenders, the breach in any material respect by the Plan Sponsor, and solely as to the Plan Sponsor, the breach in any material respect by the Required Consenting Ad Hoc Lenders, in each case of any of the representations, warranties, obligations, or covenants of the Plan Sponsor (or, as applicable, the Consenting Ad Hoc Lenders) set forth in this Agreement or any Definitive Documents that (i) is adverse, in any material way, to the Consenting Stakeholder or Consenting Stakeholders seeking termination pursuant to this provision and (ii) remains uncured for seven (7) Business Days after such terminating Consenting Stakeholders transmit a written notice in accordance with Section ‎15.11 hereof detailing any such breach.

12.02.    Company Party Termination Events.  Any Company Party may terminate this Agreement as to all Parties upon prior written notice to all Parties in accordance with Section ‎15.11 hereof upon the occurrence of any of the following events:

(a)    the breach in any material respect by one or more of the Consenting Stakeholders of any provision set forth in this Agreement that remains uncured for a period of ten (10) Business Days after the receipt by the breaching Consenting Stakeholders of notice of such breach;

(b)    the board of directors, board of managers, or such similar governing body of any Company Party determines, after consulting with counsel, (i) that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of its fiduciary duties or applicable Law or (ii) in the exercise of its fiduciary duties, to pursue an Alternative Restructuring Proposal that is not an Acceptable Alternative Restructuring Proposal;

(c)    the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Company Party transmits a written notice in accordance with Section ‎15.11 hereof detailing any such issuance; provided, that this termination right shall not apply to or be exercised by any Company Party that sought or requested such ruling or order in contravention of any obligation or restriction set out in this Agreement;

(d)    the termination of this Agreement by the Required Consenting Ad Hoc Lenders or the Plan Sponsor pursuant to Section ‎12.01(o); provided that if such termination is by the Required Consenting Ad Hoc Lenders, the Plan Sponsor shall have forty-five (45) days to provide alternative financing sufficient to pay the 2015 Credit Facility Claims, the 2018 Credit Facility Claims, and the Weberstown Term Loan Claims in Cash in full³; or

(e)    the Bankruptcy Court enters an order denying confirmation of the Plan.

12.03.    Mutual Termination.  This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual written agreement among all of the following: (a) the Required Consenting Stakeholders; and (b) each Company Party.

12.04.    Automatic Termination.  This Agreement shall terminate automatically without any further required action or notice upon the Plan Effective Date, or if the milestone set forth in Section 4.01(a) has not been met.

12.05.    Effect of Termination.  Upon the occurrence of a Termination Date as to a Party, this Agreement shall be of no further force and effect as to such Party and each Party subject to such termination shall be released from its commitments, undertakings, and agreements under or related to this Agreement and shall have the rights and remedies that it would have had, had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the Restructuring Transactions or otherwise, that it would have been entitled to take had it not entered into this Agreement, including with respect to any and all Claims or causes of action.  Upon the occurrence of a Termination Date prior to the Confirmation Order being entered by a Bankruptcy Court, any and all consents or ballots tendered by the Parties subject to such termination before a Termination Date shall be deemed, for all purposes, to be null and void from the first instance and shall not be considered or otherwise used in any manner by the Parties in connection with the Restructuring Transactions and this Agreement or otherwise; provided that such ballots may be changed or resubmitted regardless of whether the applicable voting deadline has passed (without the need to seek a court order or consent from the Company Parties allowing such change or resubmission); provided, however, any Consenting Stakeholder withdrawing or changing its vote pursuant to this Section ‎12.05 shall promptly provide written notice of such withdrawal or change to each other Party to this Agreement.

Nothing in this Agreement shall be construed as prohibiting a Company Party or any of the Consenting Stakeholders from contesting whether any such termination is in accordance with its terms or to seek enforcement of any rights under this Agreement that arose or existed before a Termination Date. Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict (a) any right of any Company Party or the ability of any Company Party to protect and reserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any Consenting Stakeholder, and (b) any right of any Consenting Stakeholder, or the ability of any Consenting Stakeholder, to protect and preserve its rights (including rights under this Agreement), remedies, and interests, including its claims against any Company Party or Consenting Stakeholder. No purported termination of this Agreement shall be effective under this Section ‎12.05 or otherwise if the Party seeking to terminate this Agreement is in material breach of this Agreement, except a termination pursuant to Section ‎12.02(e).

Section 13.    Amendments and Waivers

13.01.    This Agreement may not be modified, amended, or supplemented, and no condition or requirement of this Agreement may be waived, in any manner except in accordance with this ‎Section 13.

13.02.    This Agreement may be modified, amended, or supplemented, or a condition or requirement of this Agreement may be waived, in a writing signed by:

(a)    each Company Party;

(b)    solely with respect to any modification, amendment, waiver or supplement that adversely affects the rights of the Ad Hoc Lenders in any material respect and unless otherwise specified in this Agreement, the Required Consenting Ad Hoc Lenders; and

(c)    the Plan Sponsor, provided, however, that if the proposed modification, amendment, waiver, or supplement has a material, disproportionate, and adverse effect on any of the Company Claims/Interests held by a Consenting Stakeholder, then the consent of each such affected Consenting Stakeholder shall also be required to effectuate such modification, amendment, waiver or supplement.

13.03.    Any proposed modification, amendment, waiver or supplement that does not comply with this ‎Section 13 shall be ineffective and void ab initio.

13.04.    Any consent or waiver contemplated in this ‎Section 13 may be provided by electronic mail from counsel to the relevant Parties.

13.05.    The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy or any provision of this Agreement, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by Law.

Section 14.    Reserved.

Section 15.    Miscellaneous.

15.01.    Confidentiality. The Parties understand and acknowledge that this Agreement may be disclosed and filed with the Bankruptcy Court and the U.S. Securities and Exchange Commission; provided that in such disclosure the executed signature pages to this Agreement shall be redacted and no individual holdings information shall be included, except as may be required by applicable law; provided, further that the Company Parties may disclose the aggregate amount of each of the Company Claims/Interests held by the Consenting Stakeholders. The Company Parties shall not disclose to any person the amount or percentage of Claims held by any individual Consenting Stakeholder, except as may be required by law. If in either case such disclosure is required by law, the Company Parties shall provide each Consenting Stakeholder with advanced notice (to the extent practicable) of the intent to disclose and shall afford each Consenting Stakeholder a reasonable opportunity to (i) seek a protective order or other appropriate remedy, or (ii) review and comment upon any such disclosure prior to the Company Parties making such disclosure.

15.02.    Acknowledgements. Notwithstanding any other provision herein, this Agreement is not and shall not be deemed to be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for purposes of sections 1125 and 1126 of the Bankruptcy Code or otherwise.  Any such offer or solicitation will be made only in compliance with all applicable securities Laws, provisions of the Bankruptcy Code, and/or other applicable Law. Notwithstanding anything to the contrary in this Agreement, the Backstop Commitment Agreement, or any other document, no party shall be entitled to terminate this Agreement or the Backstop Commitment Agreement because the Bidding Procedures are amended in a manner contrary to the proviso in the definition of “Bidding Procedures” herein, if such amendment is required by the Bankruptcy Court.

15.03.    Exhibits Incorporated by Reference; Conflicts. Each of the exhibits, annexes, signatures pages, and schedules attached hereto is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include such exhibits, annexes, and schedules. In the event of any inconsistency between this Agreement (without reference to the exhibits, annexes, and schedules hereto) and the exhibits, annexes, and schedules hereto, the exhibits, annexes, and schedules shall govern until such time that the Definitive Documents have been negotiated and agreed in accordance with the consent rights hereunder, at which time, the terms and conditions set forth in the Definitive Documents, to the extent intended to supersede this Agreement, shall govern.

15.04.    Further Assurances. Subject to the other terms of this Agreement, the Parties agree to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be reasonably appropriate or necessary, or as may be required by order of the Bankruptcy Court, from time to time, to effectuate the Restructuring Transactions, as applicable.

15.05.    Complete Agreement.  Except as otherwise explicitly provided herein, this Agreement, including all exhibits, schedules and annexes hereto, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, among the Parties with respect thereto, other than any Confidentiality Agreement.

15.06.    GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF FORUM.  THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.  Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the extent possible, in the Bankruptcy Court, and solely in connection with claims arising under this Agreement: (a) irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court; (b) waives any objection to laying venue in any such action or proceeding in the Bankruptcy Court; (c) waives any objection that the Bankruptcy Court is an inconvenient forum or does not have jurisdiction over any Party hereto; and (d) consents to entry of a Final Order or judgment by the Bankruptcy Court.

15.07.     TRIAL BY JURY WAIVER. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

15.08.    Execution of Agreement.  This Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement.  Except as expressly provided in this Agreement, each individual executing this Agreement on behalf of a Party has been duly authorized and empowered to execute and deliver this Agreement on behalf of said Party.

15.09.    Rules of Construction.  This Agreement is the product of negotiations among the Company Parties and the Consenting Stakeholders, and in the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement, or any portion hereof, shall not be effective in regard to the interpretation hereof. The Company Parties and the Consenting Stakeholders were each represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel.

15.10.    Successors and Assigns; Third Parties.  This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors and permitted assigns, as applicable. Other than with respect to the persons, advisors, or other Entities referenced in Section ‎15.12, there are no third party beneficiaries under this Agreement, and the rights or obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other person or entity, except as set forth in ‎Section 9. 

15.11.    Notices.  All notices hereunder shall be deemed given if in writing and delivered, by electronic mail, courier, or registered or certified mail (return receipt requested), to the following addresses (or at such other addresses as shall be specified by like notice):

(a)          if to a Company Party, to:

Washington Prime Group Inc.
Salesforce Tower
111 Monument Circle
Indianapolis, IN 46204
Attention: Robert P. Demchak, Executive Vice President and General Counsel

with copies to:

Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Joshua A. Sussberg, P.C., Alexander J. Nicas
E-mail address: joshua.sussberg@kirkland.com, alexander.nicas@kirkland.com

and

Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, IL 60654
Attention: Chad J. Husnick, P.C, Dan Latona
E-mail address: chad.husnick@kirkland.com, dan.latona@kirkland.com

and

(b)          if to the Ad Hoc Lender Group, to:

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Joshua A. Feltman, Rod N. Ghods, Elyssa C. Eisenberg
E-mail address: jafeltman@wlrk.com, rnghods@wlrk.com, eceisenberg@wlrk.com

and

(c)          if to the Plan Sponsor, to:

Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Damian Schaible, Angela Libby, Aryeh Ethan Falk
E-mail address: damian.schaible@davispolk.com, angela.libby@davispolk.com, aryeh.falk@davispolk.com

Any notice given by delivery, mail, or courier shall be effective when received.

15.12.    Independent Due Diligence and Decision Making. Each Consenting Stakeholder hereby confirms for the benefit of the Company Parties (including for the benefit of any person acting on behalf of any of the Company Parties, including any financial or other advisor of any of the foregoing) that (i) it has the requisite knowledge and experience in financial and business matters so that it is capable of evaluating the merits and risks of the securities to be acquired by it pursuant to the Restructuring Transactions contemplated hereby and has had such opportunity as it has deemed adequate to obtain such information as is necessary to permit such Party to evaluate the merits and risks of the securities to be acquired by it pursuant to the Restructuring Transactions contemplated hereby, and (ii) that its decision to execute this Agreement and participate in any of the Restructuring Transactions contemplated hereby has been based upon its independent investigation of the operations, businesses, financial and other conditions, and prospects of the Company Parties and/or the Restructuring Transactions, and such decision is not in reliance upon any representations or warranties other than those contained in the Definitive Documents.

15.13.    Enforceability of Agreement. Each of the Parties, to the extent enforceable, waives any right to assert that the exercise of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code, and expressly stipulates and consents hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising termination rights under this Agreement, to the extent the Bankruptcy Court determines that such relief is required.

15.14.    Waiver. If the Restructuring Transactions are not consummated, or if this Agreement is terminated for any reason, the Parties fully reserve any and all of their rights. Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms or the payment of damages to which a Party may be entitled under this Agreement.

15.15.    Specific Performance. It is understood and agreed by the Parties that money damages would be an insufficient remedy for any breach of this Agreement by any Party, and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (without the posting of any bond and without proof of actual damages) as a remedy of any such breach, including an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder.

15.16.    Several, Not Joint, Claims. Except where otherwise specified, the agreements, representations, warranties, and obligations of the Parties under this Agreement are, in all respects, several and not joint.

15.17.    Severability and Construction. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect if essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable.

15.18.    Remedies Cumulative. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at Law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party.

15.19.    Capacities of Consenting Stakeholders. Each Consenting Stakeholder has entered into this agreement on account of all Company Claims/Interests that it holds (directly or through discretionary accounts that it manages or advises) and, except where otherwise specified in this Agreement, shall take or refrain from taking all actions that it is obligated to take or refrain from taking under this Agreement with respect to all such Company Claims/Interests.

15.20.    Survival. Notwithstanding (i) any Transfer of any Company Claims/Interests in accordance with this Agreement or (ii) the termination of this Agreement in accordance with its terms, the agreements and obligations of the Company Parties in Section ‎7.01(n) (with respect to amounts accrued prior to the date of termination of this Agreement), each of the Parties in ‎Section 15 and the Confidentiality Agreements shall survive such Transfer and/or termination and shall continue in full force and effect for the benefit of the Parties in accordance with the terms hereof and thereof.

15.21.    Relationship Among Consenting Stakeholders.

(a)    Notwithstanding anything to the contrary herein, the duties and obligations of the Consenting Stakeholders under this Agreement shall be several, not joint, with respect to each Consenting Stakeholder. None of the Consenting Stakeholders shall have any fiduciary duty, any duty of trust or confidence in any form, or other duties or responsibilities in any kind or form to each other, any Consenting Stakeholders, any Company Party, or any of the Company Party’s respective creditors or other stakeholders.

(b)    The Company Parties acknowledge that the Consenting Stakeholders are engaged in a wide range of financial services and business, and, in furtherance of the foregoing, the Consenting Stakeholders and Company Parties acknowledge and agree that the obligations set forth in this Agreement shall only apply to the trading desk(s) and/or business group(s) of the Consenting Stakeholders that principally manage and/or supervise such Consenting Stakeholder’s investment in the Company Parties, and shall not apply to any other trading desk or business group of such Consenting Stakeholder so long as they are not acting at the direction or for the benefit of such Consenting Stakeholder.

15.22.    Email Consents. Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated by this Agreement, pursuant to Section ‎3.02, ‎Section 13, or otherwise, including a written approval by the Company Parties, the Required Consenting Ad Hoc Lenders, or the Plan Sponsor, as applicable, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if, by agreement between counsel to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed in writing (including electronic mail) between each such counsel without representations or warranties of any kind on behalf of such counsel.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first above written.

Company Parties’ Signature Page to
the Restructuring Support Agreement

IN WITNESS WHEREOF, the Company Parties hereto have caused this Agreement to be executed and delivered by their respective Authorized Officers, solely in their respective capacity as Authorized Officers of the undersigned and not in any other capacity, as of the date first set forth above.

WASHINGTON PRIME GROUP INC. on behalf of itself, and as sole general partner of

WASHINGTON PRIME GROUP, L.P.,

on behalf of itself, and as sole member of:

BLOOMINGDALE COURT, LLC

BOYNTON BEACH MALL, LLC

CHAUTAUQUA MALL, LLC

CHESAPEAKE CENTER, LLC

CHESAPEAKE THEATER, LLC

CT PARTNERS, LLC,

on behalf of itself, and as sole member of:

CLAY TERRACE PARTNERS, LLC

DARE CENTER, LLC

DAYTON MALL III, LLC

DOWNEAST LLC

EDISON MALL, LLC

EMPIRE EAST, LLC

FAIRFAX COURT CENTER LLC

FAIRFIELD TOWN CENTER, LLC

FAIRFIELD VILLAGE, LLC

KEYSTONE SHOPPES, LLC

KI-HENDERSON SQUARE ASSOCIATES, LLC

KI-WHITEMAK ASSOCIATES, LLC

LAKEVIEW PLAZA (ORLAND), LLC

LIMA CENTER, LLC

LINCOLN CROSSING, LLC

LINDALE MALL, LLC

MALL AT COTTONWOOD II LLC

MALL AT GREAT LAKES, LLC

MALL AT IRVING, LLC

MALL AT LAKE PLAZA, LLC

MALL AT LIMA, LLC

MALL AT LONGVIEW, LLC

MAPLEWOOD MALL, LLC

MARTINSVILLE PLAZA, LLC

MELBOURNE SQUARE, LLC

MFC BEAVERCREEK, LLC

MORGANTOWN MALL LLC

NORTHWOODS RAVINE, LLC

NORTHWOODS SHOPPING CENTER, LLC

ORANGE PARK MALL, LLC

PADDOCK MALL, LLC

PLAZA AT BUCKLAND HILLS, LLC

PLAZA AT COUNTRYSIDE, LLC

PLAZA AT NORTHWOOD, LLC

PLAZA AT TIPPECANOE, LLC

RICHARDSON SQUARE, LLC

ROCKAWAY TOWN COURT, LLC

ROCKAWAY TOWN PLAZA, LLC

ROLLING OAKS MALL, LLC

ROYAL EAGLE PLAZA, LLC

ROYAL EAGLE PLAZA II, LLC

SHOPS AT NORTHEAST MALL, LLC

SIMON MV, LLC

SM MESA MALL, LLC

SOUTHERN PARK MALL, LLC

ST. CHARLES TOWNE PLAZA, LLC

on behalf of itself, and as sole member of:

GREENWOOD PLUS CENTER, LLC

MARKLAND PLAZA, LLC

SUNLAND PARK MALL, LLC

THE OUTLET COLLECTION LLC

TOWN CENTER AT AURORA II LLC

UNIVERSITY PARK MALL CC, LLC

UNIVERSITY TOWN PLAZA, LLC

VILLAGES AT MACGREGOR, LLC

VILLAGE PARK PLAZA, LLC

WPG MANAGEMENT ASSOCIATES, INC.

WASHINGTON PLAZA, LLC

WASHINGTON PRIME MANAGEMENT ASSOCIATES, LLC

WESTSHORE PLAZA II LLC

WPG NORTHTOWN VENTURE, LLC

WPG ROCKAWAY COMMONS, LLC

WPG WESTSHORE, LLC

WPG WOLF RANCH, LLC

WTM STOCKTON, LLC

By: Washington Prime Group Inc.

By: Washington Prime Group, L.P.

BOWIE MALL COMPANY, LLC

on behalf of itself, and as sole member of:

MARKLAND FEE OWNER LLC

MARKLAND MALL, LLC

By: Washington Prime Group Inc.

By:         Washington Prime Group, L.P.

JEFFERSON VALLEY CENTER, LLC

on behalf of itself, and as sole member of:

MALL AT JEFFERSON VALLEY, LLC

SOUTHERN HILLS MALL LLC

By:  Washington Prime Group, L.P., as its sole limited partner

By:         Washington Prime Group Inc., as its sole general partner

By:  KI-Henderson Square Associates, LLC, its sole general partner

KI-HENDERSON SQUARE ASSOCIATES, L.P.

By:  Washington Prime Group, L.P., as its sole limited partner

By:         Washington Prime Group Inc., its sole general partner

By:  KI-Whitemak Associates, LLC, as its sole general partner

WHITEMAK ASSOCIATES

By:  Royal Eagle Plaza II LLC, a general partner

By:  Royal Eagle Plaza LLC, a general partner

CORAL SPRINGS JOINT VENTURE

By: Simon MV, LLC, as their limited partner

By: Washington Prime Group, L.P., as their general partner

By: Washington Prime Group Inc., its sole general partner

MSA/PSI ALTAMONTE LIMITED PARTNERSHIP         

MSA/PSI OCALA LIMITED PARTNERSHIP

By:  MSA/PSI Ocala Limited Partnership, a general partner

By: Washington Prime Group, L.P., a general partner

By:         Washington Prime Group Inc., its general partner

By:  Washington Prime Group, L.P., a general partner

By: Washington Prime Group Inc., its general partner

C.C. OCALA JOINT VENTURE

By: C.C. Ocala Joint Venture, as its sole member

By:  Washington Prime Group, L.P., a general partner

By:         Washington Prime Group Inc., its sole general partner

By: Washington Prime Group Inc., a general partner

GAITWAY PLAZA, LLC

By: MSA/PSI Altamonte Limited Partnership, an Indiana limited partnership

By:    Washington Prime Group, L.P., a general partner

By:         Washington Prime Group Inc., its sole general partner

By: Washington Prime Group Inc., a general partner

C.C. ALTAMONTE JOINT VENTURE

By: MSA/PSI Westland Limited Partnership, its managing general partner

By:    Washington Prime Group, L.P., a general partner

By:         Washington Prime Group Inc., its sole general partner

By: Washington Prime Group Inc., a general partner

C.C. WESTLAND JOINT VENTURE

By: C.C. Altamonte Joint Venture, as its sole member

By:  Washington Prime Group, L.P. a general partner

By:         Washington Prime Group Inc., as its sole general partner

By: Washington Prime Group Inc., a general partner

WEST TOWN CORNERS, LLC

By: Washington Prime Properties, LLC, as its sole general partner

By: WPG Subsidiary Holdings I, LLC, as its sole limited partner

WASHINGTON PRIME PROPERTY LIMITED PARTNERSHIP

[All Consenting Stakeholder Signature Pages on File with the Debtors]

EXHIBIT B

Restructuring Term Sheet

Washington Prime Group
Restructuring Term Sheet

This term sheet (this “Term Sheet”) sets forth certain material terms of a proposed restructuring (the “Restructuring”) of Washington Prime Group, L.P. (“WPG LP”) and the other Company Parties listed on Annex A hereto (collectively, the “Company” or the “Debtors”). Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the DIP Credit Agreement, the New Term Loan Exit Facility Term Sheet, the Backstop Commitment Term Sheet, or the restructuring support agreement to which this Term Sheet will be attached (together with all exhibits and supplements attached thereto, including this Term Sheet, the “RSA”).¹

This Term Sheet does not include a description of all the terms, conditions, and other provisions that are to be contained in the definitive documentation governing the Restructuring, which remain subject to negotiation and completion in accordance with the RSA and applicable bankruptcy law. The documents executed to effectuate the Restructuring will not contain any material terms or conditions that are inconsistent in any material respect with this Term Sheet or the RSA.

This Term Sheet is neither an offer to buy or sell any security nor a solicitation of acceptances of a chapter 11 plan within the meaning of Section 1125 of the Bankruptcy Code. Any such offer or solicitation will comply with all applicable securities laws and provisions of the Bankruptcy Code. Nothing contained in this Term Sheet shall be an admission of fact or liability or, until the occurrence of the Plan Effective Date in the RSA, deemed binding on any of the parties hereto. Nothing herein constitutes an agreement, understanding or commitment to effectuate or implement a restructuring on the terms described herein or on any other terms.

EXHIBIT C

DIP Credit Agreement

CONFIDENTIAL AND PRIVILEGED ATTORNEY WORK PRODUCT

SUPERPRIORITY DEBTOR-IN-POSSESSION DELAYED DRAW TERM LOAN CREDIT AGREEMENT

dated as of

[__], 2021

among

WASHINGTON PRIME GROUP, L.P.,

WASHINGTON PRIME GROUP INC.

and

THE INSTITUTIONS FROM TIME TO TIME

PARTY HERETO AS LENDERS,

and

GLAS USA LLC and GLAS AMERICAS LLC,

AS ADMINISTRATIVE AGENT

TABLE OF CONTENTS

SUPERPRIORITY SECURED DEBTOR-IN-POSSESSION TERM LOAN AGREEMENT

This SUPERPRIORITY DEBTOR-IN-POSSESSION DELAYED DRAW TERM LOAN AGREEMENT, dated as of [__], 2021 (as amended, supplemented or modified from time to time, the “Agreement”), is entered into among WASHINGTON PRIME GROUP, L.P., an Indiana limited partnership, (the “Borrower”), WASHINGTON PRIME GROUP INC., an Indiana corporation, (the “Company”), the institutions from time to time parties hereto as Lenders, whether by execution of this Agreement or an Assignment and Acceptance, and GLAS USA LLC, as administrative agent, and GLAS AMERICAS LLC as collateral agent (in their capacities as administrative agent and collateral agent, and each successor agent appointed pursuant to the terms of Article XII of this Agreement, collectively, the “Administrative Agent”).

R E C I T A L S

WHEREAS, the Company, together with certain of its Subsidiaries (including the Borrower), has commenced voluntary cases (the “Chapter 11 Cases”) under Chapter 11 of the Bankruptcy Code (as hereinafter defined) in the United States Bankruptcy Court for the Southern District of Texas (Houston Division) (the “Bankruptcy Court”), and the Company and its Subsidiaries that are debtors in the Chapter 11 Cases (the “Debtors”) continue to operate their respective businesses and manage their properties as debtors-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code.

WHEREAS, the Borrower has asked the Lenders (as hereinafter defined) to provide it with a superpriority secured debtor-in-possession term loan credit facility, comprised of multi-draw term loans in an aggregate principal amount of up to $100,000,000. All of the Borrower’s obligations under the Term Facility are to be guaranteed by the Guarantors (as hereinafter defined).

WHEREAS, to provide security for repayment of the Loans (as hereinafter defined), and the payment of the other Obligations (as hereinafter defined) of the Loan Parties hereunder and under the Loan Documents (as hereinafter defined), the Loan Parties (as hereinafter defined) will provide and grant to the Administrative Agent, for its benefit and the benefit of the Lenders, certain rights and protections pursuant to the terms hereof, security interests and liens pursuant to Sections 364(c)(2) and/or 364(c)(3) of the Bankruptcy Code and superpriority administrative expense claims pursuant to Section 364(c)(1) of the Bankruptcy Code, in each case having the relative priorities, and other rights and protections, described herein and in the DIP Financing Orders.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

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

“Ad Hoc Group of Lenders” means those certain Lenders represented by Wachtell Lipton Rosen & Katz LLP.

“Administrative Agent” is defined in the preamble hereto.

“Administrative Agent Fee Letter” means that certain Administrative Agent Fee Letter, dated on or about the Closing Date, by and between the Administrative Agent and the Borrower, as amended and in effect from time to time.

“Administrative Agent Fees” has the meaning ascribed to such term in Section 5.3(a).

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate”, as applied to any Person, means any other Person that directly or indirectly controls, is controlled by, or is under common control with, that Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to vote fifteen percent (15.0%) or more of the equity Securities having voting power for the election of directors of such Person or otherwise to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting equity Securities or by contract or otherwise. For the avoidance of doubt, Simon Property Group, L.P., a Delaware limited partnership (“SPG”), shall not be considered an Affiliate of the Borrower by virtue of its performance of the management services performed by SPG on behalf of the Borrower and its Subsidiaries as described in the Registration Statement. In no event shall any Lender be deemed to be an Affiliate of the Borrower.

“Agent Parties” has the meaning assigned to it in Section 14.8(d).

“Agreement” is defined in the preamble hereto.

“Annual Compliance Certificate” is defined in Section 8.2(b).

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery, money-laundering or corruption.

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

“Applicable Margin” means (i) with respect to any Base Rate Loan, 3.25% per annum, and (ii) with respect to a Eurodollar Rate Loan, 4.25% per annum.

“Applicable Percentage” shall mean 100%.

“Approved Budget” shall mean the then most current budget prepared by the Borrower and delivered to the Administrative Agent, which shall be in form (but not in substance) reasonably satisfactory to the Requisite Lenders (it being understood that the form of such budget provided prior to the Closing Date is satisfactory to the Requisite Lenders).

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Approved Transactions” means each of the transactions listed on Schedule 9.14 hereto.¹

“Asset Disposition” means the sale, transfer, license, lease (as lessor) or other disposition of any Collateral including any sale and leaseback transaction, division, merger or disposition of Equity Interests (other than any issuance or sale by a Person of its own Equity Interests or other securities to another Person), whether in a single transaction or series of related transactions, by any Loan Party; provided that “Asset Disposition” shall exclude any Permitted Disposition.

“Assignment and Acceptance” means an Assignment and Acceptance in substantially the form of Exhibit A attached hereto and made a part hereof (with blanks appropriately completed) or such other form satisfactory to the Administrative Agent delivered to the Administrative Agent in connection with an assignment of a Lender’s interest under this Agreement in accordance with the provisions of Section 14.1.

“Authorized Financial Officer” means a chief executive officer, chief financial officer, chief accounting officer, treasurer or other qualified senior officer acceptable to the Requisite Lenders.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of any Affected Financial Institution.

“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their Affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent (acting at the direction of the Requisite Lenders), has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

“Base Eurodollar Rate” means, with respect to any Borrowing of Eurodollar Rate Loans in Dollars and for any applicable Interest Period, the London interbank offered rate or comparable successor rate approved by the Requisite Lenders for Dollars for a period equal in length to such Interest Period as published on the applicable Bloomberg screen page (or, in the event such rate does not appear on such Bloomberg page, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Requisite Lenders from time to time in its reasonable discretion (the “LIBOR Screen Rate”)) as of 11:00 a.m., London time on the Quotation Day for such Interest Period; provided that if such rate is less than 0.75%, such rate shall be deemed to be 0.75% for purposes of this Agreement and provided further that to the extent a comparable or successor rate is approved by the Requisite Lenders in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Requisite Lenders.

¹ To include transactions in preparation of the exit corporate structure.

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

(i)    the rate of interest announced publicly by the Administrative Agent from time to time, as the Administrative Agent’s prime rate;

(ii)    the sum of (A) one-half of one percent (0.50%) per annum plus (B) the Federal Funds Rate in effect from time to time during such period; and

(iii)    the sum of (A) the one month Base Eurodollar Rate in effect on such day (or if such day is not a Business Day, the immediately preceding Business Day) (the “Daily LIBOR Rate”) plus (B) one percent (1%) per annum.

“Base Rate Loan” means (i) a Loan denominated in Dollars which bears interest at a rate determined by reference to the Base Rate and the Applicable Margin as provided in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan immediately before it became due.

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to Base Eurodollar Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 0.75%, the Benchmark Replacement will be deemed to be 0.75% for the purposes of this Agreement.

“Benchmark Replacement Adjustment” means, with respect to any replacement of Base Eurodollar Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Requisite Lenders and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of Base Eurodollar Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of Base Eurodollar Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Requisite Lenders decide may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Requisite Lenders determine that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent and Requisite Lenders decide is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the Eurodollar Rate: (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of the Eurodollar Rate permanently or indefinitely ceases to provide the Eurodollar Rate; and (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which such public statement or publication has deemed the Eurodollar Rate to be no longer representative.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the Eurodollar Rate: (a) a public statement or publication of information by or on behalf of the administrator of the Eurodollar Rate announcing that such administrator has ceased or will cease to provide the Eurodollar Rate, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Eurodollar Rate; (b) a public statement or publication of information by the regulatory supervisor for the administrator of the Eurodollar Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the Eurodollar Rate, a resolution authority with jurisdiction over the administrator for the Eurodollar Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the Eurodollar Rate, which states that the administrator of the Eurodollar Rate has ceased or will cease to provide the Eurodollar Rate permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Eurodollar Rate; or (c) a public statement or publication of information by the regulatory supervisor for the administrator of the Eurodollar Rate announcing that the Eurodollar Rate is no longer representative and such changes are unlikely to be temporary.

“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the forty-fifth (45th) day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than forty-five (45) days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Requisite Lenders, as applicable, and, in each case, consented to by the Borrower in writing (such consent not to be unreasonably withheld, conditioned or delayed), and notified in writing to the Administrative Agent (in the case of such notice by the Requisite Lenders) and the Lenders.

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Eurodollar Rate and solely to the extent that the Eurodollar Rate has not been replaced with a Benchmark Replacement, the period (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the Eurodollar Rate for all purposes hereunder in accordance with Section 2.4 and (b) ending at the time that a Benchmark Replacement has replaced the Eurodollar Rate for all purposes hereunder pursuant to Section 2.4.

“Beneficial Owner” has the meaning given to that term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will not be deemed to have beneficial ownership of any securities that such “person” has the right to acquire or vote only upon the happening of any future event or contingency (including the passage of time) that has not yet occurred. The terms “Beneficial Ownership”, “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Benefit Plans” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“Board” means the Board of Governors of the Federal Reserve System of the United States of America.

“Borrower” is defined in the preamble hereto.

“Borrowing” means a borrowing consisting of Loans of the same type made, continued or converted on the same day.

“Business Activity Report” means (i) an Indiana Business Activity Report from the Indiana Department of Revenue, Compliance Division, (ii) a Notice of Business Activities Report from the State of New Jersey Division of Taxation, (iii) a Minnesota Business Activity Report from the Minnesota Department of Revenue, or (iv) a similar report to those referred to in clauses (i) through (iii) hereof with respect to any jurisdiction where the failure to file such report would have a Material Adverse Effect.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; and when used in connection with a Eurodollar Rate Loan, the term “Business Day” shall also exclude any day on which banks are not open for general business in London.

“Capital Lease” means any lease of any property (whether real, personal or mixed) by a Person as lessee which is accounted for as a capital lease on the balance sheet of that Person in conformity with GAAP as in effect on December 31, 2018 (it being understood that all obligations of the Borrower and its Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on the December 31, 2018 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capital Lease) for purposes of this Agreement regardless of any change in GAAP following December 31, 2018 that would otherwise require such obligation to be recharacterized as a Capital Lease, to the extent that financial reporting shall not be affected hereby).

“Capital Stock” means, with respect to any Person, any capital stock of such Person (if a corporation), and all equivalent ownership interests in such Person (other than a corporation), 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.

“Carve Out” means the Carve Out as set forth in the DIP Financing Orders.

“Cash Management Order” means the interim or final (as the context may require) order of the Bankruptcy Court, in each case reasonably satisfactory in form and substance to the Requisite Lenders, relating to cash management.

“Cash and Cash Equivalents” means (i) cash, (ii) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government; and (iii) domestic and Eurodollar certificates of deposit and time deposits, bankers’ acceptances and certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, or the District of Columbia, any foreign bank, or its branches or agencies, which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s; provided that the maturities of such Cash and Cash Equivalents shall not exceed one year.

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

“Change in Law” means the occurrence after the date of this Agreement (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of any of the following: (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender (or, for purposes of Section 13.2, by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated, implemented or issued by the applicable Governmental Authority or other body, agency or authority having jurisdiction; provided, however, that if the applicable Lender shall have implemented changes prior to the date hereof in response to any such requests, rules, guidelines or directives, then the same shall not be deemed to be a Change in Law with respect to such Lender.

“Chapter 11 Cases” has the meaning assigned to such term in the recitals.

“Charges” is defined in Section 14.23.

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

“Closing Date” means [__], 2021.

“Collateral” means all “DIP Collateral” referred to in the DIP Financing Orders, including the Principal DIP Collateral Properties and the Principal DIP Pledged Equity (each as defined in the DIP Financing Orders), all other property that is subject to any Lien in favor of the Administrative Agent for the benefit of the Secured Parties and any and all assets (including Equity Interests), whether real, personal or mixed, tangible or intangible, on which Liens are purported to be granted pursuant to the applicable DIP Financing Order or any other security instrument as security for the Obligations, and all proceeds thereof. Notwithstanding the foregoing, Collateral shall not include property that constitutes Excluded Assets (but shall include the proceeds of Excluded Assets to the extent such proceeds would independently constitute Collateral).

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

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

“Commitments” means, for any Lender, the commitment of such Lender to make Loans pursuant to Section 2.1, in the amount set forth on Schedule 1.1, as modified in any applicable Assignment and Acceptance and subject to any adjustment or reduction pursuant to the terms and conditions of this Agreement. The aggregate amount of all Lenders’ Commitments on the Closing Date is $100,000,000 (the “Total Commitment”).

“Communications” is defined in Section 14.8(d).

“Company” is defined in the preamble hereto.

“Compliance Certificates” is defined in Section 8.2(b).

“Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period), established in accordance with:

(i)    the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining Compounded SOFR; and

(ii)    if, and to the extent that, the Administrative Agent and the Borrower reasonably determine that Compounded SOFR cannot be determined in accordance with clause (i) above, then the rate, or methodology for this rate, and conventions for this rate that the Administrative Agent (acting at the direction of the Requisite Lenders) and the Borrower reasonably determine are substantially consistent with any evolving or then-prevailing market convention for determining Compounded SOFR for Dollar-denominated syndicated credit facilities at such time.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated” means consolidated, in accordance with GAAP.

“Consolidated Businesses” means the General Partner, the Borrower and their Wholly-Owned Subsidiaries.

“Contaminant” means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste, radioactive materials, asbestos (in any form or condition), polychlorinated biphenyls (PCBs), or any constituent of any such substance or waste, and includes, but is not limited to, these terms as defined in federal, state or local laws or regulations.

“Contingent Obligation” as to any Person means, without duplication, (i) any contingent obligation of such Person required to be shown on such Person’s balance sheet in accordance with GAAP, and (ii) any obligation required to be disclosed in the footnotes to such Person’s financial statements in accordance with GAAP, guaranteeing partially or in whole any non-recourse Indebtedness, lease, dividend or other obligation, exclusive of contractual indemnities (including, without limitation, any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets) and guarantees of non-monetary obligations (other than guarantees of completion and environmental indemnities given in conjunction with a mortgage financing) which have not yet been called on or quantified, of such Person or of any other Person. The amount of any Contingent Obligation described in clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or interest and principal, or operating income guaranty, the sum of all payments required to be made thereunder (which in the case of an operating income guaranty shall be deemed to be equal to the debt service for the note secured thereby), calculated at the interest rate applicable to such Indebtedness, through (i) in the case of an interest or interest and principal guaranty, the stated date of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (ii) in the case of an operating income guaranty, the date through which such guaranty will remain in effect, and (b) with respect to all guarantees not covered by the preceding clause (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and on the footnotes to the most recent financial statements of the applicable Borrower required to be delivered pursuant hereto. Notwithstanding anything contained herein to the contrary, guarantees of completion, standard “bad boy” recourse guarantees and environmental indemnities shall not be deemed to be Contingent Obligations unless and until a claim for payment has been made thereunder, at which time any such guaranty of completion, standard “bad boy” recourse guaranty or environmental indemnity shall be deemed to be a Contingent Obligation in an amount equal to any such claim. Subject to the preceding sentence, (i) in the case of a joint and several guaranty given by such Person and another Person (but only to the extent such guaranty is recourse, directly or indirectly to the applicable Person), the amount of the guaranty shall be deemed to be 100% thereof unless and only to the extent that (X) such other Person has delivered Cash and Cash Equivalents to secure all or any part of such Person’s guaranteed obligations or (Y) such other Person holds an Investment Grade Credit Rating from either Moody’s or S&P, in which case the amount of the guaranty shall be deemed to be equal to such Person’s pro rata share thereof, as reasonably determined by Borrower, and (ii) in the case of a guaranty, (whether or not joint and several) of an obligation otherwise constituting Indebtedness of such Person, the amount of such guaranty shall be deemed to be only that amount in excess of the amount of the obligation constituting Indebtedness of such Person. Notwithstanding anything contained herein to the contrary, “Contingent Obligations” shall not be deemed to include guarantees of loan commitments or of construction loans to the extent the same have not been drawn.

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

“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the then-current Benchmark.

“Credit Extension” is defined in Section 5.2(e)(iv).

“Cure Loans” is defined in Section 4.2(b)(iv)(C).

“Customary Non-Recourse Carve-Outs” means fraud, misrepresentation, misapplication of cash from any source, waste, environmental claims and liabilities, nonpayment of real estate taxes or insurance premiums, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements.

“Customary Permitted Liens” means

(i)    Liens (other than Environmental Liens and Liens in favor of the PBGC) with respect to the payment of taxes, assessments or governmental charges in all cases which are not yet delinquent or which are being contested in good faith by appropriate proceedings in accordance with Section 9.4 and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with GAAP;

(ii)    statutory Liens of landlords against any Property of the Borrower or any of its Subsidiaries and Liens against any Property of the Borrower or any of its Subsidiaries in favor of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other Liens against any Property of the Borrower or any of its Subsidiaries imposed by law created in the ordinary course of business for amounts which, if not resolved in favor of the Borrower or such Subsidiary, (A) if such Lien is against any Principal DIP Collateral Property, could not materially and adversely affect the value or operation of such Property, or (B) if such Lien is not against any Principal DIP Collateral Property, could not result in a Material Adverse Effect;

(iii)    Liens (other than any Lien in favor of the PBGC) incurred or deposits made in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money), surety, appeal and performance bonds; provided that (A) all such Liens do not in the aggregate materially detract from the value of the Borrower’s or such Subsidiary’s assets or Property or materially impair the use thereof in the operation of their respective businesses, and (B) all Liens of attachment or judgment and Liens securing bonds to stay judgments or in connection with appeals do not secure at any time an aggregate amount of recourse Indebtedness exceeding $12,500,000; and

(iv)    Liens against any Property of the Borrower or any Subsidiary of the Borrower arising with respect to zoning restrictions, building laws, easements, licenses, reservations, covenants, conditions, restrictions, rights-of-way, utility easements, building restrictions, rights of tenants under written leases and other similar charges or encumbrances on the use of real property which, (A) if such Lien is against any Principal DIP Collateral Property, could not materially and adversely affect the value or operation of such Property and (B) if such Lien is not against any Principal DIP Collateral Property, could not affect the value of such Property or interfere with the ordinary course of business of the Borrower or any of its Subsidiaries in a manner which could result in a Material Adverse Effect; and

(v)    Liens set forth on the title insurance commitments delivered or made available to the Requisite Lenders prior to the date of this Agreement (provided that the Company will use commercially reasonable efforts to remove those Liens listed as exceptions to title included on Schedule E hereto as promptly as practicable following the Closing Date).

“Daily LIBOR Rate” is defined in the definition of “Base Rate”.

“Debt Issuance” means the issuance of any Indebtedness (including guarantees thereof) for borrowed money by any Loan Party or any of its Subsidiaries, which shall include, without limitation, the issuance or offering of secured or unsecured notes, mortgage loans, the borrowing of incremental loans under a revolving credit or term loan facility pursuant to new commitments provided after the Closing Date and any refinancings of such Indebtedness.

“Debtors” is defined in the Recitals hereto.

“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to the Administrative Agent or any Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, or, in the case of clause (iii) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith dispute with the amount of such payment (specifically identified), (b) has notified the Borrower or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent or the Borrower acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such person’s receipt of such certification in form and substance reasonably satisfactory to it and the Administrative Agent, or (d) has become the subject of a (i) Bankruptcy Event or (ii) a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of an equity interest in that Lender of any direct or indirect parent company thereof by a Governmental Authority.

“DIP Financing Orders” means the Interim DIP Financing Order and the Final DIP Financing Order.

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

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

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

“Early Opt-in Election” means the occurrence of (1) (i) a determination by the Administrative Agent or (ii) a notification by the Requisite Lenders to the Administrative Agent (with a copy to the Borrower) that the Requisite Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 2.4 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Eurodollar Rate, and (2) (i) the election by the Administrative Agent and the Borrower or (ii) the election by the Requisite Lenders with the written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent and the Borrower of written notice of such election to the Lenders or by the Requisite Lenders and the Borrower of written notice of such election to the Administrative Agent and the other Lenders.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition and is subject to the supervision of an EEA Resolution Authority, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision of an EEA Resolution Authority with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.

“Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security measures.

“Eligible Assignee” means (i) a Lender (other than a Defaulting Lender) and its Affiliates and Approved Funds (other than an Approved Fund qualifying as such by virtue of its relationship with a Defaulting Lender); (ii) a commercial bank having total assets in excess of $2,500,000,000; (iii) the central bank of any country which is a member of the Organization for Economic Cooperation and Development; or (iv) an investment fund, finance company or other financial institution which is regularly engaged in making, purchasing or investing in loans; provided that an Ineligible Institution shall not be an Eligible Assignee.

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

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

“Environmental, Health or Safety Requirements of Law” means all Requirements of Law (including common law) relating to, imposing liability or standards concerning, or otherwise addressing the environment, health and/or safety, including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA, RCRA, any so-called “Superfund” or “Superlien” law, the Toxic Substances Control Act and OSHA, and public health codes, each as from time to time in effect.

“Equipment” means equipment used in connection with the maintenance of Projects and Properties.

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such shares or interests.

“Equity Issuance” means (a) any issuance by the Company, the Borrower and any other Loan Party of shares of its Equity Interests to any Person that is not the Company or any other Loan Party (including in connection with the exercise of options or warrants or the conversion of any debt securities to equity and including any equity-linked securities and convertible debt securities) and (b) any capital contribution to the Company, the Borrower or any other Loan Party from any Person that is not a Loan Party. For all purposes under this Agreement, the term “Equity Issuance” shall not include (A) any Asset Disposition or (B) any Debt Issuance.

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

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

“ERISA Termination Event” means (i) a Reportable Event with respect to any Plan; (ii) the withdrawal of the Borrower or any ERISA Affiliate from a Plan during a plan year in which the Borrower or such ERISA Affiliate was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or the cessation of operations which results in the termination of employment of 20% of Plan participants who are employees of the Borrower or any ERISA Affiliate; (iii) the imposition of an obligation on the Borrower or any ERISA Affiliate under Section 4041 of ERISA to provide affected parties written notice of intent to terminate a Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to terminate a Plan; (v) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; or (vi) the partial or complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan.

“Erroneous Payment” has the meaning assigned to it in Section 12.18(a).

“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 12.18(d).

“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 12.18(d).

“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 12.18(d).

“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 12.18(d).

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

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

“Eurodollar Interest Period” is defined in Section 5.2(b)(i).

“Eurodollar Interest Rate Determination Date” is defined in Section 5.2(c).

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

“Eurodollar Rate” means, with respect to any Eurodollar Interest Period applicable to a Eurodollar Rate Loan, an interest rate per annum obtained by dividing (i) the Base Eurodollar Rate applicable to that Eurodollar Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve Percentage in effect on the relevant Eurodollar Interest Rate Determination Date.

“Eurodollar Rate Loan” means (i) a Loan which bears interest at a rate determined by reference to the Eurodollar Rate and the Applicable Margin for Eurodollar Rate Loans or (ii) an overdue amount which was a Eurodollar Rate Loan immediately before it became due.

“Eurodollar Reserve Percentage” means, for any day, that percentage which is in effect on such day, as prescribed by the Federal Reserve Board for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York, New York with deposits exceeding five billion Dollars in respect of “Eurocurrency Liabilities” (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Rate Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any bank to United States residents).

“Event of Default” means any of the occurrences set forth in Section 11.1 after the expiration of any applicable grace period and the giving of any applicable notice, in each case as expressly provided in Section 11.1.

“Excluded Assets” means (a) any property to the extent that the grant of a security interest thereon shall constitute or result in a breach of, a default under, an invalidation of, a termination of, or the unenforceability of any right of any Person under, any agreement related to such property or requires the consent of, creates recourse liability in favor of, or creates a right of termination in favor of, any Person (other than the Loan Parties), (b) any property to the extent that the grant of a security interest thereon would be prohibited by applicable law, treaty, rule or regulation or a court or a Governmental Authority would be required to grant consent, license or approval (but excluding the proceeds thereof, to the extent the assignment of such proceeds is not prohibited by applicable law and does not require the consent, license or approval of such Governmental Authority); provided, however, that the Collateral shall include (and such security interest shall attach) immediately at such time as the contractual or legal provisions referred to above shall no longer be applicable; provided, further, that the exclusions referred to above shall not apply to the extent that such laws, rules, regulations, agreements, terms or provisions referred to therein would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York Uniform Commercial Code or the uniform commercial code of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity) or (c) any property included on Schedule C; provided that any cash proceeds of any property that otherwise constitutes Collateral which are deposited in any of the accounts described in Schedule C shall not constitute Excluded Assets.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office located in or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 13.1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 13.1(f), and any U.S. Federal withholding Taxes imposed under FATCA.

“Extended Maturity Date” means [___], 2022²; provided that with the consent of all Lenders, the Extended Maturity Date may be extended by an additional three months from the date such consent is given.

“Extension Request” means an Extension Request in substantially the form of Exhibit E attached hereto and defined in Section 2.3(a).

“Facility” means the Term Facility.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as in effect as of the date of this Agreement (or any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Administrative Agent on such day on such transactions as determined by the Administrative Agent.

² To be 9-months following the Closing Date.

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

“Fee Letter” means the Administrative Agent Fee Letter.

“Fees” means the (1) Administrative Agent Fees and (2) such other fees as set forth in Section 5.3.

“Final DIP Financing Order” shall mean an order, substantially in the form of the Interim DIP Financing Order and otherwise satisfactory in form and substance to the Requisite Lenders and the Debtors (and the Administrative Agent, with respect to any provision that affects the rights, obligations, liabilities or duties of the Administrative Agent), entered by the Bankruptcy Court approving this Agreement on a final basis under the Bankruptcy Code, which order has not been reversed, modified or stayed and is not otherwise subject to a timely filed motion that the Borrower has failed to object to for a stay, rehearing, reconsideration, appeal or any other review without the consent of the Requisite Lenders (which consent of the Requisite Lenders may be communicated via an email from any counsel representing the Requisite Lenders).

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

“First Day Orders” means all interim or final (as the context may require) orders of the Bankruptcy Court (other than the Interim DIP Financing Order), reasonably satisfactory in form and substance to the Requisite Lenders, relating to (i) critical vendors, (ii) tenant obligations, (iii) shippers, warehousemen and lienholders, (iv) 503(b)(9) claimants, (v) customer programs, (vi) insurance,(vii) tax claims, (viii) tax attributes, (ix) utilities, (x) wages and employee benefits, (xi) cash management, (xii) case management, (xiii) joint administration, (xiv) extension of time to file schedules and statements of financial affairs, and (xv) any other pleading the Loan Parties deem necessary or advisable to file the Chapter 11 Cases, including the Cash Management Order.

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

“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

“Funding Date” means each date on or after the Closing Date on which Loans under this Agreement are made by the Lenders to the Borrower.

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

“General Partner” means the Company and any successor general partner(s) of the Borrower.

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

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

“Guaranty” means the Guaranty dated as of the Closing Date from the Company and the other Guarantors in favor of the Administrative Agent for the benefit of the Secured Parties.

“Guarantors” means the Company and the Subsidiaries of the Borrower listed on Schedule A and any Subsidiaries of the Company that become Guarantors after the Closing Date pursuant to Section 9.11.

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

“Improvements” is defined in Section 2.6.

“Indebtedness”, as applied to any Person, means, at any time, without duplication, (a) all indebtedness, obligations or other liabilities of such Person (whether consolidated or representing the proportionate interest in any other Person) (i) for borrowed money (including construction loans) or evidenced by debt securities, debentures, acceptances, notes or other similar instruments, (ii) under profit payment agreements or in respect of obligations to redeem, repurchase or exchange any Securities of such Person or to pay dividends that have been declared with respect to any stock, (iii) with respect to letters of credit issued for such Person’s account, (iv) to pay the deferred purchase price of property or services, except accounts payable and accrued expenses arising in the ordinary course of business, (v) in respect of Capital Leases, (vi) which are Contingent Obligations or (vii) under warranties and indemnities; (b) all indebtedness, obligations or other liabilities of such Person or others secured by a Lien on any property of such Person, whether or not such indebtedness, obligations or liabilities are assumed by such Person, all as of such time; (c) all indebtedness, obligations or other liabilities of such Person in respect of interest rate contracts and foreign exchange contracts, net of liabilities owed to such Person by the counterparties thereon; (d) all preferred Equity Interests subject (upon the occurrence of any contingency or otherwise) to mandatory redemption and conversion (other than a redemption or conversion to other Equity Interests), provided that, for the avoidance of doubt, the existence of a customary forced sale provision available to an equity holder in a joint venture arrangement (including an Approved Transaction) does not constitute a mandatory redemption or conversion for purposes hereof; and (e) all contingent Contractual Obligations with respect to any of the foregoing.

“Indemnified Matters” is defined in Section 14.3.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitees” is defined in Section 14.3.

“Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or any Affiliate thereof, and (c) the Borrower or any of its Affiliates.

“Insurance and Condemnation Event” means the receipt by any Loan Party or any of its Subsidiaries of any cash casualty insurance proceeds (for clarity, excluding insurance proceeds for financial (and not property) losses, such as business interruption insurance proceeds) or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective real or personal property that constitutes Collateral.

“Insurance Order” means the interim or final (as the context may require) order of the Bankruptcy Court, in each case reasonably satisfactory in form and substance to the Requisite Lenders, relating to the maintenance and continuation of Debtors’ insurance policies.

“Interest Period” is defined in Section 5.2(b).

“Interim DIP Financing Order” shall mean an order, in substantially the form attached hereto as Exhibit F and otherwise satisfactory in form and substance to the Requisite Lenders and the Debtors (and the Administrative Agent, with respect to any provision that affects the rights, obligations, liabilities or duties of the Administrative Agent), entered by the Bankruptcy Court approving this Agreement on an interim basis under the Bankruptcy Code, which order is not subject to a stay, injunction or other limitation not approved by the Requisite Lenders (which satisfaction may be communicated in each case via an email from any counsel representing the Requisite Lenders).

“Interim Period” means the time period commencing on the date of the Bankruptcy Court’s entry of the Interim DIP Financing Order and ending on (but excluding) the earlier to occur of (i) the Bankruptcy Court’s entry of the Final DIP Financing Order and (ii) the Maturity Date.

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

“Investment” means, with respect to any Person, (i) any purchase or other acquisition by that Person of Securities, or of a beneficial interest in Securities, issued by any other Person, (ii) any purchase by that Person of all or substantially all of the assets of a business conducted by another Person, and (iii) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable, advances to employees and similar items made or incurred in the ordinary course of business) or capital contribution by that Person to any other Person, including, without limitation, all Indebtedness to such Person arising from a sale of property by such Person other than in the ordinary course of its business. The amount of any Investment shall be determined in accordance with GAAP.

“Investment Grade Credit Rating” means (i) a Credit Rating of Baa3 or higher given by Moody’s, (ii) a Credit Rating of BBB- or higher given by S&P or (iii) a Credit Rating of BBB- or higher given by Fitch.

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

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

“Land” is defined in Section 2.6.

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

“Lender” means each financial institution a signatory hereto as a Lender as of the Closing Date and, at any other given time, each financial institution which is a party hereto as a Lender, whether as a signatory hereto or pursuant to an Assignment and Acceptance, and regardless of the capacity in which such entity is acting.

“Lender Parties” means the Administrative Agent, each of the Lenders, and each of the Lenders, and each of the foregoing’s Related Parties.

“Lender Advisors” shall mean (x) the Specified Lender Advisors, and (y) any other financial advisor, auditor, attorney, accountant, appraiser, auditor, business valuation expert, environmental engineer or consultant, turnaround consultant, and other consultants, professionals and experts reasonably retained by any of (i) SVP, (ii) the Administrative Agent or (iii) the Ad Hoc Group of Lenders, in each case in connection with the Transactions contemplated hereby.

“Lending Office” is defined in Section 5.2(e)(iv).

“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 expenses and costs of investigation, feasibility or Remedial Action studies), fines, penalties and monetary sanctions, interest, direct or indirect, absolute or contingent, past, present or future.

“LIBOR Screen Rate” is defined in the definition of “Base Eurodollar Rate”.

“LIBOR Successor Rate” is defined in Section 5.2(d)(i).

“LIBOR Successor Rate Conforming Changes” is defined in Section 5.2(d)(i).

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, conditional sale agreement, deposit arrangement, security interest, encumbrance, lien (statutory or other and including, without limitation, any Environmental Lien), preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever in respect of any property of a Person, whether granted voluntarily or imposed by law, and includes the interest of a lessor under a Capital Lease or under any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement or similar notice (other than a financing statement filed by a “true” lessor pursuant to § 9-505 of the Uniform Commercial Code), naming the owner of such property as debtor, under the Uniform Commercial Code or other comparable law of any jurisdiction.

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

“Loan Account” is defined in Section 4.3(b).

“Loan Documents” means this Agreement, the Fee Letter, the Collateral Documents, the DIP Financing Orders and any waivers, consents or amendments hereto, the Notes, the Guaranty and all other instruments, agreements and written Contractual Obligations, designated as being Loan Documents, between any Loan Party and any of the Lenders pursuant to or in connection with the transactions contemplated hereby.

“Loan Parties” means the Borrower and the Guarantors.

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

“Management Company” means, collectively, (i) the Borrower and its wholly-owned (directly or indirectly) or controlled (directly or indirectly) Subsidiaries, and (ii) such other property management companies controlled (directly or indirectly) by the Company for which the Borrower has previously provided the Administrative Agent with: (1) notice of such property management company, and (2) evidence reasonably satisfactory to the Administrative Agent (acting at the direction of the Requisite Lenders) that such property management company is controlled (directly or indirectly) by the Company.

“Mandatory Prepayment Event” means any event triggering the prepayment requirement under clauses (i) through and including (iii) of Section 4.1(b).

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

“Material Adverse Effect” means a material adverse effect upon (i) the financial condition or assets of (x) the Borrower and its Subsidiaries taken as a whole or (y) the Loan Parties (taken as a whole), (ii) the ability of the Borrower or any other Loan Party to perform its obligations under the Loan Documents, or (iii) the ability of the Lenders or the Administrative Agent to enforce any of the Loan Documents; provided that the determination of the existence of a “Material Adverse Effect” under either clause (i) or (ii) of this definition shall exclude any event or circumstance resulting from the COVID-19 pandemic to the extent that such event or circumstance (x) has been disclosed in writing by the Borrower to the Lenders prior to the Closing Date or (y) has been publicly disclosed in the reports and other documents furnished to or filed with the Securities and Exchange Commission on or prior to the Closing Date; provided, further that none of (i) the commencement of the Chapter 11 Cases, the events and conditions leading up to the Chapter 11 Cases, any matters publicly disclosed prior to the filings of the Chapter 11 Cases or their reasonably anticipated consequences or (ii) the actions required to be taken by any Loan Party pursuant to the Loan Documents or the DIP Financing Orders shall constitute a “Material Adverse Effect” for any purpose.

“Maturity Date” means the earliest of (a) the later of [__], 2021³ (the “Initial Maturity Date”) and, if the Extension Request has become effective pursuant to Section 2.3(a), the Extended Maturity Date, (b) the effective date of a Plan of Reorganization, (c) the date on which the Loan Parties consummate a sale of all or substantially all of the assets of the Loan Parties pursuant to Section 363 of the Bankruptcy Code or otherwise, and (d) the date on which the Loans shall become due and payable by acceleration or otherwise in accordance with the terms of this Agreement or the DIP Financing Orders.

“Maximum Rate” is defined in Section 14.23.

“Minority Holdings” means interests in partnerships, joint ventures, limited liability companies and corporations held or owned by the Borrower or a General Partner or their respective Subsidiaries which are not wholly-owned, directly or indirectly, by the Borrower or a General Partner.

“MIS” means a computerized management information system for recording and maintenance of information regarding purchases, sales, aging, categorization, and locations of Properties, creation and aging of receivables, and accounts payable (including agings thereof).

“Monthly/Quarterly Compliance Certificates” is defined in Section 8.2(b).

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

“Mortgage Collateral Deliverables” means, with respect to each Principal DIP Collateral Property (except as set forth herein), the following items, each to be delivered upon the request of the Administrative Agent:

(a)    a mortgage, deed of trust or deed to secure debt in recordable form or the Final DIP Financing Order entered by the Bankruptcy Court, in form suitable for filing or recording in all filing or recording offices, in each case in a form sufficient to create a valid first and subsisting Lien (subject to Customary Permitted Liens and Liens expressly permitted thereunder or hereunder) on the collateral described therein in favor of the Administrative Agent for the benefit of the Secured Parties, and evidence that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties;

(b)    an American Land Title Association Lender’s title insurance commitment from First American Title Insurance Company which (i) evidence a Mortgage Party as the record owner of the applicable Mortgaged Property and (ii) discloses no Liens other than Customary Permitted Liens;

(c)    evidence as to payment in full of any applicable mortgage recording, stamp, intangible taxes and other mortgage filing fees;

(d)    an ALTA/NSPS land title survey of such Property based on the Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys dated within twelve (12) months of the Closing Date certified to the Administrative Agent prepared by a duly licensed and registered land surveyor and containing customary Table A items (excluding Table A items that would require unreasonable expense or time to complete), and in addition showing any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations (provided the surveys delivered to the Administrative Agent for the Principal DIP Collateral Properties described on Schedule D are deemed acceptable for the purposes of this definition);

³ Six months after the Closing Date.

(e)    an appraisal of such Property; and

(f)    a zoning report prepared by third-party vendor or such other evidence regarding zoning and land use.

“Mortgage Parties” means the Loan Parties that own the Mortgaged Properties.

“Mortgaged Properties” means individual or collectively, as applicable, any Collateral consisting of real property in which a Lien has been created pursuant to the DIP Financing Orders in favor of the Administrative Agent (for the benefit of the Secured Parties).

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years was, contributed to by either the Borrower or any ERISA Affiliate or in respect of which the Borrower or any ERISA Affiliate has assumed any liability.

“Net Cash Proceeds” means, as applicable, (a) with respect to any Asset Disposition or Insurance and Condemnation Event, (1) all cash proceeds (including Cash and Cash Equivalents) received by any Loan Party or any of its Subsidiaries therefrom (including any Cash and Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise), as and when received in connection with such transaction or event less the sum of (2) (i) any Taxes paid, assessed by, or reasonably estimated to be payable or accrued to, a Governmental Authority as a result of such transaction or event (provided that if estimated Taxes exceed the amount of actual Taxes required to be paid in cash in respect of such Asset Disposition, the amount of such excess shall constitute Net Cash Proceeds if greater than $50,000), (ii) all reasonable and customary out-of-pocket fees and expenses incurred in connection with such transaction or event (including, without limitation, to the extent reasonable and customary, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable law, broker’s fees or commissions, discounts, transfer taxes, legal fees, consulting fees, title insurance costs paid in connection therewith, survey costs and mortgage recording Tax paid in connection therewith, and costs and expenses in connection with unwinding any derivatives contract in connection therewith), and (iii) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for any liabilities associated with such transaction or event, to the extent such reserve is established in accordance with GAAP or as otherwise required pursuant to the documentation with respect to such Asset Disposition or Insurance and Condemnation Event, (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale or other disposition, (D) for the payment of indemnification obligations, and (E) for amounts to be invested in the redevelopment of the subject Property as required pursuant to the documentation with respect to such Asset Disposition or Insurance and Condemnation Event; provided that, to the extent and at the time any such amounts are released from such reserve and received by such Loan Party or any of its Subsidiaries, such amounts shall constitute Net Cash Proceeds, and (b) with respect to any Equity Issuance or Debt Issuance, (1) all cash proceeds received by any Loan Party or any of its Subsidiaries therefrom less the sum of (2) (i) all Taxes required to be paid in connection therewith, (ii) all reasonable and customary out-of-pocket fees and expenses incurred in connection with such transaction or event (including, without limitation, to the extent reasonable and customary, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable law, broker’s fees or commissions, underwriting fees, costs, discounts, transfer taxes, legal fees, consulting fees, title insurance costs paid in connection therewith, survey costs and mortgage recording Tax paid in connection therewith, and costs and expenses in connection with unwinding any derivatives contract in connection therewith) and (iii) amounts required to be deposited or maintained in segregated accounts as reserves in connection therewith. Net Cash Proceeds received by any Subsidiary of the Company other than a Wholly-Owned Subsidiary of the Company shall equal a percentage of the Net Cash Proceeds received by such Subsidiary pursuant to clause (a) or (b) above equal to the percentage that corresponds to the Loan Parties’ aggregate ownership share of such Subsidiary (or, if less, the amount permitted to be distributed by the Organizational Documents of such Subsidiary as in effect on the Closing Date (as amended or modified in accordance herewith)).

“Net Cash Proceeds Receipt Date” means, with respect to any Mandatory Prepayment Event, the date of receipt by a Loan Party or its Subsidiaries of Net Cash Proceeds from such Mandatory Prepayment Event.

“Non Pro Rata Loan” is defined in Section 4.2(b)(iv).

“Non-Debtors” means the Subsidiaries of the Borrower that are not Debtors.

“Non-Recourse Indebtedness” means Indebtedness with respect to which recourse for payment is limited to (i) specific assets related to a particular Property or group of Properties encumbered by a Lien securing such Indebtedness or (ii) any Subsidiary (provided that if a Subsidiary is a partnership, there is no recourse to the Borrower, the General Partner as a general partner of such partnership or the Mortgage Parties); provided, however, that personal recourse of the Borrower or the General Partner for any such Indebtedness for Customary Non-Recourse Carve-Outs in non-recourse financing of real estate shall not, by itself, prevent such Indebtedness from being characterized as Non-Recourse Indebtedness.

“Note” means a promissory note in the form attached hereto as Exhibit B payable to the order of a Lender, evidencing certain of the Obligations of the Borrower to such Lender and executed by the Borrower as required by Section 4.3(a), as the same may be amended, supplemented, modified or restated from time to time; “Notes” means, collectively, all of such Notes outstanding at any given time.

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

“Notice of Conversion/Continuation” means a written notice substantially in the form of Exhibit D attached hereto and made a part hereof or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a responsible officer of the Borrower, with respect to a proposed conversion or continuation of a Loan pursuant to Section 5.1(c).

“Obligations” means all Loans, advances, debts, liabilities, obligations, covenants and duties owing by the Borrower to the Administrative Agent, any Lender, any Affiliate of the Administrative Agent, any Lender, or any Person entitled to indemnification pursuant to Section 14.3 of this Agreement and all Erroneous Payment Subrogation Rights, in each case, of any kind or nature, arising under this Agreement, the Notes or any other Loan Document. The term includes, without limitation, all interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements and any other sum chargeable to the Borrower under this Agreement or any other Loan Document.

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

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

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

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Rights” is defined in Section 2.6.

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

“Participant” is defined in Section 14.1(e).

“Participant Register” is defined in Section 14.1(e).

“Payment Recipient” has the meaning assigned to it in Section 12.18(a).

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

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

“Permitted Disposition” means:

(a)         the disposition of Cash and Cash Equivalents in exchange for other Cash and Cash Equivalents and having reasonably equivalent value therefor;

(b)         the lease or sublease of assets and properties in the ordinary course of business;

(c)         disposition of surplus, obsolete, damaged or worn out equipment or other property, including unimproved real property, in the ordinary course of business; and

(d)         any Investment permitted by Section 10.4.

“Permitted Refinancing Indebtedness” means any Indebtedness of any Non-Debtor (the “Refinancing Indebtedness”), the proceeds of which are used to refinance, refund, renew, extend or replace Indebtedness at such Non-Debtor that is outstanding as of the Closing Date (such outstanding Indebtedness, the “Refinanced Indebtedness”); provided that (a) to the extent the principal amount (or accreted value, if applicable) of such Refinancing Indebtedness (including any unused commitments thereunder) is greater than the sum of (i) the principal amount (or accreted value, if applicable) of the Refinanced Indebtedness at the time of such refinancing, refunding, renewal, extension or replacement, (ii) an amount equal to any original issue discount thereon, (iii) the amount of unpaid accrued interest and premium thereon, (iv) customary reserves required to be funded and maintained in connection with such Refinanced Indebtedness, and (v) other reasonable amounts paid, and fees, costs and expenses reasonably incurred, in connection with such refinancing, refunding, renewal, extension or replacement, such excess shall be applied as a mandatory prepayment of the Obligations to the extent required pursuant to Section 4.1(c)(ii); (b) (1) the scheduled amortization of the Refinancing Indebtedness shall be based on an amortization schedule of at least twenty (20) years (in either case of Refinanced Indebtedness that is and is not subject to amortization payments) but (2) if the scheduled amortization of the Refinanced Indebtedness is greater than the amortization that would be paid if such Refinanced Indebtedness was on a schedule of at least twenty (20) years, then the scheduled amortization of the Refinancing Indebtedness shall not be greater than the scheduled amortization of such Refinanced Indebtedness, and the maturity of such Refinancing Indebtedness shall occur no earlier than the maturity date of the Refinanced Indebtedness (or, if the principal amount of the Refinancing Indebtedness is increased in accordance with clause (a) above, one year after the Maturity Date); (c) such Refinancing Indebtedness shall not be guaranteed (other than a guarantee of customary Non-Recourse Carve-Outs) by or otherwise be recourse to any Person other than the Person(s) to whom the Refinanced Indebtedness is recourse or by whom it is guaranteed, in each case as of the time of such refinancing, refunding, renewal, extension or replacement; (d) such Refinancing Indebtedness shall not be secured by Liens on assets other than assets securing the Refinanced Indebtedness at the time of such refinancing, refunding, renewal, extension or replacement; and (e) no Potential Event of Default or Event of Default shall have occurred and be continuing at the time of, or would result from, such refinancing, refunding, renewal, extension or replacement.

“Permitted Securities Options” means the subscriptions, options, warrants, rights, convertible Securities and other agreements or commitments relating to the issuance of the Borrower’s Securities or the Company’s Capital Stock identified as such on Schedule 1.1.4.

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

“Petition Date” means [●], 2021.

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

“Plan of Reorganization” means a plan of reorganization with respect to the Loan Parties and their Subsidiaries pursuant to the Chapter 11 Cases, which provides for the payment in full in cash of the Obligations.

“Potential Event of Default” means an event that has occurred with respect to the Company or any of its Subsidiaries which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default.

“Prepetition Loan Documents” shall have the meaning as defined in the Interim DIP Financing order or the Final DIP Financing Order, as applicable.

“Premises” is defined in Section 2.6.

“Prepetition Indebtedness” means the Indebtedness of the Loan Parties existing prior to the Closing Date and set forth on Schedule 10.1.

“Principal DIP Collateral Properties” shall have the meaning as defined in the Interim DIP Financing Order, and such properties shall be set forth on Schedule B.

“Pro Rata Share” means, with respect to any Lender, a fraction (expressed as a percentage), the numerator of which shall be the amount of such Lender’s Commitment (or if the Commitments have expired or terminated, such Lender’s Term Exposure) and the denominator of which shall be the aggregate amount of all of the Lenders’ Commitments (or if the Commitments have expired or terminated, the aggregate Term Exposures of all Lenders). Notwithstanding the foregoing, however, when a Defaulting Lender shall exist, for purposes of determining whether the threshold for Requisite Lenders has been met only, “Pro Rata Share” shall be calculated disregarding any Defaulting Lender’s unused Commitments.

“Process Agent” is defined in Section 14.17(a).

“Project” means any shopping center, retail property and mixed-use property owned, directly or indirectly, by any of the Consolidated Businesses or Minority Holdings.

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

“Quotation Day” means, with respect to any Borrowing of Eurodollar Rate Loans for any Interest Period, two (2) Business Days prior to the commencement of such Interest Period.

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

“Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.

“Reference Banks” means such banks as may be appointed by the Administrative Agent with the consent of such bank in consultation with the Borrower.

“Register” is defined in Section 14.1(c).

“Registration Statement” means Form 10, GENERAL FORM FOR REGISTRATION OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934, filed by the Company with the Securities and Exchange Commission on December 24, 2013, as amended from time to time prior to the date of this Agreement.

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

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

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

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

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

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

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

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

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

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

“Requirements of Law” means, as to any Person, the charter and by-laws or other organizational or governing documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject including, without limitation, the Securities Act, the Securities Exchange Act, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, Americans with Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement or Permit.

“Requisite Lenders” means, at any time, Lenders having Term Exposures and unused Commitments representing more than 51% of the sum of the total Term Exposures and unused Commitments at such time; provided that, in the event any of the Lenders shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Requisite Lenders” means Lenders (excluding all Defaulting Lenders) having Term Exposures and unused Commitments representing more than 51% of the sum of the total Term Exposures and unused Commitments of such Lenders (excluding all Defaulting Lenders) at such time.

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Responsible Officer” of any person shall mean any executive officer, executive vice president or Authorized Financial Officer of such person and any other officer, director or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof), or any payment by the Debtors of prepetition Indebtedness other than by order of the Bankruptcy Court (with such order reasonably satisfactory to the Requisite Lenders), in each case other than the payment of compensation in the ordinary course of business to holders of any Equity Interests who are employees of the Borrower or any Subsidiary.

“Restructuring Support Agreement” or “RSA” means that certain Restructuring Support Agreement, dated as of [__], 2021, executed and delivered by the Loan Parties and the other parties thereto, as such agreement may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“S&P” means S&P Global Ratings and any successor thereto.

“Sanctioned Country” means, at any time, a country or territory which is the subject or target of any Sanctions.

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union, any EU member state, Her Majesty’s Treasury of the United Kingdom, or any other applicable sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any Person or Persons described in (a) or (b).

“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

“Secured Parties” means, collectively, the Administrative Agent, each Lender, each Indemnitee, and any other Person owed Obligations.

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

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

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

“Specified Lender Advisors” shall mean Davis Polk & Wardwell LLP, Evercore Group L.L.C., Agora Advisors, Inc., Eastdil Secured LLC, and Raider Hill Advisors, L.L.C. as advisors to SVP, Wachtell Lipton Rosen & Katz LLP, and PJT Partners, Inc. as advisors to the Ad Hoc Group of Lenders, and Mayer Brown LLP as legal advisor to the Administrative Agent.

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website at http://www.newyorkfed.org (or any successor source).

“SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR.

“SPG” is defined in the definition of “Affiliate.”

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

“SVP” means the “Plan Sponsor” as defined in the Restructuring Support Agreemnent.

“Tangible Personalty” is defined in Section 2.6.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

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

“Term Exposure” means, with respect to any Lender at any time, the outstanding principal amount of such Lender’s Loans.

“Term Facility” means the Commitments and the Loans made hereunder.

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

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

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

“Undrawn Fee” has the meaning ascribed to such term in Section 5.3(b).

“Uniform Commercial Code” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code.

“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 13.1(f)(i)(B)(3).

“Unrestricted Cash and Cash Equivalents” means unrestricted Cash and Cash Equivalents of the Debtors that are the Company, the Borrower or a Guarantor, less (i) amounts normally and customarily set aside for operating, capital and interest reserves, (ii) amounts placed with third parties as deposits or security for contractual obligations and (iii) Cash and Cash Equivalents subject to prohibitions on the distribution thereof to the Borrower or another Loan Party; provided, however, that the sum of (i) through (iii) shall in no event exceed the total Cash and Cash Equivalents.

“Wholly-Owned Subsidiary” means, with respect to any Person at any date, a Subsidiary of such Person of which securities or other ownership interests representing one hundred (100%) percent of the Equity Interests (other than (x) directors’ qualifying shares or (y) shares issued to foreign nationals to the extent required by applicable law) are, as of such date, owned, controlled or held by such Person or one or more wholly owned Subsidiaries of such Person or by such Person and one or more wholly owned Subsidiaries of such Person.

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

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

1.3    Accounting Terms. Subject to Section 14.4, for purposes of this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.

1.4    Division. Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

1.5    Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.6    Other Terms. All other terms contained in this Agreement shall, unless the context indicates otherwise, have the meanings assigned to such terms by the Uniform Commercial Code to the extent the same are defined therein. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time if such amendment, restatement, supplement or other modification is permitted pursuant to the Loan Documents.

ARTICLE II

AMOUNTS AND TERMS OF LOANS

2.1    Loans.

(a)    Availability of Loans. Subject to the terms and conditions set forth in this Agreement and in the DIP Financing Orders (including the limitations on the interim borrowing availability contained therein), each Lender hereby severally and not jointly agrees to make Loans, in Dollars, to the Borrower on each Funding Date, in each case, in an aggregate principal amount not to exceed its Commitment as requested by the Borrower in accordance with Section 2.1(c); provided that (i) the aggregate principal amount of the Loans (after giving effect to all amounts requested) shall not exceed the Total Commitments, and (ii) the aggregate principal amount of the Loans from any Lender to the Borrower shall not exceed such Lender’s Commitment. All Loans comprising the same Borrowing under this Agreement shall be made in a minimum aggregate principal amount of $25,000,000 by the Lenders simultaneously and proportionately to their then respective Pro Rata Shares for the Term Facility, it being understood that no Lender shall be responsible for any failure by any other Lender to perform its obligation to make a Loan hereunder nor shall the Commitment of any Lender be increased or decreased as a result of any such failure. The Loans, or any portion thereof, may be either a Base Rate Loan or a Eurodollar Rate Loan, as determined by the Borrower in any Notice of Borrowing, any Notice of Conversion/Continuation or as otherwise provided in this Agreement. The Commitments of each Lender shall be reduced on a dollar-for-dollar basis by the amount of Loans made by such Lender on each Funding Date. The Borrower may not reborrow the Loans following any repayment thereof.

(b)    Notice of Borrowing. When the Borrower desires to borrow under this Section 2.1, it shall deliver to the Administrative Agent a written Notice of Borrowing, signed by it (i) no later than 12:00 noon (New York time) at least three (3) Business Days in advance of the proposed Funding Date, in the case of a Borrowing of Base Rate Loans and (ii) no later than 11:00 a.m. (New York time) at least three (3) Business Days in advance of the proposed Funding Date, in the case of a Borrowing of Eurodollar Rate Loans; provided that the Borrowers may condition each Borrowing in such notice on the entry of the Interim DIP Financing Order or the Final DIP Financing Order, as applicable; provided that the Administrative Agent will, subject to the other terms and conditions hereof, fund the amounts of the applicable requested funding that have been deposited with it by the Lenders within one (1) Business Day of the entry of the Initial DIP Financing Order or Final DIP Financing Order, as applicable. Such Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be a Business Day), (ii) the amount of the proposed Borrowing, (iii) whether the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (iv) in the case of Eurodollar Rate Loans, the requested Eurodollar Interest Period, and (v) wire instructions for the disbursement of the proceeds of the proposed Borrowing. In lieu of delivering such a Notice of Borrowing, the Borrower may give the Administrative Agent electronic, written notice of any proposed Borrowing by the time required under this Section 2.1(b), if the Borrower confirms such notice by delivery of the Notice of Borrowing to the Administrative Agent by facsimile transmission promptly, but in no event later than 3:00 p.m. (New York time) on the same day. Any Notice of Borrowing (or electronic, written notice in lieu thereof) given pursuant to this Section 2.1(b) shall be irrevocable. Borrowings shall be in an amount not less than $25,000,000 (or such lesser amount as the Requisite Lenders may agree); provided that the initial Borrowing upon entry of the Interim DIP Financing Order shall be in an amount not less than $25,000,000.

(c)    Making of Loans.

(i)    Promptly after receipt of a Notice of Borrowing under Section 2.1(b) (or electronic, written notice in lieu thereof), the Administrative Agent shall notify each applicable Lender by facsimile transmission, or other similar form of written transmission, of the proposed Borrowing (which notice to the Lenders shall be at least three (3) Business Days in advance of the proposed Funding Date for such Loans); provided that the Administrative Agent will, subject to the other terms and conditions hereof, fund the amounts of the applicable requested funding that have been deposited with it by the Lenders within one (1) Business Day of the entry of the Initial DIP Financing Order or Final DIP Financing Order, as applicable. Each Lender shall deposit an amount equal to its applicable Pro Rata Share of the Borrowing requested by the Borrower with the Administrative Agent at its office in Chicago, Illinois, in immediately available funds in Dollars not later than 12:00 noon (New York time) on the proposed Funding Date for such Loans. Subject to the fulfillment of the conditions precedent set forth in Section 6.2 and upon receipt of all requested funds, the Administrative Agent shall make the proceeds of such amounts received by it available to the Borrower at the Administrative Agent’s office in Chicago, Illinois on such Funding Date (or on the date received if later than such Funding Date) and shall disburse such proceeds in accordance with the Borrower’s disbursement instructions set forth in the applicable Notice of Borrowing. The failure of any Lender to deposit the amount described above with the Administrative Agent on the applicable Funding Date shall not relieve any other Lender of its obligations hereunder to make its Loan on such Funding Date. In the event the conditions precedent set forth in Section 6.2 are not fulfilled as of the proposed Funding Date for any Borrowing, the Administrative Agent shall promptly return, by wire transfer of immediately available funds, the amount deposited by each Lender to such Lender.

(ii)    Unless the Administrative Agent shall have been notified by any Lender on the Business Day immediately preceding the applicable Funding Date (or, in the case of a Borrowing of Base Rate Loans for which the Notice of Borrowing was given on such Funding Date, by 2:00 p.m. (New York time) on such Funding Date) in respect of any Borrowing that such Lender does not intend to fund its Loan requested to be made on such Funding Date, the Administrative Agent may assume that such Lender has funded its Loan and is depositing the proceeds thereof with the Administrative Agent on the Funding Date therefor, and the Administrative Agent in its sole discretion may, but shall not be obligated to, disburse a corresponding amount to the Borrower on the applicable Funding Date. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loan. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing and the interest rate applicable to such Borrowing shall be as requested by the Borrower in the applicable Notice of Borrowing. This Section 2.1(c)(ii) does not relieve any Lender of its obligation to make its Loan on any applicable Funding Date.

2.2    [Reserved].

2.3    Maturity Date. All outstanding Loans shall be paid in full on the Maturity Date.

(a)    Extension of Maturity Date.

(i)    The Initial Maturity Date may be extended to the Extended Maturity Date at the option of the Borrower, subject to satisfaction (or waiver) of the following conditions precedent, upon which such extension shall automatically take effect and each Lender shall be deemed to have agreed to such Extension Request:

(1)         on and as of the date on which the Maturity Date is extended, the representations and warranties of the Loan Parties contained herein shall be true and correct in all material respects (except those representations and warranties qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of such date, as though made on and as of such date, except to the extent that any representation or warranty specifically relates only to an earlier date, in which case it shall have been true and correct in all material respects (except those representations and warranties qualified by materiality or Material Adverse Effect, which shall have been true and correct in all respects) as of such earlier date;

(2)         on or prior to the date on which the Maturity Date is extended, all Mortgage Collateral Deliverables shall have been executed (if applicable) and delivered subject to the terms and conditions herein (unless delivery thereof has not been requested by the Administrative Agent (at the direction of the Requisite Lenders));

(3)         on and as of the date on which the Maturity Date is extended, no Potential Event of Default or Event of Default shall have occurred and be continuing;

(4)         the Borrower shall have made such request to the Administrative Agent not less than fifteen (15) days (or such later date agreed to by the Requisite Lenders) and not earlier than sixty (60) days, prior to the Initial Maturity Date, by delivering to the Administrative Agent a copy of an irrevocable extension request signed by the Borrower (an “Extension Request”) in substantially the form of Exhibit E hereto; and

(5)         a confirmation order confirming a Plan of Reorganization pursuant to section 1129 of the Bankruptcy Code shall have been entered, which confirmation order shall be a final and non-appealable order, shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect.

(b)    The Administrative Agent shall promptly notify each Lender of its receipt of such Extension Request.

2.4    Effect of Benchmark Transition Event Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace Base Eurodollar Rate with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Requisite Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Requisite Lenders have delivered to the Administrative Agent written notice that such Requisite Lenders accept such amendment. No replacement of Base Eurodollar Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.

(a)    Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent, with the written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed), will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(b)    Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or Lenders, in each case, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed), pursuant to this Section 2.4, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.4.

(c)    Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for Eurodollar Rate Loan of, conversion to or continuation of Eurodollar Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans.

2.5    Authorized Agents. On the Closing Date and from time to time thereafter, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate setting forth the names of the employees and agents authorized to request Loans and to request a conversion/continuation of any Loan and containing a specimen signature of each such employee or agent. The employees and agents so authorized shall also be authorized to act for the Borrower in respect of all other matters relating to the Loan Documents. The Administrative Agent and the Lenders shall be entitled to rely conclusively on such employee’s or agent’s authority to request such Loan or such conversion/continuation until the Administrative Agent receive written notice to the contrary. The Administrative Agent shall not have any duty to verify the authenticity of the signature appearing on any written Notice of Borrowing or Notice of Conversion/Continuation or any other document, and, with respect to an oral request for such a Loan or such conversion/continuation, the Administrative Agent shall have no duty to verify the identity of any person representing himself or herself as one of the employees or agents authorized to make such request or otherwise to act on behalf of the Borrower. None of the Administrative Agent or the Lenders shall incur any liability to the Borrower or any other Person in acting upon any electronic, written or facsimile notice referred to above which the Administrative Agent believes to have been given by a person duly authorized to act on behalf of the Borrower and the Borrower hereby indemnifies and holds harmless the Administrative Agent and each other Lender from any loss or expense the Administrative Agent or the Lenders might incur in acting in good faith as provided in this Section 2.5.

2.6    Priority and Liens; No Discharge.

(a)    The Borrower hereby, for itself and for each other Loan Party that owns Collateral⁴, hereby covenants, acknowledges and agrees that upon the entry of the Interim DIP Financing Order (and when applicable, the Final DIP Financing Order) its Obligations, including its obligations hereunder and under the Loan Documents and under the Collateral Documents: (1) pursuant to Section 364(c)(1) of the Bankruptcy Code and subject to the Carve-Out, shall at all times constitute an allowed superpriority administrative expense claim in the Chapter 11 Case of such Loan Party having a superpriority over any and all administrative expenses and claims, of any kind or nature whatsoever, including, without limitation, the superpriority claims and adequate protection claims granted to any prepetition secured parties under the Interim DIP Financing Order and the Final DIP Financing Order, and the administrative expenses of the kinds set forth in or ordered pursuant to Bankruptcy Code sections 105, 326, 327, 328, 330, 331, 361, 362, 363, 364, 365, 503, 506(c) (subject to entry of the Final DIP Financing Order), 507(a), 507(b), 546, 552, 726, 1113 and 1114; and (2) pursuant to sections 364(c)(2) and 364(c)(3) of the Bankruptcy Code and subject to the Carve-Out, shall at all times be secured by a valid, binding, continuing, enforceable perfected Lien on all Collateral (whether tangible, intangible, real, personal or mixed) and all proceeds thereof of such Loan Parties whether now existing or hereafter acquired, which Lien (i) with respect to Collateral that is subject to valid, perfected, unavoidable Liens in favor of third parties permitted under the Prepetition Loan Documents (x) in existence immediately prior to the Petition Date or (y) that were perfected subsequent to the Petition Date as permitted by Section 546(b) of the Bankruptcy Code, shall rank junior to such Liens in favor of third parties (the “Permitted Prior Liens”); and (ii) to the extent such Collateral is not subject to Permitted Prior Liens, shall be a perfected first priority security interest and Lien on the Collateral of each Loan Party; provided that, the Obligations shall not be secured by property that constitutes Excluded Assets (but shall be secured by the proceeds of Excluded Assets to the extent such proceeds would independently constitute Collateral).

(b)    The Borrower hereby, for itself and for each other Loan Party, hereby covenants, acknowledges and agrees that, pursuant to the Interim DIP Financing Order (and, when entered, the Final DIP Financing Order), the Liens in favor of the Administrative Agent on behalf of and for the benefit of the Secured Parties in all of such Loan Party’s Collateral, shall be created and perfected without the recordation or filing in any land records or filing offices of any mortgage, assignment or similar instrument.

⁴ Guaranty to include clause that incorporates this Section 2.6.

(c)    Further to, and not in limitation of, the Interim DIP Financing Order (and, when entered, the Final DIP Financing Order), to secure the full and timely payment and performance of the Obligations, the Borrower hereby, for itself and for each other Loan Party (as applicable), hereby MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to the Administrative Agent, for the ratable benefit of the Secured Parties, all of the Borrower’s and other such Loan Parties’ right, title and interest now or hereafter acquired in and to the following: (1) the real property or ground leases described on Schedule [B] hereto (the “Land”); (2) all rights, tenements, hereditaments, rights of way, easements, privileges, appendages and appurtenances relating or appertaining to the Land or Improvements in each case whether now owned or hereinafter acquired, and including all water and water rights, sewer and sewer rights, ditches and ditch rights, minerals, oil and gas rights, royalties, (to the extent assignable) lease or leasehold interests owned by the applicable Loan Party, now or hereafter acquired or used in connection with or appurtenant to or related to the Land or Improvements and all interests of each of the applicable Loan Party in and to streets, roads, alleys, and public places, now or hereafter acquired or used in connection with the Land or Improvements, and, to the extent assignable, all existing or future licenses, contracts, permits, and agreements required or used in connection with the ownership, operation, or maintenance of the Land or Improvements, and any and all insurance proceeds, and any and all awards, including interest, previously or hereafter made to the applicable Loan Party for taking by eminent domain or in lieu thereof (collectively, the “Other Rights”); (3) all buildings, structures and other improvements of every kind and description now owned or hereafter acquired or erected or placed on the Land (the “Improvements”) and all materials intended for construction, reconstruction, alteration, and repair of such Improvements now or hereafter erected thereon, all of which materials shall be deemed to be included within the Premises immediately upon the delivery thereof to the Land, and all fixtures (excepting any item of tangible personal property belonging to tenants under leases or any management agreement) now owned or hereafter acquired by the applicable Loan Party and attached to or contained in and used in connection with the Land and Improvements, including all non-portable apparatus, machinery, equipment, motors, elevators, supplies, fittings, radiators, ranges, awnings, shades, screens, blinds, carpeting, and all plumbing, heating, lighting, cooking, laundry, ventilating, refrigerating, incinerating, air conditioning, and sprinkler equipment and fixtures and appurtenances thereto and all renewals or replacements thereof or articles in substitution thereof and all equipment, inventory and other goods in which the applicable Loan Party now has or hereafter acquires any rights and that are or are to become fixtures (as defined in the Uniform Commercial Code), whether or not the same are or shall be attached to the Land and Improvements in any manner, together with all goods, accounts, raw materials, inventory, general intangibles, instruments, contract rights and chattel paper, including all such items as defined in the Uniform Commercial Code, now owned or hereafter acquired by any Loan Party and now or hereafter affixed to, placed upon, used in connection with, arising from or otherwise related to the Premises (the “Tangible Personalty”) and all proceeds of the Tangible Personalty (the Land, Other Rights, Improvements, Tangible Personalty, and all proceeds described in (1)–(3), together with all proceeds thereof, collectively, the “Premises”); (4) all of the applicable Loan Party’ right, title and interest in all reserves, deferred payments, deposits, re-funds and claims of any nature relating to the Premises, security deposits (if permitted), rents, issues, profits, royalties, proceeds and revenues of the Premises from time to time accruing and all existing and future leases, subleases, licenses, concessions, occupancy agreements and other agreements (written or oral, now or at any time in effect) pursuant to which each such Loan Party grants a possessory interest in, or right for the use and occupancy of all or part of the Premises, together with all related security, guarantees and security deposits (if permitted) of the lessee’s obligations thereunder, whether oral or written, for a definite term or month-to-month, and all of the related rents, fees, revenues, royalties, income, proceeds, profits, accounts receivable, security and other types of deposits, and other benefits paid or payable by parties in connection therewith for using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying the Premises; (5) all insurance policies and proceeds thereof, all condemnation awards, damages, remunerations, reimbursements, settlements or compensation hereafter to be made by any governmental authority pertaining to any condemnation or other taking (or purchase in lieu thereof) of all or any portion of the Premises; (6) to the extent assignable, any and all (to the extent assignable) leases of personal property (including equipment leases), rental agreements, sales contracts, management contracts, franchise agreements, construction contracts, architects’ contracts, technical services agreements, engineers contracts, maintenance agreements, service contracts, utility contracts, listing agreements, guaranties, indemnities, warranties, and other contracts, licenses, and permits now or hereunder affecting the Premises, refunds of real estate taxes and assessments and any other governmental impositions related to the Premises, approvals, actions, and causes of action that now or hereafter relate to, are derived from, or are used in connection with the Premises, or the use, operation, maintenance, occupancy, or enjoyment thereof or the conduct of any business or activities thereon, together with all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof; and (7) any and all right, title and interest of the applicable Loan Party in and to any and all drawings, plans, specifications, file materials, operating and maintenance records, catalogues, tenant lists, correspondence, advertising materials, operating manuals, warranties, guarantees, appraisals, studies and data relating to the Premises or the construction of any alteration relating to the Premises in each case, in the applicable Loan Party’s possession and to the extent assignable, TO HAVE AND TO HOLD to the Administrative Agent, and such Loan Party does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to such property, assets and interests unto the Administrative Agent.

(d)    All of the Liens described in this Section 2.6 shall be effective and perfected upon entry of the Interim DIP Financing Order without the necessity of the execution, recordation of filings by the Debtors of mortgages, security agreements, control agreements, pledge agreements, financing statements or other similar documents, or the possession or control by the Administrative Agent of, or over, any Collateral, as set forth in the Interim DIP Financing Order; provided that, upon the reasonable request of the Administrative Agent, acting on the instruction of the Requisite Lenders, the Borrower shall, and shall cause each Loan Party to execute, if applicable, and deliver to the Administrative Agent, as soon as reasonably practicable following such request but in any event within 90 days following such request (as extended by the Administrative Agent, acting on the instruction of the Requisite Lenders), with respect to any Principal DIP Collateral Property, any Mortgage Collateral Deliverable requested by the Administrative Agent, acting on the instruction of the Requisite Lenders.

(e)    The relative priorities of the Liens described in this Section 2.6 with respect to the Collateral of the Debtors shall be as set forth in the Interim DIP Financing Order (and, when entered, the Final DIP Financing Order).

(f)    To the extent that any Obligations (other than contingent indemnification obligations not yet due) under the Loan Documents have not been satisfied in full in cash, such Obligations shall not be discharged by the entry of an order confirming a plan of reorganization (and each of the Loan Parties, pursuant to Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and the superpriority claim pursuant to the Orders and the Liens granted to the Agents and the Lenders pursuant to the Orders shall not be affected in any manner by the entry of an order confirming a plan of reorganization.

ARTICLE III
 

[RESERVED]

ARTICLE IV

PAYMENTS AND PREPAYMENTS

4.1    Prepayments.

(a)    Voluntary Prepayments. The Borrower may, at any time and from time to time, prepay the Loans in part or in their entirety, subject to the following limitations. No later than 12:00 noon (New York time) at least three (3) Business Days in advance of any such prepayment, in the case of Base Rate Loans, and no later than 12:00 noon (New York time) at least three (3) Business Days’ in advance of any such prepayment, in the case of Eurodollar Rate Loans, the Borrower shall give written notice to the Administrative Agent (which the Administrative Agent shall promptly transmit to each Lender) of any prepayment in the entirety to be made prior to the occurrence of an Event of Default, which notice of prepayment shall specify the date (which shall be a Business Day) of prepayment. When notice of prepayment is delivered as provided herein, the outstanding principal amount of the Loans on the prepayment date specified in the notice shall become due and payable on such prepayment date. Each voluntary partial prepayment of the Loans shall be in a minimum amount of $1,000,000 (or the remaining balance of the applicable Loans, if less). Eurodollar Rate Loans may be prepaid in part or in their entirety only upon payment of the amounts described in Section 5.2(f).

(b)    Mandatory Prepayments. Subject to the DIP Financing Orders as set forth below and unless otherwise consented to by the Requisite Lenders, the Borrower will be required to prepay Loans using the Net Cash Proceeds received as set forth in this Section 4.1(b):

(i)    Equity Issuances. The Borrower shall make mandatory principal prepayments of the Loans in an amount equal to the Applicable Percentage of the aggregate Net Cash Proceeds from any Equity Issuance. Such prepayment shall be made within three (3) Business Days after the Net Cash Proceeds Receipt Date of any such Equity Issuance.

(ii)    Debt Issuances. The Borrower shall make mandatory principal prepayments of the Loans in an amount equal to the Applicable Percentage of the aggregate Net Cash Proceeds from any Debt Issuance not permitted under this Agreement. Such prepayment shall be made within three (3) Business Days after the Net Cash Proceeds Receipt Date of any such Debt Issuance.

(iii)    Asset Dispositions and Insurance and Condemnation Events. Subject only to the priority of Liens set forth in the DIP Financing Orders, the Borrower shall make mandatory principal prepayments of the Loans in amounts equal to the Applicable Percentage of the aggregate Net Cash Proceeds in excess of $5,000,000 (in the aggregate for all Net Cash Proceeds) received from an Asset Disposition or Insurance and Condemnation Event; provided that with respect to Asset Dispositions of out-parcels that constitute Principal DIP Collateral Property, Net Cash Proceeds in excess of $500,000 (in the aggregate for all such Net Cash Proceeds) shall be applied to mandatory principal prepayments of the Loans in amounts equal to the Applicable Percentage thereof.  Such prepayments shall be made within five (5) Business Days after the Net Cash Proceeds Receipt Date of such Asset Disposition or Insurance and Condemnation Event, as applicable.

(c)    Notice. Upon the occurrence of any Mandatory Prepayment Event, the Borrower shall promptly deliver written notice thereof to the Administrative Agent and upon receipt of such notice, the Administrative Agent shall promptly so notify the Lenders.

4.2    Payments.

(a)    Manner and Time of Payment. All payments of principal of and interest on the Loans and other Obligations (including, without limitation, fees and expenses) which are payable to the Administrative Agent or any other Lender shall be made without condition or reservation of right, in immediately available funds, delivered to the Administrative Agent not later than 12:00 noon (New York time) on the date and at the place due, to such account of the Administrative Agent as it may designate, for the account of the Administrative Agent or such other Lender, as the case may be; and funds received by the Administrative Agent, including, without limitation, funds in respect of any Loans to be made on that date, not later than 12:00 noon (New York time) on any given Business Day may be deemed to be credited against payment to be made that day and funds received by the Administrative Agent after that time may be deemed to have been paid on the next succeeding Business Day. All payments shall be in Dollars. Payments actually received by the Administrative Agent for the account of the Lenders, or any of them, shall be paid to them by the Administrative Agent promptly after receipt thereof, in immediately available funds.

(b)    Apportionment of Payments.

(i)    Subject to the provisions of Section 4.2(b)(iv), all payments of principal and interest in respect of outstanding Loans, all payments of fees and all other payments in respect of any other Obligations, shall be allocated among such of the Lenders as are entitled thereto, in proportion to their respective applicable Pro Rata Shares or otherwise as provided herein as of the date of this Agreement. Subject to the provisions of Section 4.2(b)(ii), all such payments and any other amounts received by the Administrative Agent from or for the benefit of the Borrower shall be applied in the following order:

(A)         to pay principal of and interest on any portion of the Loans which the Administrative Agent may have advanced on behalf of any Lender other than itself for which the Administrative Agent has not then been reimbursed by such Lender or the Borrower,

(B)         to pay all obligations (including any fees, expense reimbursements or indemnities) due and payable to the Administrative Agent,

(C)         to pay all other Obligations then due and payable, and

(D)         as otherwise set forth in the DIP Financing Orders.

Unless otherwise designated by the Borrower, all principal payments in respect of Loans shall be applied first, to repay outstanding Base Rate Loans, and then to repay outstanding Eurodollar Rate Loans, with those Eurodollar Rate Loans which have earlier expiring Interest Periods being repaid prior to those which have later expiring Interest Periods.

(ii)    Subject to the DIP Financing Orders and the Carve Out, after the occurrence of an Event of Default and while the same is continuing, the Administrative Agent shall apply all payments in respect of any Obligations and any amounts received as a result of the exercise of remedies pursuant to 11.2 and 14.5, in the following order:

(A)         first, to pay principal of and interest on any portion of the Loans which the Administrative Agent may have advanced on behalf of any Lender other than itself for which the Administrative Agent has not then been reimbursed by such Lender or the Borrower;

(B)         second, to pay all Obligations (including any fees, expense reimbursements or indemnities) then due to the Administrative Agent;

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

(D)         fourth, to pay interest due in respect of Loans;

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

(F)         sixth, to the ratable payment of all other Obligations.

The order of priority set forth in this Section 4.2(b)(ii) and the related provisions of this Agreement are set forth solely to determine the rights and priorities of the Administrative Agent, the other Lenders and other Holders as among themselves. The order of priority set forth in clauses (A) and (B) of this Section 4.2(b)(ii) may be changed only with the prior written consent of the Administrative Agent.

(iii)    Subject to Section 4.2(b)(iv), the Administrative Agent shall promptly distribute to each other Lender at its primary address set forth on the appropriate signature page hereof or the signature page to the Assignment and Acceptance by which it became a Lender, or at such other address as a Lender or other Holder may request in writing, such funds as such Person may be entitled to receive, subject to the provisions of Article XII; provided that the Administrative Agent shall under no circumstances be bound to inquire into or determine the validity, scope or priority of any interest or entitlement of any Holder and may suspend all payments or seek appropriate relief (including, without limitation, instructions from the Requisite Lenders or an action in the nature of interpleader) in the event of any doubt or dispute as to any apportionment or distribution contemplated hereby.

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

(A)    the foregoing provisions of this Section 4.2(b)(iv) shall apply only with respect to the proceeds of payments of Obligations and shall not affect the conversion or continuation of Loans pursuant to Section 5.1(c);

(B)    a Lender shall be deemed to have cured its failure to fund its Pro Rata Share of any Loan at such time as an amount equal to such Lender’s original Pro Rata Share of the requested principal portion of such Loan is fully funded to the Borrower, whether made by such Lender itself or by operation of the terms of this Section 4.2(b)(iv), and whether or not the Non Pro Rata Loan with respect thereto has been repaid, converted or continued;

(C)    amounts advanced to the Borrower to cure, in full or in part, any such Lender’s failure to fund its Pro Rata Share of any Loan (“Cure Loans”) shall bear interest at the Base Rate in effect from time to time, and for all other purposes of this Agreement shall be treated as if they were Base Rate Loans; and

(D)    regardless of whether or not an Event of Default has occurred or is continuing, and notwithstanding the instructions of the Borrower as to its desired application, all repayments of principal which, in accordance with the other terms of this Section 4.2, 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 Rate Loans other than those constituting Non Pro Rata Loans or Cure Loans and, third, ratably to Base Rate Loans constituting Cure Loans.

(v)    Payments on Non-Business Days. Whenever any payment to be made by the Borrower hereunder or under the Notes is stated to be due on a day which is not a Business Day, the payment shall instead be due on the next succeeding Business Day (or, as set forth in Section 5.2(b)(iii), the next preceding Business Day).

4.3    Promise to Repay; Evidence of Indebtedness.

(a)    Promise to Repay. The Borrower hereby promises to pay when due the principal amount of each Loan which is made to it, and further agrees to pay all unpaid interest accrued thereon, in accordance with the terms of this Agreement and the Notes. To the extent a Lender requests to receive any such promissory note, the Borrower shall execute and deliver to each Lender on the Closing Date, a promissory note, in form and substance acceptable to such Lender, evidencing the Loans and thereafter shall execute and deliver such other promissory notes as are necessary to evidence the Loans owing to the Lenders after giving effect to any assignment thereof pursuant to Section 14.1, all in form and substance acceptable to the applicable Lenders and the parties to such assignment (all such promissory notes and all amendments thereto, replacements thereof and substitutions therefor being collectively referred to as the “Notes”; and “Note” means any one of the Notes).

(b)    Loan Account. Each Lender shall maintain in accordance with its usual practice an account or accounts (a “Loan Account”) evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan owing to such Lender from time to time, including the amount of principal and interest payable and paid to such Lender from time to time hereunder and under the Notes. Notwithstanding the foregoing, the failure by any Lender to maintain a Loan Account shall in no way affect the Borrower’s obligations hereunder, including, without limitation, the obligation to repay the Obligations.

(c)    Control Account. The Register maintained by the Administrative Agent pursuant to Section 14.1(c) shall include a control account, shall be recorded (i) the date and amount of each Borrowing made hereunder, the type of Loan comprising such Borrowing and any Eurodollar Interest Period applicable thereto, (ii) the effective date and amount of each Assignment and Acceptance delivered to and accepted by it and the parties thereto, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder or under the Notes and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender’s share thereof.

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

(e)    No Recourse to Limited Partners or General Partner. It is expressly understood and agreed that nothing herein or in any other Loan Document shall be construed as creating any liability on any Limited Partner, any General Partner, or any partner, member, manager, officer, shareholder or director of any Limited Partner or any General Partner, to pay any of the Obligations other than (x) liability arising from or in connection with (i) fraud or (ii) the misappropriation or misapplication of proceeds of the Loans (in which case such liability shall extend to the Person(s) committing such fraud, misappropriation or misapplication, but not to any other Person described above) or (y) pursuant to the Guaranty; but nothing contained in this Section 4.3(e) shall be construed to prevent the exercise of any remedy allowed to the Administrative Agent or the Lenders by law or by the terms of this Agreement or the other Loan Documents.

ARTICLE V
 

INTEREST AND FEES

5.1    Interest on the Loans and other Obligations.

(a)    Rate of Interest. All Loans and the outstanding principal balance of all other Obligations shall bear interest on the unpaid principal amount thereof from the date such Loans are made and such other Obligations are due and payable until paid in full, except as otherwise provided in Section 5.1(d), as follows:

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

(ii)    If a Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the Eurodollar Rate determined for the applicable Eurodollar Interest Period, plus (B) the then Applicable Margin for Eurodollar Rate Loans.

The applicable basis for determining the rate of interest on the Loans shall be selected by the Borrower at the time a written Notice of Borrowing or a Notice of Conversion/Continuation is delivered by the Borrower to the Administrative Agent; provided, however, that the Borrower may not select the Eurodollar Rate as the applicable basis for determining the rate of interest on such a Loan if at the time of such selection an Event of Default or a Potential Event of Default would occur or has occurred and is continuing and further provided that, from and after the occurrence of an Event of Default or a Potential Event of Default, each Eurodollar Rate Loan then outstanding may, at the Administrative Agent’s option, convert to a Base Rate Loan. If on any day any Loan is outstanding with respect to which notice has not been timely delivered to the Administrative Agent in accordance with the terms of this Agreement specifying the basis for determining the rate of interest on that day, then for that day interest on that Loan shall be determined by reference to the Base Rate.

(b)    Interest Payments.

(i)    Interest accrued on each Loan shall be calculated from the last day of each calendar month and shall be payable in arrears (A) on the first Business Day of each calendar month, commencing on the first such day following the making of such Loan, and (B) if not theretofore paid in full, on the maturity date (whether by acceleration or otherwise) of such Loan.

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

(c)    Conversion or Continuation.

(i)    The Borrower shall have the option (A) to convert at any time all or any part of outstanding Base Rate Loans to Eurodollar Rate Loans; (B) to convert all or any part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the same date to Base Rate Loans, on such expiration date; and (C) to continue all or any part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the same date as Eurodollar Rate Loans, and the succeeding Eurodollar Interest Period of such continued Loans shall commence on such expiration date; provided, however, no such outstanding Loan may be continued as, or be converted into, a Eurodollar Rate Loan (i) if the continuation of, or the conversion into, would violate any of the provisions of Section 5.2 or (ii) if an Event of Default or a Potential Event of Default would occur or has occurred and is continuing. Any conversion into or continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be in a minimum amount of $1,000,000 and in integral multiples of $100,000 in excess of that amount, except in the case of a conversion into or a continuation of an entire Borrowing of Non Pro Rata Loans.

(ii)    To convert or continue a Loan under Section 5.1(c)(i), the Borrower shall deliver a written Notice of Conversion/Continuation to the Administrative Agent no later than 11:00 a.m. (New York time) at least three (3) Business Days in advance of the proposed conversion/continuation date. A Notice of Conversion/Continuation shall specify (A) the proposed conversion/continuation date (which shall be a Business Day), (B) the principal amount of the Loan to be converted/continued, (C) whether such Loan shall be converted and/or continued, and (D) in the case of a conversion to, or continuation of, a Eurodollar Rate Loan, the requested Eurodollar Interest Period. In lieu of delivering a Notice of Conversion/Continuation, the Borrower may give the Administrative Agent electronic or written notice of any proposed conversion/continuation by the time required under this Section 5.1(c)(ii), if the Borrower confirms such notice by delivery of the Notice of Conversion/Continuation to the Administrative Agent by facsimile transmission promptly, but in no event later than 3:00 p.m. (New York time) three (3) Business Days prior. Promptly after receipt of a Notice of Conversion/Continuation under this Section 5.1(c)(ii) (or electronic or written notice in lieu thereof), the Administrative Agent shall notify each Lender by facsimile transmission, or other similar form of transmission, of the proposed conversion/continuation. Any Notice of Conversion/Continuation for conversion to, or continuation of, a Loan (or electronic or written notice in lieu thereof) given pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower shall be bound to convert or continue in accordance therewith. In the event no Notice of Conversion/Continuation is delivered as and when specified in this Section 5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the expiration of the Interest Period applicable thereto, such Loans shall automatically be converted to a Base Rate Loan.

(d)    Default Interest. Notwithstanding the rates of interest specified in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the occurrence of an Event of Default, and for as long thereafter as such Event of Default shall be continuing, the principal balance of all Loans and other Obligations shall bear interest at a rate equal to the sum of (A) the Base Rate, as in effect from time to time as interest accrues, plus (B) the Applicable Margin for Base Rate Loans, plus (C) two percent (2.0%) per annum.

(e)    Computation of Interest. Interest on all Obligations shall be computed on the basis of the actual number of days elapsed in the period during which interest accrues and a year of 360 days (or 365/366 days in the case of interest computed by reference to clauses (i), (ii) or (iii) of the Base Rate). In computing interest on any Loan, the date of the making of the Loan or the first day of a Eurodollar Interest Period, as the case may be, shall be included and the date of payment or the expiration date of a Eurodollar Interest Period, as the case may be, shall be excluded; provided, however, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on such Loan.

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

5.2    Special Provisions Governing Eurodollar Rate Loans.

(a)    Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall be in a minimum principal amount of $1,500,000.

(b)    Determination of Eurodollar Interest Period. By giving notice as set forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate Loans) or Section 5.1(c) (with respect to a conversion into or continuation of Eurodollar Rate Loans), the Borrower shall have the option, subject to the other provisions of this Section 5.2, to select an interest period (each, an “Interest Period”) to apply to the Loans described in such notice, subject to the following provisions:

(i)    Subject to availability, the Borrower may only select, as to a particular Borrowing of Eurodollar Rate Loans, an Interest Period (each, a “Eurodollar Interest Period”) of one, two, three or six months in duration (or, with the prior written consent of the Administrative agent and if available to all Lenders, twelve months);

(ii)    In the case of immediately successive Eurodollar Interest Periods applicable to a Borrowing of Eurodollar Rate Loans, each successive Eurodollar Interest Period shall commence on the day on which the next preceding Eurodollar Interest Period expires;

(iii)    If any Eurodollar Interest Period would otherwise expire on a day which is not a Business Day, such Eurodollar Interest Period shall be extended to expire on the next succeeding Business Day if the next succeeding Business Day occurs in the same calendar month, and if there will be no succeeding Business Day in such calendar month, the Eurodollar Interest Period shall expire on the immediately preceding Business Day;

(iv)    The Borrower may not select an Interest Period as to any Loan if such Interest Period terminates later than the Maturity Date;

(v)    The Borrower may not select an Interest Period with respect to any portion of principal of a Loan which extends beyond a date on which the Borrower is required to make a scheduled payment of such portion of principal; and

(vi)    There shall be no more than five (5) Interest Periods in effect at any one time with respect to Eurodollar Rate Loans.

(c)    Determination of Eurodollar Interest Rate. As soon as practicable on the second Business Day prior to the first day of each Eurodollar Interest Period (the “Eurodollar Interest Rate Determination Date”), the Requisite Lenders shall determine (pursuant to the procedures set forth in the definition of “Eurodollar Rate”) the interest rate which shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Eurodollar Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrower and to each Lender. The Administrative Agent’s determination shall be presumed to be correct, absent manifest error, and shall be binding upon the Borrower and each Lender.

(d)    Alternate Rate of Interest.

(i)    If prior to the commencement of any Interest Period for a Borrowing of Eurodollar Rate Loans:

(A)    the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Base Eurodollar Rate for a Loan or for the applicable Interest Period; or

(B)    the Administrative Agent is advised by the Requisite Lenders that the Base Eurodollar Rate for a Loan in the applicable currency or for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period,

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone promptly followed in writing or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (1) any Notice of Conversion/Continuation that requests the conversion of any Eurodollar Rate Loans to, or continuation of any Eurodollar Rate Loans for the applicable Interest Period, as the case may be, shall be ineffective and (2) such Borrowing shall be made as a Borrowing of Base Rate Loans.

(ii)    Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Requisite Lenders notify the Administrative Agent (with, in the case of the Requisite Lenders, a copy to the Borrower) that the Borrower or Requisite Lenders (as applicable) have determined, that:

(iii)    adequate and reasonable means do not exist for ascertaining the Base Eurodollar Rate for any requested Interest Period, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or

(A)    the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Base Eurodollar Rate or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or

(B)    syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Base Eurodollar Rate,

then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice , as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace the Base Eurodollar Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar Dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes (as defined below) and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower provided that all Lenders deliver written notice to the Administrative Agent that they accept such amendment prior to such time.

If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) the Daily LIBOR Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.

Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than 0.75% for purposes of this Agreement.

As used above:

“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).

(e)    Illegality.

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

(ii)    When notice is given by a Lender under Section 5.2(e)(i), (A) the Borrower’s right to request from such Lender and such Lender’s obligation, if any, to make Eurodollar Rate Loans shall be immediately suspended, and such Lender shall make a Base Rate Loan as part of any requested Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loans are then outstanding, the Borrower shall immediately, or if permitted by applicable law, no later than the date permitted thereby, upon at least one (1) Business Day’s prior written notice to the Administrative Agent and the affected Lender, convert each such Loan into a Base Rate Loan.

(iii)    If at any time after a Lender gives written notice under Section 5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate Loans, such Lender shall promptly give notice of that determination, in writing, to the Borrower and the Administrative Agent, and the Administrative Agent shall promptly transmit the notice to each other Lender. The Borrower’s right to request, and such Lender’s obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.

(iv)    A Lender may at its option make any Loan (a “Credit Extension”) to the Borrower by causing any domestic or foreign branch or Affiliate of such Lender (any “Lending Office”) to make such Credit Extension; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Credit Extension in accordance with the terms of this Agreement. Upon receipt of such notice, the Borrower shall take all reasonable actions requested by the Lender to mitigate or avoid such illegality.

(f)    Compensation. In addition to all amounts required to be paid by the Borrower pursuant to Section 5.1 and Article XIII, the Borrower shall compensate each Lender, upon demand, for all losses, expenses to third parties and liabilities (including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Lender’s Eurodollar Rate Loans to the Borrower but excluding any loss of Applicable Margin on the relevant Loans, any losses or expenses incurred as the result of such Lender’s gross negligence or willful misconduct (as determined in a final non-appealable judgment by a court of competent jurisdiction) and any administrative fees incurred in effecting such liquidation or reemployment) which that Lender may sustain (i) if for any reason a Borrowing, conversion into or continuation of Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a Notice of Conversion/Continuation given by the Borrower or in an electronic, written request by it for borrowing or conversion/ continuation or a successive Eurodollar Interest Period does not commence after notice therefor is given pursuant to Section 5.1(c), including, without limitation, pursuant to Section 5.2(d), (ii) if for any reason any Eurodollar Rate Loan is prepaid on a date which is not the last day of the applicable Interest Period, (iii) as a consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate Loan as a result of any of the events indicated in Section 5.2(d), or (iv) as a consequence of any failure by the Borrower to repay a Eurodollar Rate Loan when required by the terms of this Agreement. The Lender making demand for such compensation shall deliver to the Borrower concurrently with such demand a written statement in reasonable detail as to such losses, expenses and liabilities, and this statement shall be conclusive as to the amount of compensation due to that Lender, absent manifest error.

(g)    Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No Lender shall be entitled, however, to receive any greater amount under Section 4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar Rate Loan to any office (other than such Eurodollar Lending Office) or any Affiliate (other than such Eurodollar Affiliate) than such Lender would have been entitled to receive immediately prior thereto, unless (i) the transfer occurred at a time when circumstances giving rise to the claim for such greater amount did not exist and (ii) such claim would have arisen even if such transfer had not occurred.

(h)    Affiliates Not Obligated. No Eurodollar Affiliate or other Affiliate of any Lender shall be deemed a party to this Agreement or shall have any liability or obligation under this Agreement

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

5.3    Fees.

(a)    The Borrower agrees to pay (i) to the Administrative Agent, for its own account, the fees set forth in the Administrative Agent Fee Letter at the times and on the terms specified therein (the “Administrative Agent Fees”) and (ii) to the Administrative Agent on the Closing Date, for the ratable benefit of each Lender in accordance with such Lender’s Pro Rata Share, an upfront fee in an amount equal to 1.50% of the aggregate amount of the Total Commitments (i.e. $100,000,000), which upfront fee may be paid in the form of original issue discount by deducting such fee from the proceeds of the Loans (if any) made on the Closing Date.

(b)    The Borrower agrees to pay to the Administrative Agent for the ratable account of each Lender an undrawn fee calculated on a daily basis at a rate per annum equal to 0.50% on the daily unused Commitment of such Lender (assuming all Commitments are available to be used) commencing on the Closing Date, accruing on a daily basis, and due and payable in arrears on the first Business Day of each calendar month (commencing with [__], 2021) thereafter and on the Maturity Date, in each case, with respect all amounts accrued to such date (the “Undrawn Fee”).

(c)    All Fees will be paid on the dates due and payable, in immediately available funds (unless netted or otherwise expressly set forth in this Section 5.3), to the Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees will be refundable under any circumstances.

ARTICLE VI
 

CONDITIONS TO LOANS

6.1    Conditions Precedent to the Closing Date. This Agreement and the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the following conditions precedent is satisfied or waived in accordance with Section 14.7:

(a)    The Administrative Agent shall have received, on or before the Closing Date, this Agreement, the Notes, and, to the extent not otherwise specifically referenced in this Section 6.1(a), all other Loan Documents listed on Schedule 6.1(a), and the Fee Letter, each executed by each party hereto and thereto (including via electronic means), each of which shall be in form and substance satisfactory to the Requisite Lenders.

(b)    The Chapter 11 Cases shall have been commenced in the Bankruptcy Court and the motion to approve the Interim DIP Financing Order, the Final DIP Financing Order, the Cash Management Order and the First Day Orders shall be reasonably satisfactory in form and substance to the Requisite Lenders; provided, that the First Day Orders delivered to Lenders’ counsel on [●] are deemed to be satisfactory to the Requisite Lenders.

(c)    The Interim DIP Financing Order, the Cash Management Order and the Insurance Order shall have been entered by the Bankruptcy Court within five (5) days of the Petition Date and the Administrative Agent shall have received a true and complete signed copy of such orders, and such orders shall be in full force and effect and shall not have been reversed, modified, amended, stayed or vacated absent prior written consent of the Administrative Agent and the Requisite Lenders.

(d)    The Administrative Agent, for its benefit and the benefit of each Lender, shall have been granted a valid, perfected and non-avoidable lien on the Collateral pursuant to the Interim DIP Financing Order on the terms and conditions set forth herein and in the other Loan Documents.

(e)    The Administrative Agent shall have received the Approved Budget for the 13-week period following the Petition Date, it being understood that the budget attached to the Form of Interim DIP Financing Order attached hereto as Exhibit F is an Approved Budget.

(f)    The Borrower shall have paid (or caused to be paid) to the Administrative Agent and Lenders, on or before the Closing Date, or will be paid concurrently with the Closing Date, the fees and expenses then earned, due and payable hereunder or under the Interim DIP Financing Order or Loan Documents (including, without limitation, the fees and expenses of the Lender Advisors, and as set forth in the Fee Letter), in each case subject to and in accordance with the Interim DIP Financing Order and the other First Day Orders; provided that payment of such amounts may be made, or may be deducted, from the proceeds of the Loans on the Closing Date.

(g)    The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower on behalf of the Loan Parties certifying that (i) the conditions in this Section 6.1 have been satisfied, (ii) all government and third party approvals necessary in connection with the continued operations of the Loan Parties and the transactions contemplated hereby have been obtained and are in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby on satisfactory terms, and (iii) no action or proceeding is pending or threatened in any court or before any Governmental Authority seeking to enjoin or prevent the consummation of the transactions contemplated hereby.

(h)    As of the Closing Date, the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.

(i)    Each Lender and Administrative Agent who has requested the same at least five (5) Business Days prior to the Closing Date shall have received, at least three (3) Business Days prior to the Closing Date, “know your customer”, Beneficial Ownership information and similar information.

(j)    The Administrative Agent shall have received (1) a copy of the certificate or articles of incorporation, formation or limited partnership, as applicable, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (2) a certificate of the Responsible Officer of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the constitutional documents, limited partnership agreements, articles of association, memorandum of association, certificate of incorporation, certificate of formation, certificate of limited partnership and by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or its equivalent) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation, constitutional documents, articles of association and memorandum of association of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (1) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and (3) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (2) above. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from such Loan Party to the contrary.

(k)    As of the Closing Date, no Potential Event of Default or Event of Default shall exist or would result from the making of such Loan and the application of proceeds therefrom.

(l)    At the time and immediately after giving pro forma effect to the Loans made on the Closing Date, there has occurred no event which has had or is reasonably likely to have a Material Adverse Effect.

(m)    The Administrative Agent shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to each Loan Party in the states (or other jurisdictions) of formation of such persons, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 10.3 or have been or will be contemporaneously released or terminated.

(n)    The Administrative Agent shall have received insurance certificates reasonably satisfactory to the Administrative Agent naming the Administrative Agent as lender loss payee or additional insured, as appropriate.

6.2    Conditions Precedent to each Borrowing. The obligation of each Lender on or after the Closing Date to make any Loan requested to be made by it, shall be subject to the satisfaction (or waiver in accordance with Section 14.7) of all of the following conditions precedent:

(a)    The Borrower shall have delivered to the Administrative Agent a duly executed and completed Notice of Borrowing in accordance with Section 2.1(b) hereof.

(b)    The Administrative Agent, for the benefit of the Lenders, shall have valid and perfected Liens on all Collateral, to the extent contemplated hereby, and pursuant to the other Loan Documents, including the applicable DIP Financing Order.

(c)    For any Borrowing occurring during the Interim Period, the Interim DIP Financing Order shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect without the consent of the Administrative Agent and the Requisite Lenders or (ii) for any other Borrowing, the Final DIP Financing Order shall have been entered by the Bankruptcy Court, shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect without the consent of the Requisite Lenders. The Loan Parties shall be in compliance in all material respects with the Interim DIP Financing Order and the Final DIP Financing Order, as the case may be, and the Cash Management Order.

(d)    The representations and warranties of the Loan Parties contained in Article VII or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (unless otherwise qualified by materiality in which case such representations and warranties shall be true and correct in all respects) on and as of each Funding Date as though made on such date; provided that to the extent that such representations and warranties specifically refer to an earlier date, then such representations and warranties shall be true and correct in all material respects as of such earlier date.

(e)    As of the applicable Funding Date, no Potential Event of Default or Event of Default shall exist or would result from the making of such Loan and the application of proceeds therefrom.

(f)    The Administrative Agent shall have received a certificate, dated as of the applicable Funding Date and signed by an Authorized Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (c), (d) and (e) above.

(g)    The Borrower shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees and expenses then earned, due and payable hereunder, under the Fee Letter, or under the DIP Financing Orders or Loan Documents (including, without limitation, the fees and expenses of the Lender Advisors) subject to and in accordance with orders of the Bankruptcy Court.

(h)    Such Borrowing would not conflict with, or cause any Lender to violate or exceed, any applicable Requirements of Law, and no Change in Law shall have occurred, and no litigation shall be pending or threatened, which does or, with respect to any threatened litigation, seeks to, enjoin, prohibit or restrain the making or repayment of any Loan or the consummation of the transactions contemplated by this Agreement or any other Loan Document.

Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date of such Borrowing as to the applicable matters specified in clauses(c), (d) and (e) above.

In determining the satisfaction of the conditions specified in this Section 6.2, (x) to the extent any item is required to be satisfactory to any Lender, such item shall be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the applicable Funding Date that the respective item or matter does not meet its satisfaction and (y) in determining whether any Lender is aware of any fact, condition or event that has occurred and which would reasonably be expected to have a Material Adverse Effect, each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the applicable Funding Date of such fact, condition or event shall be deemed not to be aware of any such fact, condition or event on such Funding Date.

ARTICLE VII
 

REPRESENTATIONS AND WARRANTIES

7.1    Representations and Warranties of the Borrower. In order to induce the Lenders to enter into this Agreement and to make the Loans and the other financial accommodations to the Borrower described herein, the Borrower hereby represents and warrants to each Lender that the following statements are true, correct and complete:

(a)    Organization; Powers. (i) The Borrower (A) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Indiana, (B) is duly qualified to do business and is in good standing under the laws of each jurisdiction in which failure to be so qualified and in good standing will have or is reasonably likely to have a Material Adverse Effect, (C) has filed and maintained effective (unless exempt from the requirements for filing) a current Business Activity Report with the appropriate Governmental Authority in each state in which failure to do so would have a Material Adverse Effect, (D) has all requisite power and authority to own, operate and, subject to the entry and the terms of the DIP Financing Orders, encumber its Property and to conduct its business as presently conducted and as proposed to be conducted in connection with and following the consummation of the transactions contemplated by this Agreement and (E) is a partnership for federal income tax purposes.

(ii)    The Company (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana, (B) is duly authorized and qualified to do business and is in good standing under the laws of each jurisdiction in which failure to be so qualified and in good standing will have or is reasonably likely to have a Material Adverse Effect, and (C) has all requisite corporate power and authority to own, operate and, subject to the entry and the terms of the DIP Financing Orders, encumber its Property and to conduct its business as presently conducted.

(iii)    Each General Partner in existence as of the date hereof is (or shall be at such time as it becomes a General Partner) a duly formed and validly existing legal entity under the laws of its jurisdiction of formation and has all powers and all material governmental licenses, authorizations, consents and approvals required to own its property and assets and carry on its business as now conducted or as it presently proposes to conduct and has been duly qualified and is in good standing in every jurisdiction in which the failure to be so qualified and/or in good standing is likely to have a Material Adverse Effect.

(iv)    As of the Closing Date, true, correct and complete copies of the Organizational Documents identified on Schedule 7.1-A have been delivered to the Administrative Agent, each of which is in full force and effect, has not been modified or amended except to the extent set forth indicated therein and, to the best of the Borrower’s knowledge, there are no defaults under such Organizational Documents and no events which, with the passage of time or giving of notice or both, would constitute a default under such Organizational Documents.

(v)    Neither the Borrower nor the Company is a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code.

(vi)    Each Loan Party (A) is a duly organized, incorporated, established and validly existing corporation, limited liability company, partnership, limited partnership, limited liability partnership or other business entity in good standing under the laws of the jurisdiction of its organization, incorporation and establishment, (B) is duly authorized and qualified to do business and is in good standing under the laws of each jurisdiction in which failure to be so qualified and in good standing will have or is reasonably likely to have a Material Adverse Effect, and (C) has all requisite corporate power and authority to own, operate and, subject to the entry and the terms of the DIP Financing Orders, encumber its Property and to conduct its business as presently conducted.

(b)    Authority.

(i)    The General Partner has the requisite power and authority to execute, deliver and perform this Agreement on behalf of the Borrower, and each of the other Loan Documents which are required to be executed on behalf of the Borrower as required by this Agreement. The General Partner is the Person who has executed this Agreement and such other Loan Documents on behalf of the Borrower and is the sole general partner of the Borrower.

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

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

(c)    Subsidiaries; Ownership of Capital Stock and Partnership Interests. (i) Schedule 7.1-C (A) contains a chart, together with lists, indicating the corporate structure of the Company as of the Closing Date, the Borrower, and any other Person in which the Company or the Borrower holds a direct or indirect partnership, joint venture or other equity interest indicating the nature of such interest with respect to each Person included in such diagram as of the Closing Date; and (B) accurately sets forth, as of the Closing Date, (1) the correct legal name of such Person, the jurisdiction of its incorporation or organization and the jurisdictions in which it is qualified to transact business as a foreign corporation, or otherwise, and (2) the authorized, issued and outstanding shares or interests of each class of Securities of the Company, the Borrower and the Subsidiaries of the Borrower and the owners of such shares or interests (provided, however, that the shareholders of the Company and the limited partners of the Borrower are not listed thereon). As of the Closing Date, none of such issued and outstanding Securities is subject to any vesting, redemption, or repurchase agreement, and there are no warrants or options (other than Permitted Securities Options) outstanding with respect to such Securities, except as noted on Schedule 7.1-C. The outstanding Capital Stock of the Company is duly authorized, validly issued, fully paid and nonassessable and the outstanding Securities of the Borrower and its Subsidiaries are duly authorized and validly issued.

(i)    Each Subsidiary: (A) is a corporation, limited liability company or partnership, as indicated on Schedule 7.1-C, duly organized, validly existing and, if applicable, in good standing under the laws of the jurisdiction of its organization, (B) is duly qualified to do business and, if applicable, is in good standing under the laws of each jurisdiction in which failure to be so qualified and in good standing would limit its ability to use the courts of such jurisdiction to enforce Contractual Obligations to which it is a party except where the failure of such representation and warranty does not have, and is not be reasonably likely to have, a Material Adverse Effect, and (C) has all requisite power and authority to own and operate its Property and to conduct its business as presently conducted and as proposed to be conducted hereafter, except where the failure of such representation and warranty does not have, and is not be reasonably likely to have, a Material Adverse Effect.

(d)    No Conflict. The execution, delivery and performance of each of the Loan Documents to which the Borrower is a party do not and will not (i) conflict with the Organizational Documents of the Borrower or any Subsidiary of the Borrower, (ii) constitute a tortious interference with any Contractual Obligation of any Person or conflict with, result in a breach of or constitute (with or without notice or lapse of time or both) a default under any Requirement of Law or Contractual Obligation of the Borrower, the General Partner, any Limited Partner, any Subsidiary of the Borrower, or any general or limited partner of any Subsidiary of the Borrower, or require termination of any such Contractual Obligation which may subject the Administrative Agent or any of the other Lenders to any liability, other than conflicts, breaches, defaults or rights arising solely as a result of the commencement of the Chapter 11 Cases, (iii) result in or require the creation or imposition of any Lien whatsoever upon any of the Property or assets of the Borrower, the General Partner, any Limited Partner, any Subsidiary of the Borrower or any general partner or limited partner of any Subsidiary of the Borrower, or (iv) require any approval of shareholders of the Company or any general partner (or equity holder of any general partner) of any Subsidiary of the Borrower.

(e)    Governmental Consents. The execution, delivery and performance of each of the Loan Documents to which the Borrower is a party do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by any Governmental Authority, except filings, consents or notices which have been made, obtained or given, including, without limitation, the DIP Financing Orders.