EXHIBIT 10.1
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SECOND CREDIT AGREEMENT AMENDMENT
dated as of
August 12, 1998
among
WESTFIELD AMERICA INC.,
as Borrower
and
COMMONWEALTH BANK OF AUSTRALIA
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
as Co-Agents
and
UBS AG,
NEW YORK BRANCH,
as Documentary Agent
and
NATIONAL AUSTRALIA BANK LIMITED,
NEW YORK BRANCH,
as Administrative Agent
SECOND CREDIT AGREEMENT AMENDMENT, dated as of August 12, 1998, among
WESTFIELD AMERICA INC., a Missouri corporation (the "Borrower"), NATIONAL
AUSTRALIA BANK LIMITED, COMMONWEALTH BANK OF AUSTRALIA, AUSTRALIA AND NEW
ZEALAND BANKING GROUP LIMITED and UBS AG (formerly known as Union Bank of
Switzerland) (collectively, the "Lenders"), COMMONWEALTH BANK OF AUSTRALIA
and AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, as Co-Agents
(the "Co-Agents"), UBS AG, as Documentary Agent (the "Documentary Agent") and
NATIONAL AUSTRALIA BANK LIMITED, NEW YORK BRANCH, as Administrative Agent
for the Lenders (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Co-Agents, the Documentary Agent
and the Administrative Agent are parties to a Credit Agreement dated as of
May 30, 1997, as amended by a Credit Agreement Amendment dated as of
January 15, 1998 (the "Credit Agreement") pursuant to which the Lenders have
severally committed to make Loans to the Borrower on a revolving basis and to
participate in Letters of Credit issued for the account of the Borrower, up
to an aggregate limit of $800,000,000 (the "Total Commitment"); and
WHEREAS, the Borrower has requested the Lenders to amend the Credit
Agreement as hereinafter provided in order to enable the Borrower to acquire
certain properties ("the TrizecHahn Properties") pursuant to an Asset
Purchase Agreement dated as of April 6, 1998 between TrizecHahn Centers Inc.,
The Xxxxx Company and the Borrower (the "TrizecHahn Agreement") and to incur
Indebtedness in connection therewith; and
WHEREAS, the Lenders are willing so to amend the Credit Agreement, on
the terms and conditions provided herein; and
WHEREAS, capitalized terms used herein which are defined in the Credit
Agreement have the meanings herein ascribed to them in the Credit Agreement.
NOW, THEREFORE, the parties agree as follows:
1. The term "Commitment" as defined in Section 1.01 (c) of the Credit
Agreement is hereby amended to mean with respect to each Lender (i) until the
Reduction Date, the amount set forth opposite such Lender's name under the
heading "Current Commitment" on Schedule 1 to this Second Credit Agreement
Amendment and (ii) on and after the Reduction Date, the amount sent forth
opposite such Lender's name under the heading "Reduced Commitment" on
Schedule 1 to this Second Credit Agreement Amendment, or at any time, as set
forth in the relevant Assignment and Acceptance, as such amount may be
reduced from time to time pursuant to Section 2.03 of the Credit Agreement.
If the aggregate outstanding principal amount of Loans and the aggregate L/C
Obligations of the Lenders on the Reduction Date exceeds the Total
Commitment, as so reduced, the Borrower will prepay Loans in the amount of
such excess on the Reduction Date, together with accrued interest on the
principal being prepaid to the date of
prepayment and, in the case of Eurodollar Loans, any amounts required by
Section 4.03 of the Credit Agreement. The Reduction Date is the earlier of
June 30, 1999 and the date on which the Release Properties cease being
Syndicate Properties.
2. Section 3.03(a) of the Credit Agreement is hereby amended to read as
follows:
"(a) Each Eurodollar Loan shall bear interest from (and including) the
first day of each Interest Period to but excluding the last day of such
Interest Period (or, if sooner, the date such Loan is repaid or converted
to an ABR Loan), payable in arrears on the last day of such Interest
Period, and with respect to Interest Periods longer than three months on
the day which is three months after the commencement of such Interest
Period and on the last day of such Interest Period (or on the date such
Loan is repaid or converted, as the case may be), at a rate per annum
equal to the sum of (i) the Margin (changing as and when the Margin
changes) and (ii) LIBOR for such Interest Period."
3. Section 3.07 of the Credit Agreement is hereby amended, as follows:
(a) The Commitment Fee under Section 3.07(b) of the Credit Agreement
shall continue to accrue at the rate of 35/100 of 1% per annum until
December 31, 1998, and from and including January 1, 1999 to but excluding
the last day of the Waiver Period shall accrue at the rate of 50/100 of 1%
per annum. On and after the last day of the Waiver Period the Commitment
Fee will accrue at the rate of 35/100 of 1% per annum.
(b) The letter of credit fee payable under Section 3.07(c)(ii) of the
Credit Agreement shall continue to accrue at the rate of 13/16 of 1% per
annum until the Acquisition Date and during the Waiver Period shall be
increased to 1.25% per annum for the period from and including the
Acquisition Date to but excluding November 1, 1998, 1.50% per annum for
the period from and including the November 1, 1998 to but excluding
March 1, 1999 and 1.75% per annum for the period from and including
March 1, 1999 to but excluding the last day of the Waiver Period. On and
after the last day of the Waiver Period, the letter of credit fee will
accrue at the rate of 13/16 of 1% per annum.
4. Article VII of the Credit Agreement is hereby amended, as follows:
(a) Section 7.02(b) is hereby amended to read as follows:
"(b) LIENS. Create, incur, assume or suffer to exist any Lien,
upon or in any Portfolio Property, whether now owned
or hereafter acquired, except (i) Permitted Liens,
(ii) mortgages (but not renewals or extensions
thereof) on Non-Syndicate Properties in effect on the
date hereof, (iii) mortgages or other Liens on
Non-Syndicate Properties which are not 100% owned by
the Borrower and/or one or more Wholly Owned
Subsidiaries of the Borrower, (iv) Non-Recourse
Mortgages on Non-Syndicate Properties that are 100%
owned by the Borrower and/or one or more Wholly Owned
Subsidiaries of the
Borrower securing Indebtedness which, together with
any mortgages on such properties permitted under
clause (ii) above, do not at any time exceed in the
aggregate 38% of the sum of (x) the then Current Value
of all Portfolio Properties and (y) the outstanding
principal amount of the Garden State Note, (v) Liens
on Non-Syndicate Properties acquired after the
Effective Date which were in effect at the time they
became Portfolio Properties and (vi) mortgages on Mid
Rivers Mall and Mission Valley Center securing
Indebtedness not exceeding $15,000,000 and
$48,000,000, respectively, as of the date hereof;
provided that (x) any such mortgage referred to in
clause (ii), (iii) or (v) of this Section 7.02(b) and
the Indebtedness secured thereby does not extend to
any other property and is without recourse to any of
the Borrower and its Subsidiaries other than the
direct owner of the property subject to such mortgage
(and other than pursuant to customary recourse
exceptions) and (y) from and after September 30, 1997
any such Indebtedness referred to in clause (vi) of
this Section 7.02(b) that is recourse to any of the
Borrower and its Subsidiaries other than the direct
owner of the property subject to the related mortgage
(other than pursuant to customary recourse exceptions)
shall not exceed $25,000,000 in the aggregate."
(b) Section 7.02(d) is hereby amended to read as
follows:
"(d) SYNDICATE SUBSIDIARY INDEBTEDNESS. Permit
any Syndicate Subsidiary to create, incur, assume or
suffer to exist any Indebtedness, other than (i)
Indebtedness owed by such Syndicate Subsidiary to the
Borrower or any Cross-Guarantor, (ii) a
Cross-Guarantee delivered by such Syndicate Subsidiary
hereunder and (iii) a guarantee by such Syndicate
Subsidiary of the Indebtedness guaranteed by the
Borrower in respect of the TrizecHahn Bridge."
(c) Section 7.03(a) is hereby amended to read as
follows:
"(a) SHAREHOLDERS' FUNDS. Permit Shareholders'
Funds to be less than $1,250,000,000 as of the last
day of any fiscal quarter, commencing with the third
quarter of 1998."
(d) Section 7.03(c) is hereby amended to read as
follows:
"(c) SYNDICATE PROPERTY COVERAGE." Permit the
ratio of (i) Net Operating Income of the Syndicate
Properties to (ii) Interest Expense of the Borrower
and its Subsidiaries in respect of unsecured
Indebtedness for the twelve month period ending on the
last day of each calendar quarter, (x) to be less than
1.75:1 if the last day of such calendar quarter occurs
other than during the Waiver Period and (y) to be less
than 1.50:1 if the last day of such calendar quarter
occurs during the Waiver Period."
(e) Section 7.03(d) is hereby amended to read as
follows:
"(d) TOTAL DEBT. Permit Total Debt (x) at any
time other than during the Waiver Period to exceed 60%
of the lesser of (i) Total Tangible Assets and (ii)
Capitalized Value or (y) at any time during the Waiver
Period to exceed 65% of the lesser of (i) Total
Tangible Assets and (ii) Capitalized Value."
(f) Section 7.03(e) is hereby amended to read as
follows:
"(e) LOAN TO VALUE RATIO. Permit the sum of the
principal amount of unsecured Indebtedness of the
Borrower (including the Loans and L/C Obligations)
outstanding (x) at any time other than during the
Waiver Period, to exceed 60% of the Current Value of
the Syndicate Properties which are 100% owned directly
or indirectly by the Borrower or the UPREIT Entity (if
it is then a Cross-Guarantor) and the greater of the
proportionate share interest of the Borrower and the
proportionate share interest of the UPREIT Entity (if
it is then a Cross-Guarantor) in the Current Value of
all other Syndicate Properties or (y) at any time
during the Waiver Period, to exceed 80% of such
Current Value."
5. Section 8.01(f) of the Credit Agreement is hereby amended to read
as follows:
"(f) The Borrower or any Syndicate Subsidiary or
Cross-Guarantor shall fail to pay any Indebtedness
thereof (other than obligations hereunder) in an
amount of $20,000,000 or more beyond the lapse of any
applicable grace period provided for in the instrument
or instruments evidencing such Indebtedness; or any
such Indebtedness having an aggregate principal amount
outstanding of $20,000,000 or more shall become or be
declared to be due (other than at the option of the
obligor thereon) prior to the expressed maturity
thereof; or, in the case of the TrizecHahn Bridge,
there shall have occurred an event which, with the
giving of notice, or the lapse of time, or both, would
cause the TrizecHahn Bridge to become, or permit the
same to be declared to be, due prior to the expressed
maturity thereof; or"
6. (a) The definitions of "Interest Expense", "Shareholders' Funds" and
"Total Debt" in Section 1.01(c) of the Credit Agreement is hereby amended to
read as follows:
" 'INTEREST EXPENSE' means, for any period, the combined
interest expense (including that attributable to capital leases),
accrued and paid or payable in cash for such period, of the
Borrower and the Related Entities with respect to all outstanding
Indebtedness (excluding Indebtedness relating to the May Company
Finance Leases) of the Borrower and its proportionate interest in
outstanding Indebtedness of the Related Entities, including
capitalized interest
and including dividends on preferred stock included in
"Indebtedness" and net costs (less net benefits, provided they are
not subject to any Lien) under Interest Rate Protection Agreements."
" 'SHAREHOLDERS' FUNDS' means, at any date of determination,
shareholders' equity (as shown on the financial statements for the
latest period ending on or before such date delivered to the
Lenders pursuant to Section 7.01(a)), PLUS the Capital Notes (as
reflected on such financial statements), PLUS the Borrower's
proportionate interest in the Current Value of Portfolio
Properties, MINUS (i) the value at which the Portfolio Properties
are reflected in such financial statements and (ii) Direct
Financing Lease Receivables (net of Indebtedness associated
therewith) as shown on such financial statements.
" 'TOTAL DEBT' means, at any date of determination, the
aggregate Indebtedness of the Borrower and its proportionate
interest in Indebtedness of the Related Entities, excluding any
Indebtedness relating to the May Company Finance Leases."
(b) Clause (ii) of the definition of "Indebtedness" in
Section 1.01(c) of the Credit Agreement is hereby amended to read as follows:
"(ii) all obligations of such Person evidenced by bonds,
notes, debentures or other similar instruments (excluding the
Capital Notes),"
(c) Clause (vii) of the definition of "Indebtedness" in
Section 1.01(c) of the Credit Agreement is hereby amended to read as follows:
"(vii) all preferred stock issued by such Person (excluding
the Series A preferred stock, par value $1.00 per share, the Series
B preferred stock, par value $1.00 per share, and so long as no
REIT Event or Control Event has occurred and is continuing, the
Series C preferred stock, par value $1.00 per share and the Series
D preferred stock, par value $1.00 per share, of the Borrower)
which is redeemable prior to the scheduled repayment in full of the
Loans, other than at the option of such Person, valued at the
greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends,"
(d) Section 1.01(c) of the Credit Agreement is hereby amended by
adding thereto the following definitions:
"ACQUISITION DATE" means the date on which the Borrower
acquires one or more of the TrizecHahn Properties, whether or not
the conditions described in Section 9 of the Second Credit
Agreement Amendment shall than have been satisfied.
"CAPITAL NOTES" means any outstanding capital notes of the
Borrower issued pursuant to the WEA Capital Note Trust Deed, dated
as of May 29, 1998, between the Borrower and Perpetual Trustee
Company (Canberra) Limited, as trustee.
"CONTROL EVENT" means a "Change in Control" as defined in the
Certificates of Designation establishing the Series C and Series D
preferred stock of the Borrower.
"GARDEN STATE NOTE" means the promissory note dated May 21,
1997, initially in the principal amount of $145,000,000, by
Westfield Partners, Inc. and Westland Management, Inc., jointly and
severally, in favor of the Borrower, and secured by a pledge of
their limited partnership interests in Westland Garden State Plaza
Limited Partnership.
"MARGIN" means (i) 1% until the Acquisition Date, (ii) 1.25%
during the period from and including the Acquisition Date to but
excluding November 1, 1998, (iii) 1.50% during the period from and
including November 1, 1998 to but excluding March 1, 1999, (iv)
1.75% during the period from and including March 1, 1999 to but
excluding the last day of the Waiver Period and (v) 1.00% on and
after the last day of the Waiver Period.
"NON-RECOURSE MORTGAGE" means a mortgage on a Non-Syndicate
Property securing Indebtedness (i) of a separately organized
Subsidiary that does not have, and is not permitted to have, any
other Indebtedness, (ii) as to which recourse is limited to
Non-Syndicate Properties included in the same financing, except for
recourse liabilities of the separately organized Subsidiary owners
of such Non-Syndicate Properties, (iii) as to which neither the
Borrower, any Cross Guarantor nor any Syndicate Subsidiary may be
liable, contingently or otherwise and (iv) in connection with which
the Borrower shall have furnished to the Lenders a certificate of
the chief financial officer or internal counsel of the Borrower in
form reasonably satisfactory to the Administrative Agent as to
(i), (ii) and (iii) above.
"REIT EVENT" means a "REIT Termination Event" as defined in
the Certificates of Designation establishing the Series C and
Series D preferred stock of the Borrower.
"RELEASE PROPERTIES" means Enfield Square, Northwest Plaza and
Crestwood Plaza.
"TRIZECHAHN BRIDGE" means a bridge debt financing for the
acquisition of the TrizecHahn Properties.
"WAIVER PERIOD" means the period from and including the date
on which the conditions specified in Paragraph 9 of this Second
Credit Agreement Amendment are satisfied to the earlier of June 30,
1999 and the date on which the Borrower gives the Administrative
Agent irrevocable written notice that the Waiver Period is to
expire.
7. The Borrower may, by written notice to the Administrative Agent,
elect not to have the Release Properties qualify as Syndicate Properties in
order to subject the same to Non-Recourse Mortgages, provided that the
Borrower shall have raised an additional $200,000,000 of additional equity
capital through the issuance of convertible preferred stock which is fully
subordinated to the prior payment in full of the Loans, as set forth in the
opinion delivered pursuant to Section 9(f) hereof, and the satisfaction of
all other obligations of the Borrower under the Credit Documents and is not
subject to payment or redemption at the option of anyone other than the
Borrower (whether or not as a result of the occurrence of a default or any
other event) prior to the Termination Date other than upon the occurrence of
a Control Event or a REIT Event. Upon a Release Property no longer
qualifying as a Syndicate Property, each Subsidiary which was a Syndicate
Subsidiary by reason of its having been the owner, in whole or in part, of
such Release Property (unless it shall also be the owner, in whole or in
part, of any other Syndicate Property) shall be deemed to be released from
its Cross-Guarantee.
8. The Borrower represents and warrants to the Lenders (a) that the
representations and warranties of the Borrower set forth in Article V of the
Credit Agreement (except to the extent that any representation or warranty
speaks as of a date certain) are true and correct in all material respects on
the date of this Second Credit Agreement Amendment with the same effect as
though such representations and warranties were made on such date, (b) that
no Default or Event of Default has occurred and is continuing as of the date
of this Second Credit Agreement Amendment and (c) that there are no offsets
or defenses to the obligations of the Borrower or any Guarantor under any of
the Credit Documents.
9. The amendments provided for herein shall be effective upon the
satisfaction of the following conditions:
(a) The Administrative Agent shall have received counterparts of this
Second Credit Agreement Amendment duly executed and delivered by each of
the Lenders and the Borrower.
(b) The Administrative Agent shall have received letters from each of
the Guarantors substantially in the form of Exhibit A hereto (the
"Guarantee Confirmations") duly executed by each of the Guarantors.
(c) The Borrower shall have paid to the Administrative Agent for the
account of the Lenders a service fee in respect of this Second Credit
Agreement Amendment in the amount of $600,000.
(d) The Administrative Agent shall have received from counsel to the
Borrower and each of the Guarantors opinions in form satisfactory to the
Administrative Agent as to the authorization, execution and delivery of
this Second Credit Agreement Amendment and the Guarantee Confirmations
and the enforceability of the Credit Agreement and the Guarantees, as
amended hereby and by the Guarantee Confirmations.
(e) The Administrative Agent shall have received copies of resolutions
of the Borrower and each of the Guarantors authorizing the execution,
delivery and performance of this Second Credit Agreement Amendment and
the Guarantee Confirmations.
(f) The Administrative Agent shall have received from Missouri counsel
to the Borrower an opinion in form satisfactory to the Administrative
Agent as to the subordination of the Series C and Series D Preferred
Shares of the Borrower to the obligations of the Borrower under the
Credit Documents.
(g) The Administrative Agent shall have notified the Borrower and each
of the Lenders that the conditions described in clauses (a) through (f)
above have been satisfied.
10. Except as amended hereby, the Credit Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
11. THIS SECOND CREDIT AGREEMENT AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
12. This Second Credit Agreement Amendment may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Credit
Agreement Amendment to be duly executed as of the date first above written.
WESTFIELD AMERICA INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
NATIONAL AUSTRALIA BANK LIMITED,
NEW YORK BRANCH (ACN 0014 044 937),
as Administrative Agent and Lender
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA,
as Co-Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
as Co-Agent and a Lender
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
UBS AG, NEW YORK BRANCH, as
Documentary Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Director
By: /s/ Xxxxxx Xxxxx III
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Name: Xxxxxx Xxxxx III
Title: Managing Director
SCHEDULE I
LENDERS AND COMMITMENTS
Current Reduced
Lender Commitment Commitment Address for Notices
------ ------------ ------------ ---------------------
National Australia $333,333,333 $250,000,000 000 Xxxx Xxxxxx
Xxxx Xxxxxxx Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxx
Commonwealth Bank $200,000,000 $150,000,000 000 Xxxxxxxxx Xxxxxx
xx Xxxxxxxxx Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxx Xxxxxxxx
Australia and New $200,000,000 $150,000,000 1177 Avenue of the Americas
Zealand Banking Xxx Xxxx, XX 00000-0000
Group Limited Telecopy: (000) 000-0000
Attn: Xxxxx Xxxx
UBS AG $ 66,666,667 $ 50,000,000 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Department Head,
Commercial Real Estate
Finance
Exhibit A
[Date]
To: National Australia Bank Limited,
Commonwealth Bank of Australia,
Australia and New Zealand Banking Group Limited
UBS AG
c/o National Australia Bank Limited, as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: CREDIT AGREEMENT, dated as of May 30, 1997, as amended by a
(the Credit Agreement Amendment dated as of January 15, 1998
"Credit Agreement"), among WESTFIELD AMERICA INC., a Missouri
corporation (the "Borrower"), NATIONAL AUSTRALIA BANK
LIMITED, COMMONWEALTH BANK OF AUSTRALIA, AUSTRALIA AND NEW
ZEALAND BANKING GROUP LIMITED and UBS AG (collectively,
the "Lenders"), COMMONWEALTH BANK OF AUSTRALIA AND AUSTRALIA
AND NEW ZEALAND BANKING GROUP LIMITED, as Co-Agents, UBS AG,
as Documentary Agent, and NATIONAL AUSTRALIA BANK LIMITED,
NEW YORK BRANCH, as Administrative Agent for the Lenders (the
"Agent").
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Gentlemen:
The undersigned (the "Guarantor"), as a Guarantor under and as defined
in the Credit Agreement referred to above, has delivered to the Agent its
Guarantee dated as of _______, 1997 (the "Guarantee" and referred to in the
Credit Agreement as a "Cross Guarantee") in favor of the Agent and the
Lenders as to the obligations of the Borrower in respect of the Loans, the
L/C obligations and the other obligations of the Borrower under the Credit
Agreement. The Guarantor understands and acknowledges that the Credit
Agreement has been amended by to a Second Credit Agreement Amendment dated as
of August 12, 1998 (the "Amendment"). The Guarantor hereby confirms to the
Agent and the Lenders that the Guarantee remains in effect in accordance with
its terms and that term "Guaranteed Obligations" in the Guarantee refers to
the obligations of the Borrower in respect of the Loans, the L/C Obligations
and other obligations of the Borrower under the Credit Agreement, as modified
by the Amendment.
The Guarantor represents and warrants to the Agent and the Lenders (a)
that the representations and warranties of the Guarantor set forth in
Section 5 of the Guarantee are true
and correct in all material respects on the date hereof with the same effect
as though such representations and warranties were made on this date and (b)
that there are no offsets or defenses to the obligations of the Guarantor
under the Guarantee.
Very truly yours,
[name of Guarantor]
By:
--------------------------------
Name:
Title:
