EXHIBIT 10.3
SECOND AMENDMENT OF LOAN AGREEMENT
This Second Amendment of Loan Agreement (this "Agreement") is made as of
this 25th day of February 1999, by NORTHWEST PLAZA LLC, a Delaware limited
liability company, WEA CRESTWOOD PLAZA LLC, a Delaware limited liability
company, ENFIELD SQUARE LLC, a Delaware limited liability company, PLAZA
XXXXXX LLC, a Delaware limited liability company, PLAZA WEST COVINA LLC, a
Delaware limited liability company, MID RIVERS MALL LLC, a Delaware limited
liability company, WEST PARK PARTNERS, L.P., a Missouri limited partnership,
CAPITAL MALL COMPANY, a Washington limited partnership, FOX HILLS MALL LLC, a
Delaware limited liability company, XXXXXX PLAZA LLC, a Delaware limited
liability company, PARKWAY PLAZA LLC, a Delaware limited liability company,
and OAKRIDGE MALL LLC, a Delaware limited liability company (each, a
"Borrower" and collectively, the "Borrowers") and THE CAPITAL COMPANY OF
AMERICA LLC (together with its successors and assigns, "Lender").
R E C I T A L S
A. Lender and four of the Borrowers (the "Initial Borrowers") entered
into that certain Loan Agreement dated as of October 30, 1998 (the "October
Loan Agreement") pursuant to which Lender agreed to make a series of loans in
the maximum aggregate amount of $850,000,000 to the Initial Borrowers and
certain of their affiliates, respectively.
B. Pursuant to an Assumption and Amendment of Loan Agreement dated as
of December 9, 1998 (the "First Amendment"), Lender and the Borrowers amended
the October Loan Agreement so as, among other things, to reduce the size of
the loan facility to $746,100,000 and to have the Borrowers other than the
Initial Borrowers assume the October Loan Agreement. The October Loan
Agreement as amended by the First Amendment is hereinafter referred to as the
"Original Loan Agreement".
C. Lender and Borrowers have agreed to amend the Loan Agreement so as
to increase the size of the facility to $754,100,000 and to otherwise modify
certain provisions of the Loan Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, and the additional advances to be made by Lender pursuant
to the terms hereof, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrowers and
Lender hereby agree as follows:
1. DEFINITIONS. Capitalized terms appearing herein and not
otherwise defined shall have the respective meanings ascribed to such terms
in the Loan Agreement. The term "Loan Agreement" as used in any of the Loan
Documents, and the term "Agreement" as used in the Loan Agreement, shall
hereafter be deemed to refer to the Original Loan Agreement as amended by
this Agreement and by the REMIC Letter Agreement (as hereinafter defined) and
as it may hereafter be further amended or modified from time to time.
2. CORRECTIONS AND CLARIFICATIONS.
(a) In Section 2.6(a)(xi) of the October Loan Agreement, the
reference to "Appraisal Value" is changed to "Appraised Value."
(b) The Oakridge Option Fund shall be deemed a Fund for all
purposes of the Loan Agreement.
(c) In Section 4.13(c) of the October Loan Agreement, the
reference to "June 15, 2002" is changed to "June 15, 2001".
(d) Any letter of credit delivered to Lender in lieu of all or
part of any Fund may be drawn by Lender upon the Maturity Date (unless the
Loans have then been paid in full), and the proceeds of any such draw(s)
shall be deemed to be a Fund for all purposes of the Loan Agreement. The
provisions of this Paragraph 2(d) are not intended to limit Lender's right
to draw on any letter of credit prior to the Maturity Date in accordance
with the provisions of the Loan Agreement.
(e) Sections 4.14(a) and (b) of the October Loan Agreement are
amended and restated in their entirety to read as follows:
"(a) AFTER THE OCCURRENCE OF A CASH MANAGEMENT EVENT, ALL RENTS
REMAINING IN A DEPOSIT ACCOUNT AFTER APPLICATION THEREOF
PURSUANT TO CLAUSE "NINTH" OF SECTION 3.1.3(a), SHALL BE
TRANSFERRED TO THE MASTER
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DEPOSIT ACCOUNT (ALL FUNDS AT ANY TIME IN THE CASH COLLATERAL
SUBACCOUNT OF THE MASTER DEPOSIT ACCOUNT BEING CALLED THE "CASH
COLLATERAL FUND")."
"(b) AFTER THE OCCURRENCE OF A CASH MANAGEMENT EVENT AND THE
CONTINUATION THEREOF FOR 30 DAYS OR MORE, FUNDS IN THE CASH
COLLATERAL SUBACCOUNT SHALL BE UTILIZED TO PAY (i) FEES AND
OTHER SUMS DUE AND PAYABLE TO THE MANAGEMENT CONSULTANTS, TO THE
EXTENT SUCH FEES AND SUMS HAVE NOT BEEN PAID PURSUANT TO CLAUSES
"EIGHTH" AND "NINTH" OF SECTION 3.1.3(a), AND (ii) OTHER
PAYMENTS DESCRIBED IN CLAUSE (i) THROUGH (ix) OF SECTION 3.1.3(a)
TO THE EXTENT THE RENTS FROM ANY BORROWER'S COLLATERAL PROPERTY
ARE INSUFFICIENT TO PAY SAME. PRIOR TO THE EXPIRATION OF SUCH 30
DAY PERIOD, SUMS IN THE CASH COLLATERAL SUBACCOUNT SHALL BE
DISBURSED ON A TWICE WEEKLY BASIS TO AN ACCOUNT SPECIFIED IN
WRITING BY BORROWERS' AGENT.
(f) In Section 5.1.37 of the October Loan Agreement, the term "the
Trust Property" is changed to "a Collateral Property."
(g) In clause (y) of Section 3.5(a) of the October Loan Agreement,
the words "Section 3.2.2 which causes the Debt Service Coverage Ratio to
increase to 1.20 or greater" are deleted and the words "Section 3.3" are
inserted in their place.
(h) In clause (ix) (E) of Section 6.15 of the October Loan
Agreement the words "(other than amendments in effect as of December 9, 1998
or amendments subsequently entered into with respect to which a Rating
Comfort Letter has been obtained from each of the Rating Agencies or
amendments entered into accordance with Section 7.11 of the this Agreement)"
are inserted immediately following the words "organizational documents".
3. REMIC CHANGES. Simultaneously with the execution and delivery
of this Agreement, the Borrowers and the Lender shall enter into a letter
agreement in the form of EXHIBIT A hereto (the "REMIC Letter Agreement").
4. CAP ON INTEREST RATE.
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(a) In Section 1.1 of the October Loan Agreement, the
definition of "Interest Rate" is amended and restated in its entirety as
follows:
"INTEREST RATE": FOR ANY INTEREST PERIOD, THE LESSER OF (A)
THE MINIMUM RATE AND (B) THE MAXIMUM RATE (OR, WHEN APPLICABLE
PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE
DEFAULT RATE.)"
(b) In Section 1.1 of the October Loan Agreement, the following
new definition is added immediately after the definition of "Maximum Rate":
"MINIMUM RATE": FOR ANY INTEREST PERIOD, THE LESSER OF (A)
LIBOR FOR SUCH INTEREST PERIOD PLUS THE MARGIN, AND (B) 9.25%
PER ANNUM.
(c) In Section 1.1 of the October Loan Agreement, the
definition of "Default Rate" is amended and restated in its entirety as
follows:
"DEFAULT RATE": PRIOR TO THE STATED MATURITY DATE: A RATE
PER ANNUM EQUAL TO THE LESSER OF (i) THE MAXIMUM RATE AND (ii)
5% ABOVE THE UNCAPPED INTEREST RATE, COMPOUNDED MONTHLY; FROM
AND AFTER THE STATED MATURITY DATE: A RATE PER ANNUM EQUAL TO
THE LESSER OF (i) THE MAXIMUM RATE AND (ii) 10% ABOVE THE
UNCAPPED INTEREST RATE, COMPOUNDED MONTHLY."
(d) In Section 1.1 of the October Loan Agreement, the following
new definition is added immediately after the definition of "UCC":
"UNCAPPED INTEREST RATE": FOR ANY INTEREST PERIOD, LIBOR
FOR SUCH INTEREST PERIOD PLUS THE MARGIN."
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5. ADDITIONAL ADVANCES.
(a) On the date hereof Lender is making an advance in the
amount of $8,000,000 to the Oakridge Borrower. Lender shall have no
obligation to make any further advance to any Borrower.
(b) The Borrowers shall execute and deliver to Lender such
documents, instruments and agreements (including without limitation,
amendments to Mortgages, Guaranties, the Note and other Loan Documents), and
deliver to Lender legal opinions, title insurance and other closing items,
in each case as Lender may require to evidence and secure such additional
advances, with the intention that Lender have the same guaranties and
security and other benefits with respect to such additional advances as
Lender has with respect to the prior advances under the Loan Agreement.
6. OAKRIDGE OPTIONS.
(a) If, upon the expiration of the Secondary Option Period (as
defined in the Oakridge Option Agreement), neither the Primary Option nor
the Secondary Option have been exercised, and provided no Event of Default
then exists, the Oakridge Borrower shall be entitled to receive all sums in
the Oakridge Option Fund in excess of $8,000,000. The balance of the
Oakridge Option Fund (i.e., $8,000,000) shall continue to be held by Lender
as cash collateral for the Loans until the Loans have been paid in full.
For purposes of this Paragraph 6(a), any Oakridge L/C may be held by Lender
upon the expiration of the Secondary Option Period shall be deemed part of
the Oakridge Option Fund.
(b) Borrower acknowledges that, in connection with a Secondary
Market Transaction, the Capital Company of America LLC ("CCA") (or its
affiliate) may deliver to the Servicer (i) funds, a letter of credit or
other collateral to secure the obligations of the Oakridge Borrower under
paragraphs (b), (c), and (h) of Section 4.13 of the October Loan Agreement
(the "CCA Oakridge Option Collateral") and/or (ii) funds, a letter of credit
or other collateral to secure the obligations of the Oakridge Borrower to
make all rental payments becoming due and payable by the Oakridge Borrower
in its capacity as tenant under the Ground Lease of the Oakridge Property
(the "CCA Oakridge Rent Collateral").
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7. WEA AND XXXX AGREEMENTS. Simultaneously with the execution and
delivery of this Agreement, Westfield America, Inc. ("WEA") is executing and
delivering to CCA that certain Reimbursement Agreement dated the date hereof
(the "Oakridge Reimbursement Agreement") and Westfield America Limited
Partnership ("XXXX") is executing and delivering to CCA an interest Rate Cap
Agreement dated the date hereof (the "Interest Rate Cap Agreement").
8. GRID TO NOTE. As of the date hereof, the SCHEDULE A to the Note
is as set forth on SCHEDULE A hereto.
9. MISCELLANEOUS.
(a) This Agreement may be relied upon by, shall run to the
benefit of and may be enforced by Lender and its successors and assigns.
(b) This Agreement shall be governed by the laws of the State
of New York applicable to agreements executed and to be performed in New
York.
(c) This Agreement cannot be modified, changed, or discharged
except by an agreement in writing signed by Borrowers and Lender.
(d) A telephone facsimile of an executed copy of this Agreement
or of any other document executed in connection herewith shall be deemed an
original for all purposes.
(e) This Agreement and any document executed in connection
herewith may be executed with counterpart signature pages.
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IN WITNESS WHEREOF each of the undersigned has caused this Agreement to
be duly executed by its duly authorized representatives as of the day and
year first above written.
NORTHWEST PLAZA LLC, a Delaware limited liability
company
By: Northwest Plaza, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
WEA CRESTWOOD PLAZA LLC, a Delaware limited
liability company
By: Crestwood Plaza, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
ENFIELD SQUARE LLC, a Delaware limited liability
company
By: Enfield Square, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
PLAZA XXXXXX LLC, a Delaware limited liability
company
By: Plaza Xxxxxx, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
PLAZA WEST COVINA LLC, a Delaware limited
liability company
By: Plaza West Covina, Inc., a Delaware
corporation, its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
MID RIVERS MALL LLC, a Delaware limited liability
company
By: Mid Rivers, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
WEST PARK PARTNERS, L.P., a Missouri limited
partnership
By: West Park Shopping Center, Inc., a Delaware
corporation, its general partner
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
CAPITAL MALL COMPANY, a Washington limited
partnership
By: Capital Shopping Center, Inc., a Delaware
corporation, its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
FOX HILLS MALL LLC, a Delaware limited liability
company
By: Fox Hills Mall, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
XXXXXX PLAZA LLC, a Delaware limited liability
company
By: Xxxxxx Plaza, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
PARKWAY PLAZA LLC, a Delaware limited liability
company
By: Parkway Plaza, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
OAKRIDGE MALL LLC, a Delaware limited liability
company
By: Oakridge Mall, Inc., a Delaware corporation,
its managing member
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
THE CAPITAL COMPANY OF AMERICA LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title:
EXHIBIT A
THE CAPITAL COMPANY OF AMERICA LLC
2 WORLD XXXXXXXXX XXXXXX, XXXXXXXX X
XXX XXXX, XXX XXXX 00000
February __, 0000
Xxxxxxxxx Xxxxx LLC
WEA Crestwood Plaza LLC
Enfield Square LLC
Plaza Xxxxxx LLC
Plaza West Covina LLC
Mid Rivers Mall LLC
West Park Partners, L.P.
Capital Mall Company
Fox Hills Mall LLC
Xxxxxx Plaza LLC
Parkway Plaza LLC
Oakridge Mall LLC
c/o Westfield America, Inc.
00000 Xxxxxxxx Xxxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Re: $754,100,000 FINANCING - WESTFIELD/CCA
Gentlemen:
We refer to that certain Loan Agreement dated as of October 30, 1998
(the "October Loan Agreement"), as modified by that certain Assumption and
Amendment Agreement dated as of December 9, 1998 and as further amended by
that certain Second Amendment to Loan Agreement dated as of the date hereof
(collectively, the "Loan Agreement"). All capitalized terms used and not
defined herein shall have the respective meanings given such terms in the
Loan Agreement.
As you know, The Capital Company of America LLC ("CCA") contemplates
securitizing the Loans (the "Securitization"), and assigning the Loans to a
trustee
(together with its successors and assigns, the "Trustee") for the benefit of
holders of securities (the "Securities") issued as part of the Securitization.
The Loan Agreement currently provides that the Borrowers may substitute
retail properties for one or more of the Collateral Properties.
CCA, by its execution and delivery of this letter agreement, irrevocably
agrees with you that the Loan Agreement is hereby modified to provide that,
effective immediately upon the assignment of the Loans to the Trustee, and
for so long as the Trustee or other service provider to the Securitization is
the holder of the Loans, the provisions of Section 2.6(a) of the October Loan
Agreement shall be modified as follows: (A) Section 2.6(a)(iv), (v) and (vi)
are deleted in their entirety; (B) Section 2.6(a)(xiv) is modified to delete
the introductory clause and replace it with "the Borrowers shall have
demonstrated that"; (C) Section 2.6(a)(xiv) is further modified to delete
clause (A) thereof; and (D) Section 2.6(a)(xviii) is deleted in its entirety
and replaced with "receipt of written affirmation from each Rating Agency
rating the Securities that such substitution will not cause the rating
assigned to any class of Securities to be withdrawn, qualified or
downgraded." All other terms of the Loans and the Loan Documents shall remain
in full force and effect, without any modification thereof.
This modification is NOT binding on any holder of the Loans other than
the Trustee or other service provider to the Securitization. In the event the
Trustee transfers the Loans and the Loans are removed from the
Securitization, the Loan Agreement substitution provisions shall remain as
written, without giving effect to this modification.
This letter agreement constitutes an amendment to the Loan Agreement and
may be cited in any Loan Document as the "REMIC Letter Agreement".
Very truly yours,
THE CAPITAL COMPANY OF AMERICA LLC
By:
------------------------------
Name:
Title:
AGREED TO:
NORTHWEST PLAZA LLC,
a Delaware limited liability company
By: Northwest Plaza, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
WEA CRESTWOOD PLAZA LLC,
a Delaware limited liability company
By: Crestwood Plaza, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
ENFIELD SQUARE LLC,
a Delaware limited liability company
By: Enfield Square, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
PLAZA XXXXXX LLC,
a Delaware limited liability company
By: Plaza Xxxxxx, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
PLAZA WEST COVINA LLC, a Delaware
limited liability company
By: Plaza West Covina, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
MID RIVERS MALL LLC, a Delaware
limited liability company
By: Mid Rivers, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
WEST PARK PARTNERS, L.P., a Missouri
limited partnership
By: West Park Shopping Center, Inc., a Delaware
corporation, its general partner
By:
------------------------------
Name:
Title:
CAPITAL MALL COMPANY, a Washington
limited partnership
By: Capital Shopping Center, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
FOX HILLS MALL LLC, a Delaware
limited liability company
By: Fox Hills Mall, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
XXXXXX PLAZA LLC, a Delaware
limited liability company
By: Xxxxxx Plaza, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
PARKWAY PLAZA LLC, a Delaware
limited liability company
By: Parkway Plaza, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
OAKRIDGE MALL LLC, a Delaware
limited liability company
By: Oakridge Mall, Inc., a Delaware
corporation, its managing member
By:
------------------------------
Name:
Title:
SCHEDULE A
ADVANCE/PREPAYMENT GRID*
----------------------------------------------------------------------------------------------
AMOUNT OF DATE OF AMOUNT
BORROWER DATE OF ADVANCE ADVANCE PREPAYMENT PREPAID
----------------------------------------------------------------------------------------------
Fox Hills Mall LLC October 30, 1998 $ 47,200,000
----------------------------------------------------------------------------------------------
Xxxxxx Plaza LLC October 30, 1998 $113,100,000
----------------------------------------------------------------------------------------------
Oakridge Mall LLC October 30, 1998 $ 37,400,000
Oakridge Mall LLC February 25, 1999 $ 8,000,000
----------------------------------------------------------------------------------------------
Parkway Plaza LLC October 30, 1998 $ 83,300,000
----------------------------------------------------------------------------------------------
Northwest Plaza LLC December 9, 1998 $ 85,511,459
----------------------------------------------------------------------------------------------
WEA Crestwood Plaza LLC December 9, 1998 $ 73,682,162
----------------------------------------------------------------------------------------------
Enfield Square LLC December 9, 1998 $ 30,795,763
----------------------------------------------------------------------------------------------
Plaza Xxxxxx LLC December 9, 1998 $ 75,524,495
----------------------------------------------------------------------------------------------
Plaza West Covina LLC December 9, 1998 $ 83,152,469
----------------------------------------------------------------------------------------------
Mid Rivers Mall LLC December 9, 1998 $ 56,989,708
----------------------------------------------------------------------------------------------
West Park Partners, L.P. December 9, 1998 $ 29,420,464
----------------------------------------------------------------------------------------------
Capital Mall Company December 9, 1998 $ 30,023,481
----------------------------------------------------------------------------------------------
--------------
* Payee may attach additional grid pages as necessary throughout the term of
the Loan.
