FOURTH AMENDMENT
EXECUTION COPY
Exhibit 10.5
FOURTH AMENDMENT
FOURTH
AMENDMENT, dated as of September 15, 2005 and deemed executed
and effective as of September 22, 2005 (this “Fourth Amendment”), to the
Amended and Restated Credit Agreement, dated as of November 12, 2004 (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among General Growth
Properties, Inc. (“Holdings”), GGP Limited Partnership (the “Partnership”), GGPLP
L.L.C. (the “Company”; Holdings, the Partnership and the Company being referred to herein,
collectively, as the “Borrowers”), the Lenders parties thereto, Banc of America Securities
LLC, Credit Suisse First Boston, Xxxxxx Brothers Inc. and Wachovia Capital Markets, LLC, as joint
advisors, joint arrangers and joint bookrunners, Bank of America, N.A. and Credit Suisse First
Boston, as syndication agents, Eurohypo AG, New York Branch, as documentation agent, Xxxxxx
Commercial Paper Inc., as Tranche B administrative agent, and Wachovia Bank, National Association,
as general administrative agent (in such capacity, the “General Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the General Administrative Agent are parties to the
Credit Agreement;
WHEREAS, the Borrowers have requested that the Credit Agreement be amended to provide for,
among other things, a revised Pricing Grid (as defined in the Credit Agreement); and
WHEREAS, the Lenders and the General Administrative Agent are willing to agree to the
amendments to the Credit Agreement contained herein, subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
Borrowers, the Lenders and the General Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms which
are defined in the Credit Agreement are used herein as therein defined.
2. Amendments to the Credit Agreement.
(a) Amendment to Annex A. Annex A of the Credit Agreement is hereby amended by
deleting such Annex in its entirety and substituting therefor Annex A attached to this
Fourth Amendment.
(b) Amendment to Section 2.11. Section 2.11 of the Credit Agreement is hereby
amended by adding the following to the end thereof:
“All voluntary prepayments of the Tranche A Term Loans effected on or prior to the
first anniversary of the Fourth Amendment Effective Date (as defined in the Fourth
Amendment, dated as of September 15, 2005, to this Agreement) with the proceeds of a
substantially concurrent issuance or incurrence of new term loans under this
Agreement, as amended, amended and restated, supplemented, waived or otherwise
modified from time to time (excluding a refinancing of all the facilities
outstanding under this Agreement in connection with another transaction not
permitted by this Agreement (as determined prior to giving effect to any amendment
or waiver of this Agreement being
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adopted in connection with such transaction)),
shall be accompanied by a prepayment fee equal to 1.00% of the aggregate amount of
such prepayments if the Applicable Margin (or similar interest rate spread)
applicable to such new term loans is or, upon the satisfaction of certain
conditions, could be less than the Applicable Margin applicable to the Tranche A
Term Loans on the Fourth Amendment Effective Date.”
3. Representations and Warranties. Holdings and the Partnership hereby
confirm, reaffirm and restate the representations and warranties set forth in Section 4 of the
Credit Agreement. Holdings and the Partnership represent and warrant that, both before and after
giving effect to this Fourth Amendment, no Default or Event of Default has occurred and is
continuing.
4.
Effectiveness. This Fourth Amendment shall become effective on the
date (the “Fourth Amendment Effective Date”) on
which the
following shall have occurred:
(a) Fourth Amendment. The General Administrative Agent shall have received
this Fourth Amendment executed and delivered by the General Administrative Agent, the
Borrowers, each Tranche A Term Loan Lender, each Revolving Credit Lender, the Swing Line
Lender and the Required Lenders (or, in the case of any Lender, a lender addendum in a form
specified by the General Administrative Agent).
(b) Fees. The Lenders and the General Administrative Agent shall have received
all fees required to be paid on or before the Fourth Amendment Effective Date and all
expenses required to be paid on or before the Fourth Amendment Effective Date for which
invoices have been presented.
For
the avoidance of doubt, the Fourth Amendment Effective Date is
September 22, 2005. Notwithstanding anything to the contrary, this
Fourth Amendment shall only be deemed executed and delivered by the
parties hereto on the Fourth Amendment Effective Date.
5. Continuing Effect of the Credit Agreement. This Fourth Amendment shall
not constitute an amendment of any other provision of the Credit Agreement not expressly referred
to herein and shall not be construed as a waiver or consent to any further or future action on the
part of the Borrowers that would require a waiver or consent of the Lenders or any Agent. Except
as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full
force and effect.
6. Counterparts. This Fourth Amendment may be executed by the parties
hereto in any number of separate counterparts (including facsimiled counterparts), each of which
shall be deemed to be an original, and all of which taken together shall be deemed to constitute
one and the same instrument.
7. GOVERNING LAW. THIS FOURTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Expenses. Each Borrower (on a pro rata basis based on the maximum amount
of the Commitments made available to it hereunder) severally agrees to pay or reimburse the General
Administrative Agent for all of its out-of-pocket costs and expenses incurred in connection with
the preparation, negotiation and execution of this Fourth Amendment, including, without limitation,
the fees and disbursements of counsel to the General Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed
and delivered by their proper and duly authorized officers as of the day and year first above
written.
GENERAL GROWTH PROPERTIES, INC. |
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By: | /s/ Xxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxx | |||
Title: | Executive Vice President - Asset Management | |||
GGP LIMITED PARTNERSHIP |
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By: | General Growth Properties, Inc., its general partner | |||
By: | /s/ Xxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxx | |||
Title: | Executive Vice President - Asset Management | |||
GGPLP L.L.C. |
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By: | GGP Limited Partnership, its managing member | |||
By: | General Growth Properties, Inc., general partner of GGP Limited Partnership |
|||
By: | /s/ Xxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxx | |||
Title: | Executive Vice President - Asset Management | |||
/s/ WACHOVIA BANK, NATIONAL ASSOCIATION, as General Administrative Agent and as a Lender |
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS AND TRANCHE A TERM LOANS
Applicable Margin | Applicable Margin for | |||||||
Leverage Ratio | for Eurodollar Loans | Base Rate Loans | ||||||
> 65.0%
|
1.75 | % | 0.75 | % | ||||
£ 65.0% | 1.50 | % | 0.50 | % |
Changes in the Applicable Margin with respect to Revolving Credit Loans, Swing Line Loans and
Tranche A Term Loans resulting from changes in the Leverage Ratio shall become effective on the
date (the “Adjustment Date”) on which financial statements are delivered to the Lenders
pursuant to Section 6.1 (but in any event not later than the 60th day after the end of
each of the first three quarterly periods of each fiscal year or the 90th day after the
end of each fiscal year, as the case may be) and shall remain in effect until the next change to be
effected pursuant to this paragraph. In addition, at all times while an Event of Default shall
have occurred and be continuing, the Leverage Ratio shall for the purposes of this Pricing Grid be
deemed to be greater than 65.0%. Each determination of the Leverage Ratio pursuant to this Pricing
Grid shall be as of the last day of each fiscal quarter of Holdings.