EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of
May 30, 1997
among
WESTFIELD AMERICA INC.,
as Borrower
and
COMMONWEALTH BANK OF AUSTRALIA
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
as Co-Agents
and
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH,
as Documentary Agent
and
NATIONAL AUSTRALIA BANK LIMITED,
NEW YORK BRANCH,
as Administrative Agent
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS .............................1
Section 1.01. DEFINITIONS..................................................1
(a) TERMS GENERALLY...................................................1
(b) ACCOUNTING TERMS..................................................1
(c) OTHER TERMS.......................................................2
ARTICLE II
THE CREDIT FACILITY........................13
Section 2.01. COMMITMENTS AND LOANS......................................13
Section 2.02. BORROWING PROCEDURE........................................14
Section 2.03. TERMINATION AND REDUCTION OF COMMITMENTS...................14
Section 2.04. REPAYMENT..................................................14
Section 2.05. OPTIONAL PREPAYMENT........................................14
Section 2.06. LETTER OF CREDIT FACILITY..................................14
(a) LETTERS OF CREDIT...............................................14
(b) PROCEDURE FOR OBTAINING LETTER OF CREDIT........................15
(c) PARTICIPATION BY LENDERS........................................15
(d) DRAWINGS AND REIMBURSEMENT......................................15
ARTICLE III
INTEREST AND FEES........................16
Section 3.01. INTEREST RATE DETERMINATION; CONVERSION...................16
Section 3.02. INTEREST ON ABR LOANS.....................................17
Section 3.03. INTEREST ON EURODOLLAR LOANS..............................17
Section 3.04. INTEREST ON OVERDUE AMOUNTS...............................18
Section 3.05. DAY COUNTS................................................18
Section 3.06. MAXIMUM INTEREST RATE.....................................19
Section 3.07. FEES......................................................19
(a) FACILITY FEE...................................................19
(b) COMMITMENT FEES................................................19
(c) LETTER OF CREDIT FEES..........................................19
ARTICLE IV
DISBURSEMENT AND PAYMENT.....................20
Section 4.01. DISBURSEMENT..............................................20
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Section 4.02. METHOD AND TIME OF PAYMENTS; SHARING AMONG LENDERS........20
Section 4.03. COMPENSATION FOR LOSSES...................................21
Section 4.04. WITHHOLDING AND ADDITIONAL COSTS..........................22
(a) WITHHOLDING....................................................22
(b) ADDITIONAL COSTS...............................................23
(c) LENDING OFFICE DESIGNATIONS....................................24
(d) CERTIFICATE, ETC...............................................24
(e) CERTAIN TREATIES...............................................24
Section 4.05. FUNDING IMPRACTICABLE.....................................24
Section 4.06. EXPENSES; INDEMNITY.......................................25
Section 4.07. SURVIVAL..................................................26
Section 4.08. REPLACEMENT OF LENDERS....................................26
ARTICLE V
REPRESENTATIONS AND WARRANTIES..................27
Section 5.01. REPRESENTATIONS AND WARRANTIES............................27
(a) GOOD STANDING AND POWER........................................27
(b) CORPORATE AUTHORITY............................................27
(c) AUTHORIZATIONS.................................................27
(d) PROPERTIES.....................................................27
(e) BINDING OBLIGATION.............................................27
(f) LITIGATION.....................................................28
(g) NO CONFLICTS...................................................28
(h) FINANCIAL CONDITION............................................28
(i) USE OF PROCEEDS...............................................28
(j) TAXES.........................................................28
(k) COMPLIANCE WITH ERISA..........................................29
(l) NOT AN INVESTMENT COMPANY.....................................29
(m) ENVIRONMENTAL PROTECTION........................................29
(n) INSURANCE......................................................29
(o) DISCLOSURE.....................................................30
Section 5.02. SURVIVAL..................................................30
ARTICLE VI
CONDITIONS PRECEDENT.......................30
Section 6.01. CONDITIONS TO THE AVAILABILITY OF THE COMMITMENTS.........30
(a) THIS AGREEMENT.................................................30
(b) THE CROSS GUARANTEES...........................................30
(c) EVIDENCE OF CORPORATE ACTION...................................30
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(d) OPINIONS OF COUNSEL............................................31
(e) REPRESENTATIONS AND WARRANTIES.................................31
(f) RELEASE OF MORTGAGES...........................................31
(g) OTHER DOCUMENTS................................................31
Section 6.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT.............31
(a) BORROWING REQUEST..............................................32
(b) NO DEFAULT.....................................................32
(c) REPRESENTATIONS AND WARRANTIES.................................32
ARTICLE VII
COVENANTS............................32
Section 7.01. AFFIRMATIVE COVENANTS.....................................32
(a) FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATES..................32
(b) CORPORATE EXISTENCE............................................33
(c) CONDUCT OF BUSINESS............................................33
(d) AUTHORIZATIONS.................................................33
(e) TAXES..........................................................33
(f) INSURANCE......................................................34
(g) INSPECTION.....................................................34
(h) ERISA..........................................................34
(i) ENVIRONMENTAL MATTERS..........................................35
(j) APPRAISALS.....................................................35
(k) CROSS GUARANTEES...............................................35
(l) TITLE REPORTS..................................................35
Section 7.02. NEGATIVE COVENANTS........................................35
(a) MERGERS, CONSOLIDATIONS AND SALES OF ASSETS....................36
(b) LIENS..........................................................36
(c) CHANGE IN CONTROL..............................................36
(d) SYNDICATE SUBSIDIARY INDEBTEDNESS..............................36
(e) REIT QUALIFICATION.............................................36
(f) DISPOSITION OF SYNDICATE PROPERTIES............................36
Section 7.03. FINANCIAL COVENANTS.......................................37
(a) SHAREHOLDERS' FUNDS............................................37
(b) FIXED CHARGE COVERAGE RATIO....................................37
(c) SYNDICATE PROPERTY COVERAGE....................................37
(d) TOTAL DEBT.....................................................37
(e) LOAN TO VALUE RATIO............................................37
(f) DIVIDEND LIMITATION............................................37
Section 7.04. PROPERTY UNDERTAKINGS.....................................37
(a) DEVELOPMENTS IN PROGRESS.......................................37
(b) PROPERTY VALUES................................................38
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ARTICLE VIII
EVENTS OF DEFAULT.......................38
Section 8.01. EVENTS OF DEFAULT........................................38
ARTICLE IX
THE ADMINISTRATIVE AGENT....................40
Section 9.01. THE AGENCY...............................................40
Section 9.02. THE ADMINISTRATIVE AGENT'S DUTIES........................40
Section 9.03. LIMITATION OF LIABILITIES................................41
Section 9.04. THE ADMINISTRATIVE AGENT AS A LENDER.....................41
Section 9.05. LENDER CREDIT DECISION...................................41
Section 9.06. INDEMNIFICATION..........................................42
Section 9.07. SUCCESSOR ADMINISTRATIVE AGENT...........................42
ARTICLE X
EVIDENCE OF LOANS; TRANSFERS..................43
Section 10.01. EVIDENCE OF LOANS.......................................43
Section 10.02. PARTICIPATIONS..........................................43
Section 10.03. ASSIGNMENTS.............................................43
Section 10.04. CERTAIN PLEDGES.........................................44
Section 10.05. LEGAL COMPLIANCE........................................44
ARTICLE XI
MISCELLANEOUS.........................44
Section 11.01. APPLICABLE LAW..........................................44
Section 11.02. WAIVER OF JURY..........................................44
Section 11.03. JURISDICTION AND VENUE..................................45
Section 11.04. CONFIDENTIALITY.........................................45
Section 11.05. AMENDMENTS AND WAIVERS..................................45
Section 11.06. EXTENSION...............................................46
Section 11.07. CUMULATIVE RIGHTS; NO WAIVER............................46
Section 11.08. NOTICES.................................................46
Section 11.09. SEPARABILITY............................................47
Section 11.10. PARTIES IN INTEREST.....................................47
Section 11.11. EXECUTION IN COUNTERPARTS...............................47
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SCHEDULES
Schedule I -- Lenders and Commitments
Schedule II -- Portfolio Properties
EXHIBITS
Exhibit A -- Form of Borrowing Request
Exhibit B -- Conversion Request
Exhibit C -- Form of Revolving Credit Note
Exhibit D -- Form of Cross Guarantee
Exhibit E -- Form of Opinion of Counsel for the Borrower
and the Cross-Guarantors
Exhibit F -- Form of Compliance Certificate
Exhibit G -- Form of Assignment and Acceptance
Exhibit H -- Form of Confidentiality Agreement
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CREDIT AGREEMENT, dated as of May 30, 1997, 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 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"), UNION BANK OF SWITZERLAND, 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 has requested the Lenders severally to commit
to lend to the Borrower up to $600,000,000 on a revolving basis for general
corporate purposes; and
WHEREAS, the Borrower also has requested the Lenders to establish a
procedure pursuant to which it may obtain letters of credit; and
WHEREAS, the Lenders are willing to make loans, and to establish
such a procedure, on the terms and conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. (a) TERMS GENERALLY. The definitions
ascribed to terms in this Agreement apply equally to both the singular and
plural forms of such terms. Whenever the context may require, any pronoun
shall be deemed to include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be interpreted
as if followed by the phrase "without limitation". The phrase "herein" shall
be deemed general in scope and not to refer to any specific Section or clause
of this Agreement. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. The table of contents, headings and captions herein shall not be
given effect in interpreting or construing the provisions of this Agreement.
Except as otherwise expressly provided herein, all references to "dollars" or
"$" shall be deemed references to the lawful money of the United States of
America.
(b) ACCOUNTING TERMS. Except as otherwise expressly provided
herein, the term "consolidated" and all other terms of an accounting nature
shall be interpreted and construed in accordance with GAAP, as in effect from
time to time; PROVIDED, HOWEVER, that, for purposes of determining compliance
with any covenant set forth in Section 7.03, such terms shall be construed in
accordance with GAAP as in effect on the date of this Agreement, applied on a
basis
consistent with the construction thereof applied in preparing the Borrower's
audited financial statements referred to in Section 5.01(h).
(c) OTHER TERMS. The following terms have the meanings ascribed
to them below or in the Sections of this Agreement indicated below:
"ABR LOANS" means Loans that bear interest at a rate or rates
determined by reference to the Alternate Base Rate.
"ADMINISTRATIVE AGENT" means National Australia Bank Limited,
New York Branch, acting in the capacity of administrative agent for the
Lenders, or any successor administrative agent appointed pursuant to the
terms of this Agreement.
"AFFECTED LENDER" has the meaning assigned to such term in
Section 4.08.
"ADMINISTRATIVE QUESTIONNAIRE" means an administrative details
reply form delivered by a Lender to the Administrative Agent, in
substantially the form provided by the Administrative Agent or the form
attached to an Assignment and Acceptance.
"AFFILIATE" means, with respect to any Person, any other Person
that controls, is controlled by, or is under common control with, such
Person.
"AGREEMENT" means this Credit Agreement, as it may be amended,
modified or supplemented from time to time.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal
to the greater of:
(i) the rate of interest from time to time established by the
Administrative Agent in The City of New York as its prime commercial
loan rate in effect on such day; and
(ii) the sum of (a) 1/2 of 1% per annum and (b) the Federal Funds
Rate in effect on such day.
The Alternate Base Rate shall change as and when the greater of the
foregoing rates shall change. Any change in the Alternate Base Rate shall
become effective as of the opening of business on the day of such change.
"APPLICABLE LENDING OFFICE" means, with respect to a Loan, the
applicable office of the Lender for making such Loan, as specified in
SCHEDULE I or in an Administrative Questionnaire delivered to the
Administrative Agent as the office from which such Lender makes Loans of the
relevant type.
"ASSIGNEE" has the meaning assigned to such term in Section 10.03.
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"ASSIGNMENT AND ACCEPTANCE" has the meaning assigned to such term
in Section 10.03.
"BORROWER" shall have the meaning assigned to such term in the
preamble.
"BORROWING DATE" means, (i) with respect to any Loan, the Business
Day set forth in the relevant Borrowing Request as the date upon which the
Borrower desires to borrow such Loan and (ii) with respect to any Letter of
Credit, the Business Day set forth in the relevant L/C Request as the date
upon which the Borrower desires the L/C Issuer to issue such Letter of Credit.
"BORROWING REQUEST" means a request by the Borrower for Loans,
which shall specify the requested Borrowing Date and the aggregate amount of
such Loans, and (a) whether such Loans are to bear interest initially as ABR
Loans or Eurodollar Loans and (b) if applicable, the initial Interest Period
therefor.
"BUSINESS DAY" means any day that is (i) not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close and (ii) with respect to any Eurodollar Loan, a day on which commercial
banks are open for domestic and international business (including dealings in
U.S. dollar deposits) in London and New York City.
"CAPITALIZED VALUE" means, at any date of determination, EBITDA for
the four fiscal quarters most recently ended, DIVIDED BY 8.00%.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease with
respect to any property (whether real, personal or mixed) acquired or leased
by such Person that is required to be accounted for as a liability on a
consolidated balance sheet of such Person.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" means, with respect to a Lender, the amount set forth
opposite such Lender's name under the heading "Commitment" on Schedule I, or
in the relevant Assignment and Acceptance, as such amount may be reduced from
time to time pursuant to Section 2.03.
"COMMITMENT FEE" has the meaning assigned to such term in Section
3.07(b).
"CONFIDENTIAL INFORMATION" means, with respect to the
Administrative Agent or any Lender (an "Affected Party"), information
delivered to the Administrative Agent or to such Affected Party by or on
behalf of the Borrower, the Administrative Agent or any other Lender in
connection with the transactions contemplated by or otherwise pursuant to
this Agreement that is confidential or proprietary in nature at the time it
is so delivered or information obtained by the Affected Party in the course
of its review of the books or records of the Borrower contemplated herein;
PROVIDED that such term shall not include information (i) that was publicly
known or otherwise known to such Affected Party prior to
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the time of such disclosure, (ii) that subsequently becomes publicly known
through no act or omission by such Affected Party or any Person acting on the
Affected Party's behalf, (iii) that otherwise becomes known to such Affected
Party other than through disclosure by or on behalf of the Borrower or (iv)
that constitutes financial information delivered to such Affected Party that
is otherwise publicly available.
"CONVERSION DATE" means, with respect to a Loan, the date on which
a conversion of interest rates on such Loan shall take effect.
"CONVERSION REQUEST" means a request by the Borrower substantially
in the form of EXHIBIT C to convert the interest rate basis for all or
portions of outstanding Loans, which shall specify (i) the requested
Conversion Date, which shall be not fewer than three Business Days after the
date of such Conversion Request, (ii) the aggregate amount of such Loans, on
and after the Conversion Date, which are to bear interest as ABR Loans or
Eurodollar Loans and (iii) the term of the Interest Periods therefor, if any.
"CREDIT DOCUMENTS" means this Agreement, the Notes, any Letters of
Credit and the related applications and agreements and the Cross Guarantees.
"CROSS GUARANTEE" means a Guarantee Agreement in the form of
EXHIBIT D hereto delivered by each of the Cross Guarantors.
"CROSS GUARANTOR" means each of The Connecticut Post Limited
Partnership, Westland South Shore Mall, L.P., Eagle Rock Properties, Inc.,
WAP HC Inc., Westland Properties Inc., Westfield Management Inc., Westland
Shopping Center L.P., Westland Partners Inc., Westland Milford Properties
Inc., any other Syndicate Subsidiary that is a Wholly Owned Subsidiary of the
Borrower or the UPREIT Entity and the UPREIT Entity.
"CURRENT VALUE", on any day, means as to any Portfolio Property,
the fair market value thereof established by the most recent appraisal
thereof made pursuant to Section 7.01(j); provided, however, that until so
appraised after the date hereof, the fair market value of each Portfolio
Property shall be deemed to be the market value as of March 31, 1996
specified in Schedule II.
"DEFAULT" means any event or circumstance which, with the giving of
notice or the passage of time, or both, would be an Event of Default.
"DIRECT FINANCE LEASE RECEIVABLES" means receivables under the May
Company Finance Leases.
"EBITDA" means, for any period, the sum of (i) the net income of
the Borrower and its proportionate interest in the net income of the Related
Entities for such period, adjusted to exclude non-recurring gains and losses
on unusual items and (ii) income taxes, Interest Expense, depreciation and
amortization of the Borrower and the proportionate interest of the Borrower
in income taxes, Interest Expense, depreciation and amortization of the
Related Entities.
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"EFFECTIVE DATE" has the meaning assigned to such term in Section
6.01.
"ENVIRONMENTAL CLAIM" means any claim, assertion, demand, notice of
violation, suit, administrative or judicial proceeding, regulatory action,
investigation, information request or order that involves any Hazardous
Substance or Environmental Law, and that would reasonably be expected to have
a Material Adverse Effect.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute or common law, regulation, order, decree, opinion or agency
requirement as now in effect or hereinafter adopted relating to (i) the
handling, use, presence, disposal or release of any Hazardous Substance or
(ii) the protection, preservation or restoration of the environment or
natural resources, or the protection of human health or safety from
environmental factors.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA GROUP" means the Borrower and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414 of the Code or are considered
to be one employer under Section 4001 of ERISA.
"EURODOLLAR LOANS" means Loans that bear interest at a rate or
rates determined by reference to LIBOR.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
prescribed by the Federal Reserve Board for determining the maximum reserve
requirement (including any marginal, supplemental or emergency reserve
requirements) on such day for a member bank of the Federal Reserve System in
The City of New York with deposits exceeding one billion dollars in respect
of "Eurocurrency Liabilities" (as defined in Regulation D of the Federal
Reserve Board (or any successor regulation), as amended from time to time).
"EVENT OF DEFAULT" has the meaning assigned to such term in Section
8.01.
"EXCLUDED TAXES" means all present and future (x) taxes, levies,
imposts, duties, deductions, withholdings, fees, liabilities and similar
charges imposed on or measured by the overall net income of any Lender (or
any office, branch or subsidiary of such Lender) or franchise taxes, taxes on
doing business or taxes measured by capital or net worth imposed on any
Lender (or any office, branch or subsidiary of such Lender), in each case
imposed by the United States of America or any political subdivision or
taxing authority thereof or therein, or (y) taxes on or measured by the
overall net income of any office, branch or subsidiary of a Lender or
franchise taxes, taxes imposed on doing business or taxes measured by capital
or net worth imposed on any office, branch or subsidiary of such Lender, in
each case imposed by any foreign country or subdivision thereof in which such
Lender's principal office or Eurodollar Lending Office is located.
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"FACILITY FEE" has the meaning assigned to such term in Section
3.07(a).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded, if necessary, to the next greater 1/16 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; PROVIDED that (i) 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, and (ii) if no such rate is so published on
such next succeeding Business Day, then the Federal Funds Rate for such day
shall be the average rate quoted to the Administrative Agent on such day on
such transactions, as determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System (or any successor Governmental Authority).
"FIXED CHARGES" means, for any period, the sum of (i) Interest
Expense for such period and (ii) regularly scheduled payments of principal
with respect to all outstanding Indebtedness (excluding Indebtedness relating
to the May Company Finance Leases) of the Borrower and with respect to its
proportionate interest in outstanding Indebtedness of the Related Entities
during such period.
"FUNDS FROM OPERATIONS" means, for any year, the consolidated net
income of the Borrower and its Subsidiaries for such year determined in
accordance with GAAP, (i) MINUS gains (or plus losses) from debt
restructuring and sales of property, and (ii) PLUS real estate related
depreciation and amortization, in each case after adjustments for
unconsolidated partnerships and joint ventures.
"GAAP" means generally accepted accounting principles, as set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant segment
of the accounting profession of the United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTY" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
such obligation of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness or (iii) to maintain
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working capital, equity capital or the financial condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness.
"HAZARDOUS SUBSTANCE" means any substance, in any concentration or
mixture, that is (i) listed, classified or regulated as a "hazardous",
"toxic" or similar substance pursuant to any Environmental Law, (ii)
petroleum product or by-product, asbestos containing material,
polychlorinated biphenyls, radioactive material or radon or (iii) any waste
or other similar substance regulated by any Governmental Authority under any
Environmental Law.
"INDEBTEDNESS" means, with respect to any Person, (i) all
obligations of such Person for borrowed money or for the deferred purchase
price of property or services (including all obligations, contingent or
otherwise, of such Person in connection with letters of credit, bankers'
acceptances, Interest Rate Protection Agreements or other similar
instruments, including currency swaps) other than indebtedness to trade
creditors and service providers incurred in the ordinary course of business,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the remedies available to the
seller or lender under such agreement are limited to repossession or sale of
such property), (iv) all Capital Lease Obligations of such Person, (v) all
obligations of the types described in clauses (i), (ii), (iii) or (iv) above
secured by any Lien upon or in any property (including accounts, contract
rights and other intangibles) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Indebtedness, (vi)
all L/C Obligations, (vii) all preferred stock issued by such Person
(excluding the Series A preferred stock, par value $1.00 per share, and the
Series B 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, (viii)
all Indebtedness of others guarantied by such Person and (ix) all
Indebtedness of any partnership of which such Person is a general partner
(other than Indebtedness that is nonrecourse to such Person).
"INDEMNITEE" has the meaning assigned to such term in Section 4.06.
"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 (but excluding net benefits) under Interest Rate
Protection Agreements.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan, each
one, two, three or six-month period, such period being the one selected by
the Borrower pursuant to Section 2.02, 3.03 or 3.05 and commencing on the
date such Loan is made or at the end of the preceding Interest Period, as the
case may be; PROVIDED, HOWEVER, that:
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(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next Business Day,
unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end on the last
Business Day of a calendar month; and
(iii) any Interest Period that would otherwise end after the
Termination Date then in effect shall end on the Termination Date.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement or similar hedging arrangement used by
a Person to fix or cap a floating rate of interest on Indebtedness to a
negotiated maximum rate or amount.
"L/C ISSUER" means National Australia Bank Limited, New York
Branch, acting in the capacity of issuer of Letters of Credit.
"L/C OBLIGATIONS" means, with respect to any Lender at any date of
determination, the sum of (i) such Lender's participating share of the
maximum aggregate amount which is or at any time thereafter may become
available for drawings under all Letters of Credit then outstanding AND (ii)
the aggregate amount such Lender is obligated to fund or has funded to the
L/C Issuer as a result of such Lender's participating share in all drawings
under Letters of Credit honored by the L/C Issuer and not theretofore
reimbursed by the Borrower; PROVIDED, that the L/C Issuer's participating
share of such aggregate amounts shall be equal to the portions of such
undrawn amounts in which the other Lenders have not acquired participating
interests, or the portions of such drawings which the other Lenders are not
obligated to fund pursuant to Section 2.06.
"L/C REQUEST" means a request by the Borrower for a Letter of
Credit, which shall (i) specify (A) the requested Borrowing Date and (B) the
aggregate amount of the L/C Obligations with respect to the requested Letter
of Credit, (ii) certify that, after issuance of the requested Letter of
Credit, (A) the aggregate amount of the L/C Obligations of all the Lenders
then outstanding will not exceed $50,000,000, and (B) the sum of the
aggregate amount of the L/C Obligations of all the Lenders then outstanding
and the aggregate amount of the Loans of all the Lenders then outstanding
will not exceed the Total Commitment then in effect and (iii) be accompanied
by such customary application and agreement for letter of credit, and such
other customary documents, as the L/C Issuer may reasonably specify from time
to time, all in form and substance reasonably satisfactory to the L/C Issuer.
"LENDERS" has the meaning assigned to such term in the preamble.
"LETTER OF CREDIT" has the meaning assigned to such term in Section
2.06(a).
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"LIBOR" means, with respect to any Interest Period, the rate per
annum determined by the Administrative Agent to be the offered rate for
dollar deposits with a term comparable to such Interest Period that appears
on the display designated as Page 3750 on the Dow Xxxxx Telerate Service (or
such other page as may replace such page on such service, or on another
service designated by the British Bankers' Association, for the purpose of
displaying the rates at which dollar deposits are offered by leading banks in
the London interbank deposit market) at approximately 11:00 A.M., London
time, on the second Business Day preceding the first day of such Interest
Period. If such rate does not appear on such page, "LIBOR" shall mean the
arithmetic mean (rounded, if necessary, to the next higher 1/16 of 1%) of the
respective rates of interest communicated by the LIBOR Reference Banks to the
Administrative Agent as the rate at which U.S. dollar deposits are offered to
the LIBOR Reference Banks by leading banks in the London interbank deposit
market at approximately 11:00 A.M., London time, on the second Business Day
preceding the first day of such Interest Period in an amount substantially
equal to the respective LIBOR Reference Amounts for a term equal to such
Interest Period.
"LIBOR REFERENCE AMOUNT" means, with respect to any LIBOR Reference
Bank and Interest Period, the amount of the Eurodollar Loan of the Lender
which is, or is affiliated with, such LIBOR Reference Bank, scheduled to be
outstanding during that Interest Period without taking into account any
assignment or participation and rounded up to the nearest integral multiple
of $1,000,000.
"LIBOR REFERENCE BANK" means each of National Australia Bank
Limited, Commonwealth Bank of Australia and Australia and New Zealand Banking
Group Limited; PROVIDED that if any such LIBOR Reference Bank assigns its
Commitment or all its Loans to an unaffiliated institution, such Person shall
be replaced as a LIBOR Reference Bank by the Administrative Agent's
appointment, in consultation with the Borrower and with the consent of the
Required Lenders, of another bank which is a Lender (or an Affiliate of a
Lender).
"LIEN" means, with respect to any asset of a Person, (i) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security
interest in or on such asset, (ii) the interest of a vendor or lessor under
any conditional sale agreement, capital lease or title retention agreement
relating to such asset, and (iii) in the case of securities, any purchase
option, call or similar right of any other Person with respect to such
securities.
"LOAN" has the meaning assigned to such term in Section 2.01.
"MATERIAL ADVERSE EFFECT" means any material and adverse effect on
(i) the consolidated business, properties, condition (financial or otherwise)
or operations of the Borrower and its Subsidiaries, (ii) the ability of the
Borrower or the Cross-Guarantors timely to perform their material
obligations under the Credit Documents, or of the Lenders to exercise their
remedies under the Credit Documents, taken as a whole or (iii) the
enforceability of the Credit Documents, taken as a whole.
"MAY COMPANY FINANCE LEASES" means the financial leases under which
CMF, Inc. net leased 13 department store properties to the May Company in
1988.
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"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is making
or accruing an obligation to make contributions or has within the preceding
five plan years made or accrued contributions.
"NET OPERATING INCOME" means, as to any Syndicate Property, tenant
rents and recoveries from such Syndicate Property, less operating expenses
(including real estate taxes, insurance premiums, management fees, utilities,
cleaning and maintenance) determined in accordance with generally accepted
industry methods.
"NON-SYNDICATE PROPERTY" means any Portfolio Property that is not a
Syndicate Property.
"NOTES" means, collectively, promissory notes of the Borrower,
issued in accordance with Section 10.01(d) in order to evidence Loans.
"PARTICIPANT" has the meaning assigned to such term in Section
10.02.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor Governmental Authority).
"PENSION PLAN" means a Plan that (i) is an employee pension benefit
plan, as defined in Section 3(3) of ERISA (other than a Multiemployer Plan)
and (ii) is subject to the provisions of Title IV of ERISA or is subject to
the minimum funding standards under Section 412 of the Code.
"PERMITTED LIENS" means, collectively, the following: (i) Liens
for taxes, assessments or charges not yet delinquent or the nonpayment of
which in the aggregate would not reasonably be expected to have a Material
Adverse Effect, or that are being contested in good faith by appropriate
proceedings and (unless the amount thereof is not material to the Borrower's
consolidated financial condition) for which adequate reserves are being
maintained (in accordance with GAAP); (ii) deposits, pledges or other Liens
to secure obligations under or in connection with workers' compensation,
social security or similar laws, or unemployment or other insurance
arrangements; (iii) deposits, pledges or other Liens to secure bids, tenders,
contracts (other than contracts constituting Indebtedness), obligations for
utilities, leases, statutory obligations, surety, performance, replevin,
judgment and appeal bonds and other obligations of like nature arising in the
ordinary course of business; (iv) mechanics', workers', materialmen's,
landlords', carriers', warehousemen's, repairmen's or similar Liens arising
in the ordinary course of business with respect to obligations which are not
overdue for a period of more than 60 days or which are being contested in
good faith by appropriate proceedings or which in the aggregate would not
reasonably be expected to have a Material Adverse Effect; (v) Liens securing
judgments in an amount and for a period not constituting an Event of Default
under Section 8.01(i); (vi) zoning restrictions, easements, rights-of-way,
restrictions on use of property, other similar encumbrances incurred in the
ordinary course of business and minor imperfections of title on real estate
that do not interfere materially with the use of such property or render
title unmarketable; (vii) any Lien upon or in any asset or property
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hereafter acquired by the Borrower, PROVIDED that such Lien is created
contemporaneously with such acquisition or the financing or refinancing
thereof to secure or provide for the payment, financing or refinancing of any
part of the cost (including construction costs) thereof and, PROVIDED FURTHER
that such Lien attaches only to the asset or property so acquired and fixed
improvements thereon; and (viii) any purchase option, call or similar right
in favor of another stockholder, partner or joint venturer or other Person
with respect to any capital stock or other equity interest of or in any
Affiliate of the Borrower or other joint venture or entity pursuant to any
related stockholder, partnership, joint venture or similar agreement or
arrangement.
"PERSON" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether
Federal, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof).
"PLAN" means an employee benefit plan as defined in Section 3(3) of
ERISA (other than a Multiemployer Plan) which is maintained or contributed to
by the Borrower or any member of the ERISA Group.
"PORTFOLIO PROPERTY" means any property in which the Borrower has a
direct or indirect ownership interest, other than any property subject to any
of the May Company Finance Leases.
"PRESCRIBED FORMS" has the meaning assigned to such term in Section
4.04(a).
"PRO RATA SHARE" means, with respect to any Lender at any time of
determination, in relation to Loans and Letters of Credit, the proportion of
such Lender's Commitment to the Total Commitment then in effect.
"RELATED ENTITIES" means all Subsidiaries of the Borrower and each
other Person in which the Borrower owns a direct or indirect equity interest.
"REQUIRED LENDERS" means, at any date of determination, two or more
Lenders having more than 50% of the Total Commitment then in effect or, if
the Total Commitment has been cancelled or terminated, holding more than 50%
of the aggregate unpaid principal amount of the Loans then outstanding.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or any vice
president, senior vice president or executive vice president of the Borrower.
"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 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
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Lease Receivables (net of Indebtedness associated therewith) as shown on such
financial statements.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Borrower that
is a "significant subsidiary" of the Borrower within the meaning of Rule 1-02
under Regulation S-X promulgated by the United States Securities and Exchange
Commission, as in effect on the Effective Date.
"SUBSIDIARY" means, at any time and with respect to any Person, any
other Person the shares of stock or other ownership interests of which having
ordinary voting power to elect a majority of the board of directors or other
managers of such Person are at the time owned directly or indirectly by such
first Person. Unless otherwise qualified or the context indicates clearly to
the contrary, all references to a "Subsidiary" or "Subsidiaries" in this
Agreement refer to a Subsidiary or Subsidiaries of the Borrower.
"SYNDICATE PROPERTY" means each of the following properties, but
only so long as such property is at least 50% owned, directly or indirectly,
by the Borrower and/or a Wholly Owned Subsidiary of the Borrower or the
UPREIT Entity: (i) each of the properties identified as such on Schedule II,
except to the extent the Borrower, in connection with a disposition of an
interest therein pursuant to Section 7.02(f), elects not to have any such
property qualify as a Syndicate Property, (ii) each of Annapolis Mall,
Vancouver Mall and Topanga Plaza at such time as it becomes at least 50%
owned, directly or indirectly, by the Borrower, and/or a Wholly Owned
Subsidiary of the Borrower or the UPREIT Entity, is free and clear of any
Lien other than Permitted Liens and is designated by the Borrower as a
Syndicate Property, and (iii) each other Portfolio Property which (w) is at
least 50% owned, directly or indirectly, by the Borrower and/or a Wholly
Owned Subsidiary of the Borrower or the UPREIT Entity, (x) free of any Lien
other than Permitted Liens, (y) shall have been appraised in accordance with
Section 7.01(j) no more than three months prior to its becoming a Syndicate
Property, and (z) shall, with the consent (not to be unreasonably withheld)
of the Required Lenders, have been designated by the Borrower as a Syndicate
Property, PROVIDED, that no such consent shall be required for the
designation of Wheaton Plaza as a Syndicate Property at such time as it
otherwise qualifies under the foregoing clauses (w), (x) and (y).
"SYNDICATE SUBSIDIARY" means each Subsidiary of the Borrower which
is the owner, in whole or in part, of a Syndicate Property. Any Subsidiary
of the Borrower shall cease being a Syndicate Subsidiary upon any sale or
disposition in compliance with Section 7.02(a) of such Subsidiary or the
Syndicate Property which it owns that results in such Syndicate Property no
longer being at least 50% owned, directly or indirectly, by the Borrower
and/or a Wholly Owned Subsidiary of the Borrower or the UPREIT Entity.
"TAXES" has the meaning assigned to such term in Section 4.04(a).
"TERMINATION DATE" means the earlier to occur of (i) May 30, 2000
(as such date may be extended pursuant to Section 11.07) and (ii) the date,
if any, on which the Total Commitment is terminated.
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"TOTAL COMMITMENT" means, on any day, the aggregate Commitments of
all the Lenders on such day.
"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.
"TOTAL TANGIBLE ASSETS" means, at any date of determination, the
total assets of the Borrower and its Subsidiaries as shown on the
consolidated balance sheets of the Borrower and its Subsidiaries as of the
end of the latest period for which financial statements have been delivered
to the Lenders pursuant to Section 7.01(a), MINUS intangible assets of the
Borrower and its Subsidiaries, as shown on such balance sheets, PLUS the
Borrower's proportionate interest in the Current Value of Portfolio
Properties and MINUS (i) the value at which the Portfolio Properties are
reflected in such balance sheets and (ii) Direct Financing Lease Receivables
(net of Indebtedness associated therewith) as shown on such balance sheets.
"UNDRAWN COMMITMENT" means, on any day, an amount equal to the
Total Commitment on such day MINUS (i) the aggregate outstanding principal
amount of Loans on such day and (ii) the then aggregate L/C Obligations of
the Lenders.
"UPREIT ENTITY" means a Subsidiary of the Borrower that is a
limited partnership (x) having the Borrower as its sole general partner and
one or more Subsidiaries of the Borrower as its initial limited partner or
partners, and (y) holding substantially all of its assets and liabilities
(other than in respect of Loans or other obligations hereunder or any Cross
Guarantee thereof) directly or indirectly through partnerships or limited
liability companies that are Wholly Owned Subsidiaries of the UPREIT Entity.
"WHOLLY OWNED SUBSIDIARY" means, at any time and with respect to
any Person, a Subsidiary, all the shares of stock of all classes of which
(other than directors' qualifying shares) or other ownership interests at the
time are owned directly or indirectly by such Person and/or one or more other
Wholly Owned Subsidiaries of such Person.
ARTICLE II
THE CREDIT FACILITY
Section 2.01. COMMITMENTS AND LOANS. Until the Termination Date,
subject to the terms and conditions of this Agreement, each of the Lenders,
severally and not jointly with the other Lenders, agrees to make revolving
credit loans (collectively, "LOANS") in dollars to the Borrower in an
aggregate principal amount at any one time outstanding not to exceed such
Lender's Commitment. Loans shall be made on any Borrowing Date only (i) in
the minimum aggregate principal amount of $1,000,000 or in integral multiples
thereof (except that ABR Loans may always be borrowed in the aggregate amount
of the Undrawn Commitment) and (ii) in a maximum aggregate principal amount
not exceeding the Undrawn Commitment (after giving effect to any repayments
or prepayments and any other borrowings of Loans on such
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Borrowing Date). The Undrawn Commitment may be utilized by the Borrower to
obtain Letters of Credit in accordance with Section 2.06.
Section 2.02. BORROWING PROCEDURE. In order to borrow Loans, the
Borrower shall give a Borrowing Request to the Administrative Agent, by
telephone, telex or telecopy or otherwise in writing, not later than 12:00
noon, New York time (and if not in writing, to be confirmed in writing not
later than 2:00 P.M. on the same day), (i) on the Borrowing Date for ABR
Loans and (ii) on the third Business Day before the Borrowing Date for
Eurodollar Loans. Upon receipt, the Administrative Agent forthwith shall
give notice to each Lender of the substance of the Borrowing Request. Not
later than 2:00 P.M., New York time, on the Borrowing Date, each Lender shall
make available to the Administrative Agent such Lender's Pro Rata Share of
the requested Loans in funds immediately available at the Administrative
Agent's office specified pursuant to Section 11.09(a). Subject to
satisfaction, or waiver by all of the Lenders, of each of the applicable
conditions precedent contained in Article VI, on the Borrowing Date the
Administrative Agent shall make available, in like funds, to the Borrower the
amounts received by the Administrative Agent from the Lenders.
Section 2.03. TERMINATION AND REDUCTION OF COMMITMENTS. The
Borrower may terminate the Total Commitment, or reduce the amount thereof, by
(i) giving written notice to the Administrative Agent in accordance with
Section 11.08, at least 30 days prior to the date of termination or reduction
and (ii) paying the amount of the Commitment Fees accrued through such date
of termination or reduction. Reductions of the Total Commitment shall be in
the amount of $10,000,000 or in integral multiples thereof (or, if the amount
of the Undrawn Commitment is less than $10,000,000, then all of such lesser
amount), but shall not exceed the Undrawn Commitment in effect immediately
before giving effect to such reduction (after giving effect to any repayment
of Loans prior to or concurrently with such reduction). Any termination, and
all reductions, of the Total Commitment shall be permanent.
Section 2.04. REPAYMENT. The Loans shall be repaid, together with
all accrued and unpaid interest thereon, on the Termination Date.
Section 2.05. OPTIONAL PREPAYMENT. The Borrower may prepay Loans
bearing interest on the same basis and having the same Interest Period, if
any, by giving notice to the Administrative Agent, by telephone, telex,
telecopy or in writing not later than 12:00 noon, New York time, on the third
Business Day preceding the proposed date of prepayment, in the case of
Eurodollar Loans, or on the proposed date of prepayment, in the case of ABR
Loans. Each such prepayment shall be in an amount equal to the aggregate
principal amount of Loans being prepaid (which, in the case of Eurodollar
Loans, shall be in an aggregate principal amount of $1,000,000 or in integral
multiples thereof or, if the aggregate amount of outstanding Eurodollar Loans
is less than $1,000,000, then all of such lesser amount), 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.
Subject to the terms and conditions of this Agreement, prepaid Loans may be
reborrowed.
Section 2.06. LETTER OF CREDIT FACILITY. (a) LETTERS OF CREDIT.
Prior to the Termination Date, and subject to the terms and conditions of
this Agreement, from time to time, the Borrower may request that the L/C
Issuer issue under this Agreement, and the L/C Issuer
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agrees, upon such request of the Borrower and upon the satisfaction or waiver
of each of the conditions contained in Article VI applicable thereto, to
issue for the account of the Borrower, one or more nontransferable letters of
credit (each, a "LETTER OF CREDIT") in the L/C Issuer's then-customary form;
PROVIDED, that the L/C Issuer shall not issue any Letter of Credit: (i) if,
after giving effect to such issuance, the sum of the aggregate amount of the
L/C Obligations of all the Lenders then outstanding and the aggregate amount
of Loans of all the Lenders then outstanding would exceed the Total
Commitment then in effect; (ii) having a stated amount of less than $25,000;
(iii) having an expiration date later than the date that is four Business
Days prior to the Termination Date; or (iv) if, after giving effect to such
issuance, the aggregate amount of L/C Obligations of all the Lenders then
outstanding would exceed $50,000,000.
(b) PROCEDURE FOR OBTAINING LETTER OF CREDIT. The Borrower may
request that the L/C Issuer issue a Letter of Credit pursuant to Section
2.06(a) by giving a L/C Request to the Administrative Agent by telex,
telecopy or otherwise in writing not later than 12:00 noon, New York time, on
the third Business Day prior to the proposed Borrowing Date for such Letter
of Credit. Upon receipt of any L/C Request, the Administrative Agent shall
forthwith give notice to each Lender of the substance thereof. On the date
specified by the Borrower in such notice and upon fulfillment of the
applicable conditions set forth in this Section 2.06 and Article VI, the L/C
Issuer will issue such Letter of Credit in the form specified in such L/C
Request.
(c) PARTICIPATION BY LENDERS. Each Lender other than the L/C Issuer
shall be deemed to, and hereby agrees to, irrevocably and unconditionally
participate in such Letter of Credit and each drawing thereunder in an amount
equal to such Lender's Pro Rata Share of the maximum amount which is or at
any time may become available to be drawn thereunder.
(d) DRAWINGS AND REIMBURSEMENT. (i) In the event of any request
for a drawing under any Letter of Credit by the beneficiary thereof, the L/C
Issuer shall notify the Borrower and the Administrative Agent in accordance
with Section 11.08 as promptly as practicable following receipt of such
request, and the Borrower shall reimburse the L/C Issuer no later than the
Business Day after the day on which such drawing is honored in an amount in
immediately available funds equal to the amount of such drawing. If the
Borrower shall fail to reimburse the L/C Issuer in an amount equal to the
amount of any drawing honored by the L/C Issuer under a Letter of Credit,
then the L/C Issuer shall promptly notify each Lender of the unreimbursed
amount of such drawing and of such Lender's respective participation therein.
Not later than 1:00 P.M., New York time, on the Business Day after the date
notified by the L/C Issuer, each Lender shall make available to the L/C
Issuer in immediately available funds at the aforementioned office of the L/C
Issuer in New York City an amount equal to its participation. In the event
that any Lender fails to make available to the L/C Issuer on such Business
Day the amount of such Lender's participation in such Letter of Credit as
provided in this Section 2.06(d), the L/C Issuer shall be entitled to recover
such amount on demand from such Lender, together with interest thereon at a
rate per annum equal to (A) from (and including) such Business Day to (and
including) the third Business Day thereafter, the Federal Funds rate, and (B)
from (but excluding) such third Business Day, the sum of 2% and the Federal
Funds Rate. The L/C Issuer shall distribute to each Lender that has paid all
amounts payable by it under this Section 2.06 with respect to any Letter of
Credit such Lender's Pro Rata Share of all payments received by the L/C
Issuer from the Borrower in reimbursement of drawings honored by the L/C
Issuer under such Letter of Credit when such payments are received.
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The obligation of the Borrower to reimburse the L/C Issuer for
payments made in honoring drawings made under the Letters of Credit and the
obligations of the Lenders under Section 2.06(d) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of the
Credit Documents under all circumstances, including the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower or any Affiliate of the Borrower may have
at any time against a beneficiary or any transferee of any Letter of
Credit (or any persons or entities for whom any such beneficiary or
transferee may be acting), the L/C Issuer, any Lender or any other
Person, whether in connection with any Credit Document, any
transaction contemplated thereby or any unrelated transaction;
(iii) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) payment by the L/C Issuer under any Letter of Credit
against presentation of a demand, draft or certificate or other
document that does not comply with the terms of the Credit Documents;
(v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(vi) the fact that a Default or Event of Default shall have
occurred;
; PROVIDED that this paragraph shall not relieve the L/C Issuer or any other
Person of any liability resulting from its gross negligence or willful
misconduct, or otherwise affect any claim, that the Borrower may have as a
result of any such gross negligence or willful misconduct.
ARTICLE III
INTEREST AND FEES
Section 3.01. INTEREST RATE DETERMINATION; CONVERSION. (a) Except
to the extent that the Borrower shall request, in a Borrowing Request or in a
Conversion Request, that Loans (or portions thereof) bear interest as
Eurodollar Loans, Loans shall bear interest as ABR Loans.
(b) The Borrower may request, by giving a Conversion Request to the
Administrative Agent not later than 2:00 P.M., New York time, on the third
Business Day prior to the requested Conversion Date, that all or portions of
the outstanding Loans, in the aggregate principal amount of $1,000,000 or in
integral multiples of $1,000,000 in excess thereof (or, if the aggregate
principal amount of outstanding Loans is less than $1,000,000, then all such
lesser amount), bear interest from and after the Conversion Date as either
ABR Loans or Eurodollar
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Loans; PROVIDED, HOWEVER, that during the continuance of any Default or Event
of Default that shall have occurred, no Loan (or portion thereof) may be
converted into Eurodollar Loans. Upon receipt, the Administrative Agent
forthwith shall give notice to each Lender of the substance of each
Conversion Request. Upon payment by the Borrower of the amounts, if any,
required by Section 4.03, on the Conversion Date, the Loans or portions
thereof as to which the Conversion Request was made shall commence to accrue
interest in the manner selected by the Borrower therein.
Section 3.02. INTEREST ON ABR LOANS. Each ABR Loan shall bear
interest from (and including) the date made until the date repaid, or (if
converted into a Eurodollar Loan) to (but excluding) the first day of any
relevant Interest Period, as the case may be, payable in arrears on the last
day of each calendar quarter of each year, commencing with the first such
date after the Effective Date, and on the date such Loan is repaid, at a rate
per annum equal to the Alternate Base Rate in effect from time to time, which
rate shall change as and when said Alternate Base Rate shall change.
Section 3.03. INTEREST ON EURODOLLAR LOANS. (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) 1% and (ii) LIBOR for such
Interest Period.
(b) Each Eurodollar Loan shall become an ABR Loan at the end of the
Interest Period therefor, unless (i) there shall not have occurred and be
continuing a Default or Event of Default and (ii) not later than the third
Business Day prior to the last day of such Interest Period, the Borrower
shall have delivered to the Administrative Agent an irrevocable written
election of the subsequent Interest Period, in which case such Eurodollar
Revolving Loan shall remain outstanding as a Eurodollar Loan.
(c) If, during any period, a Lender shall be required to maintain
reserves against "Eurocurrency Liabilities" in accordance with Federal
Reserve Board Regulation D (or any successor regulation), the Borrower shall
pay additional interest during such period on each outstanding Eurodollar
Loan of such Lender (contemporaneously with each interest payment due
thereon) at a marginal rate per annum determined by the following formula:
LIBOR - LIBOR.
----------------------------------
1 - Eurodollar Reserve Percentage
Each Lender shall promptly notify the Borrower, with a copy to the
Administrative Agent, upon becoming aware that the Borrower may be required
to make a payment of additional interest to such Lender. When requesting
payment pursuant to this Section 3.03(c), a Lender shall provide to the
Borrower, with a copy to the Administrative Agent, a certificate, signed by
an officer of such Lender setting forth, in reasonable detail, the basis of
such claim, the amount required to be paid by the Borrower to such Lender and
the computations made by such Lender to determine
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such amount. Absent manifest error, such certificate shall be binding as to
the amounts of additional interest owing in respect of such Lender's
Eurodollar Loans. Any Lender that gives notice under this Section 3.03(c)
shall promptly withdraw such notice (by written notice of withdrawal given to
the Administrative Agent and the Borrower) whenever such Lender is no longer
required to maintain such reserves or the circumstances giving rise to such
notice shall otherwise cease.
Section 3.04. INTEREST ON OVERDUE AMOUNTS. All overdue amounts
(including principal, interest and fees) hereunder shall bear interest,
payable on demand, at a rate per annum equal to the sum of 2% and (i) in the
case of Eurodollar Loans, the rate then applicable thereto until the end of
the current Interest Period therefor, and thereafter the rate of interest
applicable to ABR Loans, changing as and when such rate shall change and (ii)
in the case of all other amounts, the rate of interest applicable to ABR
Loans, changing as and when such rate shall change.
Section 3.05. DAY COUNTS. Interest on ABR Loans shall be
calculated on the basis of (a) a 365- or, if applicable, a 366-day year for
the actual number of days elapsed for so long as interest is determined
pursuant to clause (i) of the definition of "Alternate Base Rate" and (b) a
360-day year for the actual number of days elapsed for so long as interest is
determined based on clause (ii) of the definition of "Alternate Base Rate".
Interest on all other Loans shall be calculated on the basis of a 360-day
year for the actual number of days elapsed. All Fees shall be calculated on
the basis of a 365-or, if applicable, a 366-day year for the actual number of
days elapsed.
Section 3.06. MAXIMUM INTEREST RATE. (a) Nothing in this
Agreement shall require the Borrower to pay interest at a rate exceeding the
maximum rate permitted by applicable law. Neither this Section nor Section
11.01 is intended to limit the rate of interest payable for the account of
any Lender to the maximum rate permitted by the laws of the State of New York
(or any other applicable law) if a higher rate is permitted with respect to
such Lender by supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of any Lender
on any interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be charged by such Lender, the
amount of interest payable for its account on such interest payment date
shall automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any Lender
in respect of any interest computation period is reduced pursuant to Section
3.06(b) and the amount of interest payable for its account in respect of any
subsequent interest computation period would be less than the maximum amount
permitted by law to be charged by such Lender, then the amount of interest
payable for its account in respect of such subsequent interest computation
period shall be automatically increased to such maximum permissible amount;
PROVIDED that at no time shall the aggregate amount by which interest paid
for the account of any Lender has been increased pursuant to this Section
3.06(c) exceed the aggregate amount by which interest paid for its account
has theretofore been reduced pursuant to Section 3.06(b).
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Section 3.07. FEES. (a) FACILITY FEE. The Borrower agrees to pay
to the Administrative Agent, for the account of each Lender, on the Effective
Date, a one-time fee (the "FACILITY FEE") in an amount equal to 1/4 of 1% of
such Lender's Commitment in effect on the Effective Date.
(b) COMMITMENT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of each Lender, in arrears on the last
day of each calendar quarter of each year, commencing with the first such day
after the Effective Date (for the period from the Effective Date to such
date), and on the Termination Date or other date on which the Total
Commitment shall terminate (for the period from the last payment date to the
Termination Date or such other date) a fee (the "COMMITMENT FEE") in an
amount equal to 35/100% per annum of such Lender's Pro Rata Share of the
Undrawn Commitment in effect from time to time.
(c) LETTER OF CREDIT FEES. In lieu of any letter of credit
commissions or fees provided for in any letter of credit application (other
than standard administration, amendment or negotiation fees referred to in
clause (iv) below), the Borrower agrees to pay to the L/C Issuer in funds
immediately available at the office of the L/C Issuer specified in Section
10.09(a) the following fees and other amounts with respect to each
outstanding Letter of Credit:
(i) an administrative fee equal to 3/16 of 1% per annum on the
daily amount stated to be available from time to time for drawing
under such Letter of Credit from (and including) the date of issuance
until (but excluding) the expiration date of such Letter of Credit,
payable to the L/C Issuer in arrears on the last day of each calendar
quarter, commencing on the first such date after the Borrowing Date
for such Letter of Credit (for the period from such Borrowing Date to
such date), and on such expiration date (for the period from the last
such payment date to such expiration date);
(ii) a letter of credit fee equal to 13/16 of 1% per annum on the
daily amount stated to be available from time to time for drawing
under such Letter of Credit from (and including) the date of issuance
until (but excluding) the expiration date of such Letter of Credit
payable to the L/C Issuer for the account of the Lenders in arrears on
the last day of each calendar quarter, commencing on the first such
date after the Borrowing Date for such Letter of Credit (for the
period from such Borrowing Date to such date), and on such expiration
date (for the period from the last such payment date to such
expiration date);
(iii) with respect to drawings made thereunder, interest, payable
on demand to the L/C Issuer (if applicable, for the benefit of the
Lenders that have funded a participation therein pursuant to
Section 2.07(d), but only for period following such funding), on the
amount paid by the L/C Issuer in respect of each such drawing from
(and including) the date of the drawing to (but excluding) the date
such amount is reimbursed by the Borrower, at a rate per annum equal
to (A) from (and including) the date of such drawing to (and
including) the third Business Day after the date of such drawing, the
rate of interest then applicable to ABR Loans, changing as and when
said rate shall change, and (B) from (but excluding) the third
Business Day
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after the date of such drawing, the sum of (x) 2% and
(y) the rate specified in clause (A); and
(iv) with respect to the issuance or amendment of such Letter of
Credit and each drawing made thereunder, reasonable and customary
documentary and processing charges payable to the L/C Issuer in
accordance with the L/C Issuer's standard schedule for such charges in
effect at the time of such issuance, amendment or drawing, as the case
may be.
Promptly upon receipt by the L/C Issuer of any amount described in clause
(ii) or (iii) of this Section 3.07(c), the L/C Issuer shall distribute to
each Lender that has paid all amounts payable by it under Section 2.06(d)
such Lender's Pro Rata Share of such amount. Amounts payable under clauses
(i) and (iv) of this Section 3.07(c) shall be retained by the L/C Issuer.
ARTICLE IV
DISBURSEMENT AND PAYMENT
Section 4.01. DISBURSEMENT. (a) Each Loan shall be made by the
relevant Lender from such Lender's branch or affiliate identified as its
Applicable Lending Office.
(b) The failure of any Lender to make any Loan to be made by it on
the Borrowing Date therefor shall not relieve any other Lender of its
obligation to make its Loan or Loans on such date, but neither any Lender nor
the Administrative Agent shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender.
(c) The Administrative Agent may, but shall not be required to,
advance on behalf of any Lender the amount of such Lender's Loans to be made
on a Borrowing Date, unless such Lender shall have notified the
Administrative Agent prior to such Borrowing Date that it does not intend to
make such Loans on such date. If the Administrative Agent makes any such
advance, the Administrative Agent shall be entitled to recover the amount so
advanced on demand from the Lender on whose behalf such advance was made and,
if such Lender does not pay the Administrative Agent the amount of such
advance on demand, the Borrower agrees promptly to repay such amount to the
Administrative Agent. Until such amount is repaid to the Administrative Agent
by such Lender or the Borrower, such advance shall be deemed for all purposes
to be a Loan made on such Borrowing Date by the Administrative Agent. The
Administrative Agent shall be entitled to recover from the Lender or the
Borrower, as the case may be, interest on the amount advanced by it for each
day from the Borrowing Date therefor until repaid to the Administrative
Agent, at a rate per annum equal to the Federal Funds Rate until the third
Business Day after the date of the advance and, thereafter, at the rate per
annum equal to the relevant rate on Loans made on the relevant Borrowing Date.
Section 4.02. METHOD AND TIME OF PAYMENTS; SHARING AMONG LENDERS.
(a) All funds received by the Administrative Agent for the account of the
Lenders in respect of payments made by the Borrower under, or from any other
Person on account of, any Credit Document shall be distributed forthwith by
the Administrative Agent among the Lenders, in like funds as received,
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ratably in proportion to their respective interests therein. Each payment of
the Facility Fee and each reduction of the Commitments shall be apportioned
among the Lenders in proportion to each Lender's Pro Rata Share.
(b) All payments by the Borrower hereunder shall be made without
setoff or counterclaim to the Administrative Agent, for its account or for
the account of the Lenders entitled thereto in dollars and in immediately
available funds at the office of the Administrative Agent theretofore
designated in writing to the Borrower prior to 2:00 P.M., New York time, on
the date when due.
(c) Whenever any payment from the Borrower shall be due on a day
that is not a Business Day, the date of payment thereof shall be extended to
the next succeeding Business Day. If the date for any payment of principal
is extended by operation of law or otherwise, interest thereon shall be
payable for such extended time.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment from the Borrower is due
that the Borrower will not make such payment in full, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, but shall not be obligated to, cause to be
distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent that the Borrower shall not have
so made such payment, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(e) If any Lender shall receive from the Borrower or any other
Person any amount owing under any Credit Document (whether received pursuant
to the exercise of any right of set-off, banker's lien, realization upon any
security held for or appropriated to such obligation or otherwise) other than
in proportion to such Lender's ratable share thereof, then such Lender shall
purchase from each other Lender a participating interest in so much of the
other Lenders' Loans as shall be necessary in order that each Lender shall
share such payment with each of the other Lenders in proportion to each
Lender's ratable share; PROVIDED that nothing herein contained shall obligate
any Lender to apply any set-off or banker's lien or collateral security
permitted hereby first to the obligations of the Borrower hereunder if the
Borrower is obligated to such Lender pursuant to other loans or notes. If
any purchasing Lender shall be required to return any excess payment received
by it, such participation shall be rescinded and the purchase price restored
to the extent of such return, but without interest.
Section 4.03. COMPENSATION FOR LOSSES. (a) If (i) the Borrower
makes a prepayment of a Eurodollar Loan, other than on the last day of the
relevant Interest Period, (ii) the Borrower revokes any Borrowing Request for
Eurodollar Loans, (iii) Eurodollar Loans (or portions thereof) are converted
into ABR Loans pursuant to Section 4.05 other than on the last day of the
relevant Interest Period, or (iv) Loans (or portions thereof) become or are
declared to be due prior to the scheduled maturity thereof, then the Borrower
shall pay to each Lender an amount that will compensate such Lender for any
loss (other than lost profit) or premium or penalty incurred by such Lender
as a result of such prepayment, conversion, declaration or revocation in
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respect of funds obtained for the purpose of making or maintaining such
Lenders's Eurodollar Loans, or any portion thereof. Such compensation may
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so paid or prepaid, not borrowed or
converted, for the period from the date of such payment or prepayment or
conversion or failure to borrow to the last day of such Interest Period (or,
in the case of a failure to borrow, the Interest Period that would have
commenced on the date of such failure to borrow) in each case at the
applicable rate of interest for such Loan provided for herein (excluding,
however, any margin included therein) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender
on such amount by placing such amount on deposit for a comparable period with
leading banks in the London interbank deposit market.
(b) In connection with a demand for payment pursuant to this
Section 4.03, a Lender shall provide to the Borrower, with a copy to the
Administrative Agent, a certificate, signed by an officer of such Lender,
setting forth in reasonable detail the amount required to be paid by the
Borrower to such Lender and the computations made by such Lender to determine
such amount. In the absence of manifest error, such certificate shall be
conclusive as to the amount so required to be paid.
Section 4.04. WITHHOLDING AND ADDITIONAL COSTS. (a) WITHHOLDING.
(i) To the extent permitted by law, all payments under this Agreement and
under the Notes (including payments of principal and interest) shall be
payable to each Lender free and clear of any and all present and future
taxes, levies, imposts, duties, deductions, withholdings, fees, liabilities
and similar charges other than Excluded Taxes (collectively, "TAXES"). If
any Taxes are required to be withheld or deducted from any amount payable
under this Agreement, then the amount payable under this Agreement shall be
increased to the amount which, after deduction from such increased amount of
all Taxes required to be withheld or deducted therefrom, will yield to such
Lender the amount stated to be payable under this Agreement. The Borrower
shall also hold each Lender harmless and indemnify it for any stamp or other
similar taxes with respect to the preparation, execution, delivery,
recording, performance or enforcement of the Credit Documents other than
Excluded Taxes (all of which shall be included within "Taxes"). If any of
the Taxes specified in this Section 4.04(a) are paid by any Lender, the
Borrower shall, upon demand of such Lender, promptly reimburse such Lender
for such payments, together with any interest, penalties and expenses
incurred in connection therewith. The Borrower shall deliver to the
Administrative Agent certificates or other valid vouchers for all Taxes or
other charges deducted from or paid with respect to payments made by the
Borrower hereunder. Notwithstanding the foregoing, the Borrower shall be
entitled, to the extent required to do so by law, to deduct or withhold (and
shall not be required to make payments as otherwise required by this Section
4.04 on account of such deductions or withholdings) income or other Taxes
imposed by the United States of America from interest, fees or other amounts
payable hereunder for the account of any Lender other than a Lender (A) that
is a U.S. Person for U.S. federal income tax purposes or (B) that has the
Prescribed Forms on file with the Borrower for the applicable year to the
extent deduction or withholding of such taxes is not required as a result of
such filing of such Prescribed Forms; PROVIDED that, if the Borrower shall so
deduct or withhold any such taxes, the Borrower shall provide a statement to
the Administrative Agent and such Lender, setting forth the amount of such
taxes so deducted or withheld, the applicable rate and any other information
or documentation which such Lender may reasonably request for assisting such
Lender to obtain
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any allowable credits or deductions for the taxes so deducted or withheld in
the jurisdiction or jurisdictions in which such Lender is subject to tax.
(ii) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall deliver to the Borrower and
the Administrative Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or any successor form or forms),
certifying in either case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes ("PRESCRIBED FORMS"). Each Lender that so delivers such
Prescribed Forms further undertakes to deliver to the Borrower and the
Administrative Agent two additional copies of such Prescribed Forms on or
before the date that such Prescribed Forms expire or become obsolete or after
the occurrence of any event requiring a change in the most recent Prescribed
Forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the
Administrative Agent, in each case certifying that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such Prescribed Forms inapplicable or which would prevent such Lender from
duly completing and delivering Prescribed Forms with respect to it and such
Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax. If any Lender that is not incorporated under the
laws of the United States of America or a state thereof fails to comply with
the provisions of this Section, the Borrower and/or the Administrative Agent,
may, as required by law, deduct and withhold federal income tax payments from
payments to such Lender under this Agreement.
(b) ADDITIONAL COSTS. Subject to Sections 4.04(c) and (d):
(i) Without duplication of any amounts payable described in Section
3.03(c), 4.03(a) or 4.04(b)(ii), if after the Effective Date (or, if later,
the date on which the relevant Lender becomes a Lender), any change in any
law or regulation or in the interpretation thereof by any court or
administrative or Governmental Authority charged with the administration
thereof or the enactment of any law or regulation shall either (1) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against any Lender's Commitment, its L/C Obligations or its Loans or (2)
impose on any Lender (or such Lender's Applicable Lending Office) any other
condition (excluding any Tax) regarding this Agreement, its Commitment, its
L/C Obligations or its Loans and the result of any event referred to in
clause (1) or (2) shall be to increase the cost to such Lender (or such
Lender's Applicable Lending Office) of maintaining its Commitment, its L/C
Obligations or any Loans made by such Lender (which increase in cost shall be
calculated in accordance with such Lender's reasonable averaging and
attribution methods) by an amount which such Lender deems to be material,
then, upon demand by such Lender, then the Borrower shall pay to such Lender,
on demand, an amount equal to such increase in cost; and
(ii)Without duplication of any amounts payable described in Section
3.03(c), 4.03(a) or 4.04(b)(i), if any Lender shall have determined in good
faith that the adoption of any applicable law, rule, regulation or guideline
regarding capital adequacy, or any change therein, or
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any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender with
any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency,
in each case, made subsequent to the Effective Date (or, if later, the date
on which such Lender becomes a Lender) has or will have the effect of
reducing the rate of return on capital for such Lender or any corporation
controlling such Lender as a consequence of its obligations under this
Agreement to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by a material amount, then from time to time, upon demand
by such Lender and within ten Business Days after submission by such Lender
of the certificate referred to in Section 4.04(d), the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender
or such corporation for such reduction.
(c) LENDING OFFICE DESIGNATIONS. Before making any demand for
payment pursuant to this Section 4.04, each Lender shall, if possible,
designate a different Applicable Lending Office if such designation will
avoid the need for giving such notice and will not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. If a
Lender changes its applicable lending office (other than pursuant to this
Section 4.04(c) or Section 4.08(c)) and the effect of such change, as of the
date of such change, would be to cause any of the Borrowers to become
obligated to pay any additional amount under this Section 4.04, the Borrower
shall not be obligated to pay such additional amount.
(d) CERTIFICATE, ETC. In connection with any demand for payment
pursuant to this Section 4.04, a Lender shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate, signed by an officer of such
Lender, setting forth in reasonable detail the basis for such demand, the
amount required to be paid by the Borrower to such Lender and the
computations made by such Lender to determine such amount. In the absence of
manifest error, the certificate referred to above shall be conclusive as to
the amount so required to be paid.
(e) CERTAIN TREATIES. For purposes of Section 4.04, a change in
treaty, law, rule or regulation shall not include the ratification or entry
into force of (i) the protocol amending the income tax treaty between Canada
and the United States, signed August 31, 1994 (ii) the income tax treaty
between France and the United States, signed August 31, 1994, (iii) the
income tax treaty between Portugal and the United States, signed September 6,
1994, (iv) the protocol amending the income tax treaty between the
Netherlands and the United States, signed October 15, 1995, (v) the income
tax treaty between Sweden and the United States signed September 1, 1994 and
(vi) the income tax treaty between Luxembourg and the United States,
initiated on September 21, 1995, in each case in substantially similar form
as such protocol or treaty may exist as of the date hereof.
Section 4.05. FUNDING IMPRACTICABLE. If at any time the making or
maintenance of all or any part of any Lender's Eurodollar Loans has been made
unlawful because of compliance by such Lender in good faith with any law or
guideline or interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof or with
any request or directive of such body (whether or not having the effect of
law), then the
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Administrative Agent, upon notification to it of such circumstance by such
Lender (which notice shall be promptly withdrawn whenever such circumstance
no longer exists), shall forthwith advise the other Lenders and the Borrower
thereof. Upon such date as shall be specified in such notice and until such
time as the Administrative Agent, upon notification to it by such Lender,
shall notify the Borrower and the other Lenders that the circumstances
specified by it in such notice no longer apply, (i) notwithstanding any other
provision of this Agreement, such Eurodollar Loans shall, automatically and
without requirement of further notice, be converted to ABR Loans and (ii) the
obligation of such Lender to make or continue Eurodollar Loans shall be
suspended, and, if the Borrower shall request in a Borrowing Request or
Conversion Request that the Lenders make Eurodollar Loans, the Loan requested
to be made by such Lender shall instead be made as an ABR Loan.
Section 4.06. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay
all reasonable out-of-pocket expenses (i) incurred by the Administrative
Agent (including reasonable fees and disbursements of outside counsel) in
connection with the negotiation and preparation of the Credit Documents or
any amendment or supplement to this Agreement and (ii) incurred by the
Administrative Agent or any Lender (including reasonable fees and
disbursements of outside counsel) in connection with the enforcement of the
Credit Documents or any amendment or supplement to this Agreement.
(b) The Borrower agrees to indemnify the Administrative Agent and
each of the Lenders and their respective directors, officers, employees and
agents (each, an "INDEMNITEE") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including outside counsel fees and expenses, incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of
(i) the execution or delivery of any Credit Document or any agreement or
instrument contemplated by any Credit Document, the performance by the
parties thereto of their respective obligations under any Credit Document or
the consummation of the transactions and the other transactions contemplated
by any Credit Document, (ii) the use of the proceeds of the Loans or (iii)
any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; PROVIDED that
such indemnity shall not, as to the Administrative Agent, any Lender or any
officer, director, employee or agent thereof, be available to the extent that
such losses, claims, damages, liabilities or related expenses result from the
gross negligence or willful misconduct of any such Indemnitee, or arise out
of or in connection with any claims made or proceedings commenced against the
Administrative Agent or any Lender by any securityholder or creditor thereof
arising out of and based upon rights afforded any such securityholder or
creditor solely in its capacity as such.
(c) The Borrower agrees to indemnify the L/C Issuer and its
directors, officers, employees, affiliates, agents and controlling persons
against, and to hold each of them harmless from, any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including fees and
expenses of counsel) incurred by or asserted against any of them arising out
of, in any way connected with, or as a result of the issuance of any Letter
of Credit; PROVIDED, that such indemnity shall not, as to any such
indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses result from the gross negligence or willful
misconduct of any such indemnitee, or arise out of or in connection with any
claims made or proceedings commenced against the L/C Issuer by any
securityholder or creditor thereof arising
-25-
out of and based upon rights afforded any such securityholder or creditor
solely in its capacity as such. As between the Borrower and the L/C Issuer,
the Borrower assumes all risks of the acts and omissions of, or misuse of a
Letter of Credit by, a beneficiary of such Letter of Credit. In furtherance
and not in limitation of the foregoing, the L/C Issuer shall not be
responsible for any of the following: (A) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any documents submitted by any
party in connection with the request and application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (B) any
misapplication by a beneficiary of any Letter of Credit of the proceeds of
any drawing thereunder; or (C) any consequences arising from or related to
events or circumstances beyond the control of the L/C Issuer, including any
act or omission, whether rightful or wrongful, of any Governmental Authority.
In furtherance and not in limitation of the specific provisions herein set
forth, any action taken or omitted by the L/C Issuer under or in connection
with any Letter of Credit or related certificates, if taken or omitted in
good faith, shall not result in or give rise to any liability of the L/C
Issuer or the Administrative Agent to the Borrower.
(d) All amounts due under this Section 4.06 shall be payable in
immediately available funds upon written demand therefor.
Section 4.07. SURVIVAL. The provisions of Sections 4.03, 4.04,
4.06, 4.08 and 9.06, shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation
of the transactions contemplated hereby, the repayment of any of the Loans,
the reduction or termination of any Commitments, the invalidity or
unenforceability of any term or provision of any Credit Document, or any
investigation made by or on behalf of the Lenders.
Section 4.08. REPLACEMENT OF LENDERS. If no Default or Event of
Default shall have occurred and be continuing, the Borrower may, at any time,
replace any Lender that has requested the Borrower to pay amounts pursuant to
Section 4.04 or whose obligation to make any Loans has been suspended
pursuant to Section 4.05 (each, an "AFFECTED LENDER"), by giving not less
than 10 Business Days' prior notice to the Administrative Agent (which shall
promptly notify such Affected Lender and each other Lender), that it intends
to replace such Affected Lender with one or more banks (including, but not
limited to, any other Lender under this Agreement) selected by the Borrower
and reasonably acceptable to the Administrative Agent (which shall not
unreasonably withhold its consent). The method (whether by assignment or
otherwise) of and documentation for such replacement shall be reasonably
acceptable to the Affected Lender, the other Lenders and the Administrative
Agent (which shall not unreasonably withhold their consent and shall
cooperate with the Borrower in effecting such replacement). Upon the
effective date of any replacement under this Section 4.08, and as a condition
thereto, the Borrower shall, or shall cause the replacement Lender or Lenders
to, pay to the Affected Lender being replaced any amounts owing to such
Affected Lender hereunder (including, without limitation, interest, facility
fees, compensation and additional amounts under this Article IV, in each case
accrued to the effective date of such replacement), whereupon each
replacement Lender shall become a "Lender" for all purposes of this Agreement
having a Commitment in the amount of such Affected Lender's Commitment
assumed by it, such Commitment of the Affected Lender being replaced shall be
terminated upon such effective date and such Affected Lender shall have no
further obligation as a "Lender" as of such effective date.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Administrative Agent and each Lender as
follows:
(a) GOOD STANDING AND POWER. The Borrower and each Cross Guarantor is
a corporation or limited partnership, duly incorporated or organized and
validly existing in good standing under the laws of the jurisdiction of its
incorporation or organization; each has the power to own its property and
to carry on its business as now being conducted; and each is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except
where the failure to be so qualified, or to be in good standing,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect.
(b) CORPORATE AUTHORITY. The Borrower and each Cross Guarantor has
full corporate or partnership power and authority to execute and deliver,
and to incur and perform its obligations under, each of the Credit
Documents to which it is a party, all of which have been duly authorized by
all necessary corporate or partnership action. No consent or approval of
stockholders or limited partners of the Borrower or such Cross Guarantor,
as the case may be, is required to be obtained as a condition to the
validity or performance of, or the exercise by the Administrative Agent or
the Lenders of any of their rights or remedies under, any Credit Document
(other than any such consent or approval that has been obtained).
(c) AUTHORIZATIONS. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from any
Governmental Authority or other Person necessary for the execution,
delivery and performance by the Borrower and each Cross Guarantor of, and
the incurrence and performance of each of its obligations under, each of
the Credit Documents, and the exercise by the Administrative Agent and the
Lenders of their remedies under each of the Credit Documents have been
effected or obtained and are in full force and effect.
(d) PROPERTIES. As of the Effective Date, the Borrower or a Wholly
Owned Subsidiary owns directly the proportionate interest in each Portfolio
Property indicated on Schedule II.
(e) BINDING OBLIGATION. This Agreement constitutes and, when issued
in accordance with the terms hereof, each Note will constitute the valid
and legally binding obligation of the Borrower enforceable in accordance
with its terms, subject as to enforcement to bankruptcy, insolvency,
fraudulent transfer, fraudulent conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
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(f) LITIGATION. There are no proceedings or investigations now
pending or, to the knowledge of the Borrower, threatened before any court
or arbitrator or before or by any Governmental Authority which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
(g) NO CONFLICTS. There is no statute, regulation, rule, order,
judgment, agreement or instrument binding upon the Borrower or any
Subsidiary, or affecting their properties, and no provision of the
certificate of incorporation or by-laws (or similar constitutive
instruments) of the Borrower or any Subsidiary, that would prohibit,
materially conflict with or materially impair the execution or delivery of,
or the incurrence or performance of any obligations of the Borrower or any
Cross Guarantor under, any Credit Document, or result in or require the
creation or imposition of any Lien on property of the Borrower or any
Subsidiary (other than any Lien permitted under Section 7.02(b)) as a
consequence of the execution, delivery and performance of any Credit
Document.
(h) FINANCIAL CONDITION. (i) The consolidated balance sheets of the
Borrower and its Subsidiaries as of December 31, 1996, together with
consolidated statements of income, shareholders' equity and cash flows for
the fiscal year then ended, reported upon by Ernst & Young, heretofore
delivered to the Administrative Agent and the Lenders, fairly present, in
all material respects, the Borrower's consolidated financial condition,
consolidated results of operations and transactions in surplus accounts as
of the date and for the fiscal year referred to and have been prepared in
accordance with GAAP consistently applied throughout the period involved.
There are no liabilities (whether known or unknown, direct or indirect,
fixed or contingent, and of any nature whatsoever) of the Borrower or any
Subsidiary as of the date of such balance sheet that are not reflected
therein or in the notes thereto, and that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(ii) There has been no material adverse change in the business,
properties, condition (financial or otherwise) or operations of the
Borrower and its Subsidiaries, taken as a whole, since the date of the
balance sheet dated December 31, 1996 referred to in Section 5.01(h)(i).
(i) USE OF PROCEEDS. The proceeds of the Loans will be applied only
to the refinancing of outstanding Indebtedness of the Borrower and its
Subsidiaries, to the working capital needs of the Borrower and its
Subsidiaries, to costs of redeveloping, refurbishing and/or expanding
Portfolio Properties, and to the acquisition of other shopping centers or
malls in the United States and other uses directly related to the
operations of the Borrower and its Subsidiaries and the ownership of their
properties.
(j) TAXES. The Borrower and the Subsidiaries each has filed or caused
to be filed all tax returns that are required to be filed and paid all
taxes that are required to be shown to be due and payable on said returns
or on any assessment made against it or any of its property and all other
taxes, assessments, fees, liabilities, penalties or other charges imposed
on it or any of its property by any Governmental Authority, except for any
taxes, assessments, fees, liabilities, penalties or other charges (x) which
are being contested in good faith and (unless the amount thereof is not
material to the Borrower's consolidated
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financial condition) for which adequate reserves have been established in
accordance with GAAP, or (y) the failure of which to be paid, individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(k) COMPLIANCE WITH ERISA. Each member of the ERISA Group is in
compliance with the applicable provisions of ERISA and the Code with
respect to each Plan, except for any failure so to comply that,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect. No member of the ERISA Group has (i) an
accumulated funding deficiency under Section 412 of the Code in respect of
any Pension Plan, whether or not waived, (ii) failed to make any
contribution or payment to any Pension Plan, or made any amendment to any
Pension Plan, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under Section 302(f) of
ERISA or Section 401(a)(29) of the Code, (iii) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA, all of which have been paid or (iv) engaged in a
transaction with respect to a Plan, which (assuming the taxable period of
such transaction, within the meaning of Section 4975(f)(2) of the Code, to
have expired as of the date hereof) has resulted or could reasonably be
expected to result in such member being subject to a material tax or
penalty imposed by Section 4975 of the Code or Section 502 of ERISA.
(l) NOT AN INVESTMENT COMPANY. Neither the Borrower nor any
Subsidiary is (i) an "investment company" or a company "controlled" by an
entity required to be registered as an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or (ii) subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, each as amended, or any foreign, federal, state or local
statute or regulation limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.
(m) ENVIRONMENTAL PROTECTION. To the Borrower's knowledge, based upon
reasonable investigation, all real property owned or leased by the Borrower
or any Subsidiary is free of contamination from any substance that could
result in the incurrence of material liabilities, or constituent thereof,
currently identified or listed as hazardous or toxic pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. 9601, et seq., or any other Environmental Laws, or any other
substance which has in the past or could at any time in the future cause or
constitute a health, safety or environmental hazard to any person or
property, including asbestos in any building, petroleum products, PCBs,
pesticides, or radioactive materials, in each case other than any
contamination that would not reasonably be expected to result in the
incurrence by the Borrower or any Subsidiary of any material liabilities
under any Environmental Laws. To the Borrower's knowledge, based upon
reasonable investigation, neither the Borrower nor any Subsidiary has
caused or suffered to occur any conditions that, individually or in the
aggregate, would reasonably be expected to result in the incurrence by the
Borrower or any Subsidiary of material liabilities under, or any material
violations by the Borrower or any Subsidiary of, any Environmental Laws.
(n) INSURANCE. All of the properties and operations of the Borrower
and each Subsidiary of a character usually insured by companies of
established reputation engaged
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in the same or a similar business similarly situated are adequately
insured, by financially sound and reputable insurers, against loss or
damage of the kinds and in amounts customarily insured against by such
Persons, and the Borrower and the Subsidiaries carry, with such insurers
in customary amounts, such other insurance, including larceny,
embezzlement or other criminal misappropriation insurance and business
interruption insurance, as is usually carried by companies of established
reputation engaged in the same or a similar business similarly situated.
(o) DISCLOSURE. All information relating to the Borrower or its
Subsidiaries heretofore delivered in writing to the Administrative Agent or
any Lender in connection with the negotiation, execution and delivery of
this Agreement and the other Credit Documents, taken as a whole, is true
and complete in all material respects as of the date hereof.
Section 5.02. SURVIVAL. All representations and warranties made
by the Borrower in this Agreement, and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement, shall (i) be considered to have been relied upon by the Lenders,
(ii) survive the making of Loans and the issuance of Letters of Credit
regardless of any investigation made by, or on behalf of, the Lenders, and
(iii) continue in full force and effect as long as the Commitments have not
been terminated and, thereafter, until payment in full of the Loans and any
L/C Obligations, fee or other amount then due and owing to any Lender or the
Administrative Agent under any Credit Document and termination or expiration
of all Letters of Credit, whereupon such representations and warranties shall
expire and be of no further force or effect.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01. CONDITIONS TO THE AVAILABILITY OF THE COMMITMENTS.
The obligations of each Lender and the L/C Issuer hereunder are subject to
satisfaction or waiver in writing by each of the Lenders of each of the
following conditions precedent, and the Lenders' Commitments shall not become
available until the date (the "EFFECTIVE DATE") (which shall be no later than
June 30, 1997) on which each of the following conditions precedent shall have
been satisfied or waived in writing by each of the Lenders:
(a) THIS AGREEMENT. The Administrative Agent shall have received this
Agreement duly executed and delivered by each of the Lenders and the
Borrower.
(b) THE CROSS GUARANTEES. The Administrative Agent shall have
received the Cross Guarantees duly executed and delivered by each of the
Cross Guarantors.
(c) EVIDENCE OF CORPORATE ACTION. The Administrative Agent shall have
received the following:
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(i) a copy of the Certificate of Incorporation, or Certificate
of Limited Partnership, as the case may be, of the Borrower and each
Cross Guarantor, as in effect on the Effective Date, certified by the
Secretary of State of the state in which the same is incorporated or
organized, and (to the extent applicable) a certificate from such
Secretary of State as to the good standing of the Borrower or such
Cross Guarantor, in each case as of a date reasonably close to the
Effective Date; and
(ii) a certificate of the Secretary or an Assistant Secretary of
the Borrower, and each Cross Guarantor (or of the general partner of
each Cross Guarantor organized as a limited partnership) dated the
Effective Date, and stating (A) that attached thereto is a correct and
complete copy of the by-laws of the Borrower or such Cross Guarantor
(or corporate general partner) as in effect on such date and at all
times since the date of the resolutions described in clause (B) below,
(B) that attached thereto is a correct and complete copy of
resolutions duly adopted by the Board of Directors of the Borrower or
such Cross Guarantor (or corporate general partner thereof)
authorizing the execution, delivery and performance of this Agreement,
and each other Credit Document to which the Borrower or such Cross
Guarantor is a party and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate of incorporation of the Borrower or such Cross Guarantor
(or corporate general partner), as the case may be, has not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and signature of each officer executing
this Agreement or the relevant Cross Guarantee, as the case may be,
and any document delivered in connection herewith or therewith on
behalf of the Borrower, or such Cross Guarantor.
(d) OPINIONS OF COUNSEL. The Lenders shall have received (a) a
written opinion, dated the Effective Date, of Xxxxx Xxxx, special Missouri
counsel to the Borrower, substantially in the form of EXHIBIT E-1, and (b)
a written opinion, dated the Effective Date, of Debevoise & Xxxxxxxx,
special New York counsel for the Borrower and the Cross Guarantors, in
substantially the form of EXHIBIT E-2.
(e) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Section 5.01 shall be true and correct in all
material respects on the Effective Date, and the Lenders shall have
received a certificate, signed by a Responsible Officer of the Borrower, to
that effect.
(f) RELEASE OF MORTGAGES. Any mortgages on Syndicate Properties shall
have been or shall concurrently be released.
(g) OTHER DOCUMENTS. The Lenders shall have received such other
certificates, opinion and other documents as the Required Lenders
reasonably may require.
Section 6.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. The
obligations of each Lender to make each Loan and of the L/C Issuer to issue
each Letter of Credit are subject to the conditions precedent that, on the
Borrowing Date therefor, each of the following conditions precedent shall
have been satisfied, or waived in writing by the Lenders:
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(a) BORROWING REQUEST. The Administrative Agent shall have received a
Borrowing Request or L/C Request in accordance with the terms of this
Agreement.
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing, nor shall any Default or Event of Default occur as a
result of the making of such Loan or the issuance of such Letter of Credit.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Section 5.01 shall have been true and correct in
all material respects when made and (except to the extent that any
representation or warranty speaks as of a date certain) shall be true and
correct in all material respects on the Borrowing Date with the same effect
as though such representations and warranties were made on such Borrowing
Date.
ARTICLE VII
COVENANTS
Section 7.01. AFFIRMATIVE COVENANTS. Until termination of the
Commitments of the Lenders hereunder, payment in full of the Loans and any
L/C Obligation, fee or other amount then due and owing to any Lender or the
Administrative Agent under any Credit Document, and termination or expiration
of all Letters of Credit, the Borrower will:
(a) FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATES. Furnish to
the Administrative Agent and each Lender:
(i)as soon as available, but in no event more than 60 days after
the end of each of the first three fiscal quarters in each year,
consolidated balance sheets of the Borrower and its Subsidiaries as
of the end of such period, consolidated statements of income and cash
flows of the Borrower and its Subsidiaries from the beginning of the
then current fiscal year and from the beginning of such fiscal quarter
to the end of such period, certified by the Chief Financial Officer of
the Borrower;
(ii)as soon as available, but in no event more than 120 days
after the end of each fiscal year, annual financial statements of the
Borrower in reasonable detail and prepared in accordance with GAAP,
including consolidated balance sheets as of the end of such fiscal
year and consolidated statements of income, cash flows and
shareholders' equity, together with an audit report of Ernst & Young,
or other independent auditors reasonably satisfactory to the
Administrative Agent;
(iii)together with each report delivered pursuant to
Sections 7.01(a)(i) and (ii), a certificate of the Borrower, signed by
a Responsible Officer, in substantially the form of EXHIBIT F, stating
whether, as of the last date of the financial statements included in
such report, any event occurred or circumstance existed which,
individually or in the aggregate, constituted a Default or Event of
Default (and, if so, detailing the facts with respect thereto) and
whether the Borrower was in compliance
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with the covenants set forth in this Article VII, together with
calculations to establish the Borrower's compliance with the
covenants contained in Section 7.03;
(iv)within five Business Days of any Responsible Officer of the
Borrower obtaining knowledge of any Default or Event of Default, if
such Default or Event of Default is then continuing, a certificate of
a Responsible Officer of the Borrower stating that such certificate is
a "Notice of Default" and setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(v)annually, no later than one month prior to the beginning of
each fiscal year, a written business plan and a written capital
expenditure plan for the Borrower, including forecasted combined cash
flows for the Borrower and the Related Entities for such fiscal year;
and
(vi) such additional information, reports or statements,
regarding the business, financial condition or results of operations
of the Borrower and its Subsidiaries, as the Administrative Agent and
the Lenders from time to time may reasonably request.
(b) CORPORATE EXISTENCE. Except as permitted by Section 7.02(a),
maintain, and cause each Significant Subsidiary to maintain, its existence
in good standing and qualify and remain qualified to do business in each
jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business is such that the
failure so to qualify, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(c) CONDUCT OF BUSINESS. Preserve, renew and keep in full force and
effect, and cause each Significant Subsidiary to preserve, renew and keep
in full force and effect, all its material franchises and licenses
necessary to the normal conduct of its business; and comply, and cause each
Significant Subsidiary to comply, with all applicable laws, orders, rules
and regulations of all Governmental Authorities the failure with which so
to comply, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
(d) AUTHORIZATIONS. Obtain, make and keep in full force and effect
all material authorizations from and registrations with Governmental
Authorities required for the validity or enforceability of the Credit
Documents.
(e) TAXES. Pay and discharge, and cause each Subsidiary to pay and
discharge, all taxes, assessments and governmental charges upon it, its
income and its properties prior to the date on which penalties are attached
thereto, except to the extent that (i) such taxes, assessments and
governmental charges shall be contested in good faith and by appropriate
proceedings by the Borrower or such Subsidiary, as the case may be,
(ii) the amount thereof is not material to the Borrower's consolidated
financial condition, and adequate reserves are maintained (in accordance
with GAAP) by the Borrower or such Subsidiary, as the case may be, with
respect thereto, or (iii) any failure to pay and discharge such taxes,
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assessments and governmental charges would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(f) INSURANCE. Maintain, and cause each Subsidiary to maintain,
insurance with creditworthy insurance companies against such risks, of such
types (including general liability, larceny, embezzlement or other criminal
misappropriation insurance), on such properties and with such coverages as
is currently maintained by the Borrower, to the extent available on
reasonable commercial terms, and file and cause each Subsidiary to file
with the Administrative Agent upon its reasonable request or the reasonable
request of any Lender a reasonably detailed list of the insurance
companies, the amounts and rates of the insurance, the dates of the
expiration thereof and the properties and risks covered thereby.
(g) INSPECTION. Permit, and cause each Subsidiary to permit, the
Administrative Agent and the Lenders to have one or more of their officers
and employees, or any other Person designated by the Administrative Agent
or the Lenders, to visit and inspect any of the properties of the Borrower
and the Subsidiaries and to examine the minute books, books of account and
other records of the Borrower and the Subsidiaries, and discuss its
affairs, finances and accounts with its officers and with the Borrower's
independent accountants, for so long as there shall not have occurred and
be continuing a Default or Event of Default on reasonable notice and during
normal business hours and at such other reasonable times, for the purpose
of monitoring the Borrower's compliance with its obligations under the
Credit Documents.
(h) ERISA. Furnish to the Lenders:
(i) within ten days after a Responsible Officer learns that any
"reportable event" (as defined in Section 4043(b) of ERISA), other
than a reportable event for which the 30-day notice requirement has
been waived by the PBGC, has occurred with respect to a Pension Plan,
a statement setting forth details as to such reportable event and the
action proposed to be taken with respect thereto;
(ii) within ten days after receipt thereof, a copy of any notice
that any member of the ERISA Group may receive from the PBGC relating
to the intention of the PBGC to terminate any Pension Plan or to
appoint a trustee to administer any Plan, within ten days after filing
with any affected party (as such term is defined in Section 4001 of
ERISA) of a notice of intent to terminate a Pension Plan, a copy of
such notice and a statement setting forth the details of such
termination, including the amount of liability, if any, of any member
of the ERISA Group under Title IV of ERISA;
(iii) within ten days after failure by any member of the ERISA
Group to make payment to a Pension Plan which would give rise to a
lien in favor of the Plan under Section 302(f) of ERISA, a statement
setting forth the details thereof, including the amount of such lien;
(iv) within ten days after the due date for filing with the PBGC,
pursuant to Section 412(n) of the Code, of a notice of failure to make
a required installment or
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other payment with respect to a Pension Plan, a statement setting
forth details as to such failure and the action proposed to be taken
with respect thereto; and
(v) within 30 days after receipt thereof by any member of the
ERISA Group from the sponsor of a Multiemployer Plan, a copy of each
notice concerning the imposition of withdrawal liability or the
termination or reorganization of a Multiemployer Plan.
(i) ENVIRONMENTAL MATTERS. (i) Comply, and cause each Subsidiary to
comply, in all material respects with all applicable Environmental Laws,
(ii) notify the Agent promptly after receiving notice of any Environmental
Claim with respect to the Borrower's or any Subsidiaries' properties or
facilities, and (iii) promptly forward to the Administrative Agent a copy
of any material order, notice, permit, application, or other communication
or report received by the Borrower in connection with any such
Environmental Claim as they may affect such premises.
(j) APPRAISALS. (i) At its sole expense cause full narrative
appraisals of the Portfolio Properties to be delivered to the Lenders on a
rolling three year basis, with one-third of the Portfolio Properties (each
such third to include approximately one-third of the Syndicate Properties)
being appraised no later than March 31 each year and each Portfolio
Property being appraised at least once every three years. Each such
appraisal shall be prepared by a Member Appraisal Institute designated
appraiser reasonably acceptable to the Required Lenders and shall show the
fair market value of such property as of a date no earlier than December 31
of the immediately preceding year and shall otherwise be reasonably
acceptable to the Required Lenders.
(ii) The Administrative Agent may require additional appraisals
at the Borrower's expense of any Portfolio Properties which have not been
appraised during the previous twelve months and the fair market value of
which, in the reasonable opinion of the Required Lenders, may have
materially deteriorated since the last previous appraisal delivered under
clause (i) of this Section 7.01(j).
(k) CROSS GUARANTEES. Promptly upon any Person becoming the UPREIT
Entity or a Syndicate Subsidiary which is a Wholly Owned Subsidiary of the
Borrower or the UPREIT Entity, cause such Person to duly execute and
deliver to the Agent and the Lenders a Cross Guarantee.
(l) TITLE REPORTS. No later than June 30, 1997 (as to each Syndicate
Property) and no later than July 31, 1997 (as to each other Portfolio
Property) furnish to each Lender a title report with respect to each
Portfolio Property dated no earlier than May 1, 1997.
Section 7.02. NEGATIVE COVENANTS. Until termination of the
Commitments of the Lenders hereunder, payment in full of the Loans and any
L/C Obligation, fee or other amount then due and owing to any Lender or the
Administrative Agent under any Credit Document, and termination or expiration
of all Letters of Credit, the Borrower will not:
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(a) MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. Enter into, or
permit any Subsidiary to enter into, any merger or consolidation with or
into any Person, or sell or otherwise dispose of any material asset of the
Borrower and its Subsidiaries, except (i) with, into or to the Borrower,
the UPREIT Entity or one or more Wholly Owned Subsidiaries of the Borrower
or the UPREIT Entity, or (ii) for any such sale or disposition (other than
of the Borrower) if, (x) at the time of such sale or disposition there
shall not have occurred and be continuing any Default or Event of Default
and (y) upon giving effect thereto on a pro forma basis, the Borrower would
be in compliance with each covenant in Section 7.03.
(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) 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 10% of the then Current Value of all Portfolio Properties, (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), (iv) 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.
(c) CHANGE IN CONTROL. Permit the advisor to the Borrower or the
manager of the Portfolio Properties listed on Schedule II (other than North
County Fair) to be any Person other than Westfield Holdings Limited or any
wholly owned subsidiary of Westfield Holdings Limited for a period of more
than 30 days.
(d) SYNDICATE SUBSIDIARY INDEBTEDNESS. Permit any Syndicate
Subsidiary to create, incur, assume or suffer to exist any Indebtedness for
borrowed money (other than Indebtedness owed to the Borrower or any Cross-
Guarantor).
(e) REIT QUALIFICATION. Fail at any time to continue to qualify as a
Real Estate Investment Trust under Section 856 through 859 of the Code.
(f) DISPOSITION OF SYNDICATE PROPERTIES. Without the prior consent of
the Required Lenders, which consent will not be unreasonably withheld,
cease to own, directly or
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indirectly, 100% of each of the Syndicate Properties identified on
Schedule II, unless the Borrower elects no longer to have such property
qualify as a Syndicate Property.
Section 7.03. FINANCIAL COVENANTS. Until termination of the
Commitments of the Lenders hereunder, payment in full of the Loans and any
L/C Obligation, fee or other amount then due and owing to any Lender or the
Administrative Agent under any Credit Document, and termination or expiration
of all Letters of Credit, the Borrower will not:
(a) SHAREHOLDERS' FUNDS. Permit Shareholders' Funds to be less than
$700,000,000 as of the last day of any fiscal quarter, commencing with the
second quarter of 1997.
(b) FIXED CHARGE COVERAGE RATIO. Permit the ratio of (i) EBITDA to
(ii) Fixed Charges for the twelve month period ending on the last day of
each calendar quarter commencing with the second quarter of 1997, to be
less than 1.75:1.
(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,
commencing with the second quarter of 1997, to be less than 1.75:1.
(d) TOTAL DEBT. Permit Total Debt, at any time, to exceed 60% of the
lesser of (i) Total Tangible Assets and (ii) Capitalized Value.
(e) LOAN TO VALUE RATIO. Permit the sum of the principal amount of
Loans and L/C Obligations outstanding at any time 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.
(f) DIVIDEND LIMITATION. Pay dividends in the aggregate (i) in 1997
in an amount exceeding Funds from Operations for that year PLUS
$13,000,000, (ii) in 1998 in an amount exceeding 90% of Funds from
Operations for that year, or (iii) in any subsequent calendar year in an
amount exceeding Funds from Operations for that year.
Section 7.04. PROPERTY UNDERTAKINGS. Until termination of the
Commitments of the Lenders, payment in full of the Loans and any L/C
Obligation, fee or other amount then due and owing to any Lender or the
Administrative Agent under any Credit Document, and termination or expiration
of all Letters of Credit, without consulting with the Administrative Agent
and the Lenders to establish a mutually acceptable correction period (and
effecting such correction within six months), the Borrower will endeavor not
to:
(a) DEVELOPMENTS IN PROGRESS. Permit the value of developments
in progress committed and approved by the Board of Directors of the
Borrower at any time to exceed 20% of the aggregate Current Value of the
Portfolio Properties.
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(b) PROPERTY VALUES. Permit the Current Value of any single
Portfolio Property at any time to exceed 25% of the Current Value of all of
the Portfolio Properties or the aggregate Current Value of the Portfolio
Properties having the three highest Current Value at any time to exceed 50%
of the Current Value of all of the Portfolio Properties.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. EVENTS OF DEFAULT. If one or more of the following
events (each, an "EVENT OF DEFAULT") shall occur:
(a) The Borrower shall fail duly to pay any principal of any Loan when
due, whether at maturity, by notice of intention to prepay or otherwise, or
to reimburse a drawing under a Letter of Credit within three Business Days
after such drawing; or
(b) The Borrower shall fail duly to pay (i) any interest within two
days after the same shall be due or (ii) any fee or other amount payable
under the Credit Documents within two Business Days after notice of its
failure to pay such fee or other amount when due shall have been given to
the Borrower by the Administrative Agent or the Required Lenders; or
(c) The Borrower shall fail duly to observe or perform any term,
covenant, or agreement contained in Section 7.02 or 7.03; or
(d) The Borrower shall fail duly to observe or perform any other term,
covenant or agreement contained in this Agreement, and such failure shall
have continued unremedied for a period of 30 days after written notice
thereof has been given to the Borrower by the Administrative Agent or the
Required Lenders; or
(e) Any representation or warranty made or deemed made by the Borrower
or a Cross Guarantor in a Credit Document, or any statement or
representation made in any certificate, report or opinion delivered by or
on behalf of the Borrower or a Cross Guarantor in connection with a Credit
Document, shall prove to have been false in any material respect when so
made or deemed made; or
(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
(g) An involuntary case or other proceeding shall be commenced against
the Borrower or any Syndicate Subsidiary or Cross-Guarantor seeking
liquidation,
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reorganization or other relief with respect to it or its debts
under any applicable bankruptcy, insolvency, reorganization or similar law
or seeking the appointment of a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of more than 60 days; or an order or
decree approving or ordering any of the foregoing shall be entered and
continued unstayed and in effect; or
(h) The Borrower or any Syndicate Subsidiary or Cross-Guarantor shall
commence a voluntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or similar law or any other case or proceeding
to be adjudicated a bankrupt or insolvent, or any of them shall consent to
the entry of a decree or order for relief in respect of the Borrower or any
Syndicate Subsidiary or Cross-Guarantor in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against any of them, or any of them shall file a
petition or answer or consent seeking reorganization or relief under any
applicable law, or any of them shall consent to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Borrower or any Syndicate Subsidiary or Cross-Guarantor or any substantial
part of their respective property, or any of them shall make a general
assignment for the benefit of creditors, or the Borrower or any Syndicate
Subsidiary or Cross-Guarantor shall take corporate action in furtherance of
any such action, or any of them shall admit in writing its inability to pay
its debts generally as they become due; or
(i) One or more judgments against the Borrower or any Syndicate
Subsidiary or Cross-Guarantor or attachments against its property, which in
the aggregate involve a liability (net of any insurance or indemnity
payments actually received in respect thereof prior to or within 45 days
from the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) of $10,000,000 or more, remain
unpaid, unstayed on appeal, undischarged, unbonded, or undismissed for a
period of more than 45 days from the date of entry thereof; or
(j) Notice of intent to terminate a Pension Plan shall have been filed
with any affected party (as defined in Section 4001 of ERISA), or notice of
an application by the PBGC to institute proceedings to terminate a Pension
Plan pursuant to Section 4042 of ERISA shall have been received by any
member of the ERISA Group, in each case only if the amount of unfunded
benefit liabilities (as defined in Section 4001(a)(18) of ERISA) as of the
date such notice is filed or received exceeds $500,000; any member of the
ERISA Group incurs liability under Sections 4062(e), 4063 or 4064 of ERISA
in respect of a Pension Plan in an amount in excess of $500,000; an
amendment is adopted to a Pension Plan which would require security to be
given to such Pension Plan pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA in an amount in excess of $500,000; any member of the
ERISA Group fails to make a payment to a Pension Plan which would give rise
to a Lien in favor of such Plan under Section 302(f) of ERISA in an amount
in excess of $500,000;
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then, at any time upon the occurrence and during the continuance of such
Event of Default, the Required Lenders, may, by written notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate forthwith the Commitments and (ii) declare any
Loans and L/C Obligations then outstanding to be due, whereupon the Loans so
declared to be due, together with accrued interest thereon and any unpaid
amounts accrued under the Credit Documents, shall become forthwith due,
without presentment, demand, protest or any other notice of any kind (all of
which are hereby expressly waived by the Borrower); PROVIDED that, in the
case of any Event of Default described in Section 8.01(g) or (h) occurring
with respect to the Borrower, the Commitments shall automatically and
immediately terminate and all Loans and L/C Obligations then outstanding,
together with accrued interest thereon and any unpaid amounts accrued under
the Credit Documents, shall automatically and immediately become due without
presentment, demand, protest or any other notice of any kind (all of which
are hereby expressly waived by the Borrower).
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.01. THE AGENCY. Each Lender appoints National Australia
Bank Limited, New York Branch as its Administrative Agent hereunder and
irrevocably authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers hereunder and under the other Credit
Documents as are specifically delegated to the Administrative Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto, including the exercise of powers delegated to the
Administrative Agent and the Lenders hereby or thereby, and the
Administrative Agent hereby accepts such appointment subject to the terms
hereof. The relationship between the Administrative Agent and the Lenders
shall be that of agent and principal only and nothing herein shall be
construed to constitute the Administrative Agent a trustee or fiduciary for
any Lender (except to the extent that the Administrative Agent acts as an
agent with respect to the payment or receipt of funds) nor to impose on the
Administrative Agent duties or obligations other than those expressly
provided for herein.
Section 9.02. THE ADMINISTRATIVE AGENT'S DUTIES. The
Administrative Agent shall promptly forward to each Lender copies, or notify
each Lender as to the contents (whereupon, if requested by a Lender the
Administrative Agent will forthwith forward a copy to such Lender), of all
notices received from the Borrower pursuant to the terms of this Agreement
and, in the event that the Borrower fails to pay when due the principal of
or interest on any Loan, the Administrative Agent shall promptly give notice
thereof to the Lenders. As to any other matter not expressly provided for
herein, the Administrative Agent shall have no duty to act or refrain from
acting with respect to the Borrower, except upon the instructions of the
Required Lenders. The Administrative Agent shall not be bound by any waiver,
amendment, supplement, or modification of this Agreement or the other Credit
Documents which affects its duties hereunder and thereunder, unless it shall
have given its prior written consent thereto. The Administrative Agent shall
have no duty to ascertain or inquire as to the performance or observance of
any of the terms, conditions, covenants or agreements binding on the Borrower
pursuant to any Credit Document nor shall the Administrative Agent be deemed
to have knowledge of the occurrence of any Default or Event of Default (other
than a failure of the Borrower to pay when due the
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principal or interest on any Loan), unless it shall have received written
notice from the Borrower or a Lender specifying such Default or Event of
Default and stating that such notice is a "Notice of Default".
Section 9.03. LIMITATION OF LIABILITIES. Each of the Lenders and
the Borrower agree that (i) neither the Administrative Agent nor any of its
officers or employees shall be liable for any action taken or omitted to be
taken by any of them hereunder except for gross negligence or wilful
misconduct of the Administrative Agent or any of its officers or employees,
(ii) neither the Administrative Agent nor any of its officers or employees
shall be liable for any action taken or omitted to be taken by any of them in
good faith in reliance upon the advice of counsel, independent public
accountants or other experts selected by the Administrative Agent, and (iii)
the Administrative Agent shall be entitled to rely upon any notice, consent,
certificate, statement or other document believed by it in good faith to be
genuine and correct and to have been signed and/or sent by the proper Persons.
Section 9.04. THE ADMINISTRATIVE AGENT AS A LENDER. The
Administrative Agent may, without any liability to account, maintain deposits
or credit balances for, invest in, lend money to and generally engage in any
kind of banking business with the Borrower or any Subsidiary or Affiliate of
the Borrower as if it were any other borrower and without any duty to account
therefor to the other Lenders.
Section 9.05. LENDER CREDIT DECISION. Neither the Administrative
Agent, nor any of its Affiliates, officers or employees has any
responsibility for, gives any guaranty in respect of, nor makes any
representation to the Lenders as to, (i) the condition, financial or
otherwise, of the Borrower or any Subsidiary thereof or the truth of any
representation or warranty given or made in this Agreement, or in connection
herewith or therewith or (ii) the validity, execution, sufficiency,
effectiveness, construction, adequacy, enforceability or value of this
Agreement or any other document or instrument related hereto or thereto.
Except as specifically provided herein, neither the Administrative Agent nor
any of its Affiliates, officers or employees shall have any duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect to the operations,
business, property, condition or creditworthiness of the Borrower or any of
its Subsidiaries, whether such information comes into the Administrative
Agent's possession on or before the date hereof or at any time thereafter.
Each Lender acknowledges that (i) it has, independently and without reliance
upon the Administrative Agent or any other Lender, based on such documents
and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement and (ii) all information reviewed
by it in its credit analysis or otherwise in connection herewith (including
information relating to the Administrative Agent) has been provided solely by
or on behalf of the Borrower, and the Administrative Agent has no
responsibility for such information. Each Lender also acknowledges that it
will independently and without reliance upon the Administrative Agent or any
other Lender, based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under any Credit Document. Each Lender represents to
each other party hereto that it is a bank, savings and loan association or
other similar savings institution, insurance company, investment fund or
company or other financial institution that makes or acquires commercial
loans in the ordinary course of its business, that it is participating
hereunder as a Lender for such commercial purposes, and that it has the
knowledge and experience to be and is capable of evaluating the merits and
risks of being
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a Lender hereunder. Each Lender acknowledges and agrees to comply with the
provisions of Section 10.03 applicable to the Lenders hereunder.
Section 9.06. INDEMNIFICATION. Each Lender agrees to indemnify
the Administrative Agent, to the extent not reimbursed by the Borrower,
ratably in proportion to its Commitment (as of the time of the incurrence of
the liability being indemnified against), from and against any and all
liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of any Credit
Document, or any action taken or omitted to be taken by the Administrative
Agent hereunder or thereunder; PROVIDED, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the gross negligence or wilful misconduct of the Administrative Agent or any
of its officers or employees. Without limiting the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including fees and disbursements
of counsel incurred by the Administrative Agent in such capacity in
connection with the preparation, execution or enforcement of, or legal advice
in respect of rights or responsibilities under, any Credit Document or any
amendments or supplements hereto or thereto) to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower.
Except for action expressly required of the Administrative Agent hereunder,
the Administrative Agent shall in all cases by fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification obligations under this
Section 9.06 hereof against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.
Section 9.07. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the resigning
Administrative Agent's giving of notice of resignation the resigning
Administrative Agent may, on behalf of the Lenders and with the written
consent of the Borrower (which consent shall not be unreasonably withheld),
appoint a successor Administrative Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigned Administrative Agent, and the
resigned or removed Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any Administrative Agent's
resignation as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
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ARTICLE X
EVIDENCE OF LOANS; TRANSFERS
Section 10.01. EVIDENCE OF LOANS. The Borrower's obligations to
repay Loans shall be evidenced by Notes, in substantially the form of EXHIBIT
C. Each Note shall be in the principal amount of the Commitment of the
applicable Lender and stated to mature on the Termination Date and bear
interest from its date until paid in full on the principal amount of the
Loans outstanding thereunder payable at the rates and in the manner provided
herein.
Section 10.02. PARTICIPATIONS. Any Lender may at any time grant
to one or more financial institutions (each a "PARTICIPANT") participating
interests in its Commitment or any or all of its Loans. In the event of any
such grant by a Lender of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Administrative Agent, such Lender
shall remain responsible for the performance of its obligations hereunder,
and, except to the extent such participating interest has been granted
pursuant to Section 4.02(e), the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant
to which any Lender may grant such a participating interest shall provide
that such Lender shall retain the sole right and responsibility to enforce
the obligations of the Borrower hereunder including the right to approve any
amendment, modification or waiver of any provision of this Agreement;
PROVIDED, that such participation agreement may provide that such Lender will
not agree to any modification, amendment or waiver of this Agreement
described in clauses (i) through (vi), inclusive, of Section 11.05 without
the consent of the Participant. An assignment or other transfer which is not
permitted by Section 10.03 shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in
accordance with this Section 10.02.
Section 10.03. ASSIGNMENTS. (a) Any Lender may at any time assign
to one or more financial institutions (each an "ASSIGNEE") all, or a
proportionate part of all, of its rights and obligations under this
Agreement, and such Assignee shall assume such rights and obligations,
pursuant to an instrument, in substantially the form of EXHIBIT G (an
"ASSIGNMENT AND ACCEPTANCE"), executed by such Assignee and such transferor
Lender, with (and subject to) the signed consent of the Borrower and the
Administrative Agent (which consent shall not be unreasonably withheld);
PROVIDED, that the foregoing consent requirement shall not be applicable in
the case of an assignment or other transfer by any Lender to an affiliate of
such Lender (other than in connection with or in contemplation of any
transaction following which such Person will no longer be such an affiliate
of such Lender) or to another Lender. Upon execution and delivery of an
Assignment and Acceptance and payment by such Assignee to such transferring
Lender of an amount equal to the purchase price agreed between such
transferring Lender and such Assignee and payment by the transferring Lender
or the Assignee of an assignment fee of $3,000 to the Administrative Agent,
such Assignee shall be a Lender party to this Agreement and shall have all
the rights and obligations of a Lender with a Commitment as set forth in such
Assignment and Acceptance, and the transferring Lender shall be released from
its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required.
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(b) No Assignee of any Lender's rights shall be entitled to receive
any greater payment under Section 4.03 or 4.04 than such Lender would have
been entitled to receive with respect to the rights transferred, unless such
transfer is made with the Borrower's prior written consent.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in Section 11.08 a copy of each
Assignment and Acceptance delivered to it and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Commitments
of, and the principal amount of the Loans owing to, and any Notes evidencing
such Loans owned by, each Lender from time to time. Notwithstanding anything
in this Agreement to the contrary, the Borrower, the Administrative Agent and
the Lenders shall treat each Lender whose name is recorded in the Register
as the owner of any Loan, any Notes and the Commitments recorded therein for
all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice. Notwithstanding anything in this
Agreement to the contrary, no assignment under this Section 10.03 of any
rights or obligations under or in respect of the Loans or the Notes shall be
effective unless and until the Administrative Agent shall have recorded the
assignment pursuant to this Section 10.03(c).
Section 10.04. CERTAIN PLEDGES. Notwithstanding any other
provision in this Agreement, any Lender may at any time create a security
interest in, or pledge, all or any portion of its rights under this Agreement
and any Note held by it in favor or any Federal Reserve bank in accordance
with Federal Reserve Board Regulation A (or any successor provision) or U.S.
Treasury Regulation 31 C.F.R. Section 203.14 (or any successor provision),
and such Federal Reserve Bank may enforce such pledge or security interest in
any manner permitted under applicable law.
Section 10.05. LEGAL COMPLIANCE. No assignment or participation
made or purported to be made to any Participant or Assignee or purported
Participant or Assignee (each a "TRANSFEREE") shall be effective without the
prior written consent of the Borrower if it would require the Borrower to
make any filing with any Governmental Authority, or qualify any Loan or Note,
under the securities laws of any jurisdiction, and the Borrower shall be
entitled to request and receive such information and assurances as it may
reasonably request from any Lender or any Transferee to determine whether any
such filing or qualification is required or whether any assignment or
participation is otherwise in accordance with applicable law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. APPLICABLE LAW. THIS AGREEMENT 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.
SECTION 11.02. WAIVER OF JURY. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH HEREBY WAIVES TRIAL
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BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE
RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 11.03. JURISDICTION AND VENUE. The Borrower, the
Administrative Agent and the Lenders each hereby irrevocably submits to the
non-exclusive jurisdiction of any state or federal court in the Borough of
Manhattan, The City of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of any Credit Document.
The Borrower hereby appoints CT Corporation System, with offices on the date
hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as its authorized agent
on whom process may be served in any action which may be instituted against
it by the Administrative Agent or any Lender in any state or federal court in
the Borough of Manhattan, The City of New York, arising out of or relating to
this Agreement or any other Credit Document. Service of process upon such
authorized agent and written notice of such service to a Person shall be
deemed in every respect effective service of process upon such Person, and
the Borrower, the Administrative Agent and the Lenders each hereby
irrevocably consents to the jurisdiction of any such court in any such action
and, to the fullest extent permitted by applicable law, to the laying of
venue in the Borough of Manhattan, The City of New York. The Borrower, the
Administrative Agent and the Lenders each hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection to the laying of
the venue of any such suit, action or proceeding brought in the aforesaid
courts, and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
Section 11.04. CONFIDENTIALITY. Each Lender and the
Administrative Agent agrees (on behalf of itself and each of its affiliates,
directors, officers, employees, agents, advisors and representatives) to keep
confidential any Confidential Information, and in connection therewith comply
with their customary procedures for handling confidential information of this
nature and with safe and sound banking practices; PROVIDED that nothing
herein shall limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii) to counsel
for any of the Lenders or the Administrative Agent, (iii) to bank examiners,
auditors or accountants, (iv) to the Administrative Agent or any other
Lender, (v) by the Administrative Agent or any Lender to an Affiliate
thereof, (vi) in connection with any litigation relating to enforcement of
the Credit Documents or (vii) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers to the
respective Bank a Confidentiality Agreement, in substantially the form of
EXHIBIT H, for the benefit of and enforceable by the Borrower, which
Confidentiality Agreement shall be delivered to the Borrower promptly after
the execution thereof; PROVIDED that in the case of the preceding clauses (i)
and (iii), such Lender or Administrative Agent shall, to the extent legally
permissible, use reasonable efforts to notify the Borrower of the proposed
disclosure as far in advance as is reasonably practicable under the
circumstances..
Section 11.05. AMENDMENTS AND WAIVERS. Any provision of this
Agreement may be amended, modified, supplemented or waived, but only by a
written amendment or supplement, or written waiver, signed by the Borrower
and either the Required Lenders (and, if the rights or
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duties of the Administrative Agent are affected thereby, by the
Administrative Agent), or the Administrative Agent with the consent of the
Required Lenders; PROVIDED, HOWEVER, that no such amendment, modification, or
waiver shall, unless signed by all the Lenders, or by the Administrative
Agent with the consent of all the Lenders, (i) increase or decrease the
Commitment of any Lender, (ii) reduce the principal of or rate of interest on
any Loan or any fees hereunder, (iii) postpone any payment of principal of or
interest on any Loan or any fees hereunder, (iv) postpone any reduction or
termination of any Commitment, (v) change the percentage, or type of, the
Commitments or of the aggregate unpaid principal amount of Loans, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section 11.05 or any other provision of this
Agreement, or (vi) amend, modify, supplement or waive the provisions of this
Section 11.05. Except to the extent expressly set forth therein, any waiver
shall be effective only in the specific instance and for the specific purpose
for which such waiver is given.
Section 11.06. EXTENSION. The Borrower may prior to the first and
every subsequent anniversary of the date of this Agreement, request the
Lenders to extend the Termination Date for an additional year. If all of the
Lenders, in their sole discretion, consent to such extension, the Termination
Date shall be so extended. If the Required Lenders, but not all the Lenders,
shall so consent, the Termination Date shall be extended for an additional
year only upon the elimination and/or replacement of the non-consenting
Lenders pursuant to an amendment to this Agreement.
Section 11.07. CUMULATIVE RIGHTS; NO WAIVER. Each and every right
granted to the Administrative Agent, the L/C Issuer and the Lenders hereunder
or under any other document delivered in connection herewith, or allowed them
by law or equity, shall be cumulative and not exclusive and may be exercised
from time to time. No failure on the part of the Administrative Agent, the
L/C Issuer or any Lender to exercise, and no delay in exercising, any right
will operate as a waiver thereof, nor will any single or partial exercise by
the Administrative Agent, the L/C Issuer or any Lender of any right preclude
any other or future exercise thereof or the exercise of any other right.
Section 11.08. NOTICES. (a) Any communication, demand or notice
to be given hereunder will be duly given when delivered in writing or by
telecopy to a party at its address as indicated below or such other address
as such party may specify in a notice to each other party hereto. A
communication, demand or notice given pursuant to this Section 11.09 shall be
addressed:
If to the Borrower, at
00000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopy: (000) 000-0000
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If to the Administrative Agent, at
National Australia Bank Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Corporate Banking
If to the L/C Issuer, at
National Australia Bank Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Corporate Banking
If to any Lender, at its address indicated on Schedule I, or at
such other address as may be designated by such Lender in an Administrative
Questionnaire or other appropriate writing, delivered to the Administrative
Agent and the Borrower.
This Section 11.08 shall not apply to notices referred to in
Article II of this Agreement, except to the extent set forth therein.
(b) Unless otherwise provided to the contrary herein, any notice
which is required to be given in writing pursuant to the terms of this
Agreement may be given by telecopy.
Section 11.09. SEPARABILITY. In case any one or more of the
provisions contained in any Credit Document shall be invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions contained herein or in any other
Credit Document shall not in any way be affected or impaired thereby.
Section 11.10. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Lenders and
their respective successors and assigns, except that the Borrower may not
assign any of its rights hereunder without the prior written consent of all
of the Lenders, and any purported assignment by the Borrower without such
consent shall be void.
Section 11.11. EXECUTION IN COUNTERPARTS. This Agreement 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 the counterparts shall together constitute one and the
same instrument.
-47-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
WESTFIELD AMERICA INC.
By: /S/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Co-President
NATIONAL AUSTRALIA BANK LIMITED,
NEW YORK BRANCH (ACN 004 044 937),
as Administrative Agent and a Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
COMMONWEALTH BANK OF AUSTRALIA,
as Co-Agent and a Lender
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------
Name: Xxx X. Xxxxxxxx
Title: EVP & GM
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
as Co-Agent and a Lender
By: /s/ X.X. Xxxxxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxxxxx
Title: V.P.
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as
Documentary Agent and a Lender
By: /s/ Xxx X. Xxxxx /s/ Xxxxxx Xxxxxx
----------------------------------- ---------------------------------
Name: Xxx X. Xxxxx Xxxxxx Xxxxxx
Title: Assistant Treasurer Vice President
-48-
SCHEDULE I
LENDERS AND COMMITMENTS
Lender Commitment Address for Notices
------ ---------- --------------------
National Australia Bank Limited $250,000,000 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Corporate Banking
Commonwealth Bank of Australia $150,000,000 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxxxx X. Xxxxxx
Australia and New Zealand $150,000,000 1177 Avenue of the Americas
Banking Group Limited Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxxxx
Union Bank of Switzerland $50,000,000 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Department Head,
Commercial Real Estate
Finance
SCHEDULE II
PORTFOLIO PROPERTIES
Market Value of
Syndicate Properties March 31, 1996 % Ownership
-------------------- --------------- -----------
Apartments on the Square $ 5,400,000 100.0%
Connecticut Post Mall 146,900,000 100.0%
Eagle Rock Plaza 24,600,000 100.0%
Eastland Center 23,100,000 100.0%
Enfield Square 43,000,000 100.0%
South Shore Mall 146,700,000 100.0%
Westland Towne Center 25,000,000 100.0%
Market Value of
Non Syndicate Properties March 31, 1996 % Ownership
------------------------ --------------- -----------
Vancouver Mall $ 81,600,000 50%
Topanga Plaza 148,300,000 42%
Annapolis Mall 179,900,000 30%
Meriden Square 101,300,000 50.0%
Mid Rivers Mall 74,100,000 100.0%
Mission Valley Center 112,400,000 75.8%
Xxxxxxxxxx Mall 229,400,000 100.0%
North County Fair 116,100,000 45.0%
Plaza Xxxxxx 121,600,000 100.0%
Xxxxx Xxxxxx Xxxx 000,000,000 00.0%
Xxxxx Xxxx Xxxxxx 135,000,000 100.0%
South County Center 69,300,000 100.0%
Trumbull Shopping Park 190,500,000 100.0%
Xxxx Xxxxxx Xxxxxx 00,000,000 000.0%
Xxxx Xxxx Xxxx 48,900,000 100.0%
West Valley 6,800,000 43.0%
EXHIBIT A
FORM OF BORROWING REQUEST
[Date]
[Address of Administrative Agent]
Attention:
-----------------
BORROWING REQUEST
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of May __, 1997
(as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among Westfield America Inc. (the "BORROWER"), the Lenders,
Co-Agents and Documentary Agent from time to time parties thereto and
National Australia Bank Limited, New York Branch, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.02 of
the Credit Agreement, that it requests Loans, and in that connection sets
forth below the terms on which such Loans are requested to be made:
(A) Borrowing Date (1)
--------------------------
(B) Aggregate Principal Amount (2) $
--------------------------
(C) Interest Rate Basis [ABR] [EURODOLLAR] LOAN
--------------------------
------------------------------
(1) Must be a Business Day.
(2) Must be equal to $__________ or an integral multiple of $_________ in
excess thereof.
(D) Interest Period and the
last day thereof (3)
---------------------------
Very truly yours,
WESTFIELD AMERICA INC.
By:
---------------------------
Title:
-------------------------
(3) One, two, three or six months. Not applicable to ABR Loans.
-2-
EXHIBIT B
FORM OF CONVERSION REQUEST
[Date]
[Address of Administrative Agent]
Attention:
----------------
CONVERSION REQUEST
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of ____ __,
199_ (as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among Westfield America Inc. (the "BORROWER"), the Lenders,
Co-Agents and Documentary Agent from time to time parties thereto and
National Australia Bank Limited, New York Branch, as Administrative Agent.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby requests, pursuant to Section 3.01(b) of the
Credit Agreement, that on __________, 199_:
(1) $___,000,000 of the presently outstanding principal amount of
Loans originally made on ___________, 19__ [and $_________ of the presently
outstanding principal amount of the Loans originally made on ________,
19__],
(2) presently being maintained as [ABR] [Eurodollar] Loans,
(3) bear interest Eurodollar Loans having an Interest Period of
[one][two][three][six] months] [ABR Loans].
Very truly yours,
WESTFIELD AMERICA INC.
By:
--------------------
Title:
EXHIBIT C
FORM OF REVOLVING CREDIT NOTE
PROMISSORY NOTE
[Principal Amount] [Date]
Westfield America Inc., a Missouri corporation (the "BORROWER"),
for value received, promises to pay to the order of [LENDER] (the "LENDER"),
on the Termination Date (as defined in the Credit Agreement referred to
below), the principal sum of [PRINCIPAL AMOUNT IN DOLLARS] or, if less, the
aggregate principal amount of the then outstanding Loans made by the Lender
to the Borrower pursuant to that certain Credit Agreement, dated as of May
30, 1997 (as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Lenders, Co-Agents and Documentary Agent
from time to time parties thereto and National Australia Bank Limited, New
York Branch, as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding, from the date hereof until the
date of repayment, at the rate or rates per annum and on the date or dates
specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in funds immediately available to the
Lender at its office or offices designated in accordance with the Credit
Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive diligence, presentment, demand, protest and notice of any
kind whatsoever. The failure or forbearance by the holder to exercise any of
its rights hereunder in any particular instance shall in no event constitute
a waiver thereof.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder of this Note on the schedule
attached hereto and made a part hereof, or on a continuation thereof which
shall be attached hereto and made a part hereof, or shall be recorded by the
holder of this Note in its internal records; PROVIDED, HOWEVER, that any
failure of the holder of this Note to make such a notation or any error in
such notation shall in no manner affect the validity or enforceability of the
obligation of the Borrower to make payments of principal and interest in
accordance with the terms of this Note and the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional prepayment
of the principal hereof prior to the maturity thereof and for the amendment
or waiver of certain provisions of the Credit Agreement and/or this Note, all
upon the terms and conditions therein specified. Capitalized terms used and
not otherwise defined herein have the meanings ascribed thereto in the Credit
Agreement.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Note is not negotiable and interests herein may be assigned
only upon the terms and conditions specified in the Credit Agreement.
WESTFIELD AMERICA INC.
By:
----------------------
Title:
-2-
REVOLVING CREDIT LOANS AND PRINCIPAL PAYMENTS
Amount of Revolving Amount of Principal Amount of Unpaid
Credit Loans Made Repaid Principal Balance
------------------- ------------------- -----------------
Euro Interest Euro Euro
ABR dollar Period (if ABR dollar ABR dollar Notation
Date Loan Loan applicable) Loan Loan Loan Loan Total Made By
---- ---- ------ ----------- ---- ------ ---- ------ ----- --------
EXHIBIT D
GUARANTEE AGREEMENT (this "Guarantee"), dated as of May __, 1997,
by_____________________, a [CORPORATION/PARTNERSHIP] organized under the laws
of _____________ (the "Guarantor") in favor of the Agent and Lenders from
time to time parties to the Credit Agreement dated as of May __, 1997 (the
"Credit Agreement") among Westfield America Inc. (the "Borrower"), National
Australia Bank Limited ("NAB"), Commonwealth Bank of Australia ("CBA"),
Australia and New Zealand Banking Group Limited ("ANZ") and Union Bank of
Switzerland ("UBS" and together with NAB, CBA and ANZ, collectively, the
"Lenders"), CBA and ANZ, as Co-Agents, UBS, as Documentary Agent, and NAB, as
Administrative Agent (the "Agent").
WHEREAS, the Borrower, the Lenders, the Co-Agents, the Documentary
Agent and the Administrative Agent have entered into the Credit Agreement
pursuant to which the Lenders have agreed to make Loans to and to arrange for
the issuance of Letters of Credit for the account of the Borrower from time
to time; and
WHEREAS, the Guarantor is a [WHOLLY OWNED] Subsidiary of the
Borrower, and it is to the advantage and benefit of the Guarantor that the
Lenders make such Loans and arrange for the issuance of such Letters of
Credit; and
WHEREAS, the Guarantor has agreed to guarantee the obligations of
the Borrower in respect of the Loans, the L/C Obligations and all other
obligations of the Borrower under the Credit Agreement (the "Guaranteed
Obligations"); 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 Guarantor, in consideration of the credit
extended to the Borrower and other valuable consideration, the receipt of
which is hereby acknowledged by the Guarantor, hereby agrees as follows:
Section 1. GUARANTEE. The Guarantor, as primary obligor and not
merely as a surety, unconditionally and irrevocably guarantees to the Agent
and the Lenders and their successors, endorsees and assigns (collectively,
the "Credit Parties"), the prompt payment when due of all obligations and
liabilities of all kinds of the Borrower in respect of the Guaranteed
Obligations, whether due or to become due, secured or unsecured, absolute or
contingent, joint or several, and howsoever or whenever incurred by the
Borrower.
The Guarantor agrees that the Credit Parties may at any time and
from time to time, without notice to or further consent of the Guarantor,
extend the time of payment of, or exchange or surrender any collateral for,
any of the Guaranteed Obligations, and may also make any agreement with the
Borrower or with any other party liable on any of the Guaranteed Obligations
for the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms thereof,
without in any way impairing or affecting this Guarantee or the liability of
the Guarantor hereunder.
Section 2. GUARANTEE ABSOLUTE. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Credit Parties
with respect thereto. The liability of the Guarantor hereunder shall be
absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Guaranteed
Obligations or any agreement or instrument relating hereto or thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Guaranteed Obligations;
(iii) any exchange, release or non-perfection of any collateral
or any release or amendment to, waiver of, or consent to departure
from, any other guarantee for all or any part of the Guaranteed
Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower in respect of
the Guaranteed Obligations or of the Guarantor hereunder (other than a
defense of or discharge by payment or performance).
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Credit Parties or any of them
upon the insolvency, bankruptcy or reorganization of the Borrower, as though
such payment had not been made.
Section 3. WAIVER. The Guarantor hereby waives promptness,
diligence, notice of the acceptance hereof and any other notice with respect
to any of the Guaranteed Obligations and any requirement that the Credit
Parties exhaust any right or take any action against the Borrower or any
other person or entity or any collateral before proceeding hereunder.
Section 4. SUBROGATION. The Guarantor will not exercise any
rights which it may acquire by way of subrogation by any payment made
hereunder or otherwise, until all the Guaranteed Obligations shall have been
paid in full. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all the Guaranteed Obligations shall not
have been paid in full, such amount shall be held in trust for the benefit of
the Credit Parties and shall forthwith be paid to the Agent to be credited
and applied to the Guaranteed Obligations, whether matured or unmatured.
Section 5. REPRESENTATIONS AND WARRANTIES. The Guarantor
represents and warrants (and such representations and warranties shall be
deemed to be repeated in all material respects as of each Borrowing Date),
that:
(a) GOOD STANDING AND POWER. The Guarantor is a
[CORPORATION/LIMITED PARTNERSHIP], duly incorporated or organized and validly
existing in good standing under the laws of the jurisdiction of its
[INCORPORATION/ORGANIZATION]; it has the power to own its property and to
carry on
-2-
its business as now being conducted; and it is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
properties owned or leased by it therein or in which the transaction of its
business makes such qualification necessary, except where the failure to be
so qualified, or to be in good standing, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(b) [CORPORATE] AUTHORITY. The Guarantor has full
[CORPORATE/PARTNERSHIP] power and authority to execute and deliver, and to
incur and perform its obligations under this Guarantee, all of which have
been duly authorized by all necessary [CORPORATE/PARTNERSHIP] action. No
consent or approval of [STOCKHOLDERS/LIMITED PARTNERS] of the Guarantor is
required to be obtained as a condition to the validity or performance of, or
the exercise by the Credit Parties of any of their rights or remedies under
this Guarantee (other than any such consent or approval that has been
obtained).
(c) AUTHORIZATIONS. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from any Governmental
Authority or other Person necessary for the execution, delivery and
performance by the Guarantor of, and the incurrence and performance of each
of its obligations under this Guarantee have been effected or obtained and
are in full force and effect.
(d) BINDING OBLIGATION. This Guarantee constitutes the valid and
legally binding obligation of the Guarantor enforceable in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
(e) NO CONFLICTS. There is no statute, regulation, rule, order,
judgment, agreement or instrument binding upon the Guarantor, or affecting
its properties, and no provision of the [CERTIFICATE OF INCORPORATION OR
BY-LAWS/LIMITED PARTNERSHIP AGREEMENT] of the Guarantor, that would prohibit,
materially conflict with or materially impair the execution or delivery of,
or the incurrence or performance of the obligations of the Guarantor under
this Guarantee, or result in or require the creation or imposition of any
Lien on property of the Guarantor (other than any Lien of the type permitted
under Section 7.02(b) of the Credit Agreement) as a consequence of the
execution, delivery and performance of this Guarantee.
Section 6. NOTICES. Any communication, notice or demand to be
given hereunder shall be duly given when delivered in writing or sent by
telecopier to a party at its address indicated below.
-3-
If to the Credit Parties, at: National Australia Bank Limited,
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
If to the Guarantor, at: Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
or, as to any party, to such other address as shall be designated by such
party in a written notice to the other parties.
Section 7. EXPENSES. The Guarantor agrees to pay on demand all
reasonable out-of-pocket expenses (including the reasonable fees and expenses
of counsel to the Credit Parties) in any way relating to the enforcement of
the rights of the Credit Parties hereunder.
Section 8. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part
of the Credit Parties to exercise, and no delay in exercising, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by the Credit Parties of any right or remedy hereunder
preclude any other or future exercise of any other right or remedy. Each and
every right and remedy hereby granted to the Credit Parties or allowed them
by law or other agreement shall be cumulative and not exclusive the one of
any other, and may be exercised by the Credit Parties from time to time.
Section 9. MODIFICATIONS, CONSENTS AND WAIVERS. No modification
or waiver of any provision of this Guarantee and no consent to any departure
by the Guarantor therefrom shall in any event be effective unless the same
shall be in writing and signed by the Agent and the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
Section 10. CONTINUING EFFECT; SUCCESSORS. This Guarantee shall
remain in full force and effect until payment in full of the Loans and all
other amounts then due and owing under the Credit Agreement or this Guarantee
and termination or expiration of all Letters of Credit; PROVIDED, HOWEVER,
that the Obligations of the Guarantor hereunder shall terminate upon its
ceasing to be a Syndicate Subsidiary in accordance with Section 1.01(c) of
the Credit Agreement as a result of a sale or disposition of the Guarantor or
the Syndicate Property which it owns that complies with Section 7.02(a) of
the Credit Agreement. This Guarantee shall inure to the benefit of, and be
enforceable by, the Credit Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing, the Credit
Parties or any of them may assign or otherwise transfer any of the Guaranteed
Obligations (or any portion thereof) to any other Person or entity in
accordance with the terms of the Credit Agreement, and such other
-4-
Person or entity shall thereupon become vested with all rights in respect
thereof granted to the Credit Parties herein or otherwise.
Section 11. CHOICE OF LAW. THIS GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
duly executed as of the date first above written.
[NAME OF GUARANTOR]
By
----------------------
Name:
Title:
-5-
EXHIBIT E
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
[TO BE PROVIDED]
-6-
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
[For the Fiscal Quarter ending ]
-------
[For the Fiscal Year ending ]
-------
Reference is made to the Credit Agreement, dated as of May ___,
1997 (as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among Westfield America Inc. (the "BORROWER"), the Lenders,
Co-Agents and Documentary Agent from time to time parties thereto and
National Australia Bank Limited, New York Branch, as Administrative Agent.
Pursuant to Section 7.01(a)(iii) of the Credit Agreement, the undersigned
Responsible Officer of the Borrower hereby certifies on behalf of the
Borrower that:
(a) During the period of four consecutive fiscal quarters ended on
____________ __, 199__, such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as follows: _________________________.
The financial statements referred to in Section 7.01(a) of the Credit
Agreement which are delivered concurrently with the delivery of this Compliance
Certificate fairly present, in all material respects, the financial position,
results of operations, cash flows and changes in stockholders' equity of the
Borrower and its Subsidiaries, subject to normal year-end audit adjustments
which are not expected to be material in amount.(*)
(b) The covenant calculations set forth below are based on the
Borrower's [audited] balance sheet and statements of income, cash flows and
shareholders' equity for the fiscal [quarter] [year] ended _________________,
____ (the "PERIOD-END DATE").
1. SHAREHOLDERS' FUNDS (SECTION 7.03(a))
Shareholders' Funds on the Period-End Date $
----------
----------
2. INTEREST COVERAGE RATIO (SECTION 7.03(b))
(a) EBITDA : $ (x)
------
(b) Interest Expense : $ (y) (x) : (y)
------ --------------
---------------------------
* Insert only in Compliance Certificates accompanying quarterly
financial statements delivered pursuant to Section 7.01(a)(i)
of the Credit Agreement.
3. SYNDICATE PROPERTY COVERAGE (SECTION 7.03(c))
(a) Net Operating Income: $ (x)
------
(b) Interest Expense : $ (y) (x) : (y)
------ --------------
4. TOTAL DEBT (SECTION 7.03(d))
(a) Total Debt: $ (x)
------
(b) Total Tangible Assets : $ (y) (x) (.60) (y)
------ --------------
5. LOAN TO VALUE RATIO (SECTION 7.03(d))
(a) Loans and L/C Obligations: $ (x)
------
(b) Current Value of Syndicate Properties : $ (y) (x) (.60) (y)
------ --------------
6. DIVIDEND LIMITATION (SECTION 7.03(f))
(a) Dividends: $ (x)
------
(b) Funds from Operations : $ (y) (x) (y)
------ --------------
IN WITNESS WHEREOF, on behalf of the Borrower, the undersigned has
hereto set his or her hand.
Dated: WESTFIELD AMERICA INC.
----------------, ---
By:
-----------------------------------
A Responsible Officer
-2-
EXHIBIT G
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of May __, 1997
(as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among Westfield America Inc. (the "BORROWER"), the Lenders,
Co-Agents and Documentary Agent from time to time parties thereto and
National Australia Bank Limited, New York Branch, as Administrative Agent.
Capitalized terms defined in the Credit Agreement are used herein with the
same meanings.
Section 1. ASSIGNMENT AND ACCEPTANCE. The Assignor identified in
ANNEX 1 hereto (the "ASSIGNOR") hereby sells and assigns, without recourse,
to the Assignee identified in ANNEX 1 hereto (the "ASSIGNEE"), and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Effective Date set forth in ANNEX 1 hereto, the
interests set forth on ANNEX 1 hereto (the "ASSIGNED INTEREST") in the
Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on ANNEX 1 in the Commitment of
the Assignor on the Effective Date and the Loans owing to the Assignor which
are outstanding on the Effective Date. The Assignee hereby makes and agrees
to be bound by all the representations, warranties and agreements set forth
in Section 9.05 of the Credit Agreement, a copy of which has been received by
such party. From and after the Effective Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
Section 2. OTHER DOCUMENTATION. This Assignment and Acceptance
is being delivered to the Administrative Agent together with a properly
completed Administrative Questionnaire, attached as ANNEX 2 hereto, if the
Assignee is not already a Lender under the Credit Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The
Assignor (i) represents and warrants that, as of the date hereof, it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is held by it free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, or
any other instrument or document executed or furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The
Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements delivered
on or before the date hereof pursuant to Sections 5.01(h) and 7.01(a) thereof
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (b) agrees that it will, independently and without reliance upon
the Administrative Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking any action under the
Credit Documents; (c) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (d)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender; and (e) if the Assignee is organized under the
laws of a jurisdiction outside the United States, confirms to the Borrower
(and is providing to the Administrative Agent and the Borrower Internal
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service) that (i) the Assignee is entitled
to benefits under an income tax treaty to which the United States is a party
that reduces the rate of withholding tax on payments under the Credit
Agreement or (ii) that the income receivable pursuant to the Credit Agreement
is effectively connected with the conduct of a trade or business in the
United States.
SECTION 5. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE 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.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
ANNEX 1 hereto.
-2-
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than two Business
Days after the Date of Assignment):
PERCENTAGE ASSIGNED OF
PRINCIPAL AMOUNT ASSIGNED COMMITMENT
Commitment Assigned: $ %
The terms set forth above
are hereby agreed to: Consent given:
, as Assignor WESTFIELD AMERICA INC.
-------------
By: By:
-------------------------- ---------------------------
Name: Name:
Title: Title:
, as Assignee
-------------
By:
-------------------------
Name:
Title:
ANNEX 2 TO ASSIGNMENT AND ACCEPTANCE
LEGAL NAME OF ASSIGNEE TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION
ABR LENDING OFFICE:
Institution Name:
Street Address:
City, State, Country, Zip Code:
EURODOLLAR LENDING OFFICE:
Institution Name:
Street Address:
City, State, Country, Zip Code:
CONTACTS/NOTIFICATION METHODS
CREDIT CONTACTS:
Primary Contact:
Street Address:
City, State, Country, Zip Code:
Phone Number:
FAX Number:
Backup Contact:
Street Address:
City, State, Country, Zip Code:
Phone Number:
FAX Number:
ADMINISTRATIVE CONTACTS -- BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
Street Address:
City, State, Country, Zip Code:
Phone Number:
FAX Number:
PAYMENT INSTRUCTIONS
Name of bank where funds are to be transferred:
Routing Transit/ABA number of bank where funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
TAX WITHHOLDING
Non Resident Alien Y* N
-------- ---------
* Form 4224 Enclosed
Tax ID Number
------------------------
-2-
MAILINGS
Please specify who should receive financial information:
Name:
Street Address:
City, State, Country, Zip Code:
-3-
EXHIBIT H
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement, dated as of May__, 1997, among
Westfield America Inc., the Lenders, Co-Agents and
Documentary Agent from time to time parties
thereto and National Australia Bank Limited,
NEW YORK BRANCH , AS ADMINISTRATIVE AGENT
Dear
-------------------
As a Lender party to the above-referenced Credit Agreement (the
"CREDIT AGREEMENT"), we have agreed with Westfield America Inc., (the
"BORROWER"), pursuant to Section 11.04 of the Credit Agreement, to keep
confidential, except as otherwise provided therein, all Confidential
Information (as defined in the Credit Agreement) regarding the Borrower and
its Subsidiaries.
As provided in said Section 11.04, we are permitted to provide you,
as a prospective participant or assignee, with certain of such Confidential
Information subject to the execution and delivery by you, prior to receiving
such non-public information, of a Confidentiality Agreement in this form.
Such information will not be made available to you until your execution and
return to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on
behalf of yourself and each of your affiliates, directors, officers,
employees and representatives) that (A) such information will not be used by
you except in connection with the proposed [participation] [assignment]
mentioned above and (B) you shall keep confidential any Confidential
Information and in connection therewith comply with your customary procedures
for handling confidential information and with safe and sound banking
practices; PROVIDED that nothing herein shall limit the disclosure of any
such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to your counsel or to counsel for any of the Lenders
or the Administrative Agent, (iii) to bank examiners, auditors or
accountants, (iv) to the Administrative Agent or any other Lender, and (v) in
connection with any litigation relating to enforcement of the Credit
Documents; PROVIDED FURTHER, that, unless specifically prohibited by
applicable law or court order, you agree, prior to disclosure thereof, to
notify the Borrower of any request for disclosure of any such non-public
information (x) by any Governmental Authority or representative thereof
(other than any such request in connection with an examination of your
financial condition by such Governmental Authority) or (y) pursuant to legal
process. You further agree that this Confidentiality Agreement is for the
benefit of and is enforceable by the Borrower.
THIS AGREEMENT 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. The provisions of Sections 11.02 and
11.03 of the Credit Agreement are hereby incorporated herein by references as
if each reference therein to "the Administrative Agent and the Lenders" were
a reference to the Borrower and you, respectively.
Would you please indicate your agreement to the foregoing by
signing at the place provided below the enclosed copy of this Confidentiality
Agreement.
Very truly yours,
[Insert Name of Lender]
By
----------------------
Agreed as of the date of this letter.
[Insert name of prospective
participant or assignee]
By:
----------------------
-2-
