EXHIBIT 99(a)(5)(K)
January 15, 2003
CONFIDENTIAL
Westfield America Limited Partnership
00000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Re: XXXXXXXX
Ladies and Gentlemen:
Deutsche Bank AG, Cayman Islands Branch ("DB AG") and UBS AG,
Stamford Branch ("UBS") (collectively, the "INITIAL LENDERS") are pleased to
provide Westfield America Limited Partnership ("XXXX") with our several
financing commitments ("each a COMMITMENT", and collectively, the "COMMITMENTS")
for a six month (subject to extensions as provided in the Term Sheet referenced
below) term credit facility in an aggregate amount of up to US$550 million (the
"FACILITY"), subject to (i) XXXX'x acceptance of this Commitment Letter; (ii)
satisfaction of the terms and conditions set forth in the Term Sheet attached
hereto as EXHIBIT A and incorporated herein by reference; and (iii) the
additional terms and conditions otherwise set forth herein and the Fee Letters
referenced below.
In connection with the Facility, Deutsche Bank Securities Inc.
and UBS Warburg LLC are pleased to act as the co-lead arrangers and joint book
running managers (collectively, the "CO-LEAD ARRANGERS"), UBS Warburg LLC is
pleased to act as syndication agent (the "SYNDICATION AGENT"), and DB AG is
pleased to act as administrative agent (the "AGENT").
Subject to the satisfaction of the conditions contained in
this Commitment Letter, including, without limitation, the coordinated and
concurrent closing of each Commitment, each of DB AG and UBS severally commits
to lend up to one-half of the Facility, each on the terms and conditions
referred to herein and in the attached Exhibits.
Capitalized terms used but not otherwise defined herein have
the meanings set forth in the Term Sheet.
1. COMMITMENT CONDITIONS. This Commitment and the funding of
the Facility prior to the Termination Date (as defined below) are subject to
satisfaction of the following
conditions precedent, and such other conditions precedent as are customary for
transactions of this type, all as determined by Initial Lenders and Co-Lead
Arrangers:
(a) The formation of the Westfield Acquisition Vehicle as a
bankruptcy remote single purpose entity wholly owned, directly or indirectly, by
XXXX (together with XXXX, the "BORROWER").
(b) Approval of all aspects of the Xxxxxxxx Acquisition and
the principal documents governing the Xxxxxxxx Acquisition.
(c) Approval of the organizational structure, control
provisions and organizational documents of the Borrower, Guarantor, Westfield
Acquisition Vehicle and the Westfield Acquisition Vehicle's principal
subsidiaries and joint ventures, including any entity in which Westfield
Acquisition Assets will be held and, if applicable, the Lone Star Newco and the
Lone Star OP (such entities are referred to collectively as the "BORROWER
PARTIES").
(d) Concurrent closing of the Lone Star Acquisition;
(e) The preparation, execution and delivery of loan
documentation, opinions of Xxxxxxxx's counsel covering such matters as Initial
Lenders may require in good faith, and all other contracts, instruments, addenda
and documents deemed necessary by Initial Lenders to evidence the Facility
("LOAN DOCUMENTS"). In preparing the Loan Documents, Initial Lenders and
Administrative Agent will give due consideration to the terms of the credit
agreement entered into by XXXX and Deutsche Bank Trust Company Americas with
regard to XXXX'x existing $245 million credit facility (the "GROWTH CREDIT
AGREEMENT"), subject to appropriate underwriting factors applicable to this
transaction and the results of Xxxxxx's due diligence.
(f) The absence of (i) any change, occurrence, or development
that could, in the good faith opinion of Administrative Agent or Initial
Lenders, have a material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Borrower,
the Guarantor or the Westfield Acquisition Assets;
(g) Satisfaction with the results of all legal, business, and
financial due diligence; including (i) all aspects of the Westfield Acquisition
Assets, and the Westfield Acquisition Vehicle's acquisition thereof; (ii) all
material contracts and agreements of the Borrower Parties; and (iii) tax, REIT,
ERISA, and other regulatory matters affecting the Borrower Parties.
(h) The absence of any events which would constitute a default
under the Loan Documents, including any material inaccuracy of any
representations and warranties made by any Borrower Party in the Loan Documents.
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(i) Delivery of such consents and approvals as may be
necessary or appropriate to consummate the transactions contemplated herein.
(j) Payment of all Agreed Fees (as defined below) and expenses
as provided herein.
(k) The absence of any default by XXXX or its affiliates under
this Commitment Letter.
(l) Full compliance of the proposed transaction with
Regulation U and all other applicable bank regulations.
(m) The Loan Documents shall have been fully executed and
delivered by the Borrower Parties and all conditions precedent to the closing of
the Facility as contemplated herein shall have been fully satisfied
(collectively, the "CLOSING" and the date upon which the Closing occurs, the
"CLOSING DATE") no later than July 14, 2003 (the "TERMINATION DATE").
2. SYNDICATION AND COOPERATION. Initial Lenders may assign all
or any of their portion of the Commitments to additional Lenders, before or
after Closing. DBSI (either directly or through its affliates) and UBS Warburg
LLC (in such capacity, the "SYNDICATORS") will manage all aspects of the
syndication, including the timing of all offers to potential Lenders and the
acceptance of commitments, the amounts offered and the compensation provided.
Syndicators will consult with XXXX concerning the syndication, but all final
decisions regarding same shall be made by Syndicators. Syndicators and each
Lender shall have the right, before or after the Closing, to sell, assign,
syndicate, participate, or transfer any portion of the Facility and the Loan
Documents to one or more investors (other than any direct competitor of XXXX or
any of its affiliates that is a nationally recognized publicly-traded regional
shopping mall company). Whether prior to or after the Closing, XXXX agrees to
take all actions as Syndicators may reasonably request to assist Syndicators in
forming a syndicate acceptable to them. XXXX'x assistance in forming such a
syndicate shall include but not be limited to: (i) making its senior management
and representatives and senior management and representatives of the Guarantor
available to participate in informational meetings with potential Lenders at
such times and places as Syndicators may reasonably request; (ii) using its
reasonable efforts to ensure that the syndication efforts benefit from its
lending relationships; and (iii) providing Syndicators with all information that
currently exists or could reasonably be obtained and is reasonably deemed
necessary to successfully complete the syndication.
Syndicators, Co-Lead Arrangers, Initial Lenders and each other
Lender, if any, may freely discuss the Facility contemplated hereby and any
other potential transactions with any and all of its affiliates, any prospective
lender or participant, and may freely disclose to any such affiliate,
prospective lender or participant any and all information at any time provided
to Agent or any other Lender by or on behalf of Borrower, Guarantor, or any of
their subsidiaries or
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affiliates. It is understood and agreed that any such disclosure shall be
subject to customary confidentiality provisions reasonably acceptable to you.
3. FEES. XXXX agrees to pay the fees set forth in the separate
fee letters (the "FEE LETTERS") dated the date hereof with Initial Lenders and
Agent in accordance with the terms of the Fee Letters (the "AGREED FEES"). The
effectiveness of this Commitment is subject to XXXX'x payment of (i) the Initial
Underwriting Fee specified in the Fee Letters in immediately available funds on
or before the Expiration Date specified below; and (ii) the Second Underwriting
Fee and Final Underwriting Fee at the times and subject to the conditions
specified in the Fee Letters.
4. INDEMNIFICATION; EXPENSES. XXXX agrees to indemnify and
hold harmless Agent, Co-Lead Arrangers, the Syndication Agent, each Lender and
each of the other Indemnified Persons identified and as set forth in the
indemnification provisions attached as Exhibit B hereto (the "INDEMNIFICATION
PROVISIONS") and hereby made a part hereof as though fully set forth herein.
In further consideration of the issuance of this Commitment
Letter, and recognizing that in connection herewith Co-Lead Arrangers and
Initial Lenders are incurring substantial costs and expenses in connection with
the documentation of the Commitments and the Facility, due diligence,
syndication, and underwriting with respect to the proposed Facility, including,
without limitation, fees and expenses of counsel, transportation, duplication
and printing, third party consultant costs, and search fees, XXXX agrees to pay
such reasonable out-of-pocket, third party costs and expenses (whether incurred
before or after the date hereof), regardless of whether any loan documentation
is entered into, the Closing occurs, or the transactions contemplated hereunder
are consummated; provided, however, that if the Closing does not occur solely as
a result of Initial Lenders' default under the terms of this Commitment Letter,
then all such costs and expenses shall be borne by Initial Lenders and Co-Lead
Arrangers, as applicable.
5. DISCLOSURE. XXXX agrees that this Commitment Letter is for
its confidential use only and will not be disclosed by XXXX to any person other
than its investors, affiliates, accountants, attorneys and other advisors, and
then only on a "need to know" basis in connection with the Facility and on a
confidential basis. Notwithstanding the foregoing, following its acceptance
hereof, and subject to the following sentence, XXXX and its affiliates may: (i)
make public disclosure of the existence of the Commitments, (ii) file a copy of
this Commitment Letter in any public record in which it is required by law to be
filed, (iii) make such other public disclosures of the terms and conditions
hereof as XXXX is required by law to make; and (iv) disclose this Commitment
Letter or the terms hereof to any party to the Lone Star Acquisition and to the
employees, officers, directors, accountants, attorneys and other advisors of any
such party, to the extent required in the Lone Star Acquisition Agreement.
Except as required by law,
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XXXX shall not issue any press release or similar public disclosure related to
the Facility without the prior written consent of Initial Lenders (such consent
shall not be unreasonably withheld).
XXXX represents and warrants that (i) all information that has
been or will hereafter be made available by XXXX or any of its representatives
in connection with the Facility to Co-Lead Arrangers, Initial Lenders, any
Lender, any potential Lender, or any of their representatives (collectively, the
"LENDER PARTIES"), is and will be, to the best of its knowledge, complete and
correct in all material respects and does not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein, taken as a whole, not misleading in
light of the circumstances under which such statements were or are made and (ii)
all financial projections, if any, that have been or will be prepared by XXXX,
Guarantor, or any of their representatives and made available to the Lender
Parties in connection with the financing contemplated hereby have been or will
be prepared in good faith based upon reasonable assumptions. XXXX agrees to
supplement the information and projections from time to time prior to the
Closing so that the representations and warranties contained in this paragraph
remain complete and correct.
6. EXPIRATION AND TERMINATION OF COMMITMENT. This Commitment
shall: (i) expire if not countersigned and returned to the undersigned prior to
the Expiration Date; and (ii) terminate if the Closing does not occur prior to
the Termination Date. XXXX'x obligations under Sections 3, 4, and 5 relating to
fees, indemnification, costs and expenses and confidentiality shall survive the
expiration or termination of this Commitment and the provisions in Section 2
relating to syndication shall survive the Closing and shall have the same force
and effect as if incorporated directly in the Facility Credit Agreement.
7. MISCELLANEOUS: The following provisions shall be applicable
both to this Commitment Letter and to the Fee Letters.
RELIANCE ON INFORMATION. In undertaking the Commitments,
Initial Lenders are relying and will continue to rely, without independent
verification, thereof, on the accuracy of the information furnished to us by
XXXX and Guarantor, or on their behalf, and the representations and warranties
made by XXXX herein. We may also rely on any publicly available information
issued or authorized to be issued by Borrower, the Guarantor, or any of their
subsidiaries or affiliates. We have no obligation to investigate, and have not
undertaken any independent investigation of, any information or materials,
public or otherwise, made available by Borrower, Guarantor, or any of their
subsidiaries or affiliates. The obligations of Initial Lenders under this
Commitment Letter and of any Lender that issues a portion of the Commitments for
the Facility are made solely for the benefit of the Borrower and may not be
relied upon or enforced by any other person or entity.
COMPLETE AGREEMENT; WAIVERS AND OTHER CHANGES TO BE IN
WRITING. This Commitment Letter supersedes all previous negotiations, agreements
and other understandings
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relating to the Facility, including, without limitation, previous discussions
regarding the terms contained on the attached Exhibits. Please note, however,
that the terms and conditions to be set forth in the Loan Documents are not
limited to those set forth herein or in the attached Exhibits. Those matters
that are not covered or made clear herein or in the attached Exhibits are
subject to mutual agreement of the parties. No alteration, waiver, amendment or
supplement of or to this Commitment Letter or the Fee Letters shall be binding
or effective unless the same is set forth in a writing signed by a duly
authorized representative of each party hereto or thereto.
POWER, AUTHORITY AND BINDING EFFECT. Each of the parties
hereto represents and warrants to each of the other parties hereto that (i) it
has all requisite power and authority to enter into this Commitment and the Fee
Letters and (ii) each of this Commitment Letter and the Fee Letters has been
duly and validly authorized by all necessary corporate action on the part of
such party, has been duly executed and delivered by such party and constitutes a
legally valid and binding agreement of such party, enforceable against it in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally.
TIME OF ESSENCE. Time shall be of the essence whenever
and wherever a date or period of time is prescribed or referred to in this
Commitment.
GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. This Commitment shall be governed by and construed in accordance with
the laws of the State of New York.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL
BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF
THIS COMMITMENT OR THE TRANSACTIONS OR THE MATTERS CONTEMPLATED BY THIS
COMMITMENT. EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH
ANY DISPUTE RELATED TO THIS COMMITMENT, THE TRANSACTIONS CONTEMPLATED BY THIS
COMMITMENT OR ANY MATTERS RELATED TO THIS COMMITMENT. IN THE EVENT OF
LITIGATION, THIS LETTER MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
NO RIGHTS OR LIABILITY. Neither this Commitment Letter
nor the Fee Letters creates, nor shall any of them be construed as creating, any
rights enforceable by a person or entity not a party hereto, except as provided
in the indemnification provisions. XXXX, on behalf of itself and each other
Borrower Party, acknowledges and agrees that: (i) none of the Lender Parties is,
nor shall any one of them be construed as, a fiduciary or agent of any Borrower
Party or any other person and shall have no duties or liabilities to any such
person's equity holders or creditors by virtue of this Commitment Letter or the
Fee Letters, all of which are
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hereby expressly waived; (ii) none of the Lender Parties shall have any
liability (including, without limitation, liability for any losses, claims,
damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
or disbursements resulting from any negligent act or omission of any of them),
whether direct or indirect, in contract, tort or otherwise, to Borrower,
Guarantor or any other Borrower Party (including, without limitation, their
respective equity holders and creditors) or any other person for or in
connection with this Commitment Letter, the Fee Letters or the Facility, except
that a claim in contract for actual direct damages directly and proximately
caused by (A) a breach of any contractual obligation expressly set forth in any
written agreement signed by the party against which enforcement of such claim is
sought or (B) the gross negligence or willful misconduct of any Indemnified
Person, shall not be impaired hereby; and (iii) the Initial Lenders were induced
to enter into this Commitment Letter and the Fee Letters by, inter alia, the
provisions in Sections 3, 4, and 7 herein.
NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES. No party hereto shall ever be liable for any special, indirect
or consequential damages or, to the fullest extent that a claim for punitive
damages may lawfully be waived, for any punitive damages on any claim (whether
founded in contact, tort, legal duty or any other theory of liability) arising
from or related in any manner to this Commitment Letter or the negotiation,
execution, administration, performance, breach, or enforcement of this
Commitment Letter or the instruments and agreements evidencing, governing or
relating to the Facility contemplated hereby or any amendment thereto or the
consummation of, or any failure to consummate, the Facility or any act,
omission, breach or wrongful conduct in any manner related thereto.
COUNTERPARTS. This Commitment Letter may be executed in
one or more counterparts, each of which shall constitute an original, and all of
which together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Commitment Letter by facsimile shall be effective
as delivery of a manually executed counterpart of this Commitment Letter.
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CERTAIN UNDEFINED TERMS. Due to the sensitive nature of
some of the information associated with the Lone Star Acquisition, that term and
various other related terms have not been specifically defined in this
Commitment Letter. Following the issuance of a press release by XXXX with regard
to the proposed Lone Star Acquisition, the parties agree to promptly revise this
Commitment Letter to define such terms and clarify any related matters.
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Please evidence XXXX'x acceptance of the provisions of this
Commitment, including, without limitation, the attached Exhibits, by (i) signing
the enclosed copy of this Commitment Letter; (ii) signing the Fee Letters; and
(iii) returning the signed Commitment Letter and Fee Letters to the undersigned,
together with payment of the Initial Underwriting Fee, at or before 5:00 P.M.
(New York City time) on January 15, 2003 (the "EXPIRATION DATE"), the time at
which the Commitments (if not so accepted prior thereto) will expire.
Very truly yours,
DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
----------------------
Its: Director
----------------------
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
----------------------
Title: Managing Director
----------------------
By: /s/ Oliver Trumbau
-----------------------
Name: Xxxxxx Xxxxxxx
----------------------
Title: Director
----------------------
ACCEPTED this __day
of January, 2003
WESTFIELD AMERICA LIMITED PARTNERSHIP, a Delaware limited
partnership
By: WESTFIELD AMERICA, INC., a
Missouri corporation, its
General Partner
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
-------------------------
Title: CFO and Treasurer
-------------------------
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EXHIBIT A
TERM SHEET
BORROWER: Westfield America Limited Partnership ("XXXX") and
a newly created, bankruptcy remote, single purpose
entity wholly owned, directly or indirectly, by
XXXX ("Westfield Acquisition Vehicle")(XXXX and
Westfield Acquisition Vehicle are referred to
hereinafter, collectively, as "Borrower").
Westfield Acquisition Vehicle shall own directly
or indirectly 100% of all the assets to be
allocated to Westfield (referred to hereinafter as
the "Westfield Acquisition Assets") in connection
with the Lone Star stock acquisition ("Lone Star
Acquisition"). In the event the acquisition of the
Westfield Acquisition Assets is structured through
a synthetic partnership with Simon Properties and
the Minority Holders, the transaction (the
"Alternative Structure") shall comply with the
additional terms set forth in ATTACHMENT A hereto.
GUARANTOR: Westfield America Inc. ("Guarantor") shall provide
an unconditional guaranty of all obligations
incurred by the Borrower under the Facility.
FACILITY AMOUNT: Up to US$550 million, subject to reduction based
on the percentage of the shares actually acquired
and allocated to Westfield in connection with the
Lone Star Acquisition.
FACILITY: An interim, term facility to be fully funded (the
amount funded, the "Funded Amount"), upon
satisfaction of all conditions precedent, at
closing. Upon payment or prepayment no portion of
the Facility may be re-borrowed.
PURPOSE: Proceeds from the Facility shall be used to
finance the direct or indirect acquisition of the
Westfield Acquisition Assets.
TERM: Six months from the Closing Date, subject to
extension as provided below.
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EXTENSION: Two (2) six-month extensions upon satisfaction of
customary conditions, including the following: (i)
payment of the extension fee specified below; (ii)
no event of default, or uncured monetary default,
default under any negative covenant, or other
material non-monetary default ; (iii) prepayment
of the Facility so the principal balance is no
greater than 85% of the Funded Amount on the first
extension date, and the principal balance is no
greater than 50% of the Funded Amount on the
second extension date; (iv) ratification of the
transaction by all guarantors and pledgors.
INTEREST RATE: The Applicable Margin plus, at the Borrower's
election, one, two, three or six-month LIBOR
calculated on an actual/360 day basis. During the
initial term the Applicable Margin shall be 2.50%,
during the first extension period, the Applicable
Margin shall be 3.00%, and during the second
extension period, the Applicable Margin shall be
3.50%. The Credit Agreement shall contain
customary provisions for an Alternative Base Rate
equal to the Applicable Margin plus the greater of
prime or the federal funds rate plus 50 basis
points. Notwithstanding the foregoing, during the
first three (3) loan months, Borrower may only
select one month LIBOR.
In no event will interest accrue at less than
3.90% per annum during the initial term, 4.40% per
annum during the first extension period, and 4.90%
per annum during the second extension period.
EXTENSION FEE: Each term extension option shall be subject to the
payment of an extension fee equal to 0.25%
multiplied by the outstanding principal amount of
the Facility on the respective extension date.
RECOURSE: The Facility shall be fully recourse to the
Borrower and Guarantor.
SECURITY: Lenders shall receive a pledge of XXXX'x ownership
interest in Westfield Acquisition Vehicle
VOLUNTARY REPAYMENTS: The Borrower shall be permitted to repay all or a
portion of the Facility at any time without
penalty, subject to LIBOR breakage costs and
customary administrative procedures.
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MANDATORY REPAYMENTS: The Borrower shall be required to repay the
principal amount of the Facility: (i) dollar for
dollar in the amount of 100% of net proceeds
(without duplication) from any debt or equity
issuances by Westfield America Trust ("WAT"),
Guarantor (including issuances to WAT , and net
proceeds from such issuances shall include sums
contributed to Guarantor by WAT from debt or
equity issuances by WAT), Borrower or any of
Borrower's subsidiaries (the "Borrower Related
Parties"); provided however that the following
shall be exempt from the mandatory prepayment
requirement: (A) the acquisition of additional
Capital Stock of WEA by Westfield America Trust
pursuant to the Stock Subscription Agreement dated
as of May 29, 1998; (B) customary dividend
reinvestment activities with respect to WAT, XXXX
and WEA pursuant to customary documents relating
thereto (as approved by Initial Lenders); and (C)
construction loans incurred in conjunction with
the redevelopment of existing properties (and in
the ordinary course of the business activities) of
the Borrower Related Parties; (D) prepayments
required pursuant to the Growth Credit Agreement
(defined below); and (E) the issuance of operating
partnership interests by XXXX as consideration for
the acquisition of additional properties; and (ii)
dollar for dollar in the amount of 100% of net
proceeds allocable (directly or indirectly) to
Westfield Acquisition Vehicle, after payment of
applicable sums due under the relevant senior loan
documents, including applicable release payments,
from the sale, refinancing, or other specified
disposition of the Westfield Acquisition Assets.
INFORMATION: The Guarantor and Borrower shall provide the
Administrative Agent, Co-Lead Arrangers, and the
Lenders such additional information as shall be
reasonably requested by them.
REPRESENTATIONS AND Customary for facilities of this type.
WARRANTIES:
AFFIRMATIVE COVENANTS: Customary for facilities of this type.
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NEGATIVE COVENANTS: Customary for facilities of this type, including
but not limited to the following:
1. Limitations on additional Indebtedness.
Westfield Acquisition Vehicle shall not
incur indebtedness other than the Loan.
2. Limitations on distributions. Neither XXXX
nor Guarantor shall make dividends or
distributions (i) during any period in which
an event of default remains outstanding or
(ii) in the aggregate, during any period of
four consecutive quarters, in excess of 100%
of "FFO"; provided however, that in the case
of clause (ii) and non-monetary events of
default, XXXX and Guarantor may make
distributions to the extent (but only to the
extent) necessary to maintain REIT status.
So long as an event of default under the
Loan Documents remains uncured, the
Westfield Acquisition Vehicle shall not be
permitted to make any dividends or
distributions to its members. Distributions
in respect of the sale, refinancing, or
other specified disposition of the Westfield
Acquisition Assets shall be subject to the
mandatory payment provisions set forth
above.
3. Amendments. No amendment to organizational
documents of the Borrower or Guarantor
except as otherwise specifically permitted
under the Loan Documents (clarifications,
modifications to permit issuance of more
capital stock, modifications which have no
substantive effect on Lenders).
4. Conduct of Business. All transactions
between the Borrower, Guarantor, and their
affiliates shall be conducted on a basis no
less favorable to the Borrower or Guarantor
than an arm's length transaction would be.
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5. Transfers and Mergers. Without Initial
Lenders' prior written consent: (i) except
in situations where no Change of Control
shall occur (to be defined in the Credit
Agreement), XXXX and Guarantor shall not
consolidate or merge with any Person and
shall not sell, assign, lease or otherwise
dispose of substantially all of its
properties; (ii) Westfield Acquisition
Vehicle shall not enter into any merger,
consolidation, reorganization or liquidation
and shall not sell, assign, lease or
otherwise dispose of substantially all of
its properties; (iii) transfers of interests
in Westfield Acquisition Vehicle shall not
be permitted unless at all times XXXX
directly or indirectly owns and controls
100% of the ownership interests in Westfield
Acquisition Vehicle and other customary
conditions to such transfer (notice, absence
of default, approval of applicable
organizational documents, etc.) are
satisfied.
WESTFIELD ACQUISITION Customary for facilities of this type, including
VEHICLE FINANCIAL but not limited to the following types of covenants
COVENANTS: (in each case exclusive of the Facility):
1. Minimum Interest Coverage Ratio.
2. Minimum Fixed Charge Coverage Ratio.
3. Maximum Total Leverage Ratio.
4. Maximum Secured Leverage Ratio.
5. Minimum Net Worth.
6. Minimum Debt Yield Ratio.
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GUARANTOR FINANCIAL Guarantor financial covenants shall consist of the
COVENANTS: following and shall apply to the Consolidated
Guarantor Group (on a consolidated basis including
XXXX and its subsidiaries):
(a) Sum of Guarantor Unrestricted Cash and
Guarantor Cash Equivalents plus the amount of
unused availability under the XXXX Secured Line of
Credit shall be maintained in an amount of at
least $25,000,000 as measured on the last day of
each calendar quarter;
(b) Total Guarantor Debt shall not exceed 65% of
Guarantor Capitalized Value at any time;
(c) Ratio of Guarantor EBITDA to Guarantor
Interest Expense for the twelve (12) month period
ending on the last day of each calendar quarter
shall not be less than 1.85 to 1:00;
(d) Ratio of Guarantor Adjusted EBITDA to
Guarantor Fixed Charges for the twelve (12) month
period ending on the last day of each calendar
quarter shall not be less than 1.50x;
(e) Guarantor Shareholders' Funds shall not be
less than $1,250,000,000 as measured on the last
day of each calendar quarter.
(f) Guarantor shall maintain a minimum ratio of
Adjusted EBITDA to Consolidated Indebtedness of
12.50%
(g) Guarantor dividend payout ratio shall not
exceed the greater of (i) 100% of FFO; or (ii) the
minimum amount necessary to maintain REIT status.
HEDGING REQUIREMENT: Not less than 75% of the XXXX'x consolidated
indebtedness and any other borrowed indebtedness
allocable to the Westfield Acquisition Vehicle
shall be either: (i) fixed rate obligations or
(ii) subject to interest rate hedging
arrangements.
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EVENTS OF DEFAULT: Customary for facilities of this type, including
events of default under other material
indebtedness of the Guarantor and its subsidiaries
(except to the extent, prior to Administrative
Agent's acceleration of the Facility, such
indebtedness is repaid in full or the event of
default in respect of such indebtedness is cured
in accordance with the underlying loan documents).
CO-LEAD ARRANGERS' Xxxxxxxx & Xxxxxxxx LLP.
AND AGENT'S COUNSEL
GOVERNING LAW: New York or as determined by Co-Lead Arrangers'
Counsel.
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ATTACHMENT A
ALTERNATIVE STRUCTURE TERMS
THE FOLLOWING TERMS SHALL BE IN ADDITION TO THOSE SET FORTH IN
THE ATTACHED TERM SHEET:
BORROWER: Westfield Acquisition Vehicle shall own
directly 100% of all Westfield-related
ownership interests in a newly formed,
bankruptcy remote limited partnership or
limited liability company ("Lone Star
Newco") by and between the Westfield
Acquisition Vehicle (which will own
approximately a [50%] equity interest), and
affiliates of The Simon Property Group
("Simon," which will own approximately a
[50%] equity interest).
Lone Star Newco shall own directly or
indirectly all of the general partnership
interest in the Lone Star operating
partnership ("Lone Star OP") and all of the
remaining partnership interests not held by
the Minority Holders. The structure,
organizational documents, and all control
and management rights (including any rights
held by the Minority Holders) with respect
to the Lone Star Newco and the Lone Star OP
shall be subject to approval by the Initial
Lenders.
SECURITY: Lenders shall receive a pledge of
Westfield Acquisition Vehicle's ownership
interest in Lone Star Newco.
NEGATIVE PLEDGE The Loan Documents will contain such
specific restrictions on Borrower's
exercise of voting or approval rights
under the Lone Star Newco and/or Lone
Star OP organizational documents as may
be necessary or appropriate to preserve
Westfield Acquisition Vehicle's control
over the Westfield Acquisition Assets.
MANDATORY PREPAYMENT The Borrower shall be required to repay
the principal amount of the Facility
dollar for dollar in the amounts
allocable to Westfield Acquisition
Vehicle from future capital raised by
Lone Star Newco.
RESTRICTIONS OF DISTRIBUTIONS: Subject to such exceptions as the Initial
Lenders shall have approved in
conjunction with their review and
approval of the Lone Star Newco and Lone
Star OP organizational documents, all
distributions by Lone Star OP in respect
of the Westfield Acquisition Assets shall
be passed through to Westfield
Acquisition Vehicle.
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AMENDMENTS TO ORGANIZATIONAL No amendment to organizational documents
DOCUMENTS of the Lone Star Newco except as
otherwise specifically permitted under
the Loan Documents (clarifications,
modifications which have no substantive
effect on Lenders).
TRANSFERS AND MERGERS Without Initial Lenders' prior written
consent, (i) Lone Star Newco and Lone
Star OP shall not consolidate or merge
with any Person and shall not sell,
assign, lease or otherwise dispose of
substantially all of its properties; and
(ii) transfers of Borrower's interests in
Lone Star Newco and Lone Star OP shall
not be permitted unless at all times XXXX
directly or indirectly owns and controls
100% of such ownership interests and
other customary conditions to such
transfer (notice, absence of default,
approval of applicable organizational
documents, etc.) are satisfied.
WESTFIELD ACQUISITION VEHICLE The covenants specified in the Term Sheet
FINANCIAL COVENANTS: with respect to the Westfield Acquisition
Vehicle shall apply only to that portion
of Westfield Acquisition Assets owned,
directly or indirectly, by Westfield
Acquisition Vehicle (and not to any
assets allocated to Xxxxx in connection
with the Lone Star Acquisition, or any
portion of the Westfield Acquisition
Assets owned by third parties
unaffiliated with Westfield).
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EXHIBIT B
INDEMNIFICATION PROVISIONS
Capitalized terms used and not otherwise defined herein are used with
the meanings attributed thereto in the Commitment dated January 14, 2003 (the
"COMMITMENT") from Deutsche Bank AG, Cayman Islands Branch ("DB AG") and UBS AG,
Stamford Branch ("UBS") to Westfield America Limited Partnership ("XXXX") of
which these Indemnification Provisions form an integral part.
To the fullest extent permitted by applicable law, XXXX agrees that it
will, and will cause each of the Borrowers, Guarantor, and the other Borrower
Parties, jointly and severally, to indemnify and hold harmless each of the
Lender Parties and their affiliated entities, directors, officers, employees,
legal counsel, agents, and controlling persons (within the meaning of the
federal securities laws)(all of the foregoing, collectively, the "INDEMNIFIED
PERSONS"), from and against any and all losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses and disbursements,
including, but not limited to, all attorneys fees and legal costs, expenses and
disbursements incurred in respect of any and all actions, suits, proceedings and
investigations, directly or indirectly, caused by, relating to, based upon,
arising out of or in connection with (i) the Facility, (ii) the Commitments, the
Commitment Letter, and the Fee Letters, or (iii) any untrue statement or alleged
untrue statement of a material fact contained in, or omissions or alleged
omissions from any filing with any governmental agency or similar statements or
omissions in or from any information furnished by Borrower or Guarantor or any
of their subsidiaries or affiliates to any of the Indemnified Persons or any
other person in connection with the Facility or the Commitment; provided,
however, such indemnity agreement shall not apply to any portion of any such
loss, claim, damage, obligation, penalty, judgment, award, liability, cost,
expense or disbursement to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct of any of
the Indemnified Persons.
These Indemnification Provisions shall be in addition to any liability
which Borrower, Guarantor, or any other Borrower Party may have to the
Indemnified Persons.
If any action, suit, proceeding or investigation is commenced, as to
which any of the Indemnified Persons proposes to demand indemnification, they
shall notify XXXX with reasonable promptness; provided, however, that any
failure by any of the Indemnified Persons to so notify XXXX shall not relieve
XXXX or any other Borrower Party from its obligations hereunder, except to the
extent, but only to the extent, the interests of any Borrower Party are
prejudiced by such failure. Agent, on behalf of the Indemnified Persons, shall
have the right to retain counsel of its choice to represent the Indemnified
Persons, and XXXX shall, or shall cause the other Borrower Parties, jointly and
severally, to pay the reasonable fees, expenses and disbursement of such
counsel; and such counsel shall, to the extent consistent with its
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professional responsibilities, cooperate with XXXX and other Borrower Parties
and any counsel designated by XXXX or other Borrower Parties. Without the prior
written consent of Agent, XXXX shall not, and shall not permit any of the other
Borrower Parties to, settle or compromise any claim, or permit a default or
consent to the entry of any judgment in respect thereof, unless such settlement,
compromise or consent includes, as an unconditional term thereof, the giving by
the claimant to each of the Indemnified Persons of an unconditional and
irrevocable release from all liability in respect of such claim.
Neither expiration nor termination of the Commitment shall affect these
Indemnification Provisions which shall then remain operative and in full force
and effect.
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