Exhibit 10.15
SUPPLEMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
SUPPLEMENT dated as of
January 15, 2009 (the “ Supplement Effective Date
”) to the Amended and Restated Revolving Credit Agreement
dated as of July 31, 2007 (as heretofore amended, modified or
supplemented by and under the Extension Agreements (as defined
below), the “ Loan Agreement ”) among CENTRO NP
LLC (the “ Borrower ”), the LENDERS party
thereto (the “ Lenders ”), and BANK OF AMERICA,
N.A., as Administrative Agent (the “ Administrative
Agent ”).
W I T N E S S E T H
:
WHEREAS, the parties hereto desire
to (a) cause the Extension Agreements to be superseded by the
terms and conditions set forth in this Supplement; (b) further
extend the Maturity Date to December 31, 2010;
(c) determine the rate of the Applicable Margin and the
Default Rate; (d) provide for the prepayment of the Loans, and
accompanying permanent reductions of the Commitments, upon the
receipt by the Borrower of net proceeds from the disposition of
certain Properties and certain other events; (e) acknowledge
that there shall be no further extensions of credit under the Loan
Agreement; (f) supplement the representations, affirmative
covenants, negative covenants and Events of Default, including
related definitions thereto, as set forth in the Loan Agreement;
(g) implement an interest rate protection program with respect
to the Loan; and (h) provide for certain other supplemental
matters in connection with the Loan Agreement and the other Loan
Documents, as set forth herein;
NOW, THEREFORE, the parties hereto
agree as follows:
SECTION 1 . Defined
Terms; References. (a) Unless otherwise
specifically defined herein, each term used herein that is defined
in the Loan Agreement has the meaning assigned to such term in the
Loan Agreement. Each reference to “hereof”,
“hereunder”, “herein” and
“hereby” and each other similar reference and each
reference to “this Agreement” and each other similar
reference contained in the Loan Agreement shall, after the
Supplement Effective Date, refer to the Loan Agreement as amended
or supplemented hereby.
(b)
As used in this Supplement, each of
the following terms has the meaning specified in the Super Loan
Agreement (as in effect on the date hereof): “Centro
Entity,” “ERP,” “ERP Obligations,”
“ERP Preferred Interests,” “Existing
Indebtedness,” “Joint Venture Property,”
“Master Distribution Agreement,” “New Money
Facility,” “New Money Facility Loan Documents,”
“Note (e Note),” “Parent Entity,”
“Permitted Threshold Sale,” “Properties
(Additional 15 Properties),” “Properties (New Money
Facility),” “Required Distribution,”
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“Required
Distribution/Contribution,” “Senior Notes,”
“Solvent,” “Tax Payments,”
“Transaction Documents (Australia)” and “Tyrone
Gardens Entities”.
(c)
The following additional terms, as
used in this Supplement, have the following meanings:
“ Actual Knowledge ” means the actual
knowledge of Glenn Rufrano (Chief Executive Officer and President),
Michael Carroll (Executive Vice President and Chief Operating
Officer), John Braddon (Executive Vice President, Chief Financial
Officer and Treasurer) and Steven Siegel (Executive Vice President
and Secretary), without any duty of inquiry or investigation.
Neither the actual knowledge of any other individual or entity, nor
the constructive knowledge of the foregoing individuals or of any
other individual or entity, shall be imputed to the foregoing
individuals.
“ Applicable Credit
Agreements ” means (i) the Super Loan Agreement;
(ii) the KeyBank Centro GA Agreement (as defined in the Super
Loan Agreement); and (iii) the Bond Documents (as defined in
the Common Terms Deed (as defined in the Super Loan Agreement)) and
the Senior Facilities Agreement (as defined in the Super Loan
Agreement) (other than the provisions thereof that are applicable
to Facility E (as defined in the Senior Facilities
Agreement)).
“ Approved Budget
” means the budget attached hereto as Schedule 1.1, for the
period from the Supplement Effective Date through and including
December 31, 2010, which budget has been approved by the
Administrative Agent and the Lenders prior to the Supplement
Effective Date. The Approved Budget may be modified from time to
time but only with the prior written consent of lenders holding, at
such time, an aggregate of at least 60% of the Loan Amount (as
defined in the Super Loan Agreement as in effect on the Supplement
Effective Date), the Loans and the Letter of Credit Exposure (such
lenders, the “ Budget Approval Lenders ”) and,
upon receipt of such consent, the Approved Budget, as so revised,
shall thereafter constitute the Approved Budget. Until such
consent is obtained from the Budget Approval Lenders, the then
current Approved Budget shall continue to be applicable.
“ April Letter
Agreement ” means that certain letter agreement, dated as
of April 29, 2008, among the Borrower, the Centro Parties, the
Guarantors party thereto, the Lenders and the Administrative
Agent.
“ APT ” means
Australian Public Trustees Limited (ABN 82095572482), as trustee of
the DPF Sub Trust No 2.
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“ APT Guaranty ”
means the Guaranty Agreement (Payment), dated as of May 7,
2008, executed by APT in favor of the Administrative Agent on
behalf of the Lenders.
“ Assignments of Leases
” means, collectively or individually, as the context shall
require, the Assignments of Leases (Initial Combined Pool),
the Assignment of Leases
(Preston Ridge) and the Farrar Place
Assignment of Leases.
“ Assignments of Leases
(Initial Combined Pool) ” means those certain first
priority Assignment of Leases and Rents given on March 28,
2008 by the applicable Property Owner (Initial Combined Pool), as
assignor, to the Administrative Agent, as assignee, assigning to
the Administrative Agent the interests of all such Property Owners
(Initial Combined Pool) in and to all Leases with respect to, and
Rents from, the Properties (Initial Combined Pool), as the same may
be amended, restated, replaced, supplemented or otherwise modified
from time to time.
“ Assignment of Leases
(Preston Ridge) ” means that certain second priority
Assignment of Leases and Rents given on March 28, 2008 by the
Preston Ridge Property Owner, as assignor, to the Administrative
Agent, as assignee, assigning to the Administrative Agent the
interests of the Preston Ridge Property Owner in and to all Leases
with respect to, and Rents from, the Preston Ridge Property, as the
same may be amended, restated, replaced, supplemented or otherwise
modified from time to time.
“ Award ” means
any compensation paid by any Governmental Authority in connection
with a Condemnation with respect to all or any part of a
Property.
“ Bank of America
” means Bank of America, N.A., and its successors.
“ Bankruptcy Action
” means, with respect to any Person, (i) such Person
filing a voluntary petition under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, or any other similar
law, rule or regulation of any foreign jurisdiction;
(ii) the filing of an involuntary petition against such Person
under the Bankruptcy Code or any other Federal or state bankruptcy
or insolvency law, or any other similar law, rule or
regulation of any foreign jurisdiction, or soliciting or causing to
be solicited petitioning creditors for any involuntary petition
against such Person; (iii) such Person filing an answer
consenting to or otherwise acquiescing in or joining in any
involuntary petition filed against it, by any other Person under
the Bankruptcy Code or any other Federal or state bankruptcy or
insolvency law, or any other similar law, rule or regulation
of any foreign jurisdiction, or soliciting or causing to be
solicited petitioning creditors for any involuntary petition from
any Person; (iv) such Person consenting to or acquiescing in
or joining in an application for the appointment of a custodian,
receiver, trustee, administrator or examiner for such
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Person or any portion of any property or assets
owned by such Person (including, without limitation, any Property);
or (v) such Person making an assignment for the benefit of
creditors, or admitting, in writing or in any legal proceeding, its
insolvency or inability to pay its debts as they become
due.
“ Bankruptcy Code
” means Title 11 of the United States Code entitled
“Bankruptcy”, as amended from time to time, and any
successor statute or statutes and all rules and regulations
from time to time promulgated thereunder.
“ Book Value ”
means the greater of the book value as of
(i) December 31, 2007, as adjusted prior to the
Supplement Effective Date and (ii) June 30, 2008, in each
case, as reflected on the consolidated accounts (maintained in
accordance with GAAP) of Super for the Properties
(Super).
“ Budgeted Expenditures
” means, collectively, the amounts to be expended by the
Super Entities as and to the extent set forth on the Approved
Budget.
“ Casualty ”
means damage or destruction of a Property, in whole or in part, by
fire or other casualty.
“ Centro Party
Covenants ” shall have the meaning assigned to such term
in Section 21.
“ Collateral Assignment of
Interest Rate Cap Agreement ” means that certain
Collateral Assignment of Interest Rate Cap Agreement to be entered
into by the Borrower in connection with the Loans, as the same may
be amended, restated, replaced, supplemented or otherwise modified
from time to time.
“ Condemnation ”
means a temporary or permanent taking by any Governmental Authority
as the result or in lieu or in anticipation of the exercise of the
right of condemnation or eminent domain, of all or any part of a
Property, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade
affecting such Property or any part thereof.
“ December Letter
Agreement ” means that certain letter agreement, dated as
of December 15, 2008, among the Borrower, the Centro Parties,
the Guarantors party thereto, the Lenders and the Administrative
Agent.
“ December 2007 Amendment ” means
that certain First Amendment to Amended and Restated Revolving
Credit Agreement, dated as of December 16, 2007, by and among
the Borrower, the Guarantors party thereto, the Lenders and the
Administrative Agent.
“ Encumbered Property ” means any
Property that is (i) a Property (Combined Pool), (ii) a
Property (Additional 15 Properties), (iii) a Property
(New
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Money Facility), (iv) the Preston Ridge
Property or (v) an Encumbered Property (Existing Third
Party).
“ Encumbered Property (Existing Third Party)
” means each Property that is set forth on Schedule 1.2
attached hereto.
“ Extension Agreements
” means, collectively, the December 2007 Amendment, the
January Letter Agreement, the February Extension
Agreement, the March Letter Agreement, the April Letter
Agreement, the May 7 Letter Agreement, the May 30 Letter
Agreement, the September Letter Agreement and the
December Letter Agreement.
“ Farrar Place Assignment
of Leases ” means that certain first priority Assignment
of Leases and Rents given on the Supplement Effective Date by the
Farrar Place Property Owner , as
assignor, to the Administrative Agent, as assignee, assigning to
the Administrative Agent the interests of the Farrar Place Property
Owner in and to all Leases with respect to, and Rents from, the
Farrar Place Property, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to
time.
“ Farrar Place Mortgage ” means the
first lien deed of trust by the Farrar
Place Property Owner in favor of the Administrative Agent,
for the benefit of the Lenders, encumbering the Farrar Place
Property, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.
“ Farrar Place Property ” means Farrar
Place, Manchester, Tennessee.
“ Farrar Place Property Owner ” means
NP of Tennessee, L.P., a Subsidiary Guarantor.
“ February Extension Agreement ” means that certain
letter agreement, dated as of February 14, 2008, among the
Borrower, the Centro Parties, the Guarantors party thereto, the
Lenders and the Administrative Agent, which amended and restated
the December 2007 Amendment and the January Letter
Agreement.
“ Ground Leases ” means ground leases
pursuant to which Super Subsidiaries or Joint Venture Entities
ground lease certain Properties from third parties.
“ Guaranty
(March 2008) ” means that certain Guaranty, dated as
of March 28, 2008, from certain Subsidiaries of Residual in
favor of the Administrative Agent for the benefit of the Lenders,
as ratified on the date hereof and as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to
time.
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“ Interest Rate Cap Agreement ” means
an Interest Rate Cap Agreement (together with the confirmation and
schedules relating thereto) between the Borrower and Bank of
America entered into in connection with the Loans.
“ January Letter Agreement ”
means that certain letter agreement dated as of January 14,
2008, by and among the Borrower, the Centro Parties, the Guarantors
party thereto, the Lenders and the Administrative Agent.
“ Joint Venture Entity ” means any
joint venture entity or other entity owned jointly by a Super
Subsidiary and unaffiliated third parties, including, without
limitation, any entity in which any Super Entity directly owns an
interest that is not a Subsidiary of Super, but that is nonetheless
consolidated with any Super Entity for financial reporting purposes
as a result of the application of (i) the pronouncement
entitled Financial Interpretation 46 “Consolidation of
Variable Interest Entities” by the Financial Accounting
Standards Board on January 17, 2003, as revised from time to
time, or (ii) Emerging Issues Task Force Consensus on Issue
No. 04-05, “Determining Whether a General Partner, or
the General Partners of a Group, Controls a Limited Partnership or
Similar Entity When the Limited Partners Have Certain Rights”
as adopted in July, 2005 by the Emerging Issues Task Force created
by the Financial Accounting Standards Board. For the
avoidance of doubt, the Tyrone Gardens Entities shall not be deemed
to be Joint Venture Entities for purposes of this Supplement and
the other Loan Documents.
“ JPMCB ” means
JPMorgan Chase Bank, N.A., and its successors.
“ Lease ” means
any lease, sublease or subsublease, letting, license, concession or
other agreement (whether written or oral and whether now or
hereafter in effect) pursuant to which any Person is granted a
possessory interest in, or right to use or occupy all or any
portion of any space in any Property, and (a) every
modification, amendment or other agreement relating to such lease,
sublease, subsublease, or other agreement entered into in
connection with such lease, sublease, subsublease, or other
agreement and (b) every guarantee of the performance and
observance of the covenants, conditions and agreements to be
performed and observed by the other party thereto.
“ Loan Parties ”
or “ Loan Party ” means, individually or
collectively, as the context may require, the Borrower and the
Subsidiary Guarantors.
“ March Letter
Agreement ” means that certain letter agreement, dated as
of March 28, 2008, among the Borrower, the Centro Parties, the
Guarantors party thereto, the Lenders and the Administrative
Agent.
“ Material Lease
” shall have the meaning assigned to such term in
Section 7(f).
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“ May 7 Letter
Agreement ” means that certain letter agreement, dated as
of May 7, 2008, among the Borrower, the Centro Parties, the
Guarantors party thereto, the Lenders and the Administrative
Agent.
“ May 30 Letter
Agreement ” means that certain letter agreement, dated as
of May 30, 2008, among the Borrower, the Centro Parties, the
Guarantors party thereto, the Lenders and the Administrative
Agent.
“ Mortgage (AEW)
” means the first lien deed of trust dated as of the
Supplement Effective Date given by Property Owner (AEW) in favor of
Bank of America, securing that certain Amended and Restated Loan
Agreement, dated November 6, 2007, among Bank of America, CA
New Plan Acquisition Fund, LLC, Property Owner (AEW) and CA New
Plan Acquisition Fund Louisiana, LLC (as the same has been and may
be further amended), encumbering the Property (AEW).
“ Mortgages ”
means, collectively or individually, as the context shall require,
the Mortgages (Initial Combined Pool), the Mortgage (Preston Ridge), the Farrar Place Mortgage
and the Surrey Square Mortgage.
“ Mortgages (Initial
Combined Pool) ” means the first lien mortgages, deeds of
trust and deeds to secure debt given by the Property Owners
(Initial Combined Pool) on March 28, 2008 in favor of the
Administrative Agent, securing the Guaranty or the Guaranty
(March 2008), as applicable, and encumbering the Properties
(Initial Combined Pool), as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to
time.
“ Mortgage (Preston
Ridge) ” means the second lien deed of trust given by the
Preston Ridge Property Owner on March 28, 2008 in favor of the
Administrative Agent, securing the Guaranty (March 2008) and
encumbering the Preston Ridge Property, as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to
time.
“ Net Proceeds ”
means the net amount of all insurance proceeds or Awards, as
applicable, received by a Super Subsidiary following a Casualty or
Condemnation of a Property owned by such Super Subsidiary after
deduction of the reasonable costs and expenses of recovery and
after satisfaction of the outstanding principal amount of, premium
or penalty, if any, and interest on any indebtedness (other than
the Loan, the Super Loan Agreement, the New Money Facility and the
Preston Ridge Facility) that is required to be repaid under the
terms of such indebtedness as a result of such Casualty or
Condemnation.
“ Net Sale Proceeds ” means proceeds
of the sale of the applicable Property after satisfaction of the
outstanding principal amount of, premium or
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penalty, if any, and interest on any
indebtedness (other than the Loan, the Super Loan Agreement, the
New Money Facility and the Preston Ridge Facility) that is required
to be repaid under the terms of such indebtedness as a result of
such sale (or on any indebtedness the terms of which provide that
such sale, without the consent of the applicable lender, would
constitute an event of default thereunder) and net of reasonable
and customary closing costs and expenses (other than, with respect
to Properties (Super), any disposal or similar fees payable to
Affiliates of Super Entities from sales of Properties (Super) by
such Super Entities).
“ Other Bank Facility Documents ”
means, collectively, (a) the Super Loan Agreement and the
other Super Loan Documents, (b) the New Money Facility Loan
Documents and (c) the Preston Ridge Loan Agreement (and the
loan documents entered into in connection therewith).
“ Permitted Encumbrances ” means, with
respect to any Property, collectively, (a) the Liens and
security interests created by the Loan Documents, (b) all
Liens, encumbrances and other matters disclosed in any current
title insurance commitments and/or current surveys delivered or
made available to the Administrative Agent or its legal counsel on
or before the Supplement Effective Date with respect to the
Properties, (c) Liens, if any, for Taxes imposed by any
Governmental Authority not yet due or delinquent or being contested
in good faith by appropriate proceedings, (d) such other title
and survey exceptions as the Administrative Agent has approved or
may approve in writing in its sole discretion, (e) all
easements, rights-of-way, restrictions, survey matters and other
non-monetary encumbrances recorded against and/or affecting a
Property and that do not materially and adversely affect
(i) the ability of the applicable Super Entity to pay any of
its or their obligations to any Person as and when due,
(ii) the marketability of title to such Property,
(iii) the fair market value of such Property in a manner
resulting in such fair market value being materially less than the
book value of such Property (as reasonably determined by a third
party professional having expertise in making such determinations),
or (iv) the use or operation of such Property by the
applicable Super Subsidiary in connection with its business,
(f) rights of tenants under Leases, as tenants only,
(g) any Liens securing Indebtedness of Super or any Super
Subsidiary that is permitted pursuant to the Loan Agreement or the
Super Loan Agreement, (h) Liens in connection with
workers’ compensation, unemployment insurance or other social
security obligations, (i) deposits or pledges to secure bids,
tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety or appeal bonds, performance
bonds, completion bonds or other obligations of like nature arising
in the ordinary course of business, (j) mechanics’,
materialmen’s, carriers’ or warehousemen’s Liens
incurred in the ordinary course of business which are bonded over
within 60 days from the date of filing or the existence of which is
being contested in good faith by appropriate proceedings diligently
conducted by Super, the Borrower or the applicable Super
Subsidiary, (k) Liens arising out of judgments or decrees
which do not constitute an Event of Default
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and (l) the interests of lessees, lessor,
licensees and licensors under leases or licenses of real or
personal property made in the ordinary course of business which
could not reasonably be expected (individually or in the aggregate)
to have a Material Adverse Effect.
“ Preston Ridge Facility ” means that
certain credit facility in the amount of $105,000,000 provided by
the lenders under the Preston Ridge Loan Agreement to the Preston
Ridge Property Owner, which facility is secured by, among other
things, a first mortgage lien on the Preston Ridge
Property.
“ Preston Ridge Loan
Agreement ” means that certain Amended and Restated Loan
Agreement, dated as of the Supplement Effective Date, among the
Preston Ridge Property Owner, JPMCB, as Administrative Agent, and
the lenders party thereto, as the same may be amended, supplemented
or otherwise modified from time to time (subject to the provisions
of Section 9(e)).
“ Preston Ridge
Property ” means the property known as the Centre at
Preston Ridge, Frisco, Texas.
“ Preston Ridge Property
Owner ” means BPR Shopping Center, LLC, a Delaware
limited liability company.
“ Properties ” or
“ Property ” means, collectively or individually
as the context shall require, each real property owned in fee, or
leased pursuant to a Ground Lease, by a Super
Subsidiary.
“ Properties (BofA
Revolver) ” means, collectively or individually, as the
context shall require, the Properties (Combined Pool) and the
Preston Ridge Property.
“ Properties (Combined
Pool) ” means, collectively, the properties identified on
Schedule 1.5 hereto. For the avoidance of doubt, the Properties
(Combined Pool) include the Farrar Place Property and the
Surrey Square Property.
“ Properties (Initial
Combined Pool) ” means the Properties (Combined Pool)
(other than the Farrar Place Property and the Surrey Square Property).
“ Properties (Other Super Properties)
” means, collectively, the properties identified on
Schedule 1.9 hereto.
“ Properties (Super
)” means, collectively, the Properties (Combined Pool), the
Properties (New Money Facility), the Preston Ridge Property and the
Properties (Other Super Properties).
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“ Property (AEW)
” means Merchants Park North, Houston, Texas (which property
is owned by the Property Owner (AEW)).
“ Property
Owner (AEW) ” means
CA New Plan Acquisition Fund Texas I, L.P., a Subsidiary of the
Borrower.
“ Property Owners (BofA Revolver) ”
means, collectively, the owners of the Properties (BofA Revolver)
and their successors.
“ Property Owners (Combined
Pool) ” means, collectively, the owners of the Properties
(Combined Pool) and their successors. The Property Owners (Combined
Pool) are identified on Schedule 1.5. For the avoidance of doubt,
the Property Owners (Combined Pool) include the Farrar Place
Property Owner and the Borrower
.
“ Property Owners (Initial
Combined Pool) ” means, collectively, the owners of the
Properties (Initial Combined Pool) and their successors.
“ Property
Owners (Super) ”
means, collectively, the owners of the Properties (Super) and their
successors.
“ Rents ” means,
with respect to each Property, all rents (including, without
limitation, percentage rents), rent equivalents, moneys payable as
damages or in lieu of rent or rent equivalents, any fees, payments
or other compensation from any tenant relating to or in exchange
for the termination of such tenant’s Lease, royalties
(including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and
other deposits), accounts, cash, issues, profits, charges for
services rendered, and other consideration of whatever form or
nature received by or paid to or for the account of or benefit of
the applicable Property Owner or its agents or employees from any
and all sources arising from or attributable to the applicable
Property, and proceeds, if any, from business interruption or other
loss of income insurance.
“ Required Super
Lenders ” means Required Lenders (as defined in the Super
Loan Agreement as in effect on the Supplement Effective
Date).
“ Residual ”
means Centro NP Residual Holding LLC, a Delaware limited liability
company, 51% of the Equity Interests of which are owned by Super
and 49% of the Equity Interests of which are owned by the
Borrower.
“ Restoration ”
means the repair and restoration of a Property after a Casualty or
Condemnation as nearly as possible to the condition of such
Property immediately prior to such Casualty or
Condemnation.
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“ Restricted Payment
” means, with respect to any Person, any dividend or other
distribution (whether in cash, securities or other property) with
respect to any Equity Interests in such Person, or any payment
(whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in such Person or any option, warrant or
other right to acquire any such Equity Interests in such
Person.
“ Sale or Pledge
” means a voluntary or involuntary sale, conveyance,
assignment, transfer, encumbrance or pledge of a legal or
beneficial interest.
“ September Letter
Agreement ” means that certain letter agreement, dated as
of September 26, 2008, among the Borrower, the Centro Parties,
the Guarantors party thereto, the Lenders and the Administrative
Agent.
“ Specified Order
” shall have the meaning assigned to such term in
Section 6(b).
“ Super Administrative
Agent ” means JPMCB, as administrative agent under the
Super Loan Agreement, including its successors and permitted
assigns.
“ Super Entities
” means, collectively, Super and the Super
Subsidiaries.
“ Super Lenders ”
means the lenders under the Super Loan Agreement from time to
time.
“ Super Loan Agreement ” means that
certain Second Amended and Restated Loan Agreement, dated as of the
Supplement Effective Date, by and among Super LLC, as borrower, the
lenders party thereto, and the Super Administrative Agent, as the
same may be amended, restated, supplemented or otherwise modified
from time to time (subject to the provisions of
Section 9(e)).
“ Super Loan Documents ” has the
meaning ascribed to the term “Loan Documents” as
defined in the Super Loan Agreement.
“ Super Subsidiaries ” means
Subsidiaries of Super, including the Borrower and Subsidiaries of
the Borrower, but expressly excluding Joint Venture Entities. For
the avoidance of doubt, the Tyrone Gardens Entities shall be deemed
to be Super Subsidiaries for purposes of this Supplement and the
other Loan Documents.
“ Supplement Effective
Date Accrued Springing Interest
Amount ” means the amount of interest on the Loans
and Letter of Credit Commission Fees that has accrued at the
Additional Increased Spread (as defined in the May 7 Letter
Agreement) as of the Supplement Effective Date pursuant to the
provisions of paragraph 1(b) of the May 7 Letter
Agreement.
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“ Surrey Square
Mortgage ” means the first lien mortgage in favor of the
Administrative Agent, for the benefit of the Lenders, encumbering
the Surrey Square Property and delivered by the Borrower to the
Administrative Agent pursuant to Section 11(r), and to be
effective as of the earlier of: (i) the 45 th day after the Supplement Effective Date
and (ii) the date on which such mortgage is duly recorded in
the appropriate real estate records, as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to
time.
“ Surrey Square
Property ” means Surrey Square Mall, Norwood,
Ohio.
“ Title Company ”
shall have the meaning assigned to such term in
Section 11(r).
“ Transactions ” means, as to any Loan
Party, the execution, delivery and performance by such Loan Party
of the Loan Documents to which it is a party and the consummation
of the transactions contemplated by such Loan Documents.
“ Transfer ” means any sale,
conveyance, transfer, lease with a purchase option at less than
fair market value, any transaction or arrangement having the
economic effect of a sale (including as a result of any merger or
consolidation), any contribution in consideration of Equity
Interests in any Person, any distribution as a dividend or
distribution in respect of any Equity Interest held by another
Person (other than a dividend or distribution from a Super
Subsidiary to another Super Subsidiary or Super to the extent
permitted hereunder), or any other disposition or transaction
having comparable effect. In addition, and without limiting
the generality of the foregoing, a Transfer shall include, but not
be limited to, (i) an installment sales agreement;
(ii) an agreement by any Super Entity leasing all or a
substantial part of a Property owned by it for other than actual
occupancy by a space tenant thereunder or a sale, assignment or
other transfer of, or the grant of a security interest in, any
Super Entity’s right, title and interest in and to any Leases
or any Rents payable thereunder; (iii) in the case of a Super
Entity that is a corporation, any merger, consolidation or Sale or
Pledge of such corporation’s stock or the creation or
issuance of new stock; (iv) in the case of a Super Entity that
is a limited or general partnership or joint venture, any merger or
consolidation or the change, removal, resignation or addition of a
general partner or the Sale or Pledge of the partnership interest
of any general partner or any profits or proceeds relating to such
partnership interest, or the Sale or Pledge of limited partnership
interests or any profits or proceeds relating to such limited
partnership interest or the creation or issuance of new limited
partnership interests; (v) in the case of a Super Entity that
is a limited liability company, any merger or consolidation or the
change, removal, resignation or addition of a managing member or
non member manager (or if no managing member, any member) or the
Sale or Pledge of the membership interest of a managing member (or
if no managing member, any member) or any profits or proceeds
relating to such membership interest, or the Sale or Pledge of
non-managing
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membership interests or the creation or issuance
of new non-managing membership interests; or (vi) in the case
of a Super Entity that is a trust or nominee trust, any merger,
consolidation or the Sale or Pledge of the legal or beneficial
interest in such Super Entity or the creation or issuance of new
legal or beneficial interests. For purposes hereof, any
Transfer of any Equity Interest in a Super Entity owning any direct
or indirect interest in a Property shall be deemed to be a Transfer
of such Property to the extent of the Equity Interest so
Transferred.
“ Unencumbered Properties ” means,
collectively, all of the Properties other than the Encumbered
Properties (together with any Encumbered Property that becomes
unencumbered by any mortgage liens after the Supplement Effective
Date).
(d)
The parties hereto hereby
acknowledge and agree that the defined term
(i) “Guaranty” and “Loan Documents” in
Section 1.1 of the Loan Agreement shall (x) be deemed to
include the Guaranty (March 2008) and (y) exclude the
Centro Party Guaranty and the APT Guaranty and
(ii) “Subsidiary Guarantor” in Section 1.1 of
the Loan Agreement shall (x) be deemed to include the
guarantors party to the Guaranty (March 2008) (whether or not
any such guarantor is a Subsidiary of the Borrower) and
(y) exclude the Centro Parties and APT.
(e)
The parties hereto hereby
acknowledge and agree that (i) this Supplement, (ii) the
Mortgages and the Assignments of Leases and (iii) any Interest
Rate Cap Agreement and any Collateral Assignment of Interest Rate
Cap Agreement shall each be deemed to be a “Loan
Document” for all purposes of the Loan Documents.
SECTION 2 . Extension
Agreements Superseded. The parties hereto hereby
acknowledge and agree that, except to the extent set forth herein,
each Extension Agreement shall be superseded by the terms,
conditions and other provisions as set forth in this
Supplement.
SECTION 3 . Amount
Outstanding; Current Commitment; No Further Extensions of
Credit. (a) The Borrower hereby acknowledges and
agrees that (i) the Lenders have previously advanced, and the
Borrower has previously borrowed, Loans under the Loan Agreement
and that Loans in an aggregate principal amount of $306,500,489.30
remain outstanding as of the Supplement Effective Date,
(ii) at the request of the Borrower, the Issuing Lender issued
the Letters of Credit listed on Schedule 1.11 hereto pursuant to
the Loan Agreement, which Letters of Credit are outstanding as of
the Supplement Effective Date, (iii) as of the Supplement
Effective Date, the aggregate Commitments under the Loan Agreement
is equal to $318,984,568.05, and (iv) the Swing Loan
Commitment is hereby terminated and there are no Swing Loans
outstanding.
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(b)
Notwithstanding anything to the
contrary set forth in any Loan Document, the Borrower shall not
request, and the Lenders shall have no obligation to make, any
extensions of credit under the Loan Agreement, including the making
of any Loans or issuance of any Letter of Credit, after the date
hereof; provided that any Auto-Extension Letter of Credit
(as defined in Section 2.5(d) of the Loan Agreement)
previously issued and outstanding may be extended in accordance
with Section 2.5(d) of the Loan Agreement and the Issuing
Lender agrees that it shall not, during the term of this Supplement
and so long as no Default has occurred and is then continuing,
prevent the automatic extension of any such Auto-Extension Letter
of Credit. For the avoidance of doubt, no amount repaid or prepaid
under the Loan Agreement may be reborrowed.
SECTION 4 . Extension
of Maturity Date . The parties hereto agree that the
definition of “Maturity Date” in Section 1.1 of
the Loan Agreement is hereby amended and restated in its entirety
to read as follows:
“ Maturity Date
”: the earlier of (a) December 31, 2010 and
(b) the date on which the Notes shall become due and payable,
whether by acceleration or otherwise.
SECTION 5. Applicable
Margin; Default Rate . (a) On the Maturity Date, the
Borrower shall pay all interest on the Loans and Letter of Credit
Commission Fees that accrued during the period from
December 16, 2007 to and including February 14, 2008 at
an Applicable Margin equal to 1.75% per annum less the Applicable
Margin in effect immediately prior to the increase thereof effected
pursuant to the February Extension Agreement (such amount,
referred to as the “ Accrued Interest ”).
The amount of the Accrued Interest did not accrue interest from and
after February 14, 2008 through the Supplement Effective Date
and shall not accrue interest after the Supplement Effective
Date.
(b)
From and after the Supplement
Effective Date, interest on the Loans and Letter of Credit
Commission Fees shall be payable as follows:
(i)
interest on the Loans and Letter of
Credit Commission Fees computed applying an Applicable Margin of
1.75% per annum shall accrue and be paid monthly in arrears in cash
on the first Business Day after the end of each month and on the
Maturity Date; and
(ii)
as contemplated by Section 1 of
the February Extension Agreement and by
Section 1(b) of the May 7 Letter Agreement, interest
on the Loans and Letter of Credit Commission Fees computed applying
an Applicable Margin of 5.50% per annum for the period that
commenced on the Letter Agreement Effective Date (as defined in the
May 7 Letter Agreement) and through and including the Maturity
Date shall accrue on a daily basis (whether or not an Event of
Default is continuing) but shall not
14
be payable on a current basis and
shall not compound but, together with the Supplement Effective Date
Accrued Springing Interest Amount, shall become due and payable
immediately upon the occurrence of an Event of Default. For the
avoidance of doubt, the interest and fees accruing pursuant to this
clause (ii) and the Supplement Effective Date Accrued
Springing Interest Amount shall only become due and payable by
Borrower upon the occurrence of an Event of Default (and, upon the
repayment of the Loan (other than such amounts) in full, other than
following the occurrence of an Event of Default, such amounts shall
be deemed satisfied).
(c)
The parties hereto agree that
Section 2.9(b) of the Loan Agreement is hereby amended as
follows: (i) the phrase “plus the Applicable Margin plus
2%” in clause (i) thereof is replaced with the phrase
“plus 11.25%” and (ii) the phrase “plus
2%” in clause (ii) thereof is replaced with “plus
11.25%”.
(d)
The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Loan, together with
all interest and other amounts due in connection therewith,
including, without limitation, the Accrued Interest, on the
Maturity Date. The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the account of each Lender the
Supplement Effective Date Accrued Springing Interest Amount and all
interest and fees that have accrued pursuant to
Section 5(b)(ii) immediately upon the occurrence of an
Event of Default.
SECTION 6 . Prepayment
of the Loans; Permanent Reduction of Commitments .
Notwithstanding any provision of the Loan Agreement to the
contrary, the parties hereby acknowledge and agree as
follows:
(a)
The parties hereto hereby agree that
each repayment or prepayment of the Loans (or termination or
cancellation of any Letter of Credit) shall result in an automatic
simultaneous permanent reduction in the Commitments by an amount
equal to the principal amount of the Loans so repaid or prepaid (or
face amount of the Letter of Credit so terminated or
cancelled).
(b)
Without limiting the restrictions on
Transfers set forth in any other provision of this Supplement or
the Loan Agreement, upon any Transfer by a Super Subsidiary of all
or any portion of a Property (Super) (but, with respect to the
Preston Ridge Property and/or any of the Properties (New Money
Facility), subject to Section 6(g)):
(i)
First : Net Sale Proceeds from the Transfer of such
Property (Super) in an aggregate amount not to exceed $91,846,425
shall be subject to a Required Distribution/Contribution to the
applicable Super Entities
15
and thereafter applied by such Super
Entities to Budgeted Expenditures (and for no other purpose);
provided, however, that this clause shall be disregarded
with respect to any Transfer of a Property (Combined Pool);
and
(ii)
Second :
(A)
immediately following the Transfer
of any Property (Combined Pool) or any other Property (Super) that
is owned by the Borrower or any Subsidiary of the Borrower, an
amount equal to 100% of the Net Sale Proceeds from such Transfer
shall be subject to a Required Distribution/Contribution
(1) first, to Super to repay Note (e Note) (as defined in the
Super Loan Agreement), until such Note (e Note) and all amounts due
in connection therewith shall be paid in full, (2) second, to
the Borrower (which payment, in the case of any Transfer of any
such Property by a Subsidiary Guarantor, shall be a payment
pursuant to such Subsidiary Guarantor’s Guaranty) and used by
it to (x) first, repay the outstanding principal balance of
the Loans, until such outstanding principal balance of the Loans
and all amounts due in connection therewith shall be paid in full
and (y) second, cash collateralize any outstanding Letters of
Credit (up to an aggregate amount equal to 105% of the aggregate
undrawn face amount of all such Letters of Credit) pursuant to
documentation reasonably acceptable to the Borrower and the Issuing
Lender and (3) third, to Super for application in accordance
with the Super Loan Agreement (the order of application of Net Sale
Proceeds set forth in clauses (1) through (3), the “
Specified Order ”); and
(B)
immediately following the Transfer
of any Property (Super) that is owned by Residual or a Subsidiary
of Residual (other than any Property (Combined Pool) that is owned
by Residual or a Subsidiary of Residual), (1) an amount equal
to 49% of the Net Sale Proceeds from such Transfer shall be subject
to a Required Distribution/Contribution to Super or the Borrower,
as applicable, to be applied in accordance with the Specified Order
and (2) an amount equal to 51% of the Net Sale Proceeds from
such Transfer shall be subject to a Required
Distribution/Contribution to Super for application in accordance
with the Super Loan Agreement.
(c)
Upon receipt by a Super Subsidiary
of Net Proceeds in connection with a Casualty or Condemnation of a
Property (Super) owned by it (but, with respect to the Preston
Ridge Property and/or any of the Properties (New Money Facility),
subject to Section 6(g)), if such Net Proceeds are not applied
to
16
Restoration pursuant to the provisions of
Section 8(d) or Section 8(e) of this
Supplement, as applicable, the same shall be subject to a Required
Distribution/Contribution and application in accordance with (and
in the priority set forth in) Section 6(b) as if the same
were Net Sale Proceeds.
(d)
Upon the consummation of any
refinancing of any loan of any Super Entity secured by one or more
Encumbered Properties (Existing Third Party), the net proceeds
(after satisfaction of the Indebtedness so refinanced and payment
of reasonable and customary closing costs and expenses in
connection with such refinancing) from such refinancing shall be
subject to a Required Distribution/Contribution and application in
accordance with (and in the priority set forth in)
Section 6(b) as if the same were Net Sale Proceeds
received by such Super Entity.
(e)
Notwithstanding the foregoing or any
provision of this Supplement to the contrary, the portion of any
proceeds with respect to a Transfer of a Joint Venture Property, a
casualty or condemnation affecting a Joint Venture Property or a
refinancing of a loan secured by a Joint Venture Property that are
actually received by a Super Entity in respect of its Equity
Interests in the applicable Joint Venture Entity shall be subject
to a Required Distribution/Contribution and application in
accordance with Section 6(b), Section 6(c) or
Section 6(d), as applicable.
(f)
For purposes of this Section 6,
any Transfer of an Equity Interest in a Super Subsidiary owning any
direct or indirect interest in a Property (Super) shall be deemed
to be a Transfer of such Property (Super) to the extent of the
Equity Interest so Transferred.
(g)
Until repayment of the Preston Ridge
Facility in full, all Net Sale Proceeds and Net Proceeds received
by the Preston Ridge Borrower shall be applied in accordance with
the Preston Ridge Loan Agreement, and after such repayment in full,
such Net Sale Proceeds and Net Proceeds shall be subject to a
Required Distribution/Contribution to Super and the Borrower, as
applicable, to be applied in accordance with the Specified Order
(in the case of Net Proceeds, as if such Net Proceeds were Net Sale
Proceeds). All Net Sale Proceeds and Net Proceeds received by a
Property Owner (New Money Facility) shall be applied in accordance
with Section 2.05(i) of the Super Loan
Agreement.
(h)
The parties hereto agree that all
Required Distribution/Contribution provisions hereof (including
those set forth in Section 8(d) and Section 8(e))
are agreed to by Super in connection with the restructuring of the
debt of all of the Super Entities occurring on Supplement Effective
Date, and that Super has received substantial benefits from such
restructuring.
17
(i) In
the event of any inconsistency between the provisions of this
Section 6 and the provisions of any other Loan Document, the
provisions of this Section 6 shall govern and control.
SECTION 7 . Representations .
In order to induce the Administrative Agent and the Lenders to
enter into this Supplement, each of Super and the Borrower makes
the following representations and warranties to the Administrative
Agent and each Lender:
(a)
Authorization; Enforceability. (i) The Transactions to be
entered into by each Loan Party are within its corporate, limited
partnership, limited liability company or trust powers (as
applicable) and have been duly authorized by all necessary action
by each such Loan Party and, if required, action by holders of its
Equity Interests. Each Loan Document to which a Loan Party is a
party has been duly executed and delivered by such Loan Party and
constitutes a legal, valid and binding obligation of such Loan
Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject
to general principles of equity, regardless of whether considered
in a proceeding in equity or at law. The execution, delivery and
performance of this Supplement and each other Loan Document by the
Borrower and the other Loan Parties party thereto do not and will
not conflict with or result in a violation of any of the
organizational documents of the Borrower or such Loan Party, as
applicable.
(ii) The Loan Documents
are not subject to any right of rescission, set-off, counterclaim
or defense by any Loan Party or any Subsidiary of the Borrower,
including the defense of usury, nor would the operation of any of
the terms of the Loan Documents, or the exercise of any right
thereunder, render the Loan Documents unenforceable (subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject
to general principles of equity, regardless of whether considered
in a proceeding in equity or at law), and no Loan Party or
Subsidiary of the Borrower has asserted any right of rescission,
set-off, counterclaim or defense with respect thereto.
(iii) No Loan Party or any
Subsidiary of the Borrower has any grounds for disputing (whether
in any judicial, administrative or other proceeding or otherwise)
the validity or enforceability of any Loan Document or any of the
Loans or other obligations thereunder or the validity, priority or
enforceability of Lenders’ security interest in or lien on
any item of collateral purported to be granted
thereunder.
(b)
Governmental Approvals. The Transactions do not require any
consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect. The Transactions
do not require any consent or approval of, registration or filing
with, or any other action by, any Person except such as have been
obtained or made and are in
18
full force and effect. The Transactions do not
violate any applicable law or regulation or the constituent
instruments of any Loan Party or any Subsidiary of the Borrower, or
any order of any Governmental Authority. The Transactions do not
violate or result in a default under any indenture, agreement or
other instrument binding upon any Loan Party or any Subsidiary of
the Borrower, or any assets of any Loan Pa
