Exhibit 10.2
WAIVER TO SECOND AMENDED
AND
RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT
This WAIVER TO SECOND AMENDED AND
RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “
Waiver Agreement ”) is made as of
February 16, 2005 by and among (a) The Mills Limited
Partnership, a Delaware limited partnership (the “
Borrower ”), (b) JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank) as Administrative Agent (in
such capacity, the “ Administrative Agent
”) for the Lenders (as defined below); and (c) the
Lenders party hereto.
WHEREAS , the Borrower, the Lenders and the
Administrative Agent are parties to the Second Amended and Restated
Revolving Credit and Term Loan Agreement dated as of
December 17, 2004 (the “ Credit Agreement
”), pursuant to which the Lenders have agreed to make loans
and extend credit to the Borrower on the terms and conditions set
forth therein;
WHEREAS , the Borrower and The Mills Corporation
(“ TMC ”) have determined that
(i) TMC’s audited financial statements for the fiscal
years ended December 31, 2003 and December 31, 2002 and
(ii) the unaudited financial statements for (x) TMC for each
of the first three quarters of 2004 and (y) the Borrower for each
of the second and third quarters of 2004 (the financial statements
described in clauses (i) and (ii), collectively, the “
Original Financial Statements ”) will need to
be restated for the reasons described on Schedule 1
hereto so as to be in conformity with GAAP (the “
Restatement Event ”);
WHEREAS , pursuant to a letter dated February 15,
2005 (the “ Request Letter ”), the
Borrower has advised the Lenders of the Restatement Event and has
requested certain waivers in connection therewith; and
WHEREAS , the Lenders are willing to provide certain
waivers to the Borrower on the terms and conditions set forth
herein.
NOW , THEREFORE , in consideration of the
foregoing premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and
fully intending to be legally bound by this Waiver Agreement, the
parties hereto agree as follows:
1.
Definitions
. Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the
Credit Agreement.
2.
Waiver
. As of the Effective Date (as defined in
Section 6 hereof), pursuant to Section 13.7 of the Credit
Agreement and subject to the limitations contained herein, the
undersigned Lenders representing the Requisite Lenders hereby waive
any Event of Default or Potential Event of Default as a result of
the Restatement Event (collectively, the “ Relevant
Defaults ”) under
(a) Section 10.1(c) of the Credit Agreement solely
to the extent such Potential
Event of Default or Event of Default resulted
from a false or misleading representation made or deemed made by
the Borrower or TMC pursuant to any Loan Document with respect to
the second sentence of Section 6.1(g), Section 6.1(h),
the last sentence of Section 6.1(i), Section 6.1(n) or
Section 6.1(o) of the Credit Agreement,
(b) Section 10.1(b) of the Credit Agreement solely
to the extent such Potential Event of Default or Event of Default
resulted from any non-compliance with the covenants set forth in
clause (a) of Section 8.3 and in the last sentence of
Section 8.6 of the Credit Agreement,
(c) Section 10.1(d) of the Credit Agreement solely
to the extent that such Potential Event of Default or Event of
Default resulted from any non-compliance with the covenant set
forth in Section 7.1 of the Credit Agreement,
(d) Section 10.1(e)(ii) of the Credit Agreement (so
long as such breach, default or event of default with respect to
other Indebtedness (x) is not a payment default or the result of a
default under any financial covenant under such other Indebtedness
or (y) is not declared to be due and payable (by acceleration or
otherwise) or required to be prepaid, redeemed or otherwise
repurchased (other than by a regularly scheduled required
prepayment, non-default mandatory prepayment or a voluntary
prepayment made at Borrower’s option) prior to the stated
maturity thereof), and (e) Section 10.1(m)(iii) of
the Credit Agreement; provided that such waiver shall be
conditioned on the following (the “ Waiver
Conditions ”): (i) the representations set
forth in the Credit Agreement, as amended by this Waiver Agreement,
are, and shall remain, true and correct in all material respects as
of the date made or deemed made, and (ii) the restatement of
the financial statements for the fiscal year ended
December 31, 2003 and each of the first three fiscal quarters
of 2004 contemplated by the Request Letter shall be completed by
April 1, 2005 and such restated financial statements shall
permit compliance with all financial covenants in the Credit
Agreement (including those set forth in Sections 9.10, 9.11 and
9.12). The foregoing waiver shall automatically and without
further action terminate if any of the Waiver Conditions shall
cease to be satisfied (or in the case of the completion of the
restatement of the financial statements, not be satisfied by
April 1, 2005).
3.
Other Agreements Relating to
Subsequent Loans and Letters of Credit.
(a)
Notwithstanding anything to the
contrary set forth in Section 5.2 of the Credit Agreement, the
parties hereto hereby agree that, in connection with the making of
any Loan or the issuance of any Letter of Credit under the Credit
Agreement prior to the date (the “ Restatement
Completion Date ”) that is the earlier of (x)
April 1, 2005 and (y) the date on which the Borrower delivers
the reports required by Section 7.2(b) of the Credit
Agreement with respect to the Fiscal Year ended on
December 31, 2004:
(i)
the Borrower shall, in lieu of
delivering the compliance certificate required pursuant to
Section 5.2(e) of the Credit Agreement, deliver an
Estimated Compliance Certificate (as defined in Section 6
below) dated the date of the applicable Notice of Borrowing
(demonstrating compliance with the requirements of the covenants
calculated therein as of September 30, 2004 (but adjusted to
show the effect of any material capital transactions occurring
since September 30, 2004 and on or prior to the date of the
applicable Notice of Borrowing)); and
2
(ii)
the Borrower may only borrow Loans
under the Credit Agreement for the purposes of (x) funding uses
permitted under Section 2.2 of the Credit Agreement in
accordance with the Borrower’s customary practices and (y)
the repayment and termination of the Borrower’s $125 million
term loan facility under the Bridge Loan Agreement, dated as of
January 28, 2005, between Royal Bank of Canada and the
Borrower.
(b)
From and after the date hereof,
(i) all representations and warranties at any time made or
deemed made by the Borrower or TMC pursuant to any Loan Document
with respect to the second sentence of Section 6.1(g), the
last sentence of Section 6.1(i), Section 6.1(j),
Section 6.1(n) and Section 6.1(o) of the Credit Agreement
shall automatically be deemed qualified by the Restatement Event
without further action on the part of the Borrower, TMC, the
Administrative Agent, or any Lender, (ii) Schedule 6.1-H
to the Credit Agreement shall be amended by deleting such
Schedule in its entirety and substituting in lieu thereof
Schedule 2 to this Waiver Agreement, and (iii) the
Restatement Event shall be deemed to not result in the
non-satisfaction of the condition to Loans and Letters of Credit
set forth in Section 5.2(d) of the Credit
Agreement.
4.
Additional Reporting
Obligation With Respect to Restatement Event
. I
