EXHIBIT 10.18
SECOND LETTER AMENDMENT
Dated as of January 8, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: ▇▇▇▇▇▇▇ PROPERTIES, L.P. CREDIT FACILITY
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of June 27,
2003 by and among ▇▇▇▇▇▇▇ Properties, L.P. (the "BORROWER"); ▇▇▇▇▇▇▇ Properties,
Inc. (the "PARENT GUARANTOR") and the subsidiaries of the Borrower listed
therein as subsidiary guarantors, or added thereto pursuant to execution of a
Guaranty Supplement, as guarantors; Citicorp North America, Inc. ("CNAI"), as
administrative agent (the "ADMINISTRATIVE AGENT"); the financial institutions
identified therein as lender parties (the "LENDER PARTIES"); CNAI, as collateral
agent for the Lender Parties; Wachovia Securities, Inc. ("WSI"), as syndication
agent; ▇▇▇▇ ▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ AG and Fleet National Bank, as co-documentation
agents; and Bank of the West, as senior managing agent, with Citigroup Global
Markets Inc. and WSI, as joint lead arrangers and joint book running managers
(as amended by the First Letter Amendment and Limited Waiver dated as of October
28, 2003, the "CREDIT AGREEMENT"). Capitalized terms not otherwise defined
herein shall have their respective meanings set forth in the Credit Agreement.
The Borrower hereby notifies the Administrative Agent and the
Lender Parties that on or about January 20, 2004 the Parent Guarantor intends to
issue Series A Cumulative Redeemable Preferred Stock (the "PARENT PREFERRED
STOCK") in an aggregate principal amount of up to $250,000,000. The Borrower
represents and warrants that the Parent Preferred Stock will not constitute
Redeemable Preferred Interests as defined in the Credit Agreement.
In connection with the offering of the Parent Preferred Stock,
the Parent Guarantor, in accordance with the terms of the partnership agreement
of the Borrower, will contribute or otherwise transfer the net proceeds of the
sale of the Parent Preferred Stock to the Borrower, and the Borrower will issue
to the Parent Guarantor Series A Cumulative Redeemable Preferred Units (the
"BORROWER PREFERRED UNITS") with economic rights, preferences and other economic
terms identical in all material respects to the terms of the Parent Preferred
Stock. The Parent Guarantor shall not cause or permit the Borrower to redeem the
Borrower Preferred Units unless the Parent Guarantor concurrently redeems the
Parent Preferred Stock.
It is hereby agreed by you and us that the Credit Agreement
is, effective as of the date of this Second Letter Amendment (this "SECOND
LETTER AMENDMENT"), hereby amended as follows:
A. Certain Defined Terms. Section 1.01 of the Credit Agreement is
hereby amended as follows:
The definition of "DEBT" is amended by replacing clause (g)
thereof with the following: "(g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make
any payment in respect of any Equity Interests in such Person
or any other Person (other than Preferred Interests that are
issued by any Loan Party or Subsidiary thereof and
classified as either equity or minority interests in
accordance with GAAP) or any warrants, rights or options to
acquire such capital stock,".
B. Representations and Warranties of the Loan Parties. The last
sentence of Section 4.01(a) of the Credit Agreement is hereby
amended to read as follows: "All of the outstanding Equity
Interests in the Parent Guarantor have been validly issued and
are fully paid and non-assessable. The Parent Guarantor is the
sole general partner of the Borrower, and all of the
outstanding Equity Interests that the General Partner owns in
the Borrower are owned by the General Partner free and clear
of all Liens."
C. Restricted Payments. Section 5.02(g) of the Credit Agreement
is hereby amended by
1. deleting the words "or issue or sell any Equity
Interests" in the sixth line thereof and
2. inserting, following the words "then the Parent
Guarantor may" in the ninth line thereof, the
following:
"(A) redeem any of its Preferred Interests in
connection with a refinancing thereof on terms
and conditions, taken as a whole, not less
favorable to the Parent Guarantor than the
terms and conditions applicable to the
Preferred Interests being refinanced or
redeemed with the proceeds thereof, and (B)".
This Second Letter Amendment shall become effective as of the
date first above written when, and only when, the Administrative Agent shall
have received counterparts of (i) this Second Letter Amendment executed by the
Borrower, the Administrative Agent and the Required Lenders or, as to any of the
Lenders, advice satisfactory to the Administrative Agent that such Lender has
executed this Second Letter Amendment and (ii) the consent attached hereto
executed by each Guarantor. This Second Letter Amendment is subject to the
provisions of Section 9.01 of the Credit Agreement. The Borrower represents that
the factual matters described herein are true and correct as of the date hereof.
The Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery and administration, modification and
amendment of this Second Letter Amendment and any instruments and documents to
be delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the terms
of Section 9.04 of the Credit Agreement.
On and after the effectiveness of this Second Letter
Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Second Letter Amendment.
The Credit Agreement (as specifically amended by this Second
Letter Amendment), the Notes and each of the other Loan Documents are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed. The execution, delivery and effectiveness of this Second Letter
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Administrative Agent under the
Credit Agreement or any of the Loan Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
2
If you agree to the terms and provisions hereof, please
evidence such agreement by executing and returning a counterpart of this Second
Letter Amendment to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of Shearman & Sterling LLP by facsimile
(646-848-8615), with ten duplicate originals by overnight courier.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
3
This Second Letter Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Second Letter Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this Second
Letter Amendment.
This Second Letter Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
Very truly yours,
▇▇▇▇▇▇▇ PROPERTIES, L.P.
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL PARTNER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief
Financial Officer
(SIGNATURES CONTINUED ON NEXT PAGE)
S-1
Agreed as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as a Lender
By /s/ ▇▇▇▇▇▇▇ Chiopak
-----------------------------------------
Name: ▇▇▇▇▇▇▇ Chiopak
Title: Vice President
WACHOVIA BANK, NA,
as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
FLEET NATIONAL BANK,
as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
BANK ONE, NA,
as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
CAYMAN ISLANDS BRANCH,
as a Lender
By /s/ ▇▇▇▇ ▇'▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
(SIGNATURES CONTINUED ON NEXT PAGE)
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender
By /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
_________________________________________
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
_________________________________________
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
BANK OF AMERICA, N.A.,
as a Lender
By _________________________________________
Name:
Title:
UBS AG, CAYMAN ISLANDS BRANCH,
as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
By /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
BANK OF THE WEST,
as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Syndications Officer
CONSENT
Dated as of January 8, 2004
Each of the undersigned, as Guarantor under the Guaranty set forth in Article
VII of the Credit Agreement dated as of June 27, 2003, as amended by that
certain First Letter Amendment and Limited Waiver dated as of October 28, 2003,
in favor of the Administrative Agent, for its benefit and the benefit of the
Lender Parties party to the Credit Agreement referred to in the foregoing Second
Letter Amendment, hereby consents to such Second Letter Amendment and hereby
confirms and agrees that notwithstanding the effectiveness of such Second Letter
Amendment, the Guaranty is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects, except that, on and after
the effectiveness of such Second Letter Amendment, each reference in the
Guaranty to the "Credit Agreement", "thereunder", "thereof" or words of like
import shall mean and be a reference to the Credit Agreement, as amended and
modified by such Second Letter Amendment.
▇▇▇▇▇▇▇ PROPERTIES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial
Officer
▇▇▇▇▇▇▇ PROPERTIES SERVICES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial
Officer
▇▇▇▇▇▇▇ PROPERTIES-SOLANA SERVICES, L.P.
BY MP-SOLANA SERVICES GP, LLC, ITS GENERAL PARTNER
BY ▇▇▇▇▇▇▇ PROPERTIES SERVICES, INC., ITS MEMBER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial
Officer
MP-SOLANA SERVICES GP, LLC
BY ▇▇▇▇▇▇▇ PROPERTIES SERVICES, INC., ITS MEMBER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial
Officer
(SIGNATURES CONTINUED ON NEXT PAGE)
MP-SOLANA SERVICES LP, LLC
BY ▇▇▇▇▇▇▇ PROPERTIES SERVICES, INC., ITS MEMBER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial Officer
▇▇▇▇▇▇▇/CERRITOS I, LLC
BY ▇▇▇▇▇▇▇ PROPERTIES, L.P., ITS MEMBER
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL PARTNER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial Officer
▇▇▇▇▇▇▇ PARTNERS-GLENDALE II, LLC
BY ▇▇▇▇▇▇▇ PROPERTIES, L.P., ITS MEMBER
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL PARTNER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial Officer
▇▇▇▇▇▇▇ PARTNERS-PLAZA LAS ▇▇▇▇▇▇▇, LLC
BY ▇▇▇▇▇▇▇ PROPERTIES, L.P., ITS MEMBER
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL PARTNER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial Officer
▇▇▇▇▇▇▇ PROPERTIES-GLENDALE, LLC
BY ▇▇▇▇▇▇▇ PROPERTIES, L.P., ITS MEMBER
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL PARTNER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and Chief Financial Officer
CONSENT
Dated as of January 8, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: ▇▇▇▇▇▇▇ PROPERTIES, L.P. CREDIT FACILITY
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of June 27,
2003 by and among ▇▇▇▇▇▇▇ Properties, L.P. (the "BORROWER"); ▇▇▇▇▇▇▇ Properties,
Inc. (the "PARENT GUARANTOR") and the subsidiaries of the Borrower listed
therein as subsidiary guarantors, or added thereto pursuant to execution of a
Guaranty Supplement, as guarantors; Citicorp North America, Inc. ("CNAI"), as
administrative agent (the "ADMINISTRATIVE AGENT"); the financial institutions
identified therein as lender parties (the "LENDER PARTIES"); CNAI, as collateral
agent for the Lender Parties; Wachovia Securities, Inc. ("WSI"), as syndication
agent; ▇▇▇▇ ▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ AG and Fleet National Bank, as co-documentation
agents; and Bank of the West, as senior managing agent, with Citigroup Global
Markets Inc. and WSI, as joint lead arrangers and joint book running managers
(as amended by the First Letter Amendment and Limited Waiver dated as of October
28, 2003, the "CREDIT AGREEMENT"). Capitalized terms not otherwise defined
herein shall have their respective meanings set forth in the Credit Agreement.
As you know, on or about January 20, 2004, the Parent
Guarantor intends to issue Series A Cumulative Redeemable Preferred Stock (the
"PARENT PREFERRED STOCK") in an aggregate principal amount of up to
$250,000,000. In connection with the offering of the Parent Preferred Stock, the
Parent Guarantor, in accordance with the terms of the partnership agreement of
the Borrower, will contribute or otherwise transfer the net proceeds of the sale
of the Parent Preferred Stock to the Borrower, and the Borrower will issue to
the Parent Guarantor Series A Cumulative Redeemable Preferred Units (the
"BORROWER PREFERRED UNITS") with economic rights, preferences and other economic
terms identical in all material respects to the terms of the Parent Preferred
Stock.
The Borrower hereby notifies the Administrative Agent that, in
connection with the issuance of the Parent Preferred Stock and the Borrower
Preferred Units, the Parent Guarantor will be required to enter into articles
supplementary to its certificate of incorporation substantially similar in all
material ways to the form attached hereto as Exhibit A and the Borrower will be
required to amend and restate its limited partnership agreement substantially
similar in all material ways to the form attached hereto as Exhibit B. Pursuant
to Section 5.02(h) of the Credit Agreement, the Borrower hereby requests that
the Administrative Agent consent to such amendments.
In consideration of the mutual undertakings herein expressed,
the Administrative Agent hereby consents to (i) the Parent Guarantor's entering
into articles supplementary to its certificate of incorporation in the form
attached hereto as Exhibit A and (ii) the amendment and restatement by the
Borrower of its limited partnership agreement in the form attached hereto as
Exhibit B.
Further, pursuant to Section 5.02(n) of the Credit Agreement,
the Administrative Agent hereby acknowledges that the equity Investment
represented by the Borrower Preferred Units (i) is on terms acceptable to the
Administrative Agent and (ii) is evidenced by instruments in form and substance
satisfactory to the Administrative Agent.
In addition, the Administrative Agent hereby agrees, so long
as (A) no Default of the type described in Section 6.01(a) or (e) of the Credit
Agreement shall have occurred and be continuing, (B) the Notes and all interest
and other amounts payable under Loan Documents shall not have been declared due
and payable pursuant to Section 6.01 of the Credit Agreement and (C) the
proceeds of the Borrower Preferred Units are immediately paid over to the
holders of the Parent Preferred Stock to pay dividends with respect to or to
redeem the Parent Preferred Stock, (i) notwithstanding Section 7.07(b) of the
Credit Agreement, the Parent Guarantor may demand, accept or take any action to
collect and receive any payment on account of the Borrower Preferred Units in
connection with the concurrent payment of dividends with respect to or
redemption of the Parent Preferred Stock, (ii) pursuant to Section 7.07(d) of
the Credit Agreement, that the Administrative Agent will not request the Parent
Guarantor to collect, enforce or receive payments on account of the Guaranteed
Obligations and (iii) pursuant to Section 7.07(e) of the Credit Agreement, that
the Administrative Agent will not collect and enforce, or submit claims in
respect of, the Borrower Preferred Units or require the Parent Guarantor (Y) to
collect and enforce, or submit claims in respect of, the Borrower Preferred
Units or (Z) to pay any amounts received on such obligations to the
Administrative Agent for application to the Borrower Preferred Units or to
deliver such payments to the Administrative Agent on account of the Guaranteed
Obligations.
The consents and agreements set forth herein shall be limited
precisely as written, and nothing in this Consent shall be deemed to constitute
a waiver of any other term, provision or condition of the Credit Agreement, any
of the other Loan Documents or any other instrument or agreement referred to
therein.
This Consent may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Consent by telecopier shall be effective as delivery of a
manually executed counterpart of this Consent.
Very truly yours,
▇▇▇▇▇▇▇ PROPERTIES, L.P.
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL PARTNER
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive V.P. and
Chief Financial Officer
Agreed as of the date first above written:
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By /s/ ▇▇▇▇▇▇▇ Chiopak
_____________________________
Name: ▇▇▇▇▇▇▇ Chiopak
Title: Vice President
