EXHIBIT 10.37
EXECUTION COPY
FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT AND GUARANTY
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND GUARANTY
(this "Amendment") dated as of July 21, 1997 by and among SC REALTY INCORPORATED
("Borrower"), SECURITY CAPITAL GROUP INCORPORATED ("Guarantor"), each of the
financial institutions a party hereto ("Lenders"), and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, successor in interest to ▇▇▇▇▇ Fargo Realty Advisors
Funding, Incorporated ("▇▇▇▇▇ Fargo"), as Agent ("Agent").
WHEREAS, Borrower, Lenders and Agent are parties to that certain Amended
and Restated Credit Agreement dated as of August 19, 1996, as amended by that
certain letter agreement dated as of April 11, 1997 among the parties hereto
(the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, Guarantor executed and
delivered that certain Guaranty dated as of August 19, 1996 in favor of Agent
and Lenders, as amended by that certain letter agreement dated as of April 11,
1997 among the parties hereto (the "Guaranty");
WHEREAS, Borrower, Lenders and Agent desire to amend certain provisions of
the Credit Agreement on the terms and conditions contained herein; and
WHEREAS, Guarantor, Lenders and Agent desire to amend certain provisions of
the Guaranty on the terms and conditions contained herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties hereto
agree that the Credit Agreement is amended as follows:
a. The Credit Agreement is amended by deleting clause (b) of the
definition of the term "Cash Flow" contained in Section 1.1. and substituting in
its place the following:
(b) income taxes paid or accrued during such period,
b. The Credit Agreement is amended by deleting from Section 1.1. the
definition of the term "Revolving Commitment" and substituting in its place the
following:
"Revolving Commitment" means an amount equal to $400,000,000, as such
amount may be reduced from time to time in accordance with the terms hereof.
c. The Credit Agreement is amended by deleting the table from Section
3.1.(a) and substituting in its place the following:
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Portion of Amount by Which Unused Fee
Revolving Commitment Exceeds
Revolving Loans
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$0 to and including $130,000,000 0.125%
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Greater than $130,000,000 and less than or 0.1875
equal to $270,000,000
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Greater than $270,000,000 0.25%
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Section 2. Specific Amendment to Guaranty. The parties hereto agree that
the Guaranty is amended by deleting Section 6(p) in its entirety and
substituting in its place the following:
(p) Ratio of Cash Flow to Mandatory Interest Expense. The Guarantor
shall not permit the ratio of (i) the Cash Flow of the Guarantor and its
Consolidated Subsidiaries (excluding any Investments of the Borrower) to
(ii) the Mandatory Interest Expense of the Guarantor and its Consolidated
Subsidiaries (excluding any Investments of the Borrower) to be less than
1.75 to 1.00 at the end of any fiscal quarter.
Section 3. Acknowledgment of Lenders' Commitments; Adjustment of
Outstandings. The parties hereto hereby agree that after giving effect to the
transactions contemplated by this Amendment, the amount of each Lender's
respective Commitment is as set forth on Schedule 1 attached hereto and that
Annex I to the Credit Agreement shall be amended to reflect any changes in the
Commitments effected by this Amendment. To effect the increase of the
Commitment of ▇▇▇▇▇ Fargo in connection with this Amendment, upon the
effectiveness of this Amendment, ▇▇▇▇▇ Fargo shall purchase from the other
Lenders, on a non-recourse, "as-is" basis, an appropriate principal amount of
Revolving Loans such that after giving effect to all such purchases the
principal balance of Revolving Loans owing to each Lender shall equal (a) the
aggregate principal balance of all Revolving Loans then outstanding times (b)
such Lender's Pro Rate Share (determined with the amount of the Commitments set
forth on Schedule 1 attached hereto). All payments to be made or received under
this paragraph shall be made on a net basis.
Section 4. Effectiveness of Amendment. All transactions contemplated by
this Amendment shall be deemed to have occurred simultaneously upon its
effectiveness. This
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Amendment shall only be effective upon its execution and delivery by all of the
parties hereto and the satisfaction of the condition contained in the next
sentence. The effectiveness of this Amendment is further subject to receipt by
Agent of each of the following in form and substance satisfactory to Agent:
a. A Note executed by Borrower, payable to the order of ▇▇▇▇▇ Fargo and
in the original principal amount of the Commitment of ▇▇▇▇▇ Fargo as set forth
on Schedule I attached hereto;
b. A copy of a resolution of the board of directors of Borrower
authorizing the execution and delivery of this Amendment and the Note delivered
under the immediately preceding subsection (a) (the "New Note"), and the
increase in the Revolving Commitment effected hereby, certified by the Secretary
or an Assistant Secretary of Borrower;
c. A copy of resolution of the board of directors of Guarantor
authorizing the execution and delivery of this Amendment, certified by the
Secretary or an Assistant of Secretary of Borrower;
d. an opinion of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to Borrower and Guarantor,
addressed to Agent and Lenders, and regarding the authority of Borrower to
execute, deliver and perform this Amendment, the Credit Agreement as amended
hereby, and the New Note, and the authority of Guarantor to execute, deliver and
perform this Amendment and the Guaranty, as amended hereby; and
e. Such other documents and instruments as Agent may reasonably request.
Section 5. Representations of Borrower. Borrower represents and warrants
to Agent and Lenders that:
a. Authorization. Borrower has the right and power, and has taken all
necessary action to authorize it, to execute and deliver this Amendment and the
New Note and to perform its obligations hereunder, under the Credit Agreement as
amended by this Amendment, and under the New Note in accordance with their
respective terms. Each of this Amendment and the New Note has been duly
executed and delivered by a duly authorized officer of Borrower and each of this
Amendment, the Credit Agreement as amended by this Amendment, and the New Note
is a legal, valid and binding obligation of Borrower enforceable against
Borrower in accordance with its terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability.
b. Compliance with Laws, etc. The execution and delivery by Borrower of
this Amendment and the New Note and the performance by Borrower of this
Amendment, the Credit Agreement as amended by this Amendment, and the New Note
in accordance with their respective terms, do not and will not, by the passage
of time, the giving of notice or otherwise:
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(i) require any Government Approvals or violate any Applicable Laws relating to
Borrower; (ii) conflict with, result in a breach of or constitute a default
under Borrower's articles of incorporation or by-laws or any indenture,
agreement or other instrument to which Borrower is a party or by which it or any
of its properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by Borrower other than Permitted Liens.
Section 6. Representations of Guarantor. Guarantor represents and
warrants to Agent and Lenders that:
a. Authorization. Guarantor has the right and power, and has taken all
necessary action to authorize it, to execute and deliver this Amendment and to
perform its obligations hereunder and under the Guaranty, as amended by this
Amendment, in accordance with their respective terms. This Amendment has been
duly executed and delivered by a duly authorized officer of Guarantor and each
of this Amendment and the Guaranty, as amended by this Amendment, is a legal,
valid and binding obligation of Guarantor enforceable against Guarantor in
accordance with its respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability.
b. Compliance with Laws, etc. The execution and delivery by Guarantor of
this Amendment and the performance by Guarantor of this Amendment and the
Guaranty, as amended by this Amendment, in accordance with their respective
terms, do not and will not, by the passage of time, the giving of notice or
otherwise: (i) require any Government Approvals or violate any Applicable Laws
relating to Guarantor; (ii) conflict with, result in a breach of or constitute a
default under Guarantor's articles of incorporation or by-laws or any indenture,
agreement or other instrument to which Guarantor is a party or by which it or
any of its properties may be bound; or (iii) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by Guarantor other than Permitted Liens.
Section 7. Reaffirmation of Representations. Each of Borrower and
Guarantor hereby repeats and reaffirms all representations and warranties made
by it in each of the Loan Documents to which it is a party on and as of the date
hereof with the same force and effect as if such representations and warranties
were set forth in this Amendment in full.
Section 8. Reaffirmation of Guaranty. Guarantor hereby reaffirms its
continuing obligations to Agent and Lenders under the Guaranty, and agrees that
the transactions contemplated by this Amendment shall not in any way affect the
validity and enforceability of the Guaranty, or reduce, impair or discharge the
obligations of Guarantor thereunder. Not in limitation of the foregoing,
Guarantor confirms that the obligations of Borrower under and in respect of the
New Note constitute "Obligations" under and as defined in the Guaranty.
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Section 9. Certain References. Each reference to the Credit Agreement or
the Guaranty in any of the Loan Documents shall be deemed to be a reference to
the Credit Agreement or the Guaranty, as the case may be, as amended by this
Amendment.
Section 10. Benefits. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
Section 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 12. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the Guaranty shall remain in full force
and effect.
Section 13. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.
Section 14. Definitions. All capitalized terms not otherwise defined
herein are used herein with the respective definitions given them in the Credit
Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Amended and Restated Credit Agreement and Guaranty to be executed as of the date
first above written.
SC REALTY INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Secretary
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SECURITY CAPITAL GROUP INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, individually and as Agent
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Vice President
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BANK ONE, ARIZONA, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Officer
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BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------
Title: Vice President
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[Signatures Continued on Next Page]
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[Signature Page to First Amendment dated as of July 21, 1997 for SC Realty
Incorporated]
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior Vice President
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NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
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FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
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GUARANTY FEDERAL BANK, F.S.B.
By: /s/ ▇▇▇▇▇▇▇ MITNING
------------------------------------
Name:
------------------------------
Title:
------------------------------
By:
------------------------------------
Name:
-------------------------------
Title:
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[ Signatures Continued on Next Page]
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[Signature Page to First Amendment dated as of July 21, 1997 for SC Realty
Incorporated]
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Vice President
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KREDIETBANK N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
-------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
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COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Title: Vice President
------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Vice President
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BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director
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SCHEDULE I
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Ledgers and Commitments
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Lender Commitment
▇▇▇▇▇ Fargo Bank, National Association $175,000,000
Texas Commerce Bank National Association $ 35,000,000
NationsBank of Texas, N.A. $ 35,000,000
Bank One, Arizona, N.A. $ 25,000,000
Fleet National Bank $ 25,000,000
BankBoston, N.A. $ 20,000,000
Guaranty Federal Bank, F.S.B. $ 20,000,000
Commerzbank AG, Los Angeles Branch $ 20,000,000
Bank of Montreal, Chicago Branch $ 20,000,000
Kredietbank, N.V. $ 15,000,000
Dresdner Bank AG, New York Branch $ 10,000,000
and Grand Cayman Branch
TOTAL $400,000,000
I-1
