EXHIBIT 4(3)
AMENDMENT NO. 9 dated as of January 4, 2002 to the
Loan and Security Agreement dated as of November 24, 1998 (as
heretofore amended, the "Loan Agreement"), by and among
XXXXXXX XXXXX INTERNATIONAL BANK LIMITED (the
"Lender"), XXXXXXX XXXXX CAPITAL SERVICES INC.
("MLCS") and BELCREST CAPITAL FUND LLC (the
"Borrower").
INTRODUCTORY STATEMENT
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All capitalized terms not otherwise defined in this Amendment are as
defined in the Loan Agreement.
The Borrower has requested, and the Lender and MLCS has agreed, that the
Loan Agreement be amended as hereinafter set forth.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Loan Agreement.
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The Loan Agreement is hereby amended as of the Effective Date (subject to
the terms and conditions set forth in Section 2 hereof) as follows:
(A) Article 1 of the Loan Agreement is hereby amended to insert the
following definitions in their proper alphabetical location:
"BAP"shall mean Bel Alliance Properties, LLC, a Delaware limited liability
company.
"BAP Indemnity" shall mean that Indemnity Agreement dated as of March 17,
2000 between BRC and Alliance Holdings Investments, L.L.C. which was
entered into in connection with BRC's investment in BAP.
"Belcrest III Guaranty" shall mean the Exceptions to the Non-Recourse
Guaranty between Berkshire Mortgage Finance Limited Partnership and the
Borrower, dated as of November 28, 2000 which was entered into in
connection with BRC's investment in Bel Trust III.
"Bel-Com" shall mean Bel-Com, L.L.C., a Delaware limited liability company.
"Bel-EQR III Credit Agreement" shall mean the Amended & Restated Master
Credit Facility Agreement by and between BEL-EQR III Limited Partnership
and Berkshire Mortgage Finance Limited Partnership, dated as of November
28, 2000.
"Bel Trust III" shall mean Bel Communities Properties Trust, a Maryland
real estate investment trust.
"Casco" shall mean Casco Property Trust LLC, a Delaware limited liability
company.
"Dunwoody Guaranty" shall mean the Exceptions to the Non-Recourse Guaranty
relating to the Casco property located in Dunwoody, Georgia that was
assumed by the Borrower upon BRC's purchase of a controlling interest in
Casco on October 4, 2001.
"Excluded Real Estate Investment" shall mean any direct or indirect
investment in real property of any type made by the Borrower, BRC or any of
their subsidiaries, other than Preferred Equity Interests.
"Guaranty" shall mean, as to any Person, any direct or indirect obligation
of such Person, whether contingent or otherwise, to guaranty, indemnify or
otherwise assume liability for any Indebtedness or other monetary
obligation of any other Person. Obligations of BRC or any other direct or
indirect subsidiary of the Borrower that are without recourse to the
Borrower do not constitute a Guaranty of the Borrower.
"Preferred Equity Interests" shall mean income producing, preferred equity
interests issued by real estate operating partnerships or limited liability
companies that are affiliated with publicly traded real estate investment
trusts.
"Permitted BRC Guaranty" shall mean each of the BAP Indemnity, the Dunwoody
Guaranty and any other Guaranty by BRC of payments to any lender or lenders
under mortgages or other Indebtedness of any other direct or indirect
subsidiary of BRC which is entered into in connection with an Excluded Real
Estate Investment.
"Permitted Fund Guaranty" shall mean the Belcrest Guaranty, the GMAC
Guaranty, the Belcrest III Guaranty and any other Guaranty by the Borrower
of payments to any lender or lenders under mortgages or other Indebtedness
of BRC or any other direct or indirect subsidiary of the Borrower which is
entered into connection with an Excluded Real Estate Investment.
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(B) Section 7.15(a) of the Loan Agreement is hereby amended in its entirety
to read as follows:
(a) the market value of the total assets of the Borrower, and its
consolidated subsidiaries (less the market value of its assets pledged
to another party), at an amount equal to or in excess of 250% of the
sum of the Required Amount plus the outstanding principal balance of
the Loans plus accrued and unpaid interest on the Loans; provided,
however, that for purposes of computing the market value of the
Borrower's total assets, (i) the following items shall be excluded:
(A) the membership interests in BSA which are owned by BRC and the
assets which are owned by BSA or BSA Management LLC, (B) the
membership interests in BAP, which are owned by BRC, the partnership
interests in certain subsidiary partnerships of BAP which are owned by
BAP, and the assets which are owned by BAP, such partnerships or any
of their respective subsidiaries, (C) the membership interests in
Bel-Apt, which are owned by BRC, the stock in Bel Trust which is owned
by BRC and the assets which are owned by Bel-Apt, Bel Trust or any of
their respective subsidiaries, (D) the membership interests in
Bel-Com, which are owned by BRC, the stock in Bel Trust III which is
owned by BRC, and the assets which are owned by Bel-Com, Bel Trust III
or any of their respective subsidiaries, (E) the stock in Casco which
is owned by BRC, and the assets which are owned by Casco or any of its
subsidiaries, (F) all assets or stock or other membership interest in
any other direct or indirect subsidiary of the Borrower which is
hereafter formed or acquired, and (G) all other Excluded Real Estate
Investments, (ii) the principal amount of all Indebtedness guaranteed
by the Borrower pursuant to each Permitted Fund Guaranty shall be
subtracted from such market value, and (iii) the lesser of the
following two items shall be subtracted from such market value: (A)
the principal amount of all Indebtedness guaranteed by BRC pursuant to
each Permitted BRC Guaranty and (B) the market value of the total
assets of BRC and its consolidated subsidiaries to the extent not
already excluded pursuant to clause (i) above.
(C) Section 7.16 of the Loan Agreement is hereby amended in its entirety to
read as follows:
"Section 7.16 Formation of Additional Subsidiaries. At least three (3)
Business Days prior to the creation or acquisition of any additional direct
or indirect subsidiary, the Borrower will give written notice to the Lender
specifying the basic terms and parties involved and specifically noting any
Guaranty to be executed by the Borrower or BRC in conjunction therewith.
The Borrower shall, on or prior to the date of the creation or acquisition
of such subsidiary, deliver to the Lender a written opinion of Shearman &
Sterling or other counsel reasonably acceptable to the Lender, which
opinion shall be in form and substance reasonably satisfactory to the
Lender, describing in reasonable detail any Guaranty executed or assumed by
the Borrower or BRC in connection therewith, confirming that except to the
extent expressly set forth in such Guaranty the obligations of such
subsidiary are without recourse to the Borrower and BRC, and specifying
such related matters as the Lender may reasonably request.
(D) Clause (vi) of Section 8.l of the Loan Agreement is hereby amended in
its entirety to read as follows:
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"and; (vi) Indebtedness of the Borrower under each Permitted Fund Guaranty
and of BRC under each Permitted BRC Guaranty."
(E) Section 8.1 of the Loan Agreement is hereby further amended to insert
the following language immediately following the existing text:
"To clarify, "Indebtedness" of the Borrower shall not include obligations
of BRC and its direct and indirect subsidiaries for which no Guaranty by
the Borrower is in place and "Indebtedness" of BRC shall not include
obligations of BRC's direct and indirect subsidiaries for which no Guaranty
by BRC is in place."
(F) Clause (m) of Section 10.1 of the Loan Agreement is hereby amended in
its entirety to read as follows:
"(m) any event occurs which would permit payment to be demanded from the
Borrower under any Permitted Fund Guaranty or from BRC under any Permitted
BRC Guaranty."
(G) Section 11.5 of the Loan Agreement is hereby amended by deleting the
final sentence thereof and replacing it with the following:
"The Borrower agrees to send correspondence (i) to the Lender at the
address for the Lender indicated on the signature page hereof or as
otherwise provided by the Lender from time to time, with copies to (x) the
Lender's Representative Office located at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: G. Xxxxxxxxx Xxxxxxxxx, Telephone:
000-000-0000, Facsimile: 000-000-0000 and to (y) Xxxxxxx Xxxxx, 000
Xxxxxxxx Xxxx Xxxx, XXX/0X, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxx
Xxxxxx, Telephone: 000-000-0000, Facsimile: 000-000-0000 and (ii) as set
forth in the MLCS Swap Agreement, with a copy to Xxxxxxx Xxxxx, 000
Xxxxxxxx Xxxx Xxxx, XXX/0X, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxx
Xxxxxx, Telephone: (000) 000-0000, Facsimile: (000) 000-0000."
SECTION 2. Conditions to Effectiveness.
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This Amendment is subject to the satisfaction in full of the following
conditions (the first date on which all such conditions have been satisfied
being herein called the "Effective Date"):
(A) the Lender shall have received counterparts of this Amendment which,
when taken together, bear the signatures of all parties hereto;
(B) the Lender shall have received a written opinion of Shearman & Sterling
or other counsel reasonably acceptable to the Lender, which opinion shall be in
form and substance reasonably satisfactory to the Lender, describing in
reasonable detail each Permitted Fund Guaranty and Permitted BRC Guaranty in
existence on the Effective Date, confirming that except to the extent expressly
set forth in such Guaranties the obligations of each subsidiary of the BRC are
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without recourse to the Borrower and BRC, and specifying such related matters as
the Lender may reasonably request; and
(C) all legal matters in connection with this Amendment shall be
satisfactory to Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Lender, which
satisfaction shall be conclusively established by the Lender's execution hereof.
SECTION 3. Representations and Warranties.
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The Borrower hereby represents and warrants that:
(A) the representations and warranties contained in the Loan Agreement are
true and correct in all material respects on and as of the date hereof as if
such representations and warranties had been made on and as of the date hereof;
and
(B) the Borrower is in compliance with all the terms and provisions set
forth in the Loan Agreement and, after giving effect hereto, no Default or Event
of Default has occurred and is continuing.
SECTION 4. Full Force and Effect.
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Except as expressly amended hereby, the Loan Agreement shall continue in
full force and effect in accordance with the provisions thereof on the date
hereof. As used in the Loan Agreement, the terms "Agreement", "this Agreement",
"herein", "hereafter", "hereto", "hereof", and words of similar import, shall,
unless the context otherwise requires, mean the Loan Agreement as amended by
this Amendment.
SECTION 5. APPLICABLE LAW.
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THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts.
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This Amendment may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute
but one instrument.
SECTION 7. Expenses.
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The Borrower agrees to pay all reasonable out-of-pocket expenses incurred
by the Lender in connection with the preparation, execution and delivery of this
Amendment, including, but not limited to, the reasonable fees and disbursements
of Xxxxxx, Xxxxx & Bockius LLP, counsel for the Lender.
SECTION 8. Waivers.
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Each of the Secured Parties hereby agrees to waive any Event of Default
which arose prior to the Effective Date of this Amendment solely by reason of
the Borrower entering into any Permitted Fund Guaranty or BRC entering into any
Permitted BRC Guaranty prior to the Effective Date.
SECTION 9. Headings.
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The headings of this Amendment are for the purposes of reference only and
shall not affect the construction of or be taken into consideration in
interpreting this Amendment.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first written above.
BELCREST CAPITAL FUND, LLC
BY: XXXXX XXXXX MANAGEMENT,
as Manager
BY: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President
Address: Xxxxx Xxxxx
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
XXXXXXX XXXXX CAPITAL SERVICES, INC.
BY: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
Address: Xxxxxxx Xxxxx World Headquarters,
World Financial Center
North Tower, 22nd Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
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XXXXXXX XXXXX INTERNATIONAL
BANK LIMITED
BY: /s/ Xxxx X. Xxxxxx
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Executed in London, Name: Xxxx X. Xxxxxx
England on January 4, 2002 Title: Managing Director
Xxxxxxx:Xxxxxxxxx Xxxxxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxx
Xxxxxx
XX0 0XX
Telephone No.: 000-00-00-0000-0000
Telecopier No.: 011-44-20-8817-5771
AGREED TO:
XXXXXXX XXXXX PRIVATE FINANCE INC.
(f/k/a Xxxxxxx Xxxxx International Private
Finance Limited)
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
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