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EXHIBIT 10.2.1
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FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
--------------------------
This First Amendment to Revolving Credit Agreement (this "Amendment") is
dated as of May 2, 1996 by and among Xxxxxxx Real Estate, Inc., a Maryland
corporation and Xxxxxxx Operating Limited Partnership, a Delaware limited
partnership (jointly and severally, with certain Subsidiaries that become
parties hereto, the "Borrower"), The First National Bank of Boston, a national
banking association ("FNBB"), Fleet National Bank ("Fleet"), Xxxxx Fargo Realty
Advisors Funding, Incorporated ("Xxxxx"), Mellon Bank, N.A. ("Mellon"), Signet
Bank ("Signet") and The First National Bank of Boston, as agent for itself and
such other Banks (the "Agent").
WHEREAS, the Borrower, FNBB and the Agent entered into a Revolving Credit
Agreement dated as of March 15, 1996 (the "Credit Agreement");
WHEREAS, all capitalized terms used herein and not otherwise defined shall
have the same respective meanings herein as in the Credit Agreement;
WHEREAS, pursuant to Assignments and Acceptances of even date herewith,
FNBB has assigned portions of its Commitment Percentage, Commitment and the
same portion of the Loans owing to it to Fleet, Xxxxx, Mellon and Signet; and
Fleet, Xxxxx, Mellon and Signet have become "Banks" under the Credit Agreement;
WHEREAS, the Borrower, the Banks and the Agent desire to amend the Credit
Agreement in several respects;
NOW, THEREFORE, the Borrower, the Banks and the Agent hereby agree as
follows:
Section 1. Amendments. The Credit Agreement is amended as follows:
Section 1.1. The definitions of "Assets under Development", and "Interest
Payment Date" set forth in Section 1.1 of the Credit Agreement, are hereby
amended by deleting such definitions and substituting the following therefor:
"Assets Under Development. As of any date of determination, the total
book value (as determined by generally accepted accounting principles) of land
(and any Buildings to the extent constructed thereon, but not including the
value of any tenant improvements constructed thereon) wholly owned by the
Borrower or its Subsidiaries which is currently under development. As used
herein, "currently under development" shall mean that the Borrower or its
Subsidiaries is actively pursuing construction of Buildings, and such
construction is proceeding to completion without undue delay from permit
denial, construction delays or otherwise. For the purposes hereof, a Real
Estate Asset shall no longer be deemed to be an Asset Under Development when
the Buildings(s)
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on such Real Estate Asset have attained 90% physical and rental occupancy for
six consecutive months (totalling at least 180 days) provided that nothing
contained herein shall prohibit the Borrower from otherwise characterizing such
Real Estate Asset if the same may be otherwise characterized under this
Agreement."
"Interest Payment Date. As to any Loan, the last day of each calendar
month."
Section 1.2 The definition of "Applicable Margin" set forth in Section 1.1
of the Credit Agreement is hereby amended by deleting the fourth sentence
thereof in its entirety and substituting the following therefor:
"In the event that the Borrower has then current ratings from S&P and
Xxxxx'x and neither of such ratings is lower than BBB- and Baa3, respectively,
then the Applicable Margin shall be the average of the margins applicable to
each rating."
Section 1.3 The definition of "Eligible Assignee" set forth in Section 1.1
of the Credit Agreement is hereby amended by inserting the following clause
after the figure "$5,000,000,000" appearing in the third and seventh lines of
such definition:
", and having a rating of not less than A2/P2 or its equivalent by S&P".
Section 1.4 The definition of "Indebtedness" set forth in Section 1.1 of
the Credit Agreement is hereby amended by deleting the word "and" before clause
(e) and by inserting the following clause at the end thereof:
"; and (f) the total aggregate proportionate share of the Borrower or its
Subsidiaries in any borrowed-money indebtedness of unconsolidated joint
ventures or other unconsolidated affiliates".
Section 1.5. The definition of "Maturity Date" set forth in Section 1.1 of
the Credit Agreement is hereby amended by deleting the word "and" before clause
(c) and by inserting the following clause at the end thereof:
"and (d) prior to the Original Maturity Date, the Borrower shall purchase
interest rate protection arrangements for such additional year."
Section 1.6 The definition of "Real Estate Assets" set forth in Section
1.1 of the Credit Agreement is hereby amended by deleting the number "30"
contained in the sixth line thereof and substituting the number of "40"
therefor.
Section 1.7 The definition of "Unencumbered Asset" set forth in Section
1.1 of the Credit Agreement is hereby amended by deleting the word "and" before
clause (d) and by inserting the following clause at the end thereof:
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"and (e) is not a non-core asset or mixed use asset as referred to in the
Business Plan Summary acquired by the Borrower after May 2, 1996.
Notwithstanding anything contained herein to the contrary, in no event shall
the value of Unencumbered Assets attributable to Real Estate Assets which are
ground leases exceed $25,000,000 in the aggregate."
Section 1.8 Section 2A.3 of the Credit Agreement is hereby amended by
inserting the word "honoring" before the word "such" appearing in the eleventh
line thereof and by inserting the words "and the Banks" after the word
"Borrower" appearing in the twenty-fourth line thereof.
Section 1.9 Section 7.2 of the Credit Agreement is hereby amended by
inserting the following sentence at the end of the first sentence thereof:
"In the event that Xxxxxx X. D'Arcy dies, is incapacitated, is dismissed
or resigns as chief executive officer of Xxxxxxx Real Estate, Inc., Xxxxxxx
Real Estate, Inc. shall appoint a successor reasonably acceptable to the Banks
within one hundred twenty (120) days thereafter".
Section 1.10 Section 7.4 of the Credit Agreement is hereby amended by
inserting the following clause after clause (h) of such section:
"(hh) within thirty (30) days after the end of each fiscal year of the
Borrower, current title reports for each of the Unencumbered Assets;".
Section 1.11 Section 7.15 of the Credit Agreement is hereby amended by
deleting the following words from the first sentence thereof:
"for a period of two (2) years from the Effective Date".
Section 1.12 Section 7.16 of the Credit Agreement is hereby amended by
deleting the word "and" before clause (viii) and by inserting the following
clause at the end thereof:
", and (ix) a copy of the owner's title insurance policy issued to the
Borrower or a Subsidiary with respect to such Real Estate Asset".
Section 1.13 Section 8.1 of the Credit Agreement is hereby amended by
deleting the word "and" before clause(v) and by inserting the following:
"and (vi) Accounts payable of the Borrower and its Subsidiaries which
exceed $40,000,000 in the aggregate at any one time".
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Section 1.14 Section 9.7(b) of the Credit Agreement is hereby amended by
inserting the words "gross rents and cash reimbursements to the applicable
landlord" after the word "pro-forma" appearing in the fourth line thereof.
Section 1.15 Section 9.7 of the Credit Agreement is hereby amended by
inserting the following clause after Section 9.7(b) contained therein:
"(c) The Borrower shall not permit, and shall not permit any of its
Subsidiaries to allow, the projected full cost budgets of all Assets Under
Development (excluding the costs of any tenant improvements) to exceed
$50,000,000 in the aggregate at any one time."
Section 1.16 Section 14.5(b) of the Credit Agreement is hereby amended by
deleting the second sentence thereof in its entirety.
Section 1.17 Section 14.9 of the Credit Agreement is hereby amended by
inserting the following clause at the end of the second sentence thereof:
", provided that Borrower shall be deemed to have approved any Bank which
is a party to this Agreement as of May 2, 1996, as a successor Agent
hereunder."
Section 1.18 Section 18.1 of the Credit Agreement is hereby amended by
inserting the words "(provided there is no continuing Event of Default)" after
the word "Borrower" appearing in the seventh line thereof.
Section 1.19 Section 18.1 of the Credit Agreement is hereby further
amended by inserting the following sentence at the end thereof:
"Notwithstanding anything contained herein to the contrary, FNBB shall at
all times maintain a Commitment Percentage equal to the greater of (a) 20% or
(b) the Commitment Percentage of the Bank with the largest Commitment."
Section 1.20 Schedule 1 and Schedule 1.2 of the Credit Agreement are
hereby deleted in their entirety and Schedule 1 and Schedule 1.2 attached
hereto substituted thereof.
Section 2. Except as expressly set forth herein, this Amendment shall not
by implication or otherwise limit, constitute a waiver of, or otherwise affect
the rights and remedies of the Agent or the Banks under the Credit Agreement,
nor alter, modify or amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, all of
which shall continue in full force and effect. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. As of the date
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hereof, any reference to the Credit Agreement in any Loan Document shall mean
the Credit Agreement as amended by this Amendment.
Section 3. The Borrower hereby confirms that the representations and
warranties of the Borrower contained in the Credit Agreement were true and
correct in all material respects when made and continue to be true and correct
in all material respects on the date hereof.
Section 4. This Amendment shall be deemed to be a contract made under seal
and shall be construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts without regard to choice of law principles.
Section 5. FNBB, Fleet, Xxxxx, Mellon and Signet shall hereafter be Banks
under the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
XXXXXXX REAL ESTATE, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXXX OPERATING LIMITED
PARTNERSHIP
By: Xxxxxxx Real Estate, Inc., its
general partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent
By:
--------------------------------
Xxxxxx X. Xxxxxxxxx
Director
FLEET NATIONAL BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MELLON BANK, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNET BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXX FARGO REALTY ADVISORS FUNDING,
INCORPORATED,
a Colorado corporation
By: XXXXX FARGO REAL ESTATE
GROUP, INC., its agent
By:
--------------------------------
Name: X.X. Xxxx III
Title: Vice President
By:
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Secretary
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SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
--------------------------
This Second Amendment to Revolving Credit Agreement (this "Amendment") is
dated as of March __, 1997 by and among Xxxxxxx Real Estate, Inc., a Maryland
corporation and Xxxxxxx Operating Limited Partnership, a Delaware limited
partnership (jointly and severally, with certain Subsidiaries that become
parties hereto, the "Borrower"), The First National Bank of Boston, Fleet
National Bank, Xxxxx Fargo Bank, National Association (successor in interest to
Xxxxx Fargo Realty Advisors Funding, Incorporated), Mellon Bank, N.A., Signet
Bank (collectively, the "Banks"), and The First National Bank of Boston, as
agent for itself and the other Banks (the "Agent").
WHEREAS, the Borrower, the Banks and the Agent are parties to a Revolving
Credit Agreement dated as of March 15, 1996, as amended by the First Amendment
to Revolving Credit Agreement dated as of May 2, 1996 (as so amended, the
"Credit Agreement");
WHEREAS, all capitalized terms used herein and not otherwise defined shall
have the same respective meanings herein as in the Credit Agreement;
WHEREAS, the Borrower, the Banks and the Agent desire to amend the Credit
Agreement in several respects;
NOW, THEREFORE, the Borrower, the Banks and the Agent hereby agree as
follows:
Section 1. Amendments. Effective as of the Effective Date (as defined in
Section 6 hereof), the Credit Agreement is amended as follows:
Section 1.1. The definition of "Applicable Margin" set forth in Section
1.1 of the Credit Agreement is hereby amended by deleting such definition in
its entirety and substituting the following new definition in place thereof:
"Applicable Margin. The applicable margin over the then Eurodollar Rate
or LIBOR Rate, as applicable to the Loan(s) in question, as set forth below
used in calculating the interest rate applicable to Eurodollar Rate Loans and
LIBOR Rate Loans, which shall vary from time to time in accordance with the
Borrower's long term unsecured debt ratings (or, if applicable, Borrower's
Indicative Rating). The Applicable Margin to be used in calculating the
interest rate applicable to Eurodollar Rate or LIBOR Rate Loans shall vary from
time to time in accordance with the Borrower's then applicable (x) Xxxxx'x debt
rating or (y) S&P's debt rating, as the case may be, and the Applicable Margins
shall be adjusted effective on the next Business Day following any change in
Borrower's Xxxxx'x debt rating or S&P's debt rating, as the case may be, for
Loans arising thereafter. In the event that only one of Xxxxx'x or S&P has set
Borrower's credit rating, then the Applicable Margin shall be based on such
rating only. In the event that the Borrower has then current ratings from S&P
and Xxxxx'x
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and neither of such ratings is lower than BBB- and Baa3, respectively, then the
Applicable Margin shall be the average of the margins applicable to each
rating. In the event that the Borrower has then current ratings from S&P and
Xxxxx'x, and one or both of such ratings is lower than BBB- or Baa3, as
applicable, then the Applicable Margin shall be based upon the lower of such
ratings. The applicable debt ratings and the Applicable Margins are set forth
in the following table:
================================================================================
APPLICABLE APPLICABLE
MARGIN FOR MARGIN
LIBOR RATE FOR EURODOLLAR
S&P RATING XXXXX'X RATING LOANS RATE LOANS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BBB+ OR HIGHER Baa1 OR HIGHER 1.125% 1.125%
--------------------------------------------------------------------------------
BBB Baa2 1.250% 1.250%
--------------------------------------------------------------------------------
BBB- Baa3 1.375% 1.375%
--------------------------------------------------------------------------------
LESS THAN BBB- LESS THAN Baa3 1.500% 1.500%
--------------------------------------------------------------------------------
If a rating agency downgrade or discontinuance results in an increase in
the Applicable Margin for Eurodollar Rate Loans or the Applicable Margin for
LIBOR Rate Loans and if such downgrade or discontinuance is reversed and the
affected Applicable Margin is restored within ninety (90) days thereafter to
the Applicable Margin in effect immediately prior to such downgrade or
discontinuance, then, at Borrower's request, borrower shall receive a credit
against interest next due the Banks equal to interest accrued from time to time
during such period of downgrade or discontinuance on the Loans at the
differential between such Applicable Margins.
Until such time as the Borrower obtains long-term unsecured debt ratings
(or Indicative Rating, as applicable) from either S&P or Xxxxx'x, the
Applicable Margin for Eurodollar Rate Loans and LIBOR Rate Loans shall be
1.50%."
Section 1.2 The definition of "Maturity Date" set forth in Section 1.1 of
the Credit Agreement is hereby amended by deleting such definition in its
entirety and substituting the following new definition in place thereof:
"Maturity Date. March 15, 1999, or such other date on which the Loans
shall become due and payable pursuant to the terms hereof; provided that the
Borrower may, at its option,
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xxxxxx the Maturity Date from March 15, 1999 (the "Original Maturity Date") to
March 15, 2000 if: (a) the Borrower submits a written request for such
extension to the Agent at least ninety (90) days but not more than one hundred
and eighty (180) days prior to the Original Maturity Date together with an
extension fee equal to one-quarter of one percent (1/4%) of the Total
Commitment, and (b) no Default or Event of Default exists as of the date of
such request or as of the Original Maturity Date, as evidenced by a certificate
from the principal financial or accounting officer of the Borrower delivered as
part of the request and at least five (5) days prior to the Original Maturity
Date, as the case may be; and provided further that so long as the Borrower has
successfully extended the Maturity Date to March 15, 2000 and has not received
written notice from the Agent at the direction of any Bank on or before June
15, 1999 that no further extensions of the Maturity Date will be permitted (it
being agreed that if such written notice is given to the Borrower by the Agent
on or before June 15, 1999, then the Maturity Date shall remain as March 15,
2000), the Borrower may, at its option, further extend the Maturity Date from
March 15, 2000 (the "Extended Maturity Date") to March 15, 2001 if: (a) the
Borrower submits a written request for such extension to the Agent at least
ninety (90) days but not more than one hundred and eighty (180) days prior to
the Extended Maturity Date together with an extension fee equal to one-quarter
of one percent (1/4%) of the Total Commitment, and (b) no Default or Event of
Default exists as of the date of such request or as of the Extended Maturity
Date, as evidenced by a certificate from the principal financial or accounting
officer of the Borrower delivered as part of the request and at least five (5)
days prior to the Extended Maturity Date, as the case may be. There shall be
no further extensions beyond any extension, if exercisable and if exercised as
provided herein, to March 15, 2001."
Section 1.3 Section 4.2 of the Credit Agreement is hereby amended by (a)
deleting the percentage "60%" immediately after the words "more than" in clause
(a) on the ninth line of such Section 4.2 and substituting the percentage "50%"
in place thereof and (b) deleting the percentage "60%" immediately after the
words "less than" in clause (b) on the fifteenth and sixteenth lines of such
Section 4.2 and substituting the percentage "50%" in place thereof.
Section 1.4 Section 8.1 of the Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety and substituting the following new
clause (i) in place thereof:
"(i) Consolidated Unsecured Indebtedness (excluding the Obligations),
if (A) such Indebtedness is incurred under a line of credit or revolving credit
facility with a bank or other financial institution, or (B) such Indebtedness
matures within five (5) years of the date such indebtedness is incurred, or (C)
the covenants applicable to such Indebtedness, taken as a whole, are more
restrictive on the Borrower than the covenants
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contained in this Agreement, until such time as the Borrower receives a
long-term unsecured debt rating or Indicative Rating from either Xxxxx'x or S&P
of not less than BBB- or Baa3, whichever is applicable;"
Section 1.5 Section 8.7 of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting the following new
Section 8.7 in place thereof:
"Section 8.7. Distributions. So long as no Event of Default
has occurred and is continuing, the Borrower and its Subsidiaries shall be
permitted to make Distributions from time to time in amounts determined by
Borrower, provided, however, that in no event shall Borrower make any
Distribution if such Distribution, together with other Distributions made in
such fiscal year, in the aggregate, would exceed 95% of Funds From Operations
for such fiscal year. Notwithstanding the foregoing, the Borrower shall be
permitted at any time to make those Distributions which are necessary to
maintain its tax status as a real estate investment trust; provided, however,
that any such Distributions permitted to be made during the continuance of an
Event of Default shall in no way constitute a waiver of or forbearance of such
Event of Default by the Banks, it being understood and agreed that the Banks
shall continue to have all rights and remedies with respect to such Event of
Default as are provided in the Agreement, the other Loan Documents and
applicable law."
Section 1.6 Section 9.1 of the Credit Agreement is hereby amended by
deleting the percentage "50%" immediately after the words "to exceed" on the
third line thereof and substituting the percentage "55%" in place thereof.
Section 1.7 Section 9.4 of the Credit Agreement is hereby amended by
deleting the number "1.75" immediately after the words "less than" on the third
line thereof and substituting the number "1.67" in place thereof.
Section 1.8 Section 9.6 of the Credit Agreement is hereby amended by
deleting such Section 9.6 in its entirety and substituting the following new
Section 9.6 in place thereof:
"Section 9.6. UNENCUMBERED ASSET DEBT SERVICE COVERAGE. As at the
end of any fiscal quarter or any other date of measurement, the Borrower
shall not permit Consolidated Unencumbered Asset Cash Flow to be less
than 1.50 times Consolidated Unsecured Debt Service Charges, based on the
most recent two (2) fiscal quarter results annualized."
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Section 1.9. Section 7.15 of the Credit Agreement is hereby amended by
deleting the words "$100,000,000 for a period of two (2) years from the
Effective Date" immediately after the words "not less then" on the fifth line
thereof and substituting the phrase "66.67% of the average of the amount
outstanding during the prior twelve (12) month period during the term of this
Agreement" in place thereof.
Section 2. Except as expressly set forth herein, this Amendment shall not
by implication or otherwise limit, constitute a waiver of, or otherwise affect
the rights and remedies of the Agent or the Banks under the Credit Agreement,
nor alter, modify or amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, all of
which shall continue in full force and effect. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. As of the date hereof, any reference to the
Credit Agreement in any Loan Document shall mean the Credit Agreement as
amended by this Amendment.
Section 3. The Borrower hereby confirms that the representations and
warranties of the Borrower contained in the Credit Agreement were true and
correct in all material respects when made and continue to be true and correct
in all material respects on the date hereof, with the same force and effect as
if each of such representations and warranties had been made by the Borrower on
the date hereof and in this Amendment. No Default or Event of Default exists
on the date hereof.
Section 4. This Amendment has been duly authorized, executed and delivered
by the Borrower, the Agent and each of the Banks. The agreements and
obligations of the Borrower contained herein and in the Credit Agreement as
amended by this Amendment constitute the legal, valid and binding obligations
of the Borrower, enforceable against it in accordance with the respective terms
and provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
Section 5. This Amendment shall be deemed to be a contract made under seal
and shall be construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts without regard to choice of law principles.
Section 6. This Amendment shall be effective (the "Effective Date") when
the Agent receives;
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(a) a duly executed counterpart of this Amendment from each of the
Banks and the Borrower;
(b) a certificate of the Secretary of Xxxxxxx Real Estate, Inc. as
to the lack of changes in the organizational documents of Xxxxxxx Real Estate,
Inc. and Xxxxxxx Operating Limited Partnership since March 15, 1996;
(c) evidence that all corporate action or other charter or
organizational acts on the part of the Borrower necessary for the valid
execution, delivery and performance by Borrower of this Amendment and the
Credit Agreement as amended by this Amendment have been duly and effectively
taken;
(d) good standing certificates dated as of a recent date from the
Borrower's jurisdiction of incorporation; and
(e) a favorable opinion, in form and substance satisfactory to the
Banks and the Agent, from Xxxxxxx, Procter & Xxxx with respect to this
Amendment.
Section 7. This Amendment may be executed in several counterparts and by
each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Amendment it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
[End of Text]
In witness whereof, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized.
XXXXXXX REAL ESTATE, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: Xxxxxxx Real Estate, Inc., its
general partner
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By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent
By:
-----------------------------------
Xxxxxx X. Xxxxxxxxx
Director
FLEET NATIONAL BANK
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
MELLON BANK, N.A.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SIGNET BANK
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name: X.X. Xxxx III
Title: Vice President
