EXHIBIT 10.52
SEVENTH AMENDMENT TO LOAN AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AGREEMENT (this "MODIFICATION
AGREEMENT") is made as of December 17, 2000, by and among BANK ONE, ARIZONA, NA,
a national banking association ("LENDER"), BPP/XXX XXXX, X.X., a California
limited partnership ("BPP/VAN NESS"), and HISTORIC VAN NESS LLC, a California
limited liability company ("HISTORIC VAN NESS", and together with BPP/Van Ness,
"BORROWER") with reference to the following facts:
A. Pursuant to that certain Construction Loan Agreement dated as
of December 5, 1997, by and between Lender and BPP/Van Ness, as amended by that
certain Modification Agreement dated as of July 8, 1998 by and between Lender
and BPP/Van Ness, as amended by that certain Second Amendment to Loan Agreement
dated as of November 18, 1998 by and between Lender and BPP/Van Ness, as amended
by that certain Third Amendment to Loan Agreement dated as of November 30, 1998
by and between Borrower and Lender, as amended by that certain Fourth Amendment
to Loan Agreement dated as of December 14, 1998 by and between Borrower and
Lender, as amended by that certain Fifth Amendment to Loan Agreement dated as of
November 17, 1999 by and between Borrower and Lender, and as further amended by
that certain Sixth Amendment to Loan Agreement dated as of December 16, 1999 by
and between Borrower and Lender (collectively, the "LOAN AGREEMENT"), Lender
extended a loan to Borrower in the maximum principal amount of $44,457,000 (the
"LOAN"). The Loan is evidenced by (i) that certain Amended and Restated
Construction Loan Promissory Note (Commercial Loan-BPP) dated November 30, 1998,
in the original principal amount of $9,384,000 executed by BPP/Van Ness and made
payable to Lender (the "BPP COMMERCIAL LOAN NOTE"), (ii) that certain Amended
and Restated Construction Loan Promissory Note (Commercial Loan-BPP/Historic)
dated as of November 30, 1998 in the original principal amount of $15,118,000
executed jointly and severally by BPP/Van Ness and Historic Van Ness payable to
Lender (the "HISTORIC COMMERCIAL LOAN NOTE") and (iii) that certain Construction
Loan Promissory Note (Residential Loan) dated December 5, 1997, in the original
principal amount of $12,080,000 executed by BPP/Van Ness and made payable to
Lender (the "RESIDENTIAL LOAN NOTE"). The Historic Commercial Loan Note and the
BPP Commercial Loan Note (collectively, the "COMMERCIAL LOAN NOTE") and the
Residential Loan Note are secured by, among other documents, that certain
Construction Deed of Trust, Assignment of Leases and Security Agreement
(Including Fixture Filing) dated as of December 5, 1997, executed by BPP/Van
Ness, as trustor, for the benefit of Lender, as beneficiary, which was recorded
on December 17, 1997, Reel H031, Image 333, Series No. 97-G273439-00, in the
Official Records of the County of San Francisco, California (the "OFFICIAL
RECORDS"), as amended by that certain Modification of Deed of Trust dated as of
July 8, 1998, by and between Lender and BPP/Van Ness which was recorded in the
Official Records on August 5, 1998, Reel H191, Image 563, Series No. 98-G401560,
as amended by that certain Second Modification of Deed of Trust made as of
November 18, 1998 by and between Lender and BPP/Van Ness which was recorded in
the Official Records on November 20, 1998, Reel H266, Image 0441, as Series No.
98-G472360, and as further amended by that certain Third Modification of Deed of
Trust dated as of November 30, 1998, by and among Historic Van Ness, BPP/Van
Ness and Lender, which was
recorded in the Official Records on December 3, 1998, Reel H273, Image 0283 as
Series 98-G477266 (collectively, the "DEED OF TRUST"). The Deed of Trust
encumbers a fee estate in certain real property located in the City of San
Francisco, County of San Francisco, State of California as more particularly
described in Exhibit A attached to the Loan Agreement (the "PROPERTY").
Capitalized terms used herein without definition shall have the meanings set
forth in the Loan Agreement.
B. Borrower has requested that Lender amend the Loan Agreement
and the other Loan Documents in order to, among other things, (i) extend the
Commercial Loan Extended Maturity Date from December 17, 2000 to March 19, 2001,
and (ii) provide for an option to extend the Commercial Loan Extended Maturity
Date from March 17, 2001 to June 18, 2001. Lender is willing to so amend the
Loan Agreement and the other Loan Documents as and subject to the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. OUTSTANDING BALANCE. As of December 17, 2000, (i) the
outstanding principal balance of the Historic Commercial Loan Note (which is a
joint and several obligation of BPP/Van Ness and Historic Van Ness) is
$15,118,000.00, (ii) the outstanding aggregate principal balance of the BPP
Commercial Loan Note (which is an obligation of BPP/Van Ness) is $8,781,067.62
and (iii) the Residential Loan Note has been repaid in full. Borrower
acknowledges that as of the Effective Date (defined below) Borrower has no
existing or asserted (and no basis for any unasserted) claims, counterclaims,
defenses or rights of setoff whatsoever with respect to any obligations of
Borrower under the Commercial Loan Note or any other Loan Documents.
2. MODIFICATION OF LOAN DOCUMENTS. Effective as of the
date on which (i) the Lender receives a fully executed original of this
Modification Agreement and (ii) the conditions in SECTION 4 below are satisfied
(the "EFFECTIVE DATE"), the Loan Documents are hereby modified as set forth in
this SECTION 2:
a. MODIFICATIONS OF LOAN AGREEMENT. The Loan
Agreement is hereby modified as follows:
(i) The following definitions are
hereby added to SECTION 1.1:
"Consolidated Loan to Value Ratio" shall have the
meaning ascribed to said term in the GE Capital Loan Agreement.
"Fixed Charge Coverage Ratio" shall have the meaning
ascribed to said term in the GE Capital Loan Agreement.
"Fourth Extended Commercial Loan Maturity Date" shall
mean June 18, 2001."
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"GE Capital Loan Agreement" shall mean that certain
Loan Agreement, dated as of November 19, 1999, among Xxxxxxx Pacific
Operating Partnership, L.P., a Delaware limited partnership,
BPP/Cameron Park, L.P., a California limited partnership, BPP/Xxxxx,
X.X., a California limited partnership, CMF Capital Company, LLC, a
Delaware limited liability company, successor-in-interest to General
Electric Capital Corporation, as administrative agent, and certain
financial institution(s) signatory thereto from time to time as
lender(s).
"Interest Coverage Ratio" shall have the meaning
ascribed to said term in the GE Capital Loan Agreement.
"Leverage Ratio" shall have the meaning ascribed to
said term in the GE Capital Loan Agreement.
"Net Worth" shall have the meaning ascribed to said
term in the GE Capital Loan Agreement.
"Third Extended Commercial Loan Maturity Date" shall
mean March 19, 2001."
(ii) Notwithstanding anything to the
contrary in the Loan Agreement, as amended by this Modification
Agreement, or the other Loan Documents, Borrower acknowledges and
agrees that no advance of Loan Proceeds shall be made to Borrower
pursuant to the Loan Documents, and any commitment of the Lender to
advance Loan Proceeds to the Borrower pursuant to the Loan Documents is
hereby terminated.
(iii) Borrower acknowledges and agrees
that (a) interest on the Commercial Loan during the period from the
Second Commercial Loan Extended Maturity Date to the Third Extended
Commercial Loan Maturity Date (or during the period from the Third
Extended Commercial Loan Maturity Date to the Fourth Extended
Commercial Loan Maturity Date, if applicable) shall accrue and be
payable as set forth in the Commercial Loan Note and (b) the entire
principal balance of the Commercial Loan shall be due and payable in
full on the Third Extended Commercial Loan Maturity Date or Fourth
Extended Commercial Loan Maturity Date, as applicable.
(iv) The following section is hereby
added as SECTION 2.1.6 to the Loan Agreement:
"2.1.6 EXTENSION OF MATURITY DATE. Borrower shall have the right to
extend the Third Extended Commercial Loan Maturity Date to the Fourth
Extended Commercial Loan Maturity Date upon Borrower's satisfaction of
the following minimum terms and conditions on or prior to the Third
Extended Commercial Loan Maturity Date:
(a) At least thirty (30) days prior to
the Third Extended Commercial Loan Maturity Date,
Borrower shall give Lender written notice that
Borrower desires an extension of said maturity date;
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(b) At the time of delivery of said
extension notice and at the time of such extension,
no Event of Default or event or condition which with
notice or lapse of time (or both) would become an
Event of Default shall have occurred or be
continuing;
(c) There shall have been no material
adverse change in Borrower's or Guarantor's financial
condition since the Third Extended Commercial Loan
Maturity Date;
(d) Borrower shall have complied with
its obligation to provide Lender with the items set
forth in SECTION 10.11;
(e) If requested by Lender, each Lessee
shall have delivered to Lender an estoppel
certificate, in form and substance reasonably
satisfactory to Lender, confirming to Lender that the
Lease to which such Lessee is a party remains
unmodified (except as previously consented to by
Lender in writing) and in full force and effect with
no defaults on the part of Borrower thereunder, that
the construction of the Commercial Improvements
demised pursuant to such Lease has been completed in
a manner satisfactory to such Lessee, and that such
Lessee is in occupancy of such Commercial
Improvements pursuant to such Lease, with no offsets,
defenses or counterclaims to its obligations under
such Lease and under the Subordination to which such
Lessee is a party; provided, however, that to the
extent that a Lease does not require a Lessee to
provide Lender with an estoppel certificate in the
form described above or a Lessee otherwise fails to
deliver to Lender an estoppel certificate in the form
described above (notwithstanding Borrower's
reasonable efforts to obtain such an estoppel
certificate for Lender), Borrower shall provide
Lender with such an estoppel certificate in
connection with the Lease to which any such Lessee is
a party (and such estoppel certificate shall also be
a "Loan Document");
(f) On or prior to the Third Extended
Commercial Loan Maturity Date, Borrower shall pay
Lender an extension fee in the amount equal to
one-half of one percent (.50%) of the outstanding
principal balance of the Commercial Loan as of the
Third Extended Commercial Loan Maturity Date (taking
into account the payment of $3,000,000.00 pursuant to
SECTION 2.1.6(h) below). Borrower shall pay any fees
owed pursuant to this SECTION 2.1.6(f) in cash or
immediately available United States funds. Fees
payable pursuant to this SECTION 2.1.6(f) shall be
(i) payable to Lender in addition to the amounts
payable under SECTIONS 2.1.6(g) and 2.1.6(h), and
(ii) fully earned and non-refundable regardless of
whether the Commercial Loan is paid prior to the
Fourth Extended Commercial Loan Maturity Date;
(g) On or prior to the Third Extended
Commercial Loan Maturity Date, Borrower shall pay to
Lender, in cash or immediately available United
States funds, all interest, fees and other amounts
(other than principal) then due and owing under the
Commercial Loan, which shall be payable to
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Lender in addition to the amounts payable under
SECTIONS 2.1.6(f) and 2.1.6(h);
(h) On or prior to the Third Extended
Commercial Loan Maturity Date, Borrower shall pay to
Lender, in cash or immediately available United
States funds, in addition to all other payments of
principal required on the Commercial Loan, the
additional amount of Three Million Dollars
($3,000,000.00), which amount (a) shall be payable to
Lender in addition to the amounts payable under
SECTIONS 2.1.6(f) and 2.1.6(g), and (b) shall be
applied toward the payment of the outstanding
principal balance of the Commercial Loan;
(i) On the Third Extended Commercial Loan
Maturity Date, all of the conditions set forth in
SECTION 3.1 and in EXHIBIT D shall, unless waived by
Lender, continue to be satisfied; and
(j) Borrower shall, on or prior to the Third
Extended Commercial Loan Maturity Date, cause the
Title Company to deliver to Lender, at Borrower's
sole cost and expense, any endorsements to the Title
Insurance Policy as reasonably may be requested by
Lender."
(v) SECTION 10.24 of the Loan Agreement
is hereby deleted in its entirety and replaced with
the following:
"10.24 FINANCIAL COVENANTS.
10.24.1 LIQUIDITY. Borrower and Guarantor shall at
all times during each quarterly fiscal period of Borrower maintain
Liquidity in an aggregate amount of not less than ten percent (10%) of
the maximum Commercial Loan Amount, less any prepayments (whether
voluntary or as a result of loan remargining or loan rebalancing),
regardless of the principal balance of the Loan actually outstanding
during such quarterly fiscal period. The foregoing liquidity covenant,
together with all other financial covenants and restrictions set forth
in this Agreement, shall be monitored on a quarterly basis by Borrower
and Lender and tested at the times compliance certificates are required
to be delivered to Lender pursuant to SECTION 10.11.4 with respect to
the period covered by such compliance certificates.
10.24.2 FIXED CHARGE COVERAGE RATIO. Guarantor shall
at all times during each quarterly fiscal period of Guarantor maintain
a Fixed Coverage Ratio of not less than 1.5 to 1.0.
10.24.3 INTEREST COVERAGE RATIO. Guarantor shall at
all times during each quarterly fiscal period of Guarantor maintain a
Interest Coverage Ratio of not less than 1.75 to 1.0.
10.24.4 CONSOLIDATED LOAN TO VALUE RATIO. Guarantor
shall at all times during each quarterly fiscal period of Guarantor
maintain a Consolidated Loan to Value Ratio of not greater than 65%.
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10.24.5 LEVERAGE RATIO. Guarantor shall at all times
during each quarterly fiscal period of Guarantor maintain a Leverage
Ratio of not greater than 8.0 to 1.0.
10.24.6 NET WORTH REQUIREMENT. Guarantor's Net Worth
at all times shall be not less than One Hundred Fifty Million Dollars
($150,000,000.00)."
b. MODIFICATION TO THE COMMERCIAL LOAN NOTE.
The Commercial Loan Note is hereby modified as follows:
(i) The third sentence of SECTION 2(A)
of each of the BPP Commercial Note and the Historic Commercial Note is
hereby deleted in its entirety and replaced by the following:
"The entire unpaid balance of the principal sum hereof with interest
thereon shall be due and payable in full on the Third Extended
Commercial Loan Maturity Date or Fourth Extended Commercial Loan
Maturity Date (as such terms are defined in the Loan Agreement), as
applicable."
(ii) SECTION I of EXHIBIT A to each of
the BPP Commercial Note and the Historic Commercial Note is hereby
deleted in its entirety and replaced by the following:
"I. AVAILABLE INTEREST RATES
On and subject to the terms and conditions of this
Exhibit A, Maker may choose to have all or a portion of the Commercial
Loan evidenced hereby bear interest at any one of the following rates:
A. Prime Rate plus one percent (1.00%) per year (the
"Prime-Based Rate");
B. LIBOR Rate plus three percent (3.00%) per year (the
"LIBOR Alternative");
The terms used above are defined in Article II of
this Exhibit A. The Prime-Based Rate is a variable rate. Each rate
other than the Prime-Based Rate (a "Contract Rate") may be fixed by
agreement between Maker and Payee as to a given principal amount (the
"Rate Portion") during a given period of time (the "Rate Period")."
c. MODIFICATION OF THE DEED OF TRUST. The Deed
of Trust is hereby modified by that certain Fourth Modification of Deed of Trust
of even date herewith by and between Borrower and Lender (the "FOURTH AMENDMENT
TO DEED OF TRUST") in the form attached hereto as EXHIBIT A.
d. MODIFICATION OF REAFFIRMATION OF GUARANTIES.
The Completion Guaranty and Repayment Guaranty are hereby reaffirmed in their
entirety by that certain Reaffirmation of Guaranties of even date herewith made
by Guarantor in favor of Lender (the "REAFFIRMATION") in the form attached
hereto as EXHIBIT B.
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e. SECURITY. This Modification Agreement is
secured by the Deed of Trust, as amended by the Fourth Amendment to Deed of
Trust. Each of the Loan Documents is modified to provide that it shall be a
default or an Event of Default thereunder if Borrower shall fail to comply with
any of the covenants in this Modification Agreement or if any representation or
warranty made by (i) Borrower in this Modification Agreement, (ii) Borrower
under the Fourth Amendment to Deed of Trust, or (iii) Guarantor in the
Reaffirmation (as defined below) is materially incomplete, incorrect, or
misleading as of the date hereof.
3. REPRESENTATIONS OF BORROWER.
a. Borrower represents and warrants to Lender
that no default or Event of Default under any of the Loan Documents, as modified
herein, nor any event, that, with the giving of notice or the passage of time or
both, would be a default or an Event of Default under any of the Loan Documents
as modified herein has occurred and is continuing.
b. Borrower represents and warrants to Lender
that neither Borrower, nor any agent or affiliate of Borrower, has knowledge or
notice of the presence, alleged presence, threatened presence, release, alleged
release or threatened release of "Hazardous Substances" (as defined in the
Environmental Indemnity) on, under, in, from or about the Property, except as
has been disclosed to Lender in writing as a result of Lender's written request
to Borrower for information concerning the environmental condition of the
Property, including, without limitation, (i) the presence, alleged presence or
threatened presence, and (ii) the release, alleged release or threatened
release, of Hazardous Substances on, under, in, from or about the Property. As
used herein, the term "release" has the meaning assigned to such term in
California Code of Civil Procedure Sections 726.5 and 736, as such sections may
be amended from time to time.
c. Borrower represents and warrants to Lender
that there has been no material adverse change in the financial condition of
Borrower, Guarantor or any other person whose financial statement has been
delivered to Lender in connection with the Loan, from the most recent financial
statement received by Lender.
d. Each of BPP/Van Ness and Historic Van Ness
represents and warrants to Lender that each of BPP/Van Ness and Historic Van
Ness is validly existing and in good standing under the laws of the State of
California and has the requisite power and authority to execute and deliver this
Modification Agreement and to perform Borrower's obligations under the Loan
Documents as modified herein. The execution and delivery of this Modification
Agreement and the performance of Borrower's obligations under the Loan Documents
as modified herein have been duly authorized by all requisite action by or on
behalf of each of BPP/Van Ness or Historic Xxx Xxxx.
e. Each of BPP/Van Ness and Historic Van Ness
represents and warrants to Lender that the Loan Documents as modified herein are
the legal, valid, and binding obligations of BPP/Van Ness and Historic Van Ness,
enforceable against BPP/Van Ness and Historic Van Ness in accordance with their
respective terms.
f. Each of BPP/Van Ness, Historic Van Ness and
Xxxxxxx Pacific Properties, Inc. a Maryland corporation ("XXXXXXX PACIFIC")
represents and warrants to Lender
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respectively that Xxxxxxx Pacific is duly authorized by all requisite action to
act on behalf of each of BPP/Van Ness or Historic Van Ness in the execution and
delivery of this Modification Agreement.
4. BORROWER COVENANTS; CLOSING CONDITIONS. The
obligation of Lender to execute and deliver this Modification Agreement to
Borrower and to perform its obligations under this Modification Agreement are
expressly conditioned upon the following:
a. BPP/Van Ness and Historic Van Ness shall,
contemporaneously with their execution and delivery of this Modification
Agreement, execute and deliver such organization and authority documents as are
reasonably requested by Lender.
b. BPP/Van Ness and Historic Van Ness shall, in
connection with this Modification Agreement, cause the Title Company to deliver
to Lender, at Borrower's sole cost and expense, any endorsements to the Title
Insurance Policy as may be reasonably requested by Lender.
c. BPP/Van Ness or Historic Van Ness shall pay
to Lender, in cash or immediately available United States funds, (i) Two Million
Dollars ($2,000,000.00) (the "PRINCIPAL REDUCTION PAYMENT") to be applied toward
the outstanding principal balance of the Commercial Loan, and (ii) an extension
fee (the "EXTENSION FEE") in amount equal to one-half of one percent (.50%) of
the outstanding principal balance of the Commercial Loan as of the Second
Extended Commercial Loan Maturity Date (taking into account payment of the
Principal Reduction Payment). The Principal Reduction Payment and the Extension
Fee shall be payable to Lender in addition to all interest, fees and other
amounts (other than principal), including the internal and external costs and
fees referenced in SECTION 4.f of this Modification Agreement then due and owing
under the Commercial Loan. The Extension Fee shall be fully earned by Lender and
non-refundable regardless of whether the Commercial Loan is paid prior to the
Third Extended Commercial Loan Maturity Date.
d. On the Second Extended Commercial Loan
Maturity Date, all of the conditions set forth in SECTION 3.1 of the Loan
Agreement and EXHIBIT D to the Loan Agreement shall, unless waived by the
Lender, continue to be satisfied.
e. Borrower shall deliver to Lender evidence
satisfactory to Lender that the shareholders of Xxxxxxx Pacific have formally
approved the plan of liquidation of Xxxxxxx Pacific at Xxxxxxx Pacific's annual
meeting on December 15, 2000, pursuant to which plan the net proceeds from the
liquidation of Xxxxxxx Pacific's fifty-eight (58) properties will be used to
repay Xxxxxxx Pacific's debt, provide for operating expenses and make
distributions to shareholders.
f. Borrower shall pay to Lender all internal
and external costs and expenses incurred by Lender in connection with this
Modification Agreement (including, without limitation, a $500 internal
documentation fee plus reasonable attorneys' fees and expenses, processing fees,
title insurance endorsement premiums, escrow fees, appraisal fees, cost review
fees, filing and recording fees and other closing costs, expenses and fees).
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g. Borrower shall, contemporaneously with
Borrower's execution and delivery of this Modification Agreement, cause
Guarantor to execute and deliver the Reaffirmation to Lender.
h. Borrower shall, contemporaneously with
Borrower's execution and delivery of this Modification Agreement, execute and
deliver the Fourth Amendment to Deed of Trust.
i. Borrower shall execute, deliver, and provide
to Lender such additional agreements, documents, and instruments as reasonably
required by Lender to effectuate the intent of this Modification Agreement.
5. RELEASE OF CLAIMS BY BORROWER AND RELATED PARTIES.
a. Each of BPP/Van Ness and Historic Van Ness,
on behalf of itself, its members, its affiliates and its and their successors
and assigns (collectively, the "BORROWER RELEASING PARTIES"), hereby releases
and forever discharges Lender and all of its subsidiaries, affiliates,
divisions, officers, directors, employees, agents, attorneys, advisors,
successors and assigns (collectively, the "LENDER RELEASED PARTIES") from any
and all claims, demands, debts, liabilities, contracts, obligations, accounts,
torts, causes of action or claims for relief of whatever kind or nature, whether
known or unknown, whether suspected or unsuspected, which the Borrower Releasing
Parties, or any of them, may have or which may hereafter be asserted or accrue
against the Lender Released Parties, or any of them, resulting from, arising out
of or in any way relating to any act or omission done or committed by the Lender
Released Parties, or any of them, in connection with the Loan and/or the Loan
Documents prior to the date hereof.
b. The release contained in SECTION 5.A and in
this SECTION 5.B apply to all claims which the Borrower Releasing Parties, or
any of them, have or which may hereafter arise against the Lender Released
Parties, or any of them, as a result of acts or omissions occurring before the
date hereof, whether or not known or suspected by the parties hereto. Borrower,
on behalf of each Borrower Releasing Party, expressly acknowledges that although
it may be that ordinarily a general release does not extend to claims which the
releasing party does not know or suspect to exist in his favor, which if known
by him must have materially affected his settlement with the party released,
Borrower has carefully considered and taken into account in determining to enter
into this Modification Agreement the possible existence of such unknown losses
or claims.
Without limiting the generality of the foregoing, each of
BPP/Van Ness and Historic Van Ness, on behalf of each Borrower Releasing Party,
expressly waives any and all rights conferred upon it by any statute or rule of
law which provides that a release does not extend to claims which the claimant
does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement with
the released party, including, without limitation, the following provisions of
California Civil Code Section 1542:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
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c. This release by the Borrower Releasing
Parties shall constitute a complete defense to any claim, cause of action,
defense, contract, liability, indebtedness or obligation released pursuant to
this release. Nothing in this release shall be construed as (or shall be
admissible in any legal action or proceeding as) an admission by Lender or any
other Lender Released Party that any defense, indebtedness, obligation,
liability, claim or cause of action exists which is within the scope of those
hereby released.
6. NO RIGHTS CONFERRED ON OTHERS. Nothing contained in
this Modification Agreement or the Loan Documents shall be construed as giving
any person, other than the parties hereto, any right, remedy or claim under or
with respect to this Modification Agreement or the Loan Documents except for the
rights granted to the Lender Released Parties in SECTION 5.
7. CONFORMING MODIFICATIONS; RATIFICATION AND
COLLATERAL. Each reference in the Loan Documents to any of the Loan Documents
shall be a reference to such Loan Documents as modified by this Modification
Agreement. It is the intention of the parties hereto that this Modification
Agreement shall be deemed to form a part of the Loan Documents and shall always
be construed as amending the Loan Documents. Except as specifically supplemented
and amended hereby, the Loan Documents shall each remain unaffected and
unchanged by reason of this Modification Agreement. The Loan Documents are
ratified and affirmed by Borrower and shall remain in full force and effect as
modified herein. Any property or rights to or interests in property granted as
security in the Loan Documents shall remain as security for the Loan and the
obligations of Borrower in the Loan Documents.
8. NON-WAIVER. Each of BPP/Xxx Xxxx and Historic Xxx
Xxxx acknowledge and agree that, if and to the extent that Lender has not
heretofore required each of BPP/Xxx Xxxx and Historic Xxx Xxxx to strictly
comply with the covenants, agreements and obligations contained in the Loan
Documents, such action or inaction shall not constitute a waiver of, or
otherwise affect in any manner, Lender's rights and remedies under the Loan
Documents, as modified herein, including the right to require performance of
such covenants, agreements and obligations strictly in accordance with the terms
and provisions thereof.
9. PRIOR AGREEMENTS. The Loan Documents, as modified by
this Modification Agreement (a) integrate all the terms and conditions mentioned
in or incidental to the Loan Documents, (b) supersede all oral negotiations and
prior and other writings with respect to the subject matter thereof, and (c) are
intended by the parties as the final expression of the agreement with respect to
the terms and conditions set forth in the Loan Documents and as the complete and
exclusive statement of the terms agreed to by the parties. If there is any
conflict between the terms, conditions and provisions of this Modification
Agreement and those of any of the Loan Documents, the terms, conditions and
provisions of this Modification Agreement shall prevail.
10. GOVERNING LAW. This Modification Agreement shall be
governed by and construed in accordance with the laws of the State of
California. If any court of competent jurisdiction determines any provision of
this Modification Agreement or the Loan Documents to be invalid, illegal or
unenforceable, that provision shall be deemed severed from the rest, which shall
remain in full force and effect as though the invalid, illegal or unenforceable
provision had never been a part hereof or of the Loan Documents.
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11. MODIFICATION. No provision of the Loan Documents, as
modified herein, may be changed, discharged, supplemented, terminated, or waived
except in a writing signed by Lender and Borrower.
12. BINDING EFFECT. The Loan Documents as modified herein
shall be binding upon, and inure to the benefit of Borrower and Lender and,
subject to the provisions of the Loan Agreement, their respective successors and
assigns.
13. COUNTERPARTS. This Modification Agreement may be
executed in any number of counterparts, each of which when executed and
delivered to Lender will be deemed to be an original, and all of which, taken
together, will be deemed to be one and the same instrument.
[Signature page is next page.]
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IN WITNESS WHEREOF, BPP/Xxx Xxxx, Historic Xxx Xxxx and Lender
have duly executed this Modification Agreement as of the day and year first
above written.
BPP/XXX XXXX: BPP/XXX XXXX, X.X., a California limited partnership
By: Xxxxxxx Pacific Operating Partnership, L.P.,
a Delaware limited partnership, General Partner
By: Xxxxxxx Pacific Properties, Inc.
a Maryland corporation, General Partner
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
-----------------------------------
Its: CHIEF FINANCIAL OFFICER
-----------------------------------
HISTORIC XXX XXXX: HISTORIC XXX XXXX, LLC, a California limited
liability company
By: Xxxxxxx Pacific Operating Partnership, L.P.,
a Delaware limited partnership, Managing Member
By: Xxxxxxx Pacific Properties, Inc.
a Maryland corporation, General Partner
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
-----------------------------------
Its: CHIEF FINANCIAL OFFICER
-----------------------------------
LENDER: BANK ONE, ARIZONA, NA, a national banking association
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------------
Name: XXXXXX X. XXXXXXXX
--------------------------------------------
Its: V.P
--------------------------------------------
[Signatures continue on next page]
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The undersigned Guarantor hereby joins in the execution of this
Modification Agreement for the purposes of acknowledging and agreeing to the
covenants listed in SECTION 2.A(V) of this Modification Agreement, which
constitute SECTION 10.24 of the Loan Agreement.
GUARANTOR: XXXXXXX PACIFIC PROPERTIES, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------------
Its: Chief Financial Officer
--------------------------------------------
13
