EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this "Amendment")
dated as of April 3, 2007 by and among CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED (the "Borrower"), each of the Lenders party hereto, and XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Agent (the "Agent").
WHEREAS, the Borrower, the Lenders, the Agent and certain other parties
have entered into that certain Credit Agreement dated as of November 30, 2006
(as in effect immediately prior to the date hereof, the "Credit Agreement"); and
WHEREAS, the Borrower, the Lenders and the Agent desire to amend certain
provisions of the Credit Agreement 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) Section 6.4 of the Credit Agreement is hereby restated in its entirety
as follows:
SECTION 6.4. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS.
The Borrower will not, and will not permit any other Loan Party or any
other Subsidiary to, and no WP Xxxxx Joint Venture shall, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences
of indebtedness or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to
exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit,
except:
(a) Permitted Investments;
(b) investments in Real Property (except as otherwise limited in this
Section 6.4);
(c) investments (including loans and advances) in or to the
Subsidiaries;
(d) investments in Joint Ventures which are not Subsidiaries;
provided that the aggregate amount of investments in (i) WP Xxxxx
Joint Ventures shall not exceed 40% of Total Value and (ii) other
Joint Ventures shall not exceed 5% of Total Value;
(e) investments in Real Property located outside the United States;
provided that (i) the aggregate amount of investments in Real
Property located outside of the United States shall not exceed
25% of Total Value, (ii) at least 90% of rental income for each
fiscal year of the Borrower attributable to Real Property located
outside the United States must be from Real Property located in
the following countries: Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany, Ireland, Italy, Japan,
Luxembourg, the Netherlands, New Zealand, Norway, Portugal,
Spain, Sweden, Switzerland and the United Kingdom and (iii) at
least 90% of Total Value attributable to Real Property located
outside of the United States must be attributable to
single-tenant, net leased Properties;
(f) investments in notes secured by mortgages on any Real Property of
any Person;
(g) investments in Real Property under construction; provided that
the aggregate amount of investments in Real Property under
construction shall not exceed 5% of Total Value;
(h) investments in Real Property consisting of undeveloped land;
provided that the aggregate amount of investments in Real
Property consisting of undeveloped land shall not exceed 5% of
Total Value;
(i) investments in Permitted REIT Investments; provided that the
aggregate amount of investments in Permitted REIT Investments
shall not exceed $25,000,000 (valued at historical cost);
(j) investments in Marketable Securities; provided that the aggregate
amount of investments in Marketable Securities shall not exceed
$25,000,000;
(k) investments in securities of tenants under Leases, including any
capital stock, warrants, stock options or other equity securities
of such tenants and any underlying security thereof, acquired in
connection with or arising out of a leasing transaction with such
tenant and any subsequent exercise of such warrant or stock
options and the ownership of such underlying security thereof;
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(l) Guarantees by the Borrower of the Indebtedness or other
obligations of a wholly-owned Subsidiary or of a Joint Venture in
which the Borrower owns, directly or indirectly, a Joint Venture
Holding, so long as the Indebtedness under such Guarantees is not
otherwise prohibited by Section 6.1(g)(iii) or any other
provisions of this Article VI (excluding this Section 6.4); and
(m) Guarantees by the Borrower or a wholly-owned Subsidiary of
obligations in respect of Nonrecourse Carveouts of a wholly-owned
Subsidiary or of a Joint Venture in which the Borrower owns,
directly or indirectly, a Joint Venture Holding.
Notwithstanding the foregoing, the amount of the investments of the types
set forth in clauses (d)(ii) through (k) shall not exceed 30% of Total
Value in the aggregate. In no event shall the Borrower, any Subsidiary or
any WP Xxxxx Joint Venture engage in speculative development. Speculative
development shall not include the ownership, renovating, repair or
rehabilitation of a Property previously leased but which is being
renovated, repaired, or rehabilitated to position the Property for
re-leasing following a tenant default, lease expiration or lease
termination. The Borrower shall not permit the amount of rental income from
any Person, together with its Affiliates, to exceed 10% of the aggregate
amount of rental income of the Borrower and its Subsidiaries for any fiscal
year.
(b) Section 7.1 of the Credit Agreement is amended by deleting the word
"or" at the end of subsection (n), adding the word "or" at the end of subsection
(o) and adding the following subsection (p) immediately following subsection
(o):
(p) Any WP Xxxxx Joint Venture shall purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly
owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, make or permit to exist any
investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transaction) any
assets or any other Person constituting a business unit other than any of
the foregoing that are expressly permitted in Section 6.4;
Section 2. Conditions Precedent. The effectiveness of the amendments
contained in Section 1 above is subject to receipt by the Agent of each of the
following, each in form and substance satisfactory to the Agent:
(a) A counterpart of this Amendment duly executed by the Borrower and the
Required Lenders;
(b) An Acknowledgment substantially in the form of Exhibit A attached
hereto, executed by each Guarantor;
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(c) Evidence of payment of the fees provided for in Section 8 and any
other fees and expenses payable to the Agent in connection with this Amendment;
and
(d) Such other documents, instruments and agreements as the Agent may
reasonably request.
Section 3. Acquisition of Xxxxxxx GMbH & Co. Vermogensverwaltungs KG.
(a) The Borrower represents to the Agent and the Lenders that:
(i) The Borrower intends to acquire a 33% interest in HLWG TWO (GER)
LLC, a WP Xxxxx Joint Venture (the "Purchaser"), which Purchaser,
on or about April 4, 2007 (the "Acquisition Closing Date"),
intends to acquire an interest in Xxxxxxx GMbH & Co.
Vermogensverwaltungs KG ("PropCo");
(ii) On the Acquisition Closing Date, the Purchaser intends to
purchase a 24.7399% ownership interest in PropCo, and another WP
Xxxxx Joint Venture (the "WPC Lender"), in which the Borrower
also plans to acquire a 35.15% ownership interest, intends to
make a loan (the "Xxxxx Loan") to the holder of the remaining
75.2601% ownership interests of PropCo, Xxxxxxxx Xxxxx (the
"Seller"), which Xxxxx Loan will be secured by the Seller's
ownership interests in PropCo;
(iii) The Purchaser, upon its becoming a partner in PropCo, will
receive 24.7399% of all rental income received by PropCo (less
customary administrative costs);
(iv) The WPC Lender, after making the Xxxxx Loan, will receive
75.2601% of all rental income received by PropCo (less customary
administrative costs) as payment for the interest due on the
Xxxxx Loan until the Xxxxx Loan is paid in full;
(v) On the Acquisition Closing Date, a Put and Call Agreement (the
"Put and Call Agreement") between the Seller and the Purchaser
will become effective, which Put and Call Agreement grants to the
Purchaser the right to buy and obligates the Seller to sell prior
to December 31, 2010, all but 0.2601% of the remaining 75.2601%
ownership interests of PropCo, the price of which will be paid by
a cashless exercise in which the WPC Lender agrees that the
principal amount of the Xxxxx Loan is deemed received and the
Seller agrees that the purchase price for the 75% ownership
interests of PropCo is deemed received; and
(vi) It is intended that approximately five years after the call
described in clause (v) immediately above, an affiliate of the
Borrower will acquire the remaining 0.2601% of the ownership
interests in PropCo.
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(b) At the request of the Borrower, but subject to satisfaction of the
conditions precedent set forth in Section 2 above, the Lenders hereby
consent to (i) the Purchaser's acquisition of an initial 24.7399% ownership
interest in PropCo, (ii) the WPC Lender's making the Xxxxx Loan, and (iii)
the Purchaser's incurring the obligation to purchase all but 0.2601% of the
remaining 75.2601% ownership interests of PropCo pursuant to the Put and
Call Agreement, so long as, in the case of each of the foregoing clauses
(i) - (iii) of this subsection (b), no material changes occur in the terms
described in the foregoing subsection (a). The Borrower agrees that the
consent contained in this Section 3(b) shall neither waive or amend any
other covenant, term or provision in the Credit Agreement and the other
Loan Documents nor be deemed a consent to any other transaction or matter.
(c) For purposes of determining the Borrower's compliance with the
covenants set forth in Sections 6.1 and 6.4 of the Credit Agreement, the
Borrower and the Lenders agree that upon consummation of the Purchaser's
acquisition of 24.7399% of the ownership interests in PropCo and the WPC
Lender's making the Xxxxx Loan to the Seller, the WPC Lender shall be
deemed to own, as of any date, 75.2601% of the ownership interests in
PropCo less the sum of (i) the percentage of ownership interests in PropCo
acquired by the Purchaser after the Acquisition Closing Date pursuant to
the terms of the Put and Call Agreement and (ii) 0.2601% when such
percentage of ownership interest in PropCo is acquired by an affiliate of
the Borrower. Notwithstanding anything to the contrary set forth in the
Credit Agreement, the Borrower and Lenders agree that neither the
Purchaser's right or obligation to purchase all but 0.2601% of the
remaining 75.2601% ownership interests of PropCo pursuant to the Put and
Call Agreement nor the Xxxxx Loan shall be treated as liabilities or assets
for purposes of determining the Borrower's compliance with the covenants
set forth in Sections 6.1 and 6.4 of the Credit Agreement.
Section 4. Reduction of Commitments. The Borrower hereby notifies the Agent
and the Lenders that the Borrower is electing to exercise its right under
Section 2.9 of the Credit Agreement to reduce the Commitments to $100,000,000.
Such reduction shall be effective on April 6, 2007.
Section 5. Representations. The Borrower represents and warrants to the
Agent and the Lenders that:
(a) Authorization. The Borrower 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 Credit Agreement, 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 the Borrower
and each of this Amendment and the Credit Agreement, as amended by this
Amendment, is a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights
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generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(b) Compliance with Laws, etc. The execution and delivery by the Borrower
of this Amendment and the performance by the Borrower of this Amendment and the
Credit Agreement, 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 consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect; (ii) violate, and
will not require any consent or approval under, any applicable law or regulation
or the certificate of formation, limited liability company agreement,
certificate of limited partnership, limited partnership agreement or other
organizational documents of the Borrower, any other Loan Party or any of the
other Subsidiaries or any order, judgment or decree of any Governmental
Authority; (iii) violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower, any other Loan Party or any of
the other Subsidiaries or any of their respective assets, or give rise to a
right thereunder to require any payment to be made by the Borrower, any other
Loan Party or any of the other Subsidiaries; or (iv) result in the creation or
imposition of any Lien on any asset of the Borrower, any other Loan Party or any
of the other Subsidiaries.
(c) No Default. No Default has occurred and is continuing as of the date
hereof nor will exist immediately after giving effect to this Amendment.
Section 6. Reaffirmation of Representations by Borrower. The Borrower
hereby repeats and reaffirms all representations and warranties made by the
Borrower to the Agent and the Lenders in the Credit Agreement and the other 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 7. Certain References. Each reference to the Credit Agreement in
any of the Loan Documents shall be deemed to be a reference to the Credit
Agreement as amended by this Amendment.
Section 8. Modification Fee. In consideration of the Lenders amending of
the Credit Agreement as provided herein, the Borrower agrees to pay to the Agent
for the account of each Lender a fee in the amount of $2,500.
Section 9. Expenses. The Borrower shall reimburse the Agent upon demand for
all reasonable costs and expenses (including reasonable attorneys' fees)
incurred by the Agent in connection with the preparation, negotiation and
execution of this Amendment and the other agreements and documents executed and
delivered in connection herewith.
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.
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Section 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 12. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents remain in full
force and effect. The amendments contained herein shall be deemed to have
prospective application only, unless otherwise specifically stated herein.
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
Credit Agreement to be executed as of the date first above written.
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
By: /s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
Title: Managing Director and
acting Chief Financial Officer
[Signatures Continued on Following Page]
[SIGNATURE PAGE TO FIRST AMENDMENT WITH
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Agent and as a Lender
By: /s/ Xxx Xx Xxxxxxxx
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Name: Xxx Xx Xxxxxxxx
Title: Relationship Manager
[Signatures Continued on Following Page]
[SIGNATURE PAGE TO FIRST AMENDMENT WITH
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED]
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Senior Vice President
[Signatures Continued on Following Page]
[SIGNATURE PAGE TO FIRST AMENDMENT WITH
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED]
CITIZENS BANK OF RHODE ISLAND,
as a Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxx
Title: Senior Vice President
[Signatures Continued on Following Page]
[SIGNATURE PAGE TO FIRST AMENDMENT WITH
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED]
THE BANK OF NEW YORK,
as a Documentation Agent and as a Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Managing Director
[Signatures Continued on Following Page]
[SIGNATURE PAGE TO FIRST AMENDMENT WITH
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED]
EUROHYPO AG, NEW YORK BRANCH,
as a Documentation Agent and as a Lender
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
[Signatures Continued on Following Page]
[SIGNATURE PAGE TO FIRST AMENDMENT WITH
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED]
KBC BANK NV
By:
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Name:
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Title:
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FORM OF GUARANTOR ACKNOWLEDGEMENT
THIS GUARANTOR ACKNOWLEDGEMENT dated as of April 3, 2007 (this
"Acknowledgment") executed by each of the undersigned (the "Guarantors") in
favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent (the "Agent") and each
"Lender" a party to the Credit Agreement referred to below.
WHEREAS, Corporate Properties Associates 14 Incorporated (the "Borrower"),
the Lenders, the Agent and certain other parties have entered into that certain
Credit Agreement dated as of November 30, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, each of the Guarantors is a party to that certain Guaranty dated
as of November 30, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the "Guaranty") pursuant to which they guarantied,
among other things, the Borrower's obligations under the Credit Agreement on the
terms and conditions contained in the Guaranty;
WHEREAS, the Borrower, the Agent and the Lenders are to enter into a First
Amendment to Credit Agreement dated as of the date hereof (the "Amendment"), to
amend the terms of the Credit Agreement on the terms and conditions contained
therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Amendment
that the Guarantors execute and deliver this Acknowledgment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its continuing
obligations to the Agent and the Lenders under the Guaranty and agrees that the
transactions contemplated by the Amendment shall not in any way affect the
validity and enforceability of the Guaranty, or reduce, impair or discharge the
obligations of such Guarantor thereunder.
Section 2. Governing Law. THIS REAFFIRMATION SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Counterparts. This Reaffirmation 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.
[Signatures on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guarantor Acknowledgement as of the date and year first written above.
THE GUARANTORS:
BEST (CA) QRS 14-4, INC.
TRUCK (IN) QRS 14-3, INC.
XXXXX (PA) QRS 12-10
NUTRA (TX) QRS 12-39, INC.
META (CA) QRS 14-6, INC.
TEL(VA) QRS 12-15, INC.
BANDWIDTH (UT) QRS 14-58, INC.
By: /s/ Xxxx X. XxXxxxxxx
------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Managing Director and
acting Chief Financial Officer
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