Exhibit 10.1
SECOND AMENDMENT AND RESTATEMENT
OF CREDIT AGREEMENT
among
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
as Borrower
BANK ONE, NA,
as Administrative Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
and
SOCIETE GENERALE, SOUTHWEST AGENCY,
as Documentation Agents
and
THE LENDERS NAMED HEREIN,
as Lenders
$300,000,000
As of
May 22, 2002
BANC ONE CAPITAL MARKETS, INC.
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Book Managers
SECOND AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
THIS SECOND AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (this
"Amendment") is entered into to be effective as of May 22, 2002 between XXXXXXXX
PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware limited partnership
("Borrower"), each of the banks or other lending institutions which is a
signatory to this Amendment (collectively, "Lenders"), BANK ONE, NA, a national
banking association, as Administrative Agent (in such capacity, together with
its successors and assigns, "Administrative Agent"), and BANK OF AMERICA, N.A.,
as Syndication Agent (in such capacity, together with its successors and
assigns, "Syndication Agent").
R E C I T A L S
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A. Reference is hereby made to that certain Credit Agreement dated as of
May 23, 2000, executed by Borrower, Lenders, Administrative Agent, the
Syndication Agent defined therein, and the Documentation Agent defined therein,
as amended by that certain First Amendment of Credit Agreement effective as of
December 29, 2000 (as renewed, extended, modified, and amended from time to
time, the "Existing Agreement").
B. Capitalized terms used herein shall, unless otherwise indicated, have
the respective meanings set forth in the Credit Agreement.
C. Borrower, Administrative Agent, and Lenders desire to modify certain
provisions contained in the Credit Agreement, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. Amendment and Restatement of Existing Agreement. All of the terms,
provisions, and conditions of the Existing Agreement are incorporated herein by
reference and are deemed restated in their entirety except as amended by the
provisions set forth in this Amendment. The amendment and restatement of the
Existing Agreement hereunder is not intended by the parties to constitute either
a novation or a discharge or satisfaction of the indebtedness, obligations, and
Liens under the Existing Agreement or other Loan Documents, which indebtedness,
obligations, and Liens under the Existing Agreement and other Loan Documents
shall remain outstanding hereunder on the terms and conditions of this
Agreement.
(a) The preamble on page one is hereby deleted in its entirety and replaced
with the following:
THIS CREDIT AGREEMENT is dated as of May 22, 2002 (the "Closing
Date"), among XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware
limited partnership ("Borrower"), each of the lenders that are a signatory
hereto (each such lender, together with each lender that becomes a
signatory hereto as provided in Sections 2.5 and 13.11(b), being
individually, together with its successors and assigns, a "Lender" and
collectively, the "Lenders"), BANK ONE, NA, a national banking association,
as Administrative Agent (in such capacity, together with its successors and
assigns, "Administrative Agent"), and BANK OF AMERICA, N.A., as Syndication
Agent (in such capacity, together with its successors and assigns,
"Syndication Agent").
(b) Section 1.1 of the Credit Agreement is hereby amended to add the
following definitions:
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"Approved Fund" is defined in Section 13.11(g).
"Foreign Lender" means any Lender that is organized under the
Governmental Requirements of any jurisdiction other than the United States
of America or any State thereof.
"Fund" is defined in Section 13.11(g).
"Increasing Lender" is defined in Section 2.5.
"Register" is defined in Section 13.11(c).
"Second Amendment" means the Second Amendment and Restatement of
Credit Agreement dated as of May 22, 2002, executed by Borrower,
Administrative Agent, Syndication Agent, and Lenders.
"Second Amendment Effective Date" means May 22, 2002, the effective
date of the Second Amendment.
"Subsequent Lender" is defined in Section 2.5.
(c) Section 1.1 of the Credit Agreement is hereby amended to delete the
definitions of "Credit Parties," "Eligible Assignee," "Participant," and
"Termination Date" in their entireties and replace such definitions with the
following:
"Credit Parties" means Agents and Lenders, and "Credit Party" means
any one of the Credit Parties.
"Eligible Assignee" is defined in Section 13.11(g).
"Participant" is defined in Section 13.11(d).
"Termination Date" means the earlier of (a) May 23, 2005, and (b) the
effective date that Lenders' commitments to lend hereunder are otherwise
canceled or terminated in accordance with this Agreement.
(d) Section 1.1 of the Credit Agreement is hereby amended to delete the
definitions of "Documentation Agent," "Maryland Properties," "Purchaser," and
"Terramics Entities" in their entirety.
(e) Section 2 of the Credit Agreement is hereby amended to add the
following Section 2.5:
2.5 Lenders; Increase in Total Commitment.
(a) The Lenders on the Second Amendment Effective Date shall be the
Lenders set forth on Schedule 1 to the Second Amendment.
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(b) After the Closing Date until May 22, 2004, Administrative Agent
may, from time to time at the request of Borrower, increase the Total
Commitment by (i) admitting additional Lenders hereunder (each a
"Subsequent Lender"), or (ii) increasing the Commitment of any Lender (each
an "Increasing Lender"), subject to the following conditions:
(i) Each Subsequent Lender is an Eligible Assignee;
(ii) Borrower executes (A) a new Note payable to the order of a
Subsequent Lender, or (B) a replacement Note payable to the order of an
Increasing Lender;
(iii) Each Subsequent Lender executes a signature page to this
Agreement;
(iv) After giving effect to the admission of any Subsequent Lender
or the increase in the Commitment of any Increasing Lender, the aggregate
of the Total Commitment does not exceed $350,000,000 unless all Lenders
consent in writing;
(v) Each increase in the Total Commitment shall be in the minimum
amount of $10,000,000 or a greater integral multiple of $1,000,000;
(vi) No admission of any Subsequent Lender shall increase the
Commitment of any existing Lender without the consent of such Lender;
(vii) No Lender shall be an Increasing Lender without the written
consent of such Lender; and
(viii) No Potential Default or Default exists.
Subject to the conditions precedent set forth above, Administrative Agent agrees
to exercise ordinary and reasonable diligence to complete documentation to admit
a Subsequent Lender or increase the Commitment of an Increasing Lender. After
the admission of any Subsequent Lender or the increase in the Commitment of any
Increasing Lender, Administrative Agent shall promptly provide to each Lender a
new Schedule 1.1 to this Agreement.
(f) Section 4.4 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
4.4 Unencumbered Properties Held by Consolidated Affiliates.
Notwithstanding anything contained herein to the contrary,
Unencumbered Properties may include Properties owned by a
Consolidated Affiliate of Borrower only if (a) Borrower or PPT
owns or controls, directly or indirectly, at least ninety-five
percent (95%) of the issued and outstanding Stock of such
Consolidated Affiliate free and clear of any Liens (other than
Permitted Liens) or other restrictions on the sale or pledge
thereof, (b) a majority of the holders of the Stock of such
Consolidated Affiliate has the power to cause such Consolidated
Affiliate to execute the Subsidiary Guaranty, grant Liens in the
Unencumbered Properties owned by such Consolidated Affiliate, and
transfer ownership of the Unencumbered Properties owned by such
Consolidated Affiliate, (c) such Consolidated Affiliate has not
(i) created, incurred, assumed, guaranteed, or suffered to exist
any Liabilities, other than
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(A) the Obligation, (B) trade payables created in the
ordinary course of business, (C) endorsements of negotiable
instruments in the ordinary course of business, (D) contingent
Liabilities covered by reserves or insurance, (E) the guaranty of
the obligations of Borrower pursuant to Permitted Recourse Debt
of Borrower, and (F) equipment leases incurred in the ordinary
course of business, (d) such Consolidated Affiliate has not
created, incurred, or suffered or permitted to be created or
incurred or to exist any Lien upon any of its assets (other than
Permitted Liens), (e) such Consolidated Affiliate has executed
the Subsidiary Guaranty, and (f) such Consolidated Affiliate is
not a general partnership. Notwithstanding the foregoing, any
Consolidated Affiliate may guarantee any Unsecured Debt of
Borrower or PPT, which guarantee shall be pari passu with the
obligations of such Consolidated Affiliate under the Subsidiary
Guaranty.
(g) Section 12.1(f) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(f) Other Agents. No Lender or other Persons identified
on the facing page or signature pages of this Agreement as a
"documentation agent," "co-documentation agent," "book manager,"
"lead manager," "arranger," or "lead arranger" shall have any
right, power, obligation, liability, responsibility, or duty
under this Agreement other than, in the case of such Lenders,
those applicable to all Lenders as such. Without limiting the
foregoing, no Lenders or other Persons so identified shall have
or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not
rely, on any Lenders or other Persons so identified in deciding
to enter into this Agreement or in taking or not taking action
hereunder.
(h) Section 13.11 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
13.11 Successors and Assigns; Participations.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior
written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of
this Section 13.11, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section 13.11, (and any other
attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section 13.11 and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its Rights and obligations under this
Agreement (including all or a portion of its Commitment and Note (including
for purposes of this subsection (b), participations in Swing Line Loans) at
the time owing to it); provided that (i) except for an assignment by such
Lender to an Affiliate of such Lender,
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such Lender shall have received the prior consent of each Agent and, so
long as no Default has occurred and is continuing, Borrower (each such
consent not to be unreasonably withheld or delayed); (ii) except in the
case of an assignment of the entire remaining amount of the assigning
Lender's Commitment and Note at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Principal Debt outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000; (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender's Rights and obligations under this Agreement with respect to the
Notes or the Commitment assigned, except that this clause (iii) shall not
apply to rights in respect of Swing Line Loans; (iv) the parties to each
assignment shall execute and deliver to Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500;
and (v) except in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and Principal Debt at the time, the
aggregate amount of the Commitments of such assigning Lender or, if the
Total Commitment is not then in effect, the Principal Debt of the Notes of
such assigning Lender, after giving effect to such assignment, is at least
$5,000,000. Subject to acceptance and recording thereof by Administrative
Agent pursuant to subsection (c) of this Section 13.11, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning
Lender's Rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.15(c) and (d), 3.17, 7.7 and 7.12 with respect to
facts and circumstances occurring prior to the effective date of such
assignment). Upon request, Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Administrative Agent agrees to
provide Borrower with copies of all Assignment and Assumption Agreements so
long as no Default exists. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section 13.11.
(c) Administrative Agent, acting solely for this purpose as an agent
of Borrower, shall maintain at Administrative Agent's office a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments
of, and principal amounts of the Notes owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, absent manifest error, and Borrower,
Administrative Agent, and Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, sell participations to any Person
(other than a natural person or Borrower or any of Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion
of
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its Commitment and/or the Notes (including such Lender's participations in
Swing Line Loans owing to it); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) Borrower, Administrative Agent, and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, (iv) the
amount of each such participation shall not be less than $5,000,000; and
(v) the aggregate amount of the Commitments of such Lender selling such
participation or, if the Total Commitment is not then in effect, the
Principal Debt of the Notes of the Lender selling such participation, after
giving effect to such assignment, is at least $5,000,000. Any agreement or
instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in Section
13.9(b) that directly affects such Participant. Subject to subsection (e)
of this Section 13.11, Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.15(c) and (d) and 3.17 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section 13.11. To the extent permitted
by law, each Participant also agrees to be subject to Section 3.12 as
though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Sections 3.15(c) and (d) than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.15(d) unless
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of Borrower, to comply with Section
3.18 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its Rights under this Agreement (including under its
Note) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Agents, and (ii) unless a Default or Potential
Default has occurred and is continuing, Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include Borrower or any of
Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
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(h) Prior to the expiration or termination of the Total Commitment,
and unless a Default exists or Borrower otherwise consents in writing, each
Agent shall, at all times prior to its resignation or replacement as either
Administrative Agent or Syndication Agent, as the case may be, hereunder,
retain a minimum Commitment equal to the greater of (i) $20,000,000, and
(ii) an amount equal to the largest Commitment held by any Lender under
this Agreement (without giving effect to any mergers of any Lenders other
than any Agent).
(i) Schedule 1 to the Credit Agreement is hereby deleted in its entirety
and replaced with Schedule 1 attached hereto.
(j) Schedule 2 to the Credit Agreement is hereby deleted in its entirety.
(k) Exhibit D-1 to the Credit Agreement is hereby deleted in its entirety
and replaced with Exhibit D-1 attached hereto.
(l) Exhibit E to the Credit Agreement is hereby deleted in its entirety
and replaced with Exhibit E attached hereto.
II. Continuing Lenders. On the date hereof, (a) all outstanding
Liabilities under the Existing Agreement owed to any "Lender" that is not
continuing as a Lender under this Agreement (each a "Non-Continuing Lender")
shall be repaid in full by Borrower and such Non-Continuing Lender's commitment
under the Existing Agreement shall be terminated and (b) with respect to Lenders
which are continuing as Lenders under this Agreement (the "Continuing Lenders"),
Administrative Agent shall make appropriate allocations and adjustments in the
initial funding instructions to the Lenders to reflect the modifications
effected by the Loan Documents to each Continuing Lender's Commitment.
III. Replacement Notes. Borrower shall execute Replacement Revolving Credit
Notes dated as of the date hereof, payable to each Continuing Lender in the
amount of such Continuing Lender's Commitment (the "Replacement Revolving Credit
Notes"), which Replacement Revolving Credit Notes are in replacement of, and not
extinguishment of the indebtedness under those certain Revolving Credit Notes
each dated May 23, 2000, executed by Borrower and payable to the order of each
Lender in the original aggregate principal amount of $300,000,000 (the "Original
Revolving Credit Notes"). The Replacement Revolving Credit Notes executed
pursuant to this Amendment amend, renew, extend, modify, replace, substitute,
and supersede in their entirety (but do not extinguish the Indebtedness arising
under) the Original Revolving Credit Notes. Administrative Agent agrees to
exercise its reasonable best efforts to obtain the Original Revolving Credit
Notes from each of the Lenders under the Existing Agreement.
IV. Amendment of Credit Agreement and Other Loan Documents.
(a) All references in the Loan Documents to the "Agreement" or the "Credit
Agreement" shall henceforth include references to the Agreement or Credit
Agreement as modified, amended, and restated by this Amendment, and as may, from
time to time, be further modified, amended, restated, extended, renewed, and/or
increased.
(b) All references in the Loan Documents to the "Notes" shall henceforth
include references to the Replacement Revolving Credit Notes, as modified and
amended hereby, and as may, from time to time, be further amended, modified,
extended, renewed, and/or increased.
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(c) Any and all of the terms and provisions of the Loan Documents are
hereby amended and modified wherever necessary, even though not specifically
addressed herein, so as to conform to the amendments and modifications set forth
herein.
V. Ratifications. Borrower (a) ratifies and confirms all provisions of
the Loan Documents as amended by this Amendment, the Replacement Revolving
Credit Notes, and the other documents executed in connection therewith
(collectively, the "Amendment Documents"), (b) ratifies and confirms that all
guaranties, assurances, and Liens granted, conveyed, or assigned to the Credit
Parties under the Loan Documents are not released, reduced, or otherwise
adversely affected by this Amendment and continue to guarantee, assure, and
secure full payment and performance of the present and future Obligation,
including without limitation, the Replacement Revolving Credit Notes, and (c)
agrees to perform such acts and duly authorize, execute, acknowledge, deliver,
file, and record such additional documents, and certificates as the Credit
Parties may reasonably request in order to create, perfect, preserve, and
protect those guaranties, assurances, and Liens.
VI. Representations. Borrower represents and warrants to the Credit
Parties that as of the date of this Amendment: (a) the Amendment Documents have
been duly authorized, executed, and delivered by Borrower and each of the other
Obligors that are parties to the Amendment Documents; (b) no action of, or
filing with, any Governmental Authority is required to authorize, or is
otherwise required in connection with, the execution, delivery, and performance
by any Obligor of the Amendment Documents to which they are a party; (c) the
Loan Documents, as amended by the Amendment Documents, are valid and binding
upon Borrower and each other Obligor that are parties to the Amendment Documents
and are enforceable against Borrower and such Obligors in accordance with their
respective terms, except as limited by Debtor Relief Laws and general principles
of equity; (d) the execution, delivery, and performance by Borrower and each
other Obligor to which Borrower or such Obligor is a party of the Amendment
Documents do not require the consent of any other Person and do not and will not
constitute a violation of any Governmental Requirement, order of any
Governmental Authority, or material agreements to which Borrower or any other
Obligor is a party thereto or by which Borrower or any other Obligor is bound;
(e) all representations and warranties in the Loan Documents are true and
correct in all material respects on and as of the date of this Amendment, except
to the extent that (i) any of them speak to a different specific date, or (ii)
the facts on which any of them were based have been changed by transactions
contemplated or permitted by the Credit Agreement; and (f) both before and after
giving effect to the Amendment Documents, no Potential Default or Default
exists.
VII. Conditions. This Amendment and the other Amendment Documents shall not
be effective unless and until:
(a) this Amendment, the Replacement Revolving Credit Notes, and the other
Amendment Documents have been executed by Borrower, the other Obligors that are
parties to the Amendment Documents, Administrative Agent, and all Lenders;
(b) the representations and warranties in this Amendment are true and
correct in all material respects on and as of the date of this Amendment, except
to the extent that (i) any of them speak to a different specific date, or (ii)
the facts on which any of them were based have been changed by transactions
contemplated or permitted by the Credit Agreement;
(c) Administrative Agent shall have received Officers' Certificates of
Borrower and of each other Obligor (i) certifying that there have been no
changes to the Constituent Documents of Borrower or such other
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Obligor since the date of their last certification pursuant to the Loan
Documents, (ii) certifying the incumbency of the officers of Borrower or such
other Obligor authorized to execute the Loan Documents, and (iii) certifying
copies of resolutions duly adopted by the Borrower's or such other Obligor's
Board of Directors approving the Amendment Documents and authorizing the
transactions contemplated therein;
(d) Administrative Agent shall have received payment of (i) the fees
required under the separate Fee Letter by and between Administrative Agent and
Borrower, and (ii) all unpaid fees and expenses payable on or prior to the date
hereof to Administrative Agent, including, without limitation, fees and expenses
of Administrative Agent's counsel;
(e) Administrative Agent shall have received such other agreements,
documents, instruments, opinions, certificates, and evidences as Administrative
Agent may reasonably request; and
(f) both before and after giving effect to this Amendment, no Potential
Default or Default exists.
VIII. Continued Effect. Except to the extent amended hereby or by any
documents executed in connection herewith, all terms, provisions, and conditions
of the Credit Agreement and the other Loan Documents, and all documents executed
in connection therewith, shall continue in full force and effect and shall
remain enforceable and binding in accordance with their respective terms.
IX. Miscellaneous. Unless stated otherwise (a) the singular number
includes the plural and vice versa and words of any gender include each other
gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment shall be construed --
and its performance enforced -- under Texas law, (d) if any part of this
Amendment is for any reason found to be unenforceable, all other portions of it
nevertheless remain enforceable, and (e) this Amendment may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document, and all of those counterparts must be construed together to
constitute the same document.
X. Parties. This Amendment binds and inures to Borrower and the Credit
Parties and their respective successors and permitted assigns.
XI. Entireties. The Credit Agreement and the other Loan Documents, as
amended by this Amendment and the other Amendment documents, represent the final
agreement between the parties about the subject matter of the Credit Agreement
and may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the parties. There are no unwritten oral agreements between
the parties.
[Remainder of Page Intentionally Left Blank;
Signature Pages to Follow]
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To induce the Credit Parties to enter into this Amendment, each of the
undersigned (a) consents and agrees to the Amendment Documents' execution and
delivery, (b) ratifies and confirms that all guaranties, assurances, and Liens
granted, conveyed, or assigned to the Credit Parties under the Loan Documents
are not released, diminished, impaired, reduced, or otherwise adversely affected
by the Amendment Documents and continue to guarantee, assure, and secure the
full payment and performance of all present and future Obligation (except to the
extent specifically limited by the terms of such guaranties, assurances, or
Liens), (c) confirms that the term "Guaranteed Debt" in each Guaranty includes,
without limitation, the indebtedness evidenced by the Replacement Revolving
Credit Notes, (d) agrees to perform such acts and duly authorize, execute,
acknowledge, deliver, file, and record such additional guaranties, assignments,
security agreements, deeds of trust, mortgages, and other agreements, documents,
instruments, and certificates as the Credit Parties may reasonably deem
necessary or appropriate in order to create, perfect, preserve, and protect
those guaranties, assurances, and Liens, and (e) waives notice of acceptance of
this consent and agreement, which consent and agreement binds the undersigned
and its successors and permitted assigns and inures to the Credit Parties and
their respective successors and permitted assigns.
[Remainder of Page Intentionally Left Blank;
Signature Pages to Follow]
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SCHEDULE 1
PARTIES, ADDRESSES, COMMITMENTS, AND WIRING INFORMATION
====================================================================================================================
Borrower
====================================================================================================================
Xxxxxxxx Properties Acquisition Partners, L.P.
0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
With a Copy to:
Xxxxxxxx Properties Acquisition Partners, L.P.
0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
With a Copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
====================================================================================================================
Administrative Agent
====================================================================================================================
Bank One, NA
Corporate Real Estate
1 Bank One Plaza
Mail Code IL1-0315
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Fax: 000-000-0000
Wiring Instructions:
Bank One, NA
ABA #
Account Name: Xxxxxxxx Properties Trust
Account Number:
Reference: Xxxxxxxx Properties Acquisition Partners
LS2 Incoming Clearing Account
Attn: Loan Operations Admin: Xxxxx Xxxxxx
000-000-0000
====================================================================================================================
Syndication Agent
====================================================================================================================
Bank of America, N.A.
Second Amendment
====================================================================================================================
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
Vice President
Fax: 000-000-0000
With a Copy to:
Banc of America Securities LLC
NC1-007-15-06
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx Xxxxxxxx
Vice President
Fax: 000-000-0000
Wiring Instructions:
Bank of America, N.A.
ABA #
Account Name: Credit Services
Account Number:
Reference: Xxxxxxxx Properties Acquisition Partners, L.P.
Attn: Xxxxx Xxxxx
000-000-0000
====================================================================================================================
Pro Rata Share of the
Lenders Commitment $ Total Commitments
====================================================================================================================
Bank One, NA $30,000,000 10.000000%
Corporate Real Estate
1 Bank One Plaza
Mail Code IL1-0315
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Fax: 000-000-0000
Wiring Instructions:
Bank One, NA
ABA #
Account Name: Xxxxxxxx Properties Trust
Account Number:
Reference: Xxxxxxxx Properties Acquisition Partners
LS2 Incoming Clearing Account
Attn: Loan Operations Admin: Xxxxx Xxxxxx
000-000-0000
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Bank of America, N.A. $30,000,000 10.000000%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
Vice President
Fax: 000-000-0000
With a Copy to:
Banc of America Securities LLC
NC1-007-15-06
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx Xxxxxxxx
Vice President
Fax: 000-000-0000
Wiring Instructions:
Bank of America, N.A.
ABA #
Account Name: Credit Services
Account Number:
Reference: Xxxxxxxx Properties Acquisition
Partners, L.P.
Attn: Xxxxx Xxxxx
000-000-0000
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Dresdner Bank AG, New York and Grand Cayman Branches $30,000,000 10.000000%
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10005-2886
Attn: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
Wiring Instructions:
Dresdner Bank AG New York
ABA #
Account Name: Xxxxxxxx Properties Trust
Account Number:
Reference: $300 Million Revolver [include type of payment,
i.e., principal, interest, fees]
Attn: Xxxxxxxxx Tadurem
000-000-0000
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Commerzbank AG, New York Branch $30,000,000 10.000000%
Real Estate Department
Two World Financial Center
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Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Mr. Xxxxx Xxxxxxx
Xx. Xxxx Xxxxxxxxxxxxx
Fax: 000-000-0000
Wiring Instructions:
Commerzbank A.G., New York Branch
ABA #
Account Number:
Reference: Xxxxxxxx Properties
--------------------------------------------------------------------------------------------------------------------
Societe Generale, Southwest Agency $30,000,000 10.000000%
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Mr. Xxxx Xxxxxxx
Fax: 000-000-0000
Wiring Instructions:
Societe Generale, New York
ABA #
Account Name: Xxxxxxxx Properties Acquisition Partners, LP
Account Number:
Attention: Xxxxx Xxxxxxxx
000-000-0000
--------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association $25,000,000 8.333333%
000 Xxxxx Xxxxxx
One PNC Plaza
Mail Stop P1-XXXX-19-2
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxxxx
Mr. Xxxxxxx XxXxxxxx
Fax: 000-000-0000
Wiring Instructions:
PNC Bank, National Association
ABA #
Account Name: Commercial Loan Operations
Account Number:
Reference: Xxxxxxxx Properties
Attention: Xxxxxx Xxxxx
000-000-0000
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SunTrust Bank $25,000,000 8.333333%
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0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Ms. Xxxxx Xxxxxxxx
Fax: 000-000-0000
Wiring Instructions:
SunTrust Bank
ABA #
Account Name: REFG-Vienna
Account Number:
Reference: Xxxxxxxx Properties
Attn: Xxxxxx Xxxxx
000-000-0000
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Comerica Bank $20,000,000 6.666667%
Comerica Tower
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx Xxxxxx
Fax: 000-000-0000
Wiring Instructions:
Comerica Bank
ABA #
Account Name: CLO
Account Number:
Reference: Xxxxxxxx Properties
Notify: Xxxxx Xxxxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $20,000,000 6.666667%
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxx
Fax: 000-000-0000
Wiring Instructions:
Mellon Bank, N.A.
ABA #
Account Name: Real Estate Finance Department
Account Number:
Reference: Xxxxxxxx Properties - Revolver
Attention: Xxxx Xxxxx
000-000-0000
------------------------------------------------------------------------------------------------------------------
SouthTrust Bank $20,000,000 6.666667%
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000 Xxxxx 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxx Xxxx
Fax: 000-000-0000
Wiring Instructions:
SouthTrust Bank
ABA #
Account Name: Bank Wire suspense
Account Number:
Reference: Xxxxxxxx Properties
Attn: Xxxxxxx Xxxxxxx
000-000-0000
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Union Bank of California $ 20,000,000 6.666667%
000 Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxxx
Fax: 000-000-0000
Wiring Instructions:
Union Bank of California
ABA #
Account Number:
Reference: Xxxxxxxx Properties Acquisition Partners,
L.P.
-------------------------------------------------------------------------------------------------------------------
KeyBank National Association $ 20,000,000 6.666667%
000 Xxxx Xxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
Wiring Instructions:
KeyBank National Association
ABA #
Account Number:
Reference: Xxxxxxxx Properties
Attn: Xxxxx Xxxxx Ext. 4-3222
===================================================================================================================
Total Commitments $300,000,000 100.000000%
===================================================================================================================
Second Amendment
EXHIBIT D-1
SUBSTITUTE REVOLVING CREDIT NOTE
$____________ Dallas, Texas As of May 22, 2002
1. FOR VALUE RECEIVED, XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P., a
Delaware limited partnership ("Maker"), hereby unconditionally promises to pay
to the order of __________________ ("Payee"), at the address of Administrative
Agent (defined below) set forth in that Credit Agreement defined below, the sum
of _____________ Dollars ($_____________) (or, if less, so much thereof as may
be advanced), in lawful money of the United States of America. Capitalized terms
not defined herein shall have the meaning assigned to those terms in the Credit
Agreement.
2. The unpaid principal amount of, and accrued unpaid interest on, this
Note is payable in accordance with the Credit Agreement.
3. The unpaid principal balance advanced and outstanding hereunder shall
bear interest from the date of advance until maturity at the rate per annum
provided in the Credit Agreement that is selected by Maker pursuant to the
Credit Agreement. The interest rate specified in this section is subject to
adjustment under the circumstances described in the Credit Agreement. Interest
shall be computed in the manner provided in the Credit Agreement.
4. Notwithstanding any provision contained in this Note or any other
document executed or delivered in connection with this Note or in connection
with the Credit Agreement, Payee shall never be deemed to have contracted for or
be entitled to receive, collect, or apply as interest on this Note, any amount
in excess of the maximum rate of interest permitted to be charged by applicable
law, and, if Payee ever receives, collects, or applies as interest any such
excess, then the amount that would be excessive interest shall be applied to
reduce the unpaid principal balance of this Note, and, if the principal balance
of this Note is paid in full by that application, then any remaining excess
shall promptly be paid to Maker. In determining whether the interest paid or
payable under any specific contingency exceeds the highest lawful rate, Maker
and Payee shall, to the maximum extent permitted under applicable law, (a)
characterize any non-principal payment (other than payments expressly designated
as interest payments hereunder) as an expense or fee rather than as interest,
(b) exclude voluntary prepayments and the effect thereof, and (c) spread the
total amount of interest throughout the entire contemplated term of this Note so
that the interest rate is uniform throughout that term.
5. This Note has been executed and delivered pursuant to the Credit
Agreement (as modified, amended, renewed, extended, or restated from time to
time, the "Credit Agreement") dated as of May 23, 2000, executed by and between
Maker, Bank One, NA, as Administrative Agent (together with any successor or
assigns, the "Administrative Agent"), Bank of America, N.A., as Syndication
Agent, and the Lenders defined therein, and is one of the "Notes" referred to
therein, and the holder of this Note is entitled to the benefits provided in the
Credit Agreement. Reference is hereby made to the Credit Agreement for a
statement of (a) the obligation of Payee to advance funds hereunder, (b) the
prepayment rights and obligations of Maker, and (c) the events upon which the
maturity of this Note may be accelerated.
6. If the principal of, or any installment of interest on, this Note
becomes due and payable on a day other than a Business Day, then the maturity
thereof shall be extended to the next succeeding Business Day. If this Note, or
any installment or payment due hereunder, is not paid when due, whether at
maturity or by
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acceleration, or if it is collected through a bankruptcy, probate or other
court, whether before or after maturity, then Maker shall pay all costs of
collection, including, but not limited to, reasonable attorneys' fees incurred
by the holder of this Note. All past due principal of, and to the extent
permitted by applicable law, interest on this Note shall bear interest until
paid at the rate provided in the Credit Agreement.
7. Except as expressly provided in the Credit Agreement, Maker and all
sureties, endorsers, guarantors and other parties ever liable for payment of any
sums payable pursuant to the terms of this Note, jointly and severally waive
demand, presentment for payment, protest, notice of protest, notice of
acceleration, notice of intent to accelerate, diligence in collection, the
bringing of any suit against any party, and any notice of or defense on account
of any extensions, renewals, partial payments, or changes in any manner of or in
this Note or in any of its terms, provisions, and covenants, or any releases or
substitutions of any security, or any delay, indulgence, or other act of any
trustee or any holder hereof, whether before or after maturity.
8. All Borrowings made by Payee, the respective Interest Periods thereof
(if applicable), and all repayments of the principal thereof may be recorded by
Payee and, before any transfer hereof, endorsed by Payee on the schedule
attached hereto, or on a continuation of the schedule attached to and a part
hereof, provided that the failure of Payee to record any endorsement shall not
affect the obligation of Maker hereunder or under the Credit Agreement.
9. This Note is Being Executed and Delivered, and is Intended to be
Performed in the State of Texas. Except to the Extent That the Laws of the
United States May Apply to the Terms Hereof, the Substantive Laws of the State
of Texas Shall Govern the Validity, Construction, Enforcement, and
Interpretation of This Note.
10. This Note is given in partial substitution and replacement, but not
extinguishment, of those certain Revolving Credit Notes dated May 23, 2000,
executed by Maker, for the benefit of Lenders, in the aggregate original
principal amount of $300,000,000.
XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership
By: XXXXXXXX PROPERTIES I, INC.,
General Partner
By: ____________________________________
Xxxxxxx X. Xxxxx, XX
Vice President
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EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
_________________ (the "Assignor") and ____________________ (the "Assignee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding Rights and
obligations of the Assignor under such Assignor's Commitment (including, without
limitation, Guarantees and Swing Line Loans included in such Commitment) and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity to the extent related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold
and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an Affiliate/Approved
Fund of [identify Lender] ]
3. Borrower: ______________________________
4. Administrative Agent: ______________________, as administrative agent
under the Credit Agreement.
5. Credit Agreement: The Credit Agreement, dated as of May 22, 2002, among
Borrower, Bank One, N.A., as Administrative Agent, Bank of America, N.A., as
Syndication Agent, and the Lenders parties thereto.
6. Assigned Interest:
----------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
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--------------------------------------------------------------------------
Commitment Commitment Assigned of
for all Lenders Assigned Commitment
--------------- -------- ----------
--------------------------------------------------------------------------
$____________________ $____________________ __________________%
--------------------------------------------------------------------------
$____________________ $____________________ __________________%
--------------------------------------------------------------------------
$____________________ $____________________ __________________%
--------------------------------------------------------------------------
[7. Trade Date: __________________]
[Signature Pages Follow.]
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Effective Date: __________________, 20__
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR:
_______________________________________________
By: _________________________________________
Name: ___________________________________
Title:___________________________________
ASSIGNEE:
_______________________________________________
By: _________________________________________
Name: ___________________________________
Title:___________________________________
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ACCEPTED BY ADMINISTRATIVE AGENT
THIS _____ DAY OF __________________
ADMINISTRATIVE AGENT:
By:______________________
Name:_____________________________________
Title:____________________________________
ACCEPTED BY SYNDICATION AGENT
THIS ____ DAY OF ___________________
SYNDICATION AGENT:
By:______________________
Name:_____________________________________
Title:____________________________________
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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
Credit Agreement, dated as of May 22, 2002, by and among Xxxxxxxx Properties
Acquisition Partners, L.P. ("Borrower"), Bank One, N.A., as administrative agent
("Administrative Agent"), Bank of America, N.A., as Syndication Agent, and the
Lenders parties thereto.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1.Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by Borrower,
any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
1.2.Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii)
from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on
Administrative Agent or any other Lender, and (v) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee
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shall make all appropriate adjustments in payments by Administrative Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Texas, without
giving effect to the conflict of laws principles thereof.
4. Address for Notice. Assignee's address for notices and payments under the
Credit Agreement and this Assignment and Assumption are as set forth below.
Assignee may by notice in accordance with the Credit Agreement to Assignor,
Administrative Agent, and Borrower change the address or telex number or
facsimile number at which notices, communications and payments are to be given
to it.
Address:
______________________________
Telecopier: __________________
Account for Payments
Account No.:___________________________
Attention: ____________________________
Reference: ____________________________
Depository:_________
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