Exhibit 10.23
FIRST AMENDMENT OF CREDIT AGREEMENT
THIS FIRST AMENDMENT OF CREDIT AGREEMENT (this "Amendment") is entered into
to be effective as of November 28, 2000, between XXXXXXXX PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership ("Borrower"), each of the lenders
which is a signatory to this Amendment (individually, a "Lender" and
collectively, "Lenders"), and BANK ONE, TEXAS, N.A., a national banking
association, as Administrative Agent (in such capacity, together with its
successors and assigns, "Administrative Agent").
R E C I T A L S
- - - - - - - -
A. Reference is hereby made to that certain Credit Agreement dated as of
September 30, 1999, executed by Borrower, Lenders, Administrative Agent, and the
Co-Documentation Agents defined therein (as renewed, extended, modified, and
amended from time to time, the "Credit Agreement"), providing for a term loan
facility.
B. Capitalized terms used herein shall, unless otherwise indicated, have
the respective meanings set forth in the Credit Agreement.
C. The parties hereto 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:
1. Amendments to the Credit Agreement.
(a) Section 1.1 is hereby amended to delete the definitions of "Affiliate,"
"Aggregate EBITDA," "Approved Costs," "Distribution," "EBITDA,"
"EBITDA Adjustments," "Equity Issuance," "Existing Line of Credit," "Fixed
Charges," "Funds from Operations," "Indebtedness," "Liabilities," "Permitted
Distributions," "Permitted Recourse Debt," "Permitted Redemptions," "Recourse
Debt," and "Total Assets" in their entirety and replace such definitions with
the following:
"Affiliate" of a Person means any other individual or entity who
directly or indirectly controls, or is controlled by, or is under common
control with, that Person. For purposes of this definition "control,"
"controlled by," and "under common control with" mean possession, directly
or indirectly, of power to direct (or cause the direction of) management or
policies (whether through ownership of Stock, by contract, or otherwise).
"Aggregate EBITDA" means, for the Companies for any period, (a) EBITDA
of the Companies, minus (b) the Companies' Share of recognized net income
of Unconsolidated Affiliates, plus (c) the Companies' Share of EBITDA of
Unconsolidated Affiliates (other than Broadmoor), to the extent a Company
is entitled to such amounts under the Constituent Documents of the
applicable Unconsolidated Affiliate.
"Approved Costs" means, for any Property, the sum of the acquisition,
construction, and other capitalized costs of such Property (or the Stock of
the Company that owns such Property), whether in the form of cash,
property, liabilities assumed, or other consideration.
"Distribution" means, with respect to any Stock issued by a Person,
(a) the declaration or payment of any dividend or distribution on or with
respect to such Stock by such Person, (b) any loan or advance by that
Person to, or other investment by that Person in, the holder of any of such
Stock, and (c) any other payment by that Person with respect to such Stock
(other than a Redemption).
"EBITDA" means, for any Person or any Property for any period, the sum
of (a) Net Income, plus (b) depreciation and amortization expense, plus (c)
Interest Expense, plus (d) income taxes deducted from Net Income in
accordance with GAAP, plus (e) extraordinary losses (and any unusual losses
arising in or outside the ordinary course of business of such Person not
included in extraordinary losses) determined in accordance with GAAP that
have been reflected in the determination of Net Income, minus (f)
extraordinary gains (and any unusual gains arising in or outside the
ordinary course of business of such Person not included in extraordinary
gains) determined in accordance with GAAP that have been reflected in the
determination of Net Income, minus (g) earnings of Consolidated Affiliates
for such period distributed to minority interests not previously deducted
in the calculation of Net Income.
"EBITDA Adjustments" means, for any Property for any period,
appropriate accruals for items such as taxes, insurance, or other expenses
determined by Borrower (subject to the reasonable approval of
Administrative Agent), a management fee equal to the greater of actual fees
incurred or two percent (2%) of in place actual rents, and a reserve of $1
per square foot per year for office Properties and $0.25 per square foot
for industrial Properties, all as determined in accordance with accounting
principles reasonably acceptable to Administrative Agent, consistently
applied.
"Equity Issuance" means the issuance or sale by any Company of any
Stock, or options, warrants, or other rights to subscribe for or otherwise
acquire Stock, of such Company, other than the issuance by Borrower of
Stock in Borrower to sellers of properties or non-cash assets as a partial
payment of the purchase price of such assets.
"Existing Line of Credit" means (a) that certain Credit Agreement
dated May 23, 2000, executed by Borrower, Bank One, NA, as Administrative
Agent, Bank of America, N.A., as Syndication Agent, Dresdner Bank AG, New
York Branch and Grand Cayman Branch, as Documentation Agent, and the
Lenders defined therein, as such Credit Agreement has been or may be
modified, amended, renewed, extended, or restated from time to time, and
(b) a revolving credit facility that replaces the facility described in
clause (a) so long as Lenders hereunder constituting at least the Required
Lenders are also lenders under such replacement revolving credit facility.
"Fixed Charges" means, for the Companies on a consolidated basis for
any period, the sum of (a) Debt Service during such period, and (b) all
Distributions paid or payable during such period in respect of any
preferred Stock of the Companies (including the Companies' Share of such
Distributions in respect of any preferred Stock of their Unconsolidated
Affiliates (other than Broadmoor)).
"Funds from Operations" means, for any Person for any period, the sum
of (a) Net Income plus depreciation and amortization expense (exclusive of
amortization of financing costs), all as determined in accordance with
GAAP, and (b) such Person's Share of Funds from Operations of any
Unconsolidated Affiliates of such Person (calculated in accordance with
clause (a) preceding); provided that there shall not be included in such
calculation (i) any proceeds of any insurance policy
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other than rental or business interruption insurance received by such
Person, (ii) any gain or loss which is classified as "extraordinary" in
accordance with GAAP, or (iii) any capital gains and taxes on capital
gains. Funds from Operations shall not be reduced by any Distribution in
respect of any preferred Stock of such Person.
"Indebtedness" means, for any Person, all Liabilities of such Person,
excluding (a) accounts payable and accrued expenses in each case incurred
in the ordinary course of business and the payment of which is not past-due
(unless payment is being contested in good faith by appropriate proceedings
diligently conducted and for which reserves in accordance with GAAP or
otherwise reasonably acceptable to Administrative Agent have been
provided), and (b) Liabilities in which such Person maintains restricted
cash deposits that are not included in Total Assets to satisfy payment
thereof, but only to the extent of such cash deposits.
"Liabilities" means (without duplication), for any Person, (a) any
indebtedness, liabilities, or obligations required by GAAP to be classified
upon such Person's balance sheet as liabilities, (b) any liabilities
secured (or for which the holder of the Liability has an existing Right,
contingent or otherwise, to be so secured) by any Lien existing on property
owned or acquired by that Person, (c) any obligations that have been (or
under GAAP should be) capitalized for financial reporting purposes,
including all Capital Leases, (d) mandatory net obligations to purchase or
repurchase such Person's Stock as calculated by Borrower in a manner
reasonably acceptable to Administrative Agent, (e) Unfunded Liabilities,
and (f) such Person's Share of any Liabilities of Unconsolidated Affiliates
(other than of Broadmoor), and "Liability" means any of the Liabilities.
"Permitted Distributions" means, for (a) Borrower for any fiscal year
of Borrower, an amount of Distributions not to exceed ninety-five percent
(95%) of Borrower's Funds from Operations for such fiscal year, and (b) PPT
for any fiscal year of PPT, an amount of Distributions not to exceed
ninety-five percent (95%) of PPT's Funds from Operations for such fiscal
year.
"Permitted Recourse Debt" means (a) Recourse Debt under the Existing
Line of Credit not to exceed $300,000,000 at any time outstanding, and (b)
other Recourse Debt (including the Obligation) not to exceed $400,000,000
in the aggregate at any time outstanding.
"Permitted Redemptions" means the Redemption by PPT and Borrower of
Stock issued by PPT or Borrower not to exceed $150,000,000 in the aggregate
during the term of this Agreement, provided that no Default exists or would
result from such Redemption.
"Recourse Debt" means, for any Person, Indebtedness of such Person
that is not Non-Recourse Debt; provided that (a) Recourse Debt of the
Companies shall include any Indebtedness guaranteed (other than Customary
Recourse Exceptions) by PPT or Borrower, and (b) Recourse Debt of the
Companies, as of any date, shall not include Indebtedness of any Excluded
Companies so long as no Obligor is obligated (as guarantor or otherwise
other than for Customary Recourse Exceptions) on such Indebtedness. To the
extent that any Person has partial recourse obligations with respect to any
Indebtedness, then only that portion of such Indebtedness that is not
Non-Recourse Debt shall be considered to be Recourse Debt (e.g., if any
such Person is personally liable for only $25,000,000 of Indebtedness equal
to $100,000,000, then only $25,000,000 of such Indebtedness shall be
Recourse Debt).
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"Total Assets" means, as of any determination date, the sum of the
following (without duplication):
(a) the EBITDA Value of each Property owned by a Company for, and in
which construction was completed and a certificate of occupancy was issued,
more than twelve (12) months as of such determination date; plus
(b) the EBITDA Value of each Property owned by a Company for, and in
which construction was completed by a Company and a certificate of
occupancy was issued, less than twelve (12) months as of such determination
date and that has an Occupancy Rate of at least eighty-five percent (85%)
for three (3) consecutive months; plus
(c) so long as 000 Xxxxx Xxxxxx Xxxxx is owned by a Company, then the
Approved Costs of such Property until December 31, 2002 and, thereafter,
the EBITDA Value of such Property; plus
(d) the Approved Costs of each Property not included in (a) through
(c) above; plus
(e) the lesser of (i) $40,000,000, and (ii) the product of (A) seven
(7), and (B) EBITDA for the four (4) fiscal quarters ending on such
determination date in respect of management contracts between a Company and
a third party (other than another Company); plus
(f) the sum of (without duplication) Borrower's Share of the Approved
Costs of each Property owned by an Unconsolidated Affiliate (other than
Broadmoor) as of such determination date; plus
(g) the Companies' cash and Cash Equivalents, in each case that are
not subject to any Lien; plus
(h) the lesser of (i) the Approved Costs of each other Property
consisting of raw land, and (ii) two and one-half percent (2.5%) of Total
Assets as of such date; plus
(i) the Applicable Amount of each Contract Property to the extent that
the calculation of Liabilities or Indebtedness includes any Unfunded
Liabilities with respect to such Contract Property; plus
(j) the Applicable Amount of each Development Property to the extent
that the calculation of Liabilities or Indebtedness includes any Unfunded
Liabilities with respect to such Development Property.
If any Company that owns any Total Assets described above has any minority
interests, then Total Assets shall be adjusted to exclude the minority
interests' Share of such Total Assets. No Property can have a value,
calculated as provided above, of less than $0.00.
(b) Section 1.1 is hereby amended to add the following definitions:
"Applicable Amount" means (a) with respect to a Contract Property, the
lesser of (i) the purchase price of such Contract Property (or the Stock of
the Person that owns such Contract
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Property), and (ii) the maximum personal liability of the Companies to pay
such purchase price as determined by Borrower in a manner reasonably
acceptable to Administrative Agent, and (b) with respect to a Development
Property, the unpaid balance of any Liabilities incurred to finance the
costs of constructing or developing such Development Property to the extent
that a Company is obligated (as guarantor or otherwise) with respect to
such Liabilities.
"Binding Agreement" means a binding agreement pursuant to which a
Company has agreed to purchase a Contract Property or a Development
Property from another Person and in which such Person may enforce rights
and remedies at law or in equity against a Company for failure to purchase
such Contract Property or Development Property and which remedies are not
limited to retaining xxxxxxx money, escrow, liquidated damages not to
exceed ten percent (10%) of the applicable purchase price, or other
deposits of a Company or similar limitations on the liability of any
Company.
"Broadmoor" means Broadmoor Austin Associates, a Texas joint venture.
"Contract Property" means a real estate property that a Company has
agreed to purchase directly or indirectly (through the purchase of Stock)
from a Person that is not a Company.
"Development Property" means a real estate property that is under
construction or development by a Person that is not a Company and that a
Company has agreed to purchase or lease (pursuant to a master lease or
ground lease of all or substantially all of the property) upon completion
of such construction or development.
"Excluded Companies" means, as of any date of determination, any
Consolidated Affiliate or Unconsolidated Affiliate of PPT determined in a
manner reasonably acceptable to Agents whose (a) individual contribution to
the calculation of Total Assets as of such determination date constitutes
less than fifteen percent (15%) of Total Assets, and (b) aggregate
contributions to the calculation of Total Assets as of such determination
date constitute less than twenty percent (20%) of Total Assets.
"Investments in Joint Ventures" means the Companies' investments in
the Stock of, or loans and advances to, partnerships, joint ventures, and
similar entities that are not Consolidated Affiliates. Investments in Joint
Ventures, as of any date, shall be calculated as the lesser of the
Companies' Share of (a) the Approved Costs of each Property owned by an
Unconsolidated Affiliate, and (b) the sum of (i) the book value of such
Property on the financial statements of such Unconsolidated Affiliate
determined in accordance with GAAP plus (ii) accumulated depreciation with
respect to such Property determined in accordance with GAAP.
"Redemption" means, with respect to any Stock issued by a Person, the
retirement, redemption, purchase, or other acquisition for value of such
Stock by such Person.
"Stock" means all shares, options, warrants, general or limited
partnership interests, membership interests, or other ownership interests
(regardless of how designated) of or in a corporation, partnership, limited
liability company, trust, or other entity, whether voting or nonvoting,
including common stock, preferred stock, or any other "equity security" (as
such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended).
"Unfunded Liabilities" means, for any Person, (a) if evidenced by a
Binding Agreement, then
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all obligations to purchase a Contract Property or Development Property
(the amount of such Unfunded Liabilities being equal to the Applicable
Amount with respect to such Contract Property or Development Property), and
(b) any guaranties, endorsements, and other contingent obligations
(including any obligations as general partner) with respect to the
principal of the Liabilities of others (including any Unconsolidated
Affiliates of such Person) for which such Person has personal liability.
(c) Section 8.5 is hereby deleted in its entirety and replaced with the
following:
8.5 Loans, Advances, and Investments. Without the prior written
consent of the Required Lenders, no Company shall have or make any
investments in:
(a) Properties consisting of raw land exceeding in the aggregate five
percent (5%) of Total Assets;
(b) Properties under construction having actual and budgeted costs
exceeding in the aggregate twenty percent (20%) of Total Assets (including
the total budgeted project costs for all Properties under construction);
provided that the Companies may not have Properties under construction that
are less than fifty percent (50%) pre-leased having actual and budgeted
costs exceeding in the aggregate fifteen percent (15%) of Total Assets
(including the total budgeted project costs for all Properties under
construction);
(c) Except for Borrower's investment in Broadmoor, Investments in
Joint Ventures exceeding in the aggregate twenty percent (20%) of Total
Assets;
(d) Loans, mortgages, advances, and extensions of credit to Persons
exceeding in the aggregate ten percent (10%) of Total Assets;
(e) The Stock of Persons that are neither Consolidated Affiliates nor
Investments in Joint Ventures exceeding in the aggregate five percent (5%)
of Total Assets; or
(f) The investments described in (a) through (e) above exceeding in
the aggregate (without duplication) thirty percent (30%) of the sum of (i)
Total Assets, and (ii) to the extent not included in the calculation of
Total Assets, budgeted project costs for all Properties under construction.
(d) Section 8.6 is hereby deleted in its entirety and replaced with the
following:
8.6 Distributions and Redemptions. Borrower shall not, and shall not
permit any Company to, declare, make, or pay any Distribution other than
(a) Permitted Distributions, (b) Distributions declared, made, or paid by
(i) any Company wholly in the form of its Stock, and (ii) any Company
(other than Borrower) to Borrower or to PPT, and (c) Distributions paid to
the holders of PPT's Stock who simultaneously use the proceeds of such
Distributions to purchase additional shares of PPT's Stock pursuant to a
dividend reinvestment program; provided that the amount of any
Distributions made pursuant to clauses (b) and (c) shall not be limited by
clause (a). Borrower shall not, and shall not permit any Company to,
declare, make, or pay any Redemptions (net of the amount of any Net
Proceeds from the resale of Stock previously redeemed pursuant to a
Permitted Redemption) other than Permitted Redemptions. Borrower shall not,
and shall not permit any Company to, enter into or permit to exist any
arrangement or agreement (other than this
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Agreement, the Existing Line of Credit, and that certain Credit Agreement
dated as of October 13, 1998, executed by Borrower, Dresdner Bank AG, New
York Branch and Grand Cayman Branch, as Administrative Agent and
Syndication Agent, the Documentation Agent defined therein, and the Lenders
defined therein, as modified, amended, renewed, extended, and restated from
time to time) that prohibits it from paying Distributions to its
shareholders, partners, or members. Nothing in this Section 8.6 restricts
the issuance by any Company of preferred Stock solely because such Stock
requires the payment of Distributions with respect to such Stock prior to
the payment of Distributions with respect to common Stock.
(e) Section 9 is hereby deleted in its entirety and replaced with the
following:
SECTION 9
FINANCIAL COVENANTS
Until the Obligation is paid and performed in full, Borrower covenants
and agrees with Administrative Agent and Lenders that Borrower shall not
directly or indirectly permit:
9.1 Minimum Tangible Net Worth. As of any date, the Tangible Net Worth
to be less than (a) $1,000,000,000, plus (b) eighty percent (80%) of the
amount of Net Proceeds of any Equity Issuances subsequent to May 23, 2000,
minus (c) eighty percent (80%) of the amount of any Permitted Redemptions
subsequent to May 23, 2000.
9.2 Total Indebtedness to Total Assets. As of any date, the ratio of
(a) all Indebtedness of the Companies, on a consolidated basis, to (b)
Total Assets to exceed 0.55 to 1.0.
9.3 Maximum Secured Debt. As of any date, the ratio of (a) Secured
Debt of the Companies, on a consolidated basis, to (b) Total Assets to
exceed 0.475 to 1.0.
9.4 Recourse Debt. As of any date, the Companies, individually or on a
consolidated basis, to incur, guarantee, or otherwise be or become,
directly or indirectly, liable in respect of any Recourse Debt (other than
Permitted Recourse Debt).
9.5 Interest and Debt Service Coverage Ratios.
(a) As of any date, the ratio of (i) Aggregate EBITDA, to (ii)
Interest Expense of the Companies, on a consolidated basis, in each case
for the twelve (12) month period ending on the date of determination, to be
less than 2.0 to 1.0. For purposes of the foregoing, Aggregate EBITDA and
Interest Expense shall include each Company's (as the case may be, but
without duplication) Share of Aggregate EBITDA and Interest Expense of
their respective Unconsolidated Affiliates.
(b) As of any date, the ratio of (i) (A) Aggregate EBITDA, minus (B)
Non-Incremental Capital Expenditures (other than of Broadmoor), to (ii)
Debt Service, in each case for the twelve (12) month period ending on the
date of determination, to be less than 1.75 to 1.0. For purposes of the
foregoing, Aggregate EBITDA, Non-Incremental Capital Expenditures, and Debt
Service shall include each Company's (as the case may be, but without
duplication) Share of Aggregate EBITDA, Non-Incremental Capital
Expenditures, and Debt Service of their respective Unconsolidated
Affiliates.
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(c) As of any date, the ratio of (i) Adjusted Aggregate EBITDA, to
(ii) Fixed Charges, in each case for the twelve (12) month period ending on
the date of determination, to be less than 1.6 to 1.0.
For purposes of calculating any of the financial covenants in this Section
9, (x) (i) Indebtedness shall not include any Indebtedness of any Company
that has been defeased, (ii) Total Assets shall not include any assets of
any Company that have been used to defease any Indebtedness of any Company,
(iii) Aggregate EBITDA and other income items shall not include any income
on or with respect to any assets of any Company that have been used to
defease any Indebtedness of any Company, and (iv) Interest Expense shall
not include any Interest Expense with respect to any Indebtedness that has
been defeased (except to the extent that such Interest Expense exceeds any
income excluded pursuant to clause (iii)); provided that the aggregate
principal amount of all Indebtedness that has been defeased shall not
exceed $100,000,000 at any time outstanding without the prior written
consent of each Agent, and (y) the definitions of Adjusted Aggregate
EBITDA, Indebtedness, Secured Debt, Recourse Debt, Aggregate EBITDA,
Interest Expense, Non-Incremental Capital Expenditures, Debt Service,
Unsecured Debt, and Fixed Charges shall include (without duplication) the
Companies' Share of such amounts for their Unconsolidated Affiliates (other
than Broadmoor).
(e) Section 13.9(f) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(f) Existing Line of Credit. If the provisions of the Existing Line of
Credit that correspond to Section 8.5, 8.6, or 9, or any of the defined
terms used therein, of this Agreement are modified or amended, then
Borrower and the Credit Parties agree that such Sections and defined terms
in this Agreement shall be automatically (and without the necessity of a
separate modification, amendment, or agreement) modified or amended to
conform to such provisions in the Existing Line of Credit; provided that no
amendment to the Existing Line of Credit shall result in a modification or
amendment of Section 9.3 of this Agreement in a manner that increases the
maximum permitted ratio of Secured Debt to Total Assets to more than 0.475
to 1.0.
2. Amendment of Credit Agreement and Other Loan Documents.
(a) All references in the Loan Documents to the Credit Agreement shall
henceforth include references to the Credit Agreement as modified and amended by
this Amendment, and as may, from time to time, be further modified, amended,
restated, extended, renewed, and/or increased.
(b) 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.
3. Ratifications. Borrower (a) ratifies and confirms all provisions of the
Loan Documents as amended by this Amendment, (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, 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
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may reasonably request in order to create, perfect, preserve, and protect those
guaranties, assurances, and Liens.
4. Representations. Borrower represents and warrants to the Credit Parties
that as of the date of this Amendment: (a) this Amendment and the other
documents executed in connection therewith (collectively, the "Amendment
Documents") have been duly authorized, executed, and delivered by Borrower and
each of the other Companies 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 Borrower or PPT 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 the other Companies that are parties to the
Amendment Documents and are enforceable against Borrower and PPT 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 PPT to which they are 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 Company is a party thereto or by which
Borrower or any other Company 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.
5. Conditions. This Amendment and the other Amendment Documents shall not
be effective unless and until:
(a) this Amendment and the other Amendment Documents have been executed by
Borrower, PPT, Administrative Agent, and the Required 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; and
(c) both before and after giving effect to this Amendment, no Potential
Default or Default exists.
6. 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.
7. 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.
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8. Parties. This Amendment binds and inures to Borrower and the Credit
Parties and their respective successors and permitted assigns.
9. 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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SIGNATURE PAGE TO FIRST AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
BANK ONE, TEXAS, N.A., AS ADMINISTRATIVE AGENT,
THE CO-DOCUMENTATION AGENTS DEFINED THEREIN,
AND THE LENDERS DEFINED THEREIN
EXECUTED as of the day and year first mentioned.
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
a Delaware limited partnership,
as Borrower
By: XXXXXXXX PROPERTIES I, INC.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
Vice President
SIGNATURE PAGE TO FIRST AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
BANK ONE, TEXAS, N.A., AS ADMINISTRATIVE AGENT,
THE CO-DOCUMENTATION AGENTS DEFINED THEREIN,
AND THE LENDERS DEFINED THEREIN
BANK ONE, TEXAS, N.A.,
as Administrative Agent and a Lender
By: /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: First Vice President
SIGNATURE PAGE TO FIRST AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
BANK ONE, TEXAS, N.A., AS ADMINISTRATIVE AGENT,
THE CO-DOCUMENTATION AGENTS DEFINED THEREIN,
AND THE LENDERS DEFINED THEREIN
MELLON BANK, N.A.,
as a Co-Documentation Agent and a Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO FIRST AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX PROPERTIES ACQUISITION PARTNERS, L.P.,
BANK ONE, TEXAS, N.A., AS ADMINISTRATIVE AGENT,
THE CO-DOCUMENTATION AGENTS DEFINED THEREIN,
AND THE LENDERS DEFINED THEREIN
UNION BANK OF CALIFORNIA, N.A.,
as a Co-Documentation Agent and a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
To induce the Credit Parties to enter into this Amendment, 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) 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 (d) 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.
XXXXXXXX PROPERTIES TRUST, a Maryland real estate
investment trust
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Chief Financial Officer
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