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AMENDMENT AND AGREEMENT
AMENDMENT AND AGREEMENT, dated as of November 13, 1998 (this
"Amendment"), to and in respect of the Master Loan and Security Agreement,
dated as of May 15, 1998 (as amended, supplemented or otherwise modified prior
to the date hereof, the "Existing Loan Agreement", and as amended hereto, the
"Loan Agreement"), between XXXXXXXX CAPITAL CORPORATION, a Georgia corporation
(the "Borrower"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York
Banking corporation (the "Lender").
RECITALS
The Borrower has notified the Lender that it is unable to comply with
certain covenants and conditions contained in the Existing Loan Agreement. The
Borrower has requested the Lender to agree to amend certain provisions of the
Existing Loan Agreement as set forth in this Amendment. The Lender is willing
to agree to such amendments, but only on the terms and subject to the
conditions set forth in this Amendment (unless otherwise defined herein, terms
defined in the Existing Loan Agreement are used herein as therein defined).
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower and the Lender hereby agree as follows:
SECTION 1
AMENDMENTS TO EXISTING LOAN AGREEMENT.
1.1 Section 1.01 of the Existing Loan Agreement is hereby
amended by adding the following new defined terms:
"`Amendment and Agreement' shall mean the Amendment
and Agreement, dated as of November 13, 1998, between the
Borrower and the Lender."
"`Change of Control' shall mean a "Change of
Control", as defined in the Subordinated Debt Agreement."
"`Subordinated Debt Agreement' shall mean the
Subordinated Loan Agreement, dated as of November 13, 1998
between Lend Lease Investments Holdings, Inc. and the
Borrower, as amended, modified and supplemented in accordance
with the provisions of this Amendment."
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1.2 Section 1.01 of the Existing Loan Agreement is hereby
amended by deleting the word "and" at the end of clause (c) of the
definition "Applicable Collateral Percentage", by replaceing the
punctuation at the end of clause (d) thereof with "; and" and by
adding the following clause (e) to the end thereof:
"(e) Notwithstanding the foregoing, from and after
November 13, 1998, the Applicable Collateral Percentage for
each additional First Mortgage Loan pledged on or after such
date pursuant to the Loan Agreement shall be 75%, and the
Applicable Collateral Percentages listed in clauses (a)
through (d) above, as applicable, shall continue to apply to
any Collateral pledged prior to such date."
1.3 Section 1.01 of the Existing Loan Agreement is hereby
amended (i) by deleting the introductory clause of the definition of
"Applicable Margin" and substituting in lieu thereof the following new
clause:
"`Applicable Margin' shall mean, for each Type of
Advance at all times prior to November 13, 1998, the
corresponding percentage set forth below:"; and
(ii) by inserting the following at the end of the definition thereof:
"and shall mean, for each Type of Advance (a) from
November 13,1998 through and including December 31, 1998,
1.50% and (b) on and after Juanuary 1, 1999, 2.00%."
1.4 Section 1.01 of the Existing Loan Agreement is hereby
amended by deleting the words "the higher of (i) the Lender's Prime
Rate and (ii)" from the definition of "Base Rate".
1.5 (a) Section 1.01 of the Existing Loan Agreement is
hereby amended by deleting the definition of "Eligible Assets" and
substituting in lieu thereof the following new definition:
"`Eligible Assets' shall mean (a) at all times prior
to November 13, 1998, the collective reference to Eligible
First Mortgage Loans, Eligible Mezzanine Loans, Eligible REO
Property, Eligible Second Mortgage Loans and Eligible
Securities, and (b) on and after the November 13, 1998, (i)
First Mortgage Loans which are listed on Schedule 1 attached
to the Amendment and Agreement and which otherwise satisfy
the requirements for Eligible First Mortgage Loan, (ii)
Eligible Assets which were pledged to the Lender prior to
November 13, 1998 and which otherwise continue to satisfy the
eligibility criteria for such Eligible Assets and (iii)
Additional Securities (as defined in the Amendment and
Agreement) so long as they satisfy the criteria for Eligible
Securities."
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1.6 Section 1.01 of the Existing Loan Agreement is hereby
amended by inserting at the end of the definition of "Interest
Expense" the phrase "other than Indebtedness under the Subordinated
Debt Agreement."
1.7 Section 1.01 of the Existing Loan Agreement is hereby
amended by deleting the definition of "Maximum Committed Credit" and
substituting in lieu thereof the following new definition:
"`Maximum Committed Credit' shall mean (a)
$90,000,000 until January 31, 1999 and (b) $50,000,000
thereafter."
1.8 Section 1.01 of the Existing Loan Agreement is hereby
amended by adding the following phrase after the word "GAAP" at the
end of paragraph (a) of the definition of "Tangible Net Worth":
", plus advances outstanding under the Subordinated
Debt Agreement".
1.9 Section 1.01 of the Existing Loan Agreement is hereby
amended by deleting the definition of "Termination Date" and
substituting in lieu thereof the following new definition:
"`Termination Date' shall mean March 31, 1999."
1.10 Section 2.09 of the Existing Loan Agreement is hereby
amended by deleting the number "$500,000" in the second line thereof
and substituting in lieu thereof "$90,000".
1.11 Section 2.14 of the Existing Loan Agreement is
hereby deleted in its entirety.
1.12 Section 6.22(b) of the Existing Loan Agreement is
hereby amended by deleting the figure "$100,000,000" therefrom and
substituting in lieu thereof "$65,000,000 until January 1, 1999 and
$50,000,000 thereafter".
1.13 Section 7.10(a) of the Existing Loan Agreement is
hereby amended by deleting the figure "$100,000,000" therefrom and
substituting in lieu thereof "$65,000,000 until January 31, 1999 and
$50,000,000 thereafter".
1.14 Section 7.10 of the Existing Loan Agreement is
hereby amended by adding the following Section (d):
"(d) Maintenance of Liquidity. The Borrower shall at
all times maintain cash or cash equivalents acceptable to the
Lender in an amount not less than $10,000,000."
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1.15 Section 8 of the Existing Loan Agreement is hereby
amended by replacing the punctuation at the end of subsection (q)
thereof with "; or" and by adding the following new subsections (r)
and (s) at the end thereof:
"(r) Change of Control. A Change of Control shall
occur; or"
"(s) Amendment and Agreement. The Borrower shall
fail to perform any of its obligations under the Amendment
and Agreement, and, in the case of Section 2.6 of the
Amendment and Agreement, such failure to perform shall
continue unremedied for a period of fourteen (14) days."
SECTION 2
COVENANTS
2.1 Financial Reporting. No later than 5:00 p.m., New
York City time, on Monday of each week (or if such day is not a
Business Day, the next succeeding Business Day), the Borrower shall
deliver to the Lender an updated balance sheet as of the end of the
previous week, which shall be in a form satisfactory to the Lender.
2.2 Amendment Fee. On or prior to the effective date of
this Amendment, the Borrower shall pay to the Lender an amendment fee
in an amount equal to $800,000.
2.3 Agreement Regarding Securities. The Borrower shall
pledge and deliver to the Custodian for the benefit of the Lender the
Bear Xxxxxxx Commercial Mortgage Securities, Inc. Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class K (the "Additional
Securities") as additional collateral for the Secured Obligations to
be held by the Lender in accordance with the Loan Documents, and from
and after the date hereof, the Additional Securities shall constitute
Collateral under the Loan Agreement.
2.4 Purchase of Loans. The Borrower agrees to sell, and
the Lender agrees to purchase, the mortgage loans listed on Schedule 2
attached hereto on or prior to November 16, 1998 pursuant to a
Mortgage Loan Purchase Agreement substantially in the form of Exhibit
A hereto, subject to satisfactory completion of due diligence by the
Lender with respect to such mortgage loans.
2.5 Subordinated Debt. The Borrower shall not amend,
modify or otherwise supplement the Subordinated Debt Agreement, other
than amendments which are ministerial or operational in nature and not
adverse to the interests of the Lender, without the prior written
consent of the Lender. The Borrower agrees to deliver to the Lender a
substantially final draft of any proposed amendment no later than
12:00 noon, New York City time, two Business Days prior to the
proposed date of execution of such amendment and, no later than 12:00
noon, New York City time, two Business Days after the date of
execution, a copy of the final executed amendment.
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2.6 Asset Disposition Plan. Within fourteen (14) days
following the date of this Amendment, the Borrower shall deliver to
the Lender an asset disposition plan, in form and substance reasonably
satisfactory to the Lender.
2.7 Borrowing Base Deficiency. No later than November 13,
1998, the Borrower shall pay to the Lender all amounts owing to the
Lender pursuant to Section 2.09 of the Loan Agreement relating to any
existing Borrowing Base Deficiency;
SECTION 3
EFFECTIVENESS
3.1 Effectiveness. This Amendment shall become effective
upon:
(a) receipt by the Lender of evidence satisfactory
to the Lender that this Amendment has been duly executed and
delivered by the Borrower;
(b) receipt by the Custodian for the benefit of the
Lender of the Securities referenced in Section 2.3 hereof;
(c) receipt by the Lender of the Subordinated Debt
Agreement, duly executed and delivered by the Borrower and
Lend Lease Investments Holdings, Inc. ("Lend Lease"), in form
and substance satisfactory to the Lender;
(d) disbursement to the Borrower of an advance under
the Subordinated Debt Agreement in an amount sufficient to
permit the Borrower to comply with Section 7.10(a) of the
Loan Agreement (but in any event not less than $17,000,000);
(e) receipt by the Lender of the amendment fee and
payment by the Borrower of all other expenses required to be
paid in connection herewith or otherwise owing to the Lender
or its counsel;
(f) receipt by the Lender of a legal opinion of
counsel to the Borrower and Lend Lease, in form and substance
satisfactory to the Lender; and
(g) receipt by the Lender of an officer's
certificate which certifies that (i) no changes have been
made to the corporate governing documents of the Borrower
previously delivered to the Lender since such date of
delivery, (ii) all representations and warranties contained
in the Loan Agreement and this Amendment are true and correct
and (iii) no Default or Event of Default shall have occurred
and be continuing following consummation of the transactions
contemplated hereby.
SECTION 4
REPRESENTATIONS AND WARRANTIES
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4.1 To induce the Lender to enter into this Agreement,
the Borrower hereby represents and warrants to the Lender that, after
giving effect to the amendments and agreements provided for herein,
the representations and warranties contained in the Loan Agreement and
the other Loan Documents will be true and correct in all material
respects as if made on and as of the date hereof and that no Default
or Event of Default will have occurred and be continuing.
SECTION 5
MISCELLANEOUS
5.1 Reservation of Rights. The Lender hereby advises the
Borrower that, other than expressly provided herein, the Lender does
not waive any Defaults or Events of Default which may exist, and that
the current non-exercise of rights, remedies, powers and privileges by
the Lender under the Loan Documents and applicable law with respect to
such Defaults or Events of Default, if any, shall not be, and shall
not be construed as, a waiver thereof, and the Lender reserves its
rights (i) fully to invoke any and all such rights, remedies, powers
and privileges under the Loan Documents and applicable law at any time
any of them deems appropriate in such respect of any Defaults or
Events of Default that may exist, (ii) to refuse to make available any
further extensions of credit except in strict accordance with the
terms of the Loan Documents and (iii) to require that all Advances
bear interest at the rates specified in the Loan Agreement. Nothing in
this Amendment, and no extension of credit made by the Lender on or
after the date hereof, shall be construed as an acknowledgment or
determination by the Lender that no Default or Event of Default has
occurred or is continuing.
5.2 No Other Amendments. Except as expressly amended
hereby, the Existing Loan Agreement and the other Loan Documents shall
remain in full force and effect in accordance with their respective
terms, without any waiver, amendment or modification of any provision
thereof.
5.3 Counterparts. This Amendment may be executed by one
or more of the parties hereto on any number of separate counterparts
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
5.4 Expenses. The Borrower agrees to pay and reimburse
the Lender for all of the out-of-pocket costs and expenses incurred by
the Lender in connection with the preparation, execution and delivery
of this Amendment, including, without limitation, the fees and
disbursements of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the Lender.
5.5 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
XXXXXXXX CAPITAL CORPORATION
By:
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Lender
By:
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Name:
Title:
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Schedule 1
LOANS CAPABLE OF BEING ELIGIBLE MORTGAGE LOANS
1. Country Squire $30,500,000
2. Shoppes at Longwood $14,200,000
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Schedule 2
LOANS TO BE SOLD TO THE LENDER
[DESCRIPTION TO BE SUPPLEMENTED]
Loan Name Applicable Spread for Sale
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1. 330 Whitney 350 bps
2. Hampton Inn 380 bps
3. 3211 Xxxxx 350 bps
4. Eckerd 325 bps
5. Hollywood Video 390 bps
Purchase Prices shall be calculated using a yield equal to the yield on the 4
3/4% of 11/08 10 year US Treasury plus the applicable spread indicated above.
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EXHIBIT A
Form of Mortgage Loan Purchase Agreement
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