EXHIBIT 10.53
FOURTH MODIFICATION TO LOAN AGREEMENT AND OTHER DOCUMENTS
This Fourth Modification to Loan Agreement and Other Documents
(this "MODIFICATION"), dated as of December 29, 2000, is made by and among
XXXXXXX PACIFIC OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("BPOP"), BPP/CAMERON PARK, L.P., a California limited partnership and
BPP/XXXXX, X.X., a California limited partnership (each, individually, a
"BORROWER" and collectively, "BORROWERS"), XXXXXXX PACIFIC PROPERTIES, INC., a
Maryland corporation ("BPPI", and together with Borrowers, each, individually, a
"LOAN PARTY" and collectively, the "LOAN PARTIES"), and CMF CAPITAL COMPANY,
LLC, a Delaware limited liability company ("CMF"), successor-in-interest to
General Electric Capital Corporation, as Administrative Agent for the Lender (as
hereinafter defined, and in such capacity, together with its successors and
assigns in such capacity, the "ADMINISTRATIVE AGENT") and the Lender.
R E C I T A L S :
WHEREAS, Borrowers have (i) executed and delivered to the
Administrative Agent that certain Loan Agreement, dated as of November 19, 1999,
among Borrowers, as borrowers, the Administrative Agent, as administrative agent
for itself and certain financial institution(s) signatory thereto from time to
time, as lender(s) (the "Lender") and the Lender as modified by that
Modification to Loan Agreement and Other Documents, dated as of December 20,
1999 and Second Modification to Loan Agreement and Other Documents, dated as of
March 31, 2000 and Third Modification to Loan Agreement and Other Documents,
dated as of November 30, 2000, among the Loan Parties, the Administrative Agent
and the Lender (together with any other supplements, amendments or modifications
thereto, collectively, the "ORIGINAL LOAN AGREEMENT"; capitalized terms used but
not otherwise defined herein shall have the meanings set forth in the Original
Loan Agreement as amended hereby), pursuant to which the Lender has agreed to
make certain loans (the "LOANS") to Borrowers, and (ii) executed and delivered
to the Lender, a Revolving Loan Note (the "ORIGINAL REVOLVING LOAN NOTES") and
Term Loan Note, as the case may be, in the aggregate principal amount of
$176,262,867 evidencing the Loans (collectively, the "ORIGINAL NOTES");
WHEREAS, subject to the terms of the Original Loan Agreement,
the maturity date for the Loans is January 2, 2001 (the "ORIGINAL MATURITY
DATE");
WHEREAS, Borrowers and the Lender desire to extend the
maturity date of the Loans, to reduce the Revolving Loan Commitments and to
amend the Original Loan Agreement and the other Loan Documents to reflect
certain other changes; and
WHEREAS, in order to induce the Administrative Agent and the
Lender to enter into this Modification, the Loan Parties have agreed to confirm
and ratify their respective obligations and liabilities under the Loan Documents
as amended hereby.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows, effective as of the
date hereof:
1. EXTENSION OF MATURITY DATE. Subject to the terms of this
paragraph, the Maturity Date of the Loans is hereby extended to December 31,
2001, provided, that, Borrowers pay to the Administrative Agent (on behalf of
the Lender) on the date hereof, an extension fee in an amount equal to the
product of (a) one percent (1%) and (b) the sum of (i) the aggregate Term Loan
Commitments and (ii) the aggregate Revolving Loan Commitments. Notwithstanding
anything to the contrary contained in this paragraph, in the event that the
Loans are required to be repaid in full prior to the dates described in this
paragraph as a result of acceleration or otherwise under the Loan Agreement or
any other Loan Document, such earlier date shall constitute the "Maturity Date".
2. REDUCTION OF REVOLVING LOAN COMMITMENT; USE OF REVOLVING LOAN
FOR LIQUIDATION EXPENSES. Notwithstanding anything to the contrary contained in
SECTION 2.01 of the Loan Agreement, the maximum aggregate principal amount
available under the Revolving Loan Commitments is hereby reduced to Twenty
Million Dollars ($20,000,000). On the date hereof, Borrowers shall execute and
deliver to the Lender a Second Amended and Restated Revolving Loan Promissory
Note, dated the date hereof and in the form attached hereto as SCHEDULE A (the
"SECOND AMENDED AND RESTATED REVOLVING LOAN NOTE") amending and restating the
Original Revolving Loan Note to reflect such permanent reduction in the
Revolving Loan Commitments. The Lender acknowledges and agrees that the proceeds
of the Revolving Loans may be used by the Borrowers to pay for expenses incurred
in connection with the liquidation of the assets of BPPI.
3. MODIFICATION OF APPLICATION OF P&V NET SALES PROCEEDS. The
second sentence of SECTION 2.03(2) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"Notwithstanding anything to the contrary contained in the
preceding sentence, in the event that the P&V Sale Properties (individually or
collectively) are sold or transferred to any other Person, the Borrowers shall
pay to the Administrative Agent (on behalf of the Lender) an amount equal to (a)
46.6655% of the P&V Net Sales Proceeds to be applied by the Administrative Agent
(on behalf of the Lender) to repay a portion of the outstanding principal
balance of the Term Loans, and (b) 53.3345% of the P&V Net Sales Proceeds to be
applied by the Administrative Agent (on behalf of the Lender) to repay a portion
of the outstanding principal balance of the Revolving Loans."
2
4. NET WORTH REQUIREMENT. SECTION 7.10 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"Section 7.10 NET WORTH REQUIREMENT. The Borrower Net Worth as
of the end of each fiscal quarter shall be at least (a) $225,000,000 so
long as the Term Loans are outstanding and (b) $150,000,000 in the
event that the Term Loans have been repaid in full; in each case, as
confirmed by the Administrative Agent based on the book value of the
Borrowers."
5. APPLICATION OF MINIMUM RELEASE PRICE PROCEEDS; ALLOCATED LOAN
AMOUNTS. (a) The definition of Minimum Release Price set forth in SECTION 1.01
of the Loan Agreement is hereby deleted in its entirety and replaced with the
following:
"MINIMUM RELEASE PRICE" means, with respect to any Project
that is the subject of a Partial Release, the greater of (a) one
hundred twenty-five percent (125%) of the Allocated Loan Amount for
such Project and (b) 90% of the Net Sales Proceeds thereof if the Terms
Loans have not been repaid in full and 100% of the Net Sales Proceeds
if the Term Loans have been repaid in full."
(b) The definition of "Adjusted Loan Amount" set forth in SECTION
1.01 of the Loan Agreement and the provisions of SECTION 2.04(B) of the Loan
Agreement are hereby deleted in their entirety. From and after the date hereof,
all references in the Loan Agreement to the "Adjusted Loan Amount" are hereby
amended to refer to the "Allocated Loan Amount". For purposes of clarification,
the parties hereto acknowledge and agree that SCHEDULE 3 attached hereto sets
forth the current "Allocated Loan Amounts" for each of the Projects.
(c) The following new paragraph is hereby added to SECTION 2.04 of
the Loan Agreement:
"(b) Notwithstanding anything to the contrary contained in
this Agreement, in connection with any Partial Release, the proceeds
received by the Administrative Agent on account of the Minimum Release
Price shall be applied as follows: (i) first, to repay the Term Loans
until the Term Loans are repaid in full and (ii) second, to repay the
Revolving Loans until such Revolving Loans are repaid in full, provided
that, seventy percent (70%) of any such proceeds applied to repay the
Revolving Loans shall be applied as a permanent reduction of the
Revolving Loan Commitment. In the event that the Term Loans and the
Revolving Loans have been paid in full, Borrowers shall be entitled to
retain all of the applicable Net Sales Proceeds provided, that, the
Revolving Loan Commitment shall be permanently reduced by an amount
equal to seventy percent (70%) of the Minimum Release Price for the
Project that is the subject of such Partial Release."
6. MANDATORY REPAYMENT. Notwithstanding anything to the contrary
contained in the Loan Agreement, at any time that (a) the aggregate outstanding
principal balance of the Loans plus any unused Revolving Loan Commitment is less
than $10,000,000, or (b) there are less than
3
three (3) Projects encumbered by Mortgages, Borrowers shall be required to (i)
repay the Loans in full and (ii) the Revolving Loan Commitment shall terminate
and be of no further force and effect.
7. CASH ON CASH RETURN, PORTFOLIO LTV AND DEBT SERVICE COVERAGE.
(a) SECTION 2.01(6)(E) of the Loan Agreement shall be
deleted in its entirety and replaced with the following:
"(e) The Administrative Agent (on behalf of the
Lenders) shall have determined to its satisfaction (provided, however,
that such determination shall be consistent with, and similar in
substance to, the determination of such calculations as of the date of
this Agreement) based on information and documentation provided by
Borrowers to the Administrative Agent (on behalf of the Lenders) at
least five (5) Business Days prior to the proposed date of the funding
of the requested Additional Advance that after giving effect to such
Additional Advance, the Projects will generate an annualized Net
Operating Income sufficient to produce: (i) an aggregate Cash on Cash
Return of at least 17% so long as the Term Loan has not been repaid in
full, and at least 25% after the Term Loan has been repaid in full;
(ii) an aggregate Debt Service Coverage of at least, 1.75 to 1.0 so
long as the Term Loan has not been repaid in full, and at least 2.75 to
1.00 after the Term Loan has been repaid in full; and (iii) a Portfolio
LTV equal to, or less than, 50% so long as the Term Loan has not been
repaid in full, and equal to or less than, 30% after the Term Loan has
been repaid in full; calculated in each case using the annualized Net
Operating Income determined at the end of the most recently ended
fiscal quarter."
(b) SECTION 2.04(A)(4) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"(4) The Administrative Agent shall have determined
to its satisfaction (provided, however, that such determination shall
be consistent with, and similar in substance to, the determination of
such calculations as of the date of this Agreement) that after giving
effect to such Partial Release, the Projects will generate an
annualized Net Operating Income sufficient to produce (a) an aggregate
Cash on Cash Return of at least, 17% so long as the Term Loan has not
been repaid in full, and at least 25% after the Term Loan has been
repaid in full; (b) an aggregate Debt Service Coverage of at least 1.75
to 1.00 so long as the Term Loan has not been repaid in full, and at
least 2.75 to 1.00 after the Term Loan has been repaid in full; and (c)
a Portfolio LTV equal to, or less than 50% so long as the Term Loan has
not been repaid in full, and equal to, or less than 30% after the Term
Loan has been repaid in full;"
(c) Clause (d) of SECTION 3.02(2) of the Loan Agreement
is hereby deleted in its entirety and replaced with the following:
4
"(d) the Administrative Agent determines (based on
leases which will remain in effect after restoration is complete) that
after restoration (i) the Debt Service Coverage for the Projects will
be at least 1.75 to 1.00 so long as the Term Loan has not been repaid
in full, and at least 2.75 to 1.00 after the Term Loan has been repaid
in full; (ii) the Cash on Cash Return for the Projects will be at least
17% so long as the Term Loan has not been repaid in full, and at least
25% after the Term Loan has been repaid in full; and (iii) the
Portfolio LTV is equal to, or less than, 50% so long as the Term Loan
has not been repaid in full, and equal to, or less than, 30% after the
Term Loan has been repaid in full."
(d) SECTION 7.11 of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"Section 7.11 PORTFOLIO COVENANTS. With respect to
the Projects, as of the end of each fiscal quarter (i) the Debt Service
Coverage shall be at least 1.75 to 1.00 so long as the Term Loan has
not been repaid in full, and at least 2.75 to 1.00 after the Term Loan
has been repaid in full; (ii) the Cash on Cash Return shall be at least
17% so long as the Term Loan has not been repaid in full, and at least
25% after the Term Loan has been repaid in full; and (iii) the
Portfolio LTV shall be equal to, or less than, 50% so long as the Term
Loan has not been repaid in full, and equal to, or less than 30% after
the Term Loan has been repaid in full; in each case, as determined by
Administrative Agent (on behalf of the Lenders)."
8. OPTION TO PREPAY LOAN BASED ON SALE OF NON-MORTGAGED
PROPERTIES. Notwithstanding anything to the contrary contained in the Loan
Agreement, Borrowers shall have the option at any time during the Term to
prepay, from the application of any Non-Mortgaged Properties Net Sales Proceeds,
(a) the Term Loans or (b) the Revolving Loans. Borrowers shall give the
Administrative Agent ten (10) Business Days' prior written notice before any
such prepayment. All prepayments made pursuant to this paragraph on a day other
than a Payment Date shall be accompanied by an amount sufficient to pay (i) any
and all amounts payable to the Lender pursuant to the provisions of SECTION
2.08(5) of the Loan Agreement as a result of such payment while a Eurodollar
Loan is in effect and (ii) all costs, expenses and fees required to be paid
under the Interest Rate Protection Agreement.
9. DEFINED TERMS; ADDITIONAL AMENDMENTS.
9.1 The following definitions are hereby added and made a
part of SECTION 1.01 of the Loan Agreement:
"XXXX GARDENS MORTGAGE AMENDMENTS" means, collectively, the
Modification of Leasehold Deed of Trust, Security Agreement and Fixture
5
Filing, dated as of November 30, 2000 and that Second Modification of Leasehold
Deed of Trust, Security Agreement and Fixture Filing, dated as of December 29,
2000, executed by BPOP and CMF, together with all amendments or supplements
thereto.
"XXXX GARDENS ASSIGNMENT OF RENTS AMENDMENTS" means,
collectively, the Modification of Assignment of Rents and Subleases, dated as of
November 30, 2000 and the Second Modification of Assignment of Rents and
Subleases, dated as of December 29, 2000, executed by BPOP and CMF, together
with all amendments and supplements thereto.
"FOURTH MODIFICATIONS OF DEEDS OF TRUST" means those certain
Fourth Modifications of Deeds of Trust, Security Agreement and Fixture Filing,
Fourth Modifications of Mortgages, Security Agreement and Fixture Filing, Fourth
Modifications of Leasehold Deeds of Trust, Security Agreement and Fixture
Filing, and Fourth Modifications of Leasehold Mortgages Security Agreement and
Fixture Filing, each of even date herewith, executed by the applicable Borrower
in favor of the Administrative Agent (on behalf of the Lender), together with
all future amendments, modifications and supplements thereto.
"FOURTH MODIFICATIONS OF ASSIGNMENTS OF RENTS" means those
certain Fourth Modifications of Assignments of Rents and Leases and Fourth
Modifications of Assignments of Rents and Subleases, of even date herewith,
executed by the applicable Borrower in favor of the Administrative Agent (on
behalf of the Lender), together with all future amendments, modifications and
supplements thereto."
9.2 From and after the date hereof, the definition of
"Mortgages" shall be amended to (a) include the Xxxx Gardens Mortgage as amended
by the Xxxx Gardens Mortgage Amendments and (b) refer to the Mortgages as
amended by the applicable Fourth Modification of Deeds of Trust.
9.3 From and after the date hereof, the definition of
"Revolving Loan Note" shall mean the Original Revolving Loan Note as amended and
restated by the Second Amended and Restated Revolving Loan Note.
9.4 From and after the date hereof, the definition of
"Assignments of Rents and Leases" shall be amended to (a) include the Xxxx
Gardens Assignment of Rents and Subleases as amended by the Xxxx Gardens
Assignment of Rents Amendments and (b) refer to the Assignments of Rents and
Leases as amended by the applicable Fourth Modification of Assignments of Rents.
10. COVENANTS, REPRESENTATIONS AND WARRANTIES OF LOAN PARTIES.
10.1 Each Loan Party hereby represents and warrants to the
Administrative Agent and the Lender that (a) it has the legal power and
authority to enter into this Modification without consent or approval by any
third party and this Modification constitutes the legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in accordance
with its terms, and (b) the execution and delivery by such Loan Party of this
Modification has
6
been duly authorized by all requisite limited liability company, partnership or
corporate action, as the case may be, on the part of such Loan Party, will not
violate any provision of such Loan Party's organizational documents, as
applicable, does not contravene any law, rule or regulation applicable to it or
violate or create a default under any contractual provision binding on it or
affecting it or any of its properties or assets, and (c) no consent of any
Person is required in connection with the execution, delivery and performance by
the Loan Parties of this Modification (other than any consents that have been
obtained and are in full force and effect).
10.2 Each Loan Party hereby represents and warrants to the
Administrative Agent and the Lender that, as of the date hereof (a) no Potential
Default or Event of Default has occurred and is continuing under any applicable
Loan Document executed by such Loan Party, (b) no Potential Default or Event of
Default will occur as a result of the execution, delivery and performance by
such Loan Party of this Modification, the Fourth Modifications of Deeds of Trust
or Fourth Modifications of Assignments of Rents to which such Loan Party is a
party, as applicable, (c) such Loan Party has not given any notice of any
uncured Potential Default to the Administrative Agent or any Lender, (d) there
are no legal proceedings commenced or threatened against the Administrative
Agent or any Lender by such Loan Party.
10.3 Each Loan Party hereby confirms and acknowledges that
such Loan Party has no offsets, defenses, claims, counterclaims, setoffs, or
other basis for reduction with respect to any of Borrowers' indebtedness to the
Lender under the Loans or any obligations or liabilities of such Loan Party to
the Administrative Agent and the Lender under any Loan Document executed by such
Loan Party. Each Loan Party hereby confirms and acknowledges that all
representations and warranties made by such Loan Party in the Loan Documents to
which such Loan Party is a party are true and correct in all material respects
on and as of the date of this Modification.
10.4 Each Borrower hereby agrees that a breach of any of
the representations, warranties and covenants made herein shall constitute an
Event of Default under ARTICLE 9 of the Loan Agreement, subject to the notice
and cure provisions provided therein.
11. EFFECT UPON LOAN DOCUMENTS.
11.1 Except as specifically set forth herein, the Loan
Agreement and Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed by each applicable Loan Party signatory thereto.
The parties hereto acknowledge and agree that the Original Loan Agreement, as
hereby amended, is in full force and effect in accordance with its terms and has
not been supplemented, modified or otherwise amended, canceled, terminated or
surrendered, except pursuant to this Modification. The Loan Agreement is binding
and enforceable as against the parties thereto in accordance with its terms. All
references to the "Loan Agreement" in the Loan Documents and to "this Agreement"
in the Original Loan
7
Agreement shall mean and refer to the Original Loan Agreement as modified and
amended hereby.
11.2 The execution, delivery and effectiveness of this
Modification shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or the Lender under the Loan Documents (except to the
extent expressly set forth herein), or any other document, instrument or
agreement executed and/or delivered in connection therewith.
12. GOVERNING LAW. THIS MODIFICATION SHALL BE CONSTRUED,
INTERPRETED AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS PRINCIPLES.
13. RELEASE OF LENDER AND ADMINISTRATIVE AGENT. Each Loan Party
hereby release, acquits and forever discharges the Administrative Agent and the
Lender and all subsidiaries, affiliates, officers, directors, shareholders,
agents, employees, servants, attorneys and representatives of the Administrative
Agent and the Lender, as well as their respective successors and assigns
(hereinafter collectively being referred to as the "RELEASED PARTIES") of and
from any and all claims, demands, debts, losses, costs, expenses, proceedings,
judgments, damages, actions, causes of action, suits, contracts, agreements,
obligations, accounts, defenses, offsets and liabilities of any kind or
character whatsoever, known or unknown, suspected or unsuspected, in contract or
in tort, at law or in equity, including, without limitation, such claims and
defenses as fraud, mistake, duress and usury, which the Borrowers or any other
Loan Party ever had, now have or might hereafter have against the Released
Parties, or any of them, jointly or severally, for or by reason of any matter,
cause or thing whatsoever, which relates to, is based on, or arises out of, by
reason of or in connection with, in whole or in part, directly or indirectly,
any act, omission, fact, circumstance or condition existing on or prior to the
date hereof in connection with the origination, servicing, administration and/or
collection of the Loans.
14. COUNTERPARTS. This Modification may be executed in any number
of counterparts (and by facsimile), and all such counterparts shall together
constitute the same agreement.
Signatures Commence on Following Page.
8
IN WITNESS WHEREOF, the parties hereto have caused this
Modification to be executed as of the day and year first above written.
XXXXXXX PACIFIC OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
BPP/CAMERON PARK, L.P.,
a California limited partnership
By: XXXXXXX PACIFIC OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership,
its managing member
By: XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
S-1
BPP/XXXXX, X.X.,
a California limited partnership
By: XXXXXXX PACIFIC OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership,
its general partner
By: XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
CMF CAPITAL COMPANY, LLC,
a Delaware limited liability company,
as Administrative Agent for the Lender
and as Lender
By: /s/ X. Xxxxxxx
---------------------------------------------
Name:
Title:
S-2
