FIRST OMNIBUS AMENDMENT AND REAFFIRMATION OF LOAN DOCUMENTS
Exhibit 10.8
FIRST OMNIBUS AMENDMENT AND REAFFIRMATION OF LOAN DOCUMENTS
THIS FIRST OMNIBUS AMENDMENT AND REAFFIRMATION OF LOAN DOCUMENTS (this “Amendment”) is dated as of the 30th day of March, 2011 (the “Effective Date”) by and among TNP SRT SECURED HOLDINGS, LLC, a Delaware limited liability company (“Lead Borrower”), TNP SRT XXXXXX MARKETPLACE, LLC, a Delaware limited liability company (“Xxxxxx Borrower”), TNP SRT SAN JACINTO, LLC, a Delaware limited liability company (“San Jacinto Borrower”, and collectively with Lead Borrower and Xxxxxx Borrower, the “Original Borrower”), TNP STRATEGIC RETAIL TRUST, INC., a Maryland corporation (the “REIT”), TNP STRATEGIC RETAIL OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the “OP”, and collectively with the REIT, the “Tranche A Guarantors”), XXXXXXXX NATIONAL PROPERTIES, LLC, a Delaware limited liability (“TNP”), XXXXXXX X. XXXXXXXX, an individual having (“Xxxxxxxx”), AWT FAMILY, LIMITED PARTNERSHIP, a California limited partnership (“AWT”, and together with the REIT, TNP and Xxxxxxxx, the “Tranche B Guarantors”, and together with the Tranche A Guarantors, the “Guarantors” and individually, a “Guarantor”), TNP SRT NORTHGATE PLAZA TUCSON HOLDINGS, LLC, a Delaware limited liability company (“Northgate”), TNP SRT XXXXX PROMENADE, LLC, a Delaware limited liability company (the “Xxxxx Borrower”, and together with the Original Borrower, the “Borrower”, and together with the Guarantors and Northgate, the “Credit Parties” and individually, a “Credit Party”), and KEYBANK NATIONAL ASSOCIATION, a national banking association having a principal place of business at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as agent (in such capacity, “Agent”) for itself and any other lenders who become lenders under the Credit Agreement (as hereinafter defined) collectively referred to as “Lenders” and each individually referred to as a “Lender”). Each Credit Party has an address at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
Witnesseth That:
WHEREAS, the Original Borrower, the Agent and the Lenders are parties to that certain Revolving Credit Agreement dated as of December 17, 2010, as amended by that certain Joinder Agreement of even date herewith (as amended, restated and/or modified from time to time, the “Credit Agreement”), pursuant to which, among other things, the Lenders agreed to provide to the Original Borrower a revolving credit facility in the maximum principal amount of $35,000,000, and which obligations of the Original Borrower to the Agent and Lenders under the Credit Agreement are evidenced by, among other things, that certain Revolving Credit Note dated as of December 17, 2010 by the Original Borrower in favor of the Lenders in the original principal amount of $35,000,000 (as amended, restated and/or modified from time to time, the “Note”), and are secured by, among other things, (a) that certain Pledge and Security Agreement dated as of December 17, 2010 by Lead Borrower in favor of the Agent for the benefit of the Lenders (as amended, restated and/or modified from time to time, the “Borrower Pledge Agreement”), (b) that certain Pledge and Security Agreement dated as of December 17, 2010 by the REIT in favor of the Agent for the benefit of the Lenders (as amended, restated and/or modified from time to time, the “REIT Pledge Agreement”), (c) that certain Pledge and Security Agreement dated as of December 17, 2010 by the OP and Northgate in favor of the Agent for the benefit of the Lenders (as amended, restated and/or modified from time to time, the “OP Pledge Agreement”), and (d) that certain Guaranty Agreement dated as of December 17, 2010 by the
Guarantors in favor of the Agent for the benefit of the Lenders (as amended, restated and/or modified from time to time, the “Guaranty”);
WHEREAS, pursuant to that certain Joinder Agreement of even date herewith, the Xxxxx Borrower has been joined to the Credit Agreement and the other Loan Documents as a Borrower;
WHEREAS, in accordance with the terms and provisions of the Credit Agreement and the related Loan Documents, the Borrower, from time to time, may acquire Mortgaged Properties, Approved Properties and/or direct or indirect Equity Interests in various Entities;
WHEREAS, in connection with the acquisition of each Mortgaged Property, Approved Property and/or Equity Interests in an Entity, the Borrower has agreed to amend and supplement certain of the provisions, exhibits and schedules attached to the Credit Agreement and related Loan Documents;
WHEREAS, the Lead Borrower holds 100% of the Equity Interests in and to the Xxxxx Borrower;
WHEREAS, pursuant to that certain Purchase and Sale Agreement dated as of August 16, 2010 (as amended from time to time) between the Xxxxx Borrower (as assignee of TNP Acquisitions, LLC) and 525, 605, 655, 675, 715, 725, 755, 775 & 000 Xxxx Xxxxx Xxxx Holdings, LLC, a Maryland limited liability company (the “Xxxxx Seller”), the Xxxxx Seller has agreed to sell, transfer and convey to the Xxxxx Borrower, all of the Xxxxx Seller’s right, title and interest in and to the real property and improvements situated in the City of North Las Vegas, County of Xxxxx, State of Nevada and commonly known as “Xxxxx Promenade” (the “Craig Property”);
WHEREAS, in connection with the acquisition of the Xxxxx Property, the Original Borrower and the Xxxxx Borrower have requested the Xxxxx Loan (as hereinafter defined) and certain amendments to the provisions of the Loan Documents, and the Agent and Lender have agreed to provide the Xxxxx Loan and to make such amendments to the Loan Documents, all upon the terms and provisions more particularly set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby amend the Loan Documents and agree as follows:
1. Recitals and Definitions. The foregoing recitals are hereby incorporated by reference as if set forth at length herein. Capitalized terms used herein without definition shall have the meaning assigned to such terms in the Credit Agreement.
2. Xxxxx Loan. As of the date hereof, the Original Borrower has requested an advance in the original principal amount of Eight Million Seven Hundred Fifty Thousand and No/100 Dollars ($8,750,000) (the “Xxxxx Loan”), which Xxxxx Loan will be used by the Original Borrower (and/or the Xxxxx Borrower) to fund a portion of the costs and expenses related to the acquisition of the Xxxxx Property. In connection with the Xxxxx Loan, the Xxxxx Borrower has agreed to (x) assume, on a joint and several basis, the obligations of the Original Borrower under the Loan Documents, all upon the terms and conditions set forth in this Amendment and (y) to
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provide certain additional documentation to secure the obligations of the Original Borrower, the Xxxxx Borrower and the Obligors under the Loan Documents.
For the avoidance of doubt, and for all other purposes of the Loan Documents, (a) the Xxxxx Loan shall constitute an “Obligation” and a “Loan” under the terms and provisions of the Credit Agreement and the Loan Documents, and shall be secured by, and be entitled to the benefits of, the Security Documents (as such term is supplemented in this Amendment), the Loan Documents and any other document and agreement executed in connection with any of the foregoing, and (b) the Xxxxx Property shall be deemed a “Mortgaged Property”, an “Approved Property” and a “Funded Approved Property” for purposes of the Credit Agreement and the Loan Documents.
3. Conditions Precedent to Xxxxx Loan. The Borrower agrees to deliver to the Agent the following, and acknowledges and agrees that the funding of the Xxxxx Loan is subject to satisfaction of the following conditions precedent, as determined by Agent in its reasonable discretion:
(a) The Mortgaged Property Requirements and the Approved Property Requirements shall have been satisfied.
(b) The Agent and Majority Lenders shall have approved the Xxxxx Property as a Mortgaged Property and the Agent shall have approved the Xxxxx Property as an Approved Property, each in their sole discretion.
(c) Agent shall have received evidence that Borrower has invested cash equity in the aggregate of at least Four Million Eight Hundred Fifty Thousand and No/100 Dollars ($4,850,000) in the Xxxxx Property.
(d) Borrower shall have paid (i) Agent’s legal fees and all other of Agent’s reasonable costs, fees and expenses incurred in connection with the making of the Xxxxx Loan and (ii) all other costs and expenses incurred in connection with the closing of the acquisition of the Xxxxx Property.
(e) Agent shall have received all of the other documents listed in the closing checklist supplied by Agent to Borrower with respect to the Xxxxx Loan except for certain items which are listed on Exhibit A of the Open Items Letter being executed as of even date and which must be supplied to and approved by Agent by the dates stated on the Open Items Letter.
(f) No Default or Event of Default shall have occurred and be continuing under the terms and provisions of this Amendment, the Credit Agreement, the Note, or of any of the Loan Documents.
(g) Agent shall have received such other documents and certificates as Agent may reasonably request from Borrower, any Guarantor, and any other Person, in form and content satisfactory to Agent.
4. Additional Amendments to the Credit Agreement. As of the Effective Date, each of the Credit Parties and the Agent agree that:
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(a) Section 1.01 of the Credit Agreement is hereby amended by replacing the reference to “June __, 2011” in clause (b)(ii)(A) of the definition of “Tranche A Available Amount” with “June 17, 2011”.
(b) Article VII of the Credit Agreement is hereby amended by replacing all references to “clause (g) or (h)” in the second to last paragraph with “clause (f), (g) or (h)”.
(c) Schedules 3.05, 3.15, 5.12(a), 5.12(b), and 6.01 to the Credit Agreement are hereby amended and restated in their entirety by the corresponding Schedules attached to this Amendment, which information is true, correct and complete as of the Effective Date.
5. Additional Amendment to the Borrower Pledge Agreement. Contemporaneous with the execution and delivery of this Amendment, the Lead Borrower is executing and delivering to the Agent a certain Pledge Agreement Addendum (as defined in the Borrower Pledge Agreement) to the Borrower Pledge Agreement. As of the Effective Date, each of the Credit Parties and the Agent agree that Exhibit A to the Borrower Pledge Agreement is hereby amended and supplemented to add thereto the Equity Interests described and set forth in said Pledge Agreement Addendum
6. Representations and Warranties. Each Credit Party represents and warrants to the Agent and Lenders as follows:
(a) The representations and warranties of the Credit Parties as set forth in the Credit Agreement and each Loan Document are hereby confirmed, affirmed and ratified by each of the Credit Parties (including, without limitation, the Xxxxx Borrower), and each Credit Party confirms and affirms that each such representation and warranty is true and correct in all material respects as of the Effective Date, including with respect to the Xxxxx Borrower and the Xxxxx Property.
(b) The Mortgaged Property Requirements and Approved Property Requirements are satisfied with respect to the Xxxxx Property, the Xxxxx Borrower and the Xxxxx Loan, as applicable.
(c) The transactions contemplated by this Amendment are within the corporate, partnership or limited liability company powers (as applicable) of the respective Credit Parties and have been duly authorized by all necessary corporate, partnership or limited liability company action. This Amendment and the documents executed in connection herewith have been duly executed and delivered by each Credit Party which is a party thereto and constitute the legal, valid and binding obligation of each such Person, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) The transactions contemplated by this Amendment (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect or which shall be completed at the appropriate time for such filings under applicable securities laws, (b) will not violate, to the Credit Parties’ knowledge, any applicable law, regulation or order of any
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Governmental Authority to the extent that such violation could reasonably be expected to have a Material Adverse Effect, (c) will not violate the charter, by-laws or other organizational documents of any Credit Party or any of the Borrower’s Subsidiaries, (d) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Credit Party or any of the Borrower’s Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by any Credit Party or any of the Borrower’s Subsidiaries to the extent that such violation, default or right to require payment could reasonably be expected to have a Material Adverse Effect, and (e) will not result in the creation or imposition of any Lien on any Collateral, except pursuant to the Deeds of Trust and the Pledge Agreements.
(e) No Event of Default has occurred and is continuing or would result by the execution of this Amendment which constitutes an Event of Default under the Credit Agreement or any Loan Document or would constitute such an Event of Default but for the requirement that notice be given or time elapse or both
7. References in Loan Documents. All references in any of the Loan Documents to the “Credit Agreement”, the “Note”, the “Guaranty”, the “Borrower Pledge Agreement”, the “REIT Pledge Agreement”, the “OP Pledge Agreement”, or to the “Loan Documents”, shall, from and after the Effective Date be deemed to mean and refer to the Credit Agreement, the Note, the Guaranty, the Borrower Pledge Agreement, the REIT Pledge Agreement, the OP Pledge Agreement, and each other Loan Document (as applicable) as amended and affected by this Amendment. This Amendment shall be deemed to be a “Loan Document” for the purposes of the Credit Agreement and the other Loan Documents.
8. Ratification by the Credit Parties.
(a) Each Loan Credit hereby ratifies, affirms and confirms the Loan Documents (as modified by this Amendment), and acknowledges and agrees that the Loan Documents (as modified by this Amendment) remain in full force and effect and are enforceable against such Credit Party and against the Collateral described therein in accordance with their respective terms. Each Credit Party hereby further acknowledges and agrees that, as of the Effective Date, the Loan Documents, as amended by this Amendment, are not subject to any defenses, rights of setoff, claims or counterclaims that might limit the enforceability thereof, the obligations created and evidenced thereby or the terms and provisions thereof.
(b) In furtherance of the provisions of subsection (a) above, and not in limitation or derogation thereof, by its execution of this Amendment, each Guarantor hereby (i) acknowledges and consents to the terms and provisions of this Amendment; (ii) ratifies, affirms and confirms the Guaranty; (iii) agrees that the Guaranty is and shall remain in full force and effect and that the terms and provisions of the Guaranty covers and pertains to the Guaranteed Obligations (as defined in the Guaranty), Notes, Credit Agreement and other Loan Documents; (iv) acknowledges that there are no claims or offsets against, or defenses or counterclaims to, the terms and provisions of the Guaranty or other obligations created and evidenced by the Guaranty; and (v) certifies that the representations and warranties contained in the Guaranty, the Credit Agreement, and the other Loan Documents with respect to each Guarantor remains the true and correct representations and warranties of such Guarantor as of the Effective Date.
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9. Security and Liens. All Obligations of the Credit Parties under the Loan Documents, each as amended by this Amendment, shall be secured by and be entitled to the benefits of, and the Collateral shall remain in all respects subject to the liens, charges and encumbrances of, the Loan Documents, and nothing herein contained, and nothing done pursuant hereto or in connection herewith shall affect or be construed to affect the liens, charges or encumbrances or conveyances effected thereby or the priority thereof or to release or affect the liability of any party or parties whomsoever may now, or hereafter be, liable on account of the Obligations.
10. No Waiver. This Amendment is only a modification of the Loan Documents and is not intended to, and shall not be construed to, effect a novation of any Loan Document, or to constitute a modification of, or a course of dealing at variance with, the Loan Documents (each as amended by this Amendment), such as to require further notice by Lenders or Agent to require strict compliance with the terms the other Loan Documents in the future.
11. Release; Set-off. Each Credit Party hereby unconditionally releases and forever discharges Agent, each Lender and their respective officers, directors, shareholders, and employees from any and all claims, demands, causes of action, expenses, losses and other damages of whatever kind, whether known or unknown, liquidated or unliquidated, at law or in equity, that exists as of the Effective Date in connection with the Credit Agreement, the Loan Documents and any other documents relating thereto.
12. Miscellaneous.
(a) All costs and expenses of Agent, including, without limitation, appraisal fees and reasonable attorney’s fees of counsel to Agent relating to the negotiation, preparation, execution and delivery of this Amendment and all instruments, agreements and documents contemplated hereby, shall be the responsibility of Borrower
(b) This Amendment shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts made and performed within such state.
(c) This Amendment may be executed in any number of counterparts, all of which when taken together shall constitute one agreement binding on the parties hereto, notwithstanding that all parties are not signatories to the same counterpart.
(d) Delivery of an executed signature page of this Amendment by facsimile transmission or by means of electronic mail (in so-called “pdf”, “TIF” or any similar format) shall be effective as an in-hand delivery of an original executed counterpart hereof.
[The Next Page is the Signature Page]
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IN WITNESS WHEREOF, the Credit Parties, the Agent and the Lenders have caused this Amendment to be duly executed by their respective duly authorized officers, as an instrument under seal, as of the date and year first above written.
BORROWERS:
| TNP SRT SECURED HOLDINGS, LLC, a Delaware limited liability company | ||||||||
| By: | TNP Strategic Retail Operating Partnership, L.P., its sole member | |||||||
| By: | TNP Strategic Retail Trust, Inc., its general partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
| TNP SRT XXXXXX MARKETPLACE, LLC, a Delaware limited liability company | ||||||||
| By | TNP SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member | |||||||
| By: | TNP Strategic Retail Operating Partnership, LP, a Delaware limited partnership, its Sole Member | |||||||
| By: | TNP Strategic Retail Trust, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
(Signatures continued on next page.)
| TNP SRT SAN JACINTO, LLC, a Delaware limited liability company | ||||||||
| By | TNP SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member | |||||||
| By: | TNP Strategic Retail Operating Partnership, LP, a Delaware limited partnership, its Sole Member | |||||||
| By: | TNP Strategic Retail Trust, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
| TNP SRT XXXXX PROMENADE, LLC, a Delaware limited liability company | ||||||||
| By | TNP SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member | |||||||
| By: | TNP Strategic Retail Operating Partnership, LP, a Delaware limited partnership, its Sole Member | |||||||
| By: | TNP Strategic Retail Trust, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
(Signatures continued on next page.)
AGENT AND MAJORITY LENDER:
| KEYBANK NATIONAL ASSOCIATION, as Agent and Lender | ||||||||
| By: | /s/ Xxxxxxxxxxx X. Xxxx | |||||||
| Xxxxxxxxxxx X. Xxxx, Senior Relationship Manager | ||||||||
GUARANTORS and OBLIGORS:
| TNP STRATEGIC RETAIL OPERATING PARTNERSHIP, L.P., a Delaware limited partnership | ||||||||
| By: | TNP Strategic Retail Trust, Inc., its general partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
| TNP STRATEGIC RETAIL TRUST, INC., a Maryland corporation | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
| XXXXXXXX NATIONAL PROPERTIES, LLC, a Delaware limited liability company | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
(Signatures continued on next page.)
| AWT FAMILY LIMITED PARTNERSHIP, a California limited partnership | ||||||||
| By: | West Coast Health Insurance Services, Inc., a California corporation, its General Partner | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||||||
| Xxxxxxx X. Xxxxxxxx | ||||||||
| TNP SRT NORTHGATE PLAZA TUCSON HOLDINGS, LLC, a Delaware limited liability company | ||||||||
| By: | TNP Strategic Retail Operating Partnership, LP, a Delaware limited partnership, its Sole Member | |||||||
| By: | TNP Strategic Retail Trust, Inc., a Maryland corporation, its general partner | |||||||
| By | /s/ Xxxxxxx X. Xxxxxxxx | |||||||
| Print Name: Xxxxxxx X. Xxxxxxxx | ||||||||
| Title: CEO | ||||||||
Schedule 3.05
Flood Zones; Earthquake or Seismic Areas
| Flood Zone | EQ Zone | Wind Zone | ||||
| San Jacinto Esplanade |
X Shaded | 1 | N/A | |||
| Xxxxxx Marketplace |
X Shaded | E | N/A | |||
| Xxxxx Promenade |
X | 2b | I | |||
Schedule 3.15
Subsidiaries
The following are the Subsidiaries of TNP Strategic Retail Trust, Inc. as of the date of this Agreement:
TNP Strategic Retail Operating Partnership, L.P.
TNP SRT Secured Holdings, LLC
TNP SRT Xxxxxx Marketplace, LLC
TNP SRT San Jacinto, LLC
TNP SRT Waianae Mall, LLC
TNP SRT Northgate Plaza Tucson Holdings, LLC
TNP SRT Northgate Plaza Tucson, LLC
TNP SRT Xxxxx Promenade, LLC
Schedule 5.12(a)
Mortgaged Property Pool
San Jacinto Esplanade, San Jacinto, California
Xxxxxx Marketplace, Xxxxxx, California
Xxxxx Promenade, North Las Vegas, Nevada
Schedule 5.12(b)
Approved Property Pool
San Jacinto Esplanade, San Jacinto, California
Xxxxxx Marketplace, Xxxxxx, California
Northgate Plaza, Tucson, Arizona
Xxxxx Promenade, North Las Vegas, Nevada
Schedule 6.01
Existing Liens
None.
