Exhibit 10.9
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "AMENDMENT") is
made as of October 29, 1999, by and among TRINET CORPORATE REALTY TRUST (the
"BORROWER"), XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent
(the "LEAD AGENT"), BANK OF AMERICA, N.A. ("BAC"), and the BANKS listed on the
signature pages hereof.
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower and the Banks have entered into the Third Amended and
Restated Revolving Credit Agreement, dated as of June 1, 1998 (the "CREDIT
AGREEMENT"); and
WHEREAS, the parties desire to modify the Credit Agreement upon 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 do hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Credit Agreement.
2. LEAD AGENT. Simultaneously herewith, Xxxxxx has assigned and transferred its
Commitment to BAC and Bank One, NA, and, in accordance with Section 7.8 of the
Credit Agreement, hereby resigns as Lead Agent. The Required Banks, with the
approval of the Borrower, hereby appoint BAC 257582.08-New York S3A as successor
Lead Agent, and Bank One, NA, as "syndication agent". The syndication agent has
no right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Banks as such. From and after the
date hereof, all references to Xxxxxx shall be deemed to be references to BAC.
3. BAS. The Required Banks acknowledge and agree that Banc of America Securities
LLC ("BAS") is hereby appointed "book manager" and "lead arranger".
4. APPLICABLE MARGIN. The grid set forth in the definition "Applicable Margin"
is hereby deleted and the following substituted therefor:
Range of Applicable
Borrower's Margin for Applicable Applicable
Credit Rating Base Rate Margin for Margin for Euro
(S&P/Xxxxx'x Loans CD Loans Dollar Loans
Ratings) (% per annum) (% per annum) (% per annum)
------------- -------------- ------------- ---------------
BBB+/Baa1 0.25 0.975 0.85
BBB/Baa2 0.25 1.125 1.00
BBB-/Baa3 0.25 1.1875 1.0625
Non-Invest-
ment Grade 0.50 1.675 1.55
5. LETTERS OF CREDIT. The references in Sections 2.2(b) and 2.6(c) to "10:00
A.M., New York City time" are hereby deleted, and "11:00 A.M., New York City
time" substituted therefor. In addition, the following is hereby inserted after
the second sentence of Section 2.2(b): "In addition, together with such notice,
the Borrower shall deliver to the designated Fronting Bank an "Application and
Agreement for Standby Letter of Credit" in the form attached hereto as EXHIBIT
A, or in such other form as may reasonably be required by the designated
Fronting Bank."
6. EXTENSION FEE. Section 2.9(c) is hereby deleted, and the following
substituted therefor:
(c) EXTENSION FEE. Simultaneously with the delivery by Borrower of the
Notice to Extend pursuant to Section 2.10(b), the Borrower shall pay to the
Lead Agent for the account of the Banks ratably in proportion to their
Commitments an extension fee (each, the "EXTENSION FEE") of .20% of the
Commitments then outstanding (provided, with respect to any Bank's share of
such fee, such Bank has honored its Commitment in accordance herewith).
7. EXTENSION OPTION. Section 2.10(c) of the Credit Agreement, and all references
to Section 2.10(c) and to the Request to Extend, are hereby deleted.
8. REPRESENTATIONS. Section 4.15 of the Credit Agreement is hereby deleted.
9. FINANCIAL INFORMATION. The reference to "Borrower" in Section 5.1(k) of the
Credit Agreement is hereby deleted and "Starwood" substituted therefor.
10. DIVIDENDS. Section 5.8(d) is hereby deleted and the following substituted
therefor:
(d) DIVIDENDS. The Borrower will not, as determined as of the last day
of each quarter, with respect to the previous four quarters, pay or declare
any dividends on common stock in excess of 85% of CFFOA (as hereinafter
defined) for such previous four quarters, provided, however, that dividends
may exceed 85% of CFFOA if required in order for Starwood Financial Inc.
("STARWOOD") to maintain its status as a real estate investment trust under
the Code, assuming, however, that all other Subsidiaries of Starwood shall
have dividended or distributed 100% of their disposable cash during the
applicable twelve (12) month period to Starwood. For purposes hereof,
"CFFOA" means the "net cash provided by operating activity", as shown on
the Borrower's consolidated statements of cash flows, and calculated in a
manner consistent with the Borrower's historical methods of calculating the
same.
11. ACQUISITION. Notwithstanding the provisions of Section 5.9 of the Credit
Agreement, the Required Banks hereby consent to the acquisition by merger (the
"MERGER") of 100% of the stock of the Borrower by Starwood and hereby waive any
Event of Default that would otherwise arise under Sections 6.1(i), (j) and (k)
of the Credit Agreement.
12. CHANGES IN BUSINESS. Section 5.10 is hereby amended by adding after the
reference to "Section 5.17" the following: "and Section 5.23".
13. BORROWER STATUS. Section 5.13 of the Credit Agreement is hereby deleted and
the following substituted therefor: "Borrower shall at all times maintain its
status as a "qualified REIT subsidiary" of Starwood."
14. ASSET SALES AND TRANSFERS. The following Section 5.20 is hereby added to the
Credit Agreement:
SECTION 5.20 ASSET SALES AND TRANSFERS. The Borrower shall not sell,
transfer or otherwise convey any Real Property Asset to any Affiliate,
other than a wholly-owned Subsidiary or a newly formed joint venture with
an unaffiliated third party, except that any such sale, transfer or
conveyance shall be permitted if the same is for a price not less than the
then fair market value of the applicable Real Property Asset, shall be on
an all cash basis, and shall otherwise be on fair market, arms' length
terms. For purposes of this Section, the term "AFFILIATE" shall mean as
applied to any Person, any other Person that directly or indirectly
controls, is controlled by, or is under common control with, that Person.
For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote fifteen percent (15%) or more of the
equity securities having voting power for the election of directors of such
Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting equity
securities or by contract or otherwise.
15. INTERCOMPANY DEBT. The following Section 5.21 is hereby added to the Credit
Agreement:
SECTION 5.21. The Borrower may not incur any Debt from Starwood or any
Affiliate of Starwood ("AFFILIATE DEBT"), unless repayment of such Debt, by
its express written terms, is fully subordinated to the repayment of the
Loans and all other Obligations, as well as all other Debt from
un-Affiliated third parties. In addition, all Affiliate Debt shall be on
then market terms, and at no time shall, in the aggregate, exceed fifteen
percent (15%) of the total Debt permitted pursuant to Section 5.8(b) of the
Credit Agreement. In addition, at no time may the Borrower or any
Subsidiary of the Borrower lend any amounts to Starwood or any of its
wholly-owned Subsidiaries or any Affiliates of Starwood that in the
aggregate would exceed five percent (5%) of Consolidated Tangible Net
Worth.
16. BOARD OF DIRECTORS. The following Section 5.22 is hereby added to the Credit
Agreement:
SECTION 5.22. From and after the Effective Date, the members of the
board of directors of the Borrower (the "BOARD") shall at all times be
identical with the members of the board of directors of Starwood, except
that at all times there shall be one additional member of the Board (the
"SPECIAL DIRECTOR"), which member shall be "independent" (in accordance
with S&P's standard requirement from time to time). A unanimous vote of all
members of the Board, including the Special Director, shall be required in
accordance with the organizational documents of the Borrower (the
"UNANIMOUS VOTING REQUIREMENT", for the Borrower to (i) file a voluntary
insolvency proceeding, or (ii) to sell, transfer or convey in any three (3)
month period, any Real Property Asset(s) to Starwood or any wholly-owned
Subsidiary of Starwood or any Affiliates of Starwood other than a
wholly-owned Subsidiary of the Borrower or a newly formed joint venture of
the Borrower with an unaffiliated third party, that exceed, either
individually or in the aggregate, five percent (5%) of Combined Asset Value
as of the last day of the most recently ended fiscal quarter for which
financial information has been delivered in accordance with Section 5.1 (a)
and (b).
17. ALTERNATIVE INVESTMENTS. The following Section 5.23 is hereby added to the
Credit Agreement:
SECTION 5.23. ALTERNATIVE INVESTMENTS. Borrower may use proceeds of
the Loans to make Alternative Investments, provided, however, that as of
the last day of each calender quarter, the total book value, calculated in
accordance with GAAP but without deduction for depreciation, of Alternative
Investments made from and after the closing of the Merger shall not exceed
20% of Combined Asset Value. For purposes hereof, "ALTERNATIVE INVESTMENTS"
means any investment
other than (i) the acquisition of a Real Property Asset more than 75% of
the rentable area of which is leased to a single tenant, whether directly
or through a joint venture, or (ii) development activities as described in
Section 5.17. Whether directly or through a joint venture.
18. EVENTS OF DEFAULT. (a) Section 6.1(i) of the Credit Agreement is hereby
deleted and the following substituted therefor: "(i) Starwood shall cease to
own, directly or indirectly, 100% of the issued and outstanding shares of stock
of the Borrower;".
(b) Section 6.1(j) of the Credit Agreement is hereby deleted and the
following substituted therefor: "(j) there shall not be at all times at least
one Special Director on the Board, or the Unanimous Voting Requirements shall be
amended, modified or terminated without the prior written consent of the
Required Banks;"
(c) Section 6.1(k) of the Credit Agreement is hereby deleted and the
following substituted therefor: "(k) Starwood shall cease at any time to qualify
as a real estate investment trust under the Code;".
19. NOTICES. The reference in Section 9.1 of the Credit Agreement to "One
Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Attn.: A. Xxxxxxx
Xxxxx" is hereby
deleted and the following substituted therefor: "1114 Avenue of the Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attn.: Xxxxxxx Xxxxx, with a copy to Xxxx Xxxxx,
Esq."
20. ADDITIONAL COMMITMENT. Section 9.18 of the Credit Agreement is hereby
deleted.
21. EFFECTIVE DATE. This Amendment shall become effective when each of the
following conditions is satisfied (or waived by the Required Banks) (the date
such conditions are satisfied or waived being deemed the "EFFECTIVE DATE"):
(a) the Borrower shall have executed and delivered to the Lead Agent a
duly executed original of this Amendment;
(b) the Required Banks shall have executed and delivered to the Lead
Agent a duly executed original of this Amendment;
(c) the Lead Agent shall have received all documents the Lead Agent
may reasonably request relating to the existence of the Borrower, the
authority for and the validity of this Amendment, and the other
documents executed in connection therewith, and any other matters
relevant hereto,
all in form and substance reasonably satisfactory to the Lead Agent.
Such documentation shall include, without limitation, the
organizational documents of the Borrower, as amended, modified or
supplemented prior to the Effective Date, each certified to be true,
correct and complete by an officer of the Borrower, as of a date not
more than twenty (20) days prior to the Effective Date, together with
a good standing certificate from the Secretary of State (or the
equivalent thereof) of the State of Maryland with respect to the
Borrower, to be dated not more than twenty (20) days prior to the
Effective Date;
(d) the Lead Agent shall have received all certificates, agreements
and other documents and papers referred to in this Amendment, unless
otherwise specified, in sufficient counterparts, satisfactory in form
and substance to the Administrative Agent in its reasonable
discretion;
(e) the Borrower shall have taken all actions required to authorize
the execution and delivery of this Amendment and the performance
hereof by the Borrower;
(f) the Lead Agent shall have received from the Borrower, for the
account of the Banks, an amendment fee equal to .30% of the
Commitments;
(g) the Lead Agent shall have received the reasonable fees and
expenses accrued through the Effective Date of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, together with any other fees or expenses of the
Lead Agent;
(h) the representations and warranties of the Borrower contained in
the Credit Agreement, as amended hereby, shall be true and correct in
all material respects on and as of the Effective Date, as the same may
be amended by virtue of the Merger transactions with Starwood
described in the Proxy, dated September 22, 1999, a copy of which has
previously been delivered by the Borrower to the Banks (the "PROXY");
(i) receipt by the Lead Agent and the Banks of a certificate of an
officer of the Borrower certifying that the Borrower is in compliance
with all covenants of the Borrower contained in the Credit Agreement,
as amended hereby, including, without limitation, the requirements of
Section
5.8, as of the Effective Date, as the same may be amended by virtue of
the Merger transactions with Starwood described in the Proxy; and
(j) receipt by the Lead Agent of proof reasonably satisfactory to the
Lead Agent that Starwood shall have acquired by merger 100% of the
stock of the Borrower.
22. ENTIRE AGREEMENT. This Amendment constitutes the entire and final agreement
among the parties hereto with respect to the subject matter hereof and there are
no other agreements, understandings, undertakings, representations or warranties
among the parties hereto with respect to the subject matter hereof except as set
forth herein.
23. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
24. COUNTERPARTS. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same agreement, and any
of the parties hereto may execute this Amendment by signing any such
counterpart.
25. HEADINGS, ETC. Section or other headings contained in this Amendment are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Amendment.
26. NO FURTHER MODIFICATIONS. Except as modified herein, all of the terms and
conditions of the Credit Agreement, as modified hereby shall remain in full
force and effect and, as modified hereby, the Borrower confirms and ratifies all
of the terms, covenants and conditions of the Credit Agreement in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER: TRINET CORPORATE REALTY TRUST, INC.
By:______________________________
Name:
Title:
Facsimile number: (000) 000-0000
Address: Xxx Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Chief Financial
Officer
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Bank and as
resigning Lead Agent
By: ______________________________
Name:
Title:
BANK OF AMERICA, N.A., as a Bank and
as successor Lead Agent
By: _____________________________
Name:
Title:
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Mail Code: CA5-801-37-01
Xxx Xxxxxxxxx, XX 00000
Attention:
Telecopy:
DOMESTIC AND EURO-CURRENCY LENDING
OFFICE:
Attention:
Telecopy:
BANKERS TRUST COMPANY, as Co-Agent
and as a Bank
By: ______________________________
Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as Bank and
as Co-Agent
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANK ONE, NA ( f/k/a The First
National Bank of Chicago, as a Bank,
as Co-Agent, and as Syndication Agent
By: ______________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as a
Bank and as Co-Agent
By: ______________________________
Name:
Title:
AMSOUTH BANK
By: ______________________________
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH
By: ______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By: ______________________________
Name:
Title:
UBS AG, STAMFORD BRANCH
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
(f/k/a Society Bank)
By: ______________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: ______________________________
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By: ______________________________
Name:
Title:
