EXTENSION AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS
Exhibit
10.42
AND REAFFIRMATION OF LOAN
DOCUMENTS
THIS
EXTENSION AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS (this “Extension
Agreement”) is made and entered into as of October 30, 2009 (the “Extension
Date”), by and among
XXXXXXX XXXXXX 2006, LLC, a Delaware limited liability company (“Borrower”);
BANK OF AMERICA, N.A., a
national banking association, as a Lender (in such capacity, “BofA”),
Swing Line Lender and L/C Issuer; BMO CAPITAL MARKETS FINANCING,
INC., as a Lender; BAYERISCHE LANDESBANK, as a
Lender; ING REAL ESTATE FINANCE
(USA) LLC, as a Lender, LANDESBANK
BADEN-WÜRTTEMBERG, as a Lender; WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender, and BANK OF AMERICA, N.A., a national banking
association, as administrative agent for the Lenders (in such capacity, together
with its successors in such capacity, the “Administrative
Agent”). Each of the parties identified above as a Lender,
together with any other party who is currently a lender under the Credit
Agreement or becomes a lender party to the Credit Agreement after the date
hereof pursuant to Section 10.06 of the
Credit Agreement, are sometimes referred to herein individually as a “Lender”
and collectively as the “Lenders”.
RECITALS
A. Borrower,
the Administrative Agent, certain Lenders, Bank of America, N.A., a national
banking association, as L/C Issuer (the “L/C
Issuer”), Bank of America, N.A., a national banking association, as Swing
Line Lender (the “Swing
Line Lender”) and certain other parties acting as Co-Syndication Agents
thereunder, entered into that certain Credit Agreement, dated as of October 30,
2006 (the “Original
Credit Agreement”), as amended by that certain First Amendment to Credit
Agreement, dated as of March 1, 2007 (the “First
Amendment”) and as further amended by that certain Second Amendment to
Credit Agreement, dated as of August 31, 2007 (the “Second
Amendment”, and together with the Original Credit Agreement and the First
Amendment, collectively, the “Credit
Agreement”). By certain Assignments and Acceptances, ING Real
Estate Finance (USA) LLC, and Landesbank Baden-Württemberg acquired their
respective interests in the Credit Agreement. All capitalized terms
used in this Extension Agreement (including in the recitals hereof) and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, as modified hereby.
B. Pursuant
to Section 2.14
of the Credit Agreement, Borrower was granted the right to extend the Existing
Maturity Date for two consecutive one-year Extension Periods, subject to the
satisfaction of certain conditions precedent.
C. On
July 6, 2009, Borrower delivered a letter to the Administrative Agent (the
“Extension
Notice”), requesting the extension of the Existing Maturity Date for a
one-year period (i.e., from October 30, 2009 to October 30, 2010) from the
Existing Maturity Date of October 30, 2009 (the “Extension”).
D. Upon
receipt of the Extension Notice, Administrative Agent arranged for new
Appraisals of the Borrowing Base Properties and undertook review of the
compliance of the credit facility with the loan-to-value and Debt Service
Coverage Ratio tests set forth in Sections 2.14(a)(iv)
and (v) of the
Credit Agreement and based on that review, certain changes described in this
Extension Agreement are required to be made to the Aggregate Commitments and the
Allocated Loan Amounts.
E. Administrative
Agent, the Lenders and Borrower are executing this Agreement to evidence and
confirm the Extension.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants,
conditions and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Borrower, the Administrative Agent, the Swing Line Lender, the L/C Issuer and
the Lenders agree as follows:
1. Extension
of Maturity Date. The Existing Maturity Date is hereby
extended to October 30, 2010, and (a) all references to “Maturity Date” in the
Credit Agreement and the Loan Documents shall hereinafter be deemed to refer to
October 30, 2010 and (b) except as set forth herein, all terms and conditions of
the Credit Agreement and the other Loan Documents, shall continue to
apply. It is understood and agreed that after extending the Existing
Maturity Date as set forth herein, Borrower shall have only one further
extension right remaining under Section 2.14 of the
Credit Agreement.
2. Commitment
Decrease. Borrower, the
Administrative Agent, the Swing Line Lender, the L/C Issuer and the Lenders
acknowledge and agree that, as of the Extension Date, based on sixty-five
percent (65%) of the aggregate Appraised Values of the Borrowing Base
Properties, which Appraised Values are based on the “as is” value established by
a new Appraisal for each Borrowing Base Property delivered pursuant to Section 2.14 of
the Credit Agreement, the Aggregate Commitments have decreased from $370,000,000
to $350,000,000. Accordingly, upon the Extension Date, the Loan
Documents and all exhibits and schedules to the Credit Agreement are hereby
modified to replace any references therein to the aggregate extension of credit
pursuant to the Credit Agreement as “$370,000,000” with
“$350,000,000”.
3. Elimination
of Accordion Feature. Borrower, the Administrative Agent, the
Swing Line Lender, the L/C Issuer and the Lenders acknowledge and agree that, as
of the Extension Date, there shall be no further right of Borrower to request an
increase in the Commitments, and as of the Extension Date, Section 2.15 of the
Credit Agreement is hereby deleted in its entirety and replaced with
“Reserved”.
4. Schedules. As
of the Extension Date, the following schedules to the Credit Agreement are
hereby modified as follows:
(a) Schedule 2.01 of the
Credit Agreement (Commitments and Applicable Percentages) and the Commitments
and Applicable Percentages set forth therein are hereby deleted and replaced in
their entirety with the Third Amended and Restated
Schedule 2.01 (Commitments and Applicable Percentages) attached hereto as
Exhibit A and
the Commitments and Applicable Percentages set forth therein. All
references in the Loan Documents to the “Commitments” and all references in the
Loan Documents to the “Applicable Percentages” shall hereafter refer to the
Commitments and Applicable Percentages set forth in the Third Amended and Restated
Schedule 2.01 attached hereto as Exhibit
A.
(b) Schedule 5.05 of the
Credit Agreement (Indebtedness) is hereby revised with respect to item 12
thereof to reference financial statements delivered prior to the Extension Date
rather than the Closing Date.
(c) Schedule 5.08 of the
Credit Agreement (Borrowing Base Properties; Credit Facility Guarantors;
Allocated Loan Amounts; Property Managers) and the Borrowing Base Properties,
Credit Facility Guarantors, Allocated Loan Amounts and Property Managers set
forth therein are hereby deleted and replaced in their entirety with the Second Amended and Restated
Schedule 5.08 (Borrowing Base Properties; Credit Facility Guarantors;
Allocated Loan Amounts; Property Managers) attached hereto as Exhibit B and the
Borrowing Base Properties, Credit Facility Guarantors, Allocated Loan Amounts
and Property Managers set forth therein. All references in the Loan
Documents to the “Borrowing Base Properties”, “Credit Facility Guarantors”,
“Allocated Loan Amounts” and “Property Managers” shall hereafter refer to the
Borrowing Base Properties, Credit Facility Guarantors, Allocated Loan Amounts
and Property Managers set forth in the Second Amended and Restated
Schedule 5.08 attached hereto as Exhibit
B.
(d) Schedule 5.25 of the
Credit Agreement (Rent Rolls) is hereby replaced in its entirety with Second Amended and Restated
Schedule 5.25 attached hereto as Exhibit
C.
(e) Schedule 7.01 of the
Credit Agreement is hereby revised with respect to item 6 thereof to include
liens securing Indebtedness under title encumbrances recorded against Excluded
Properties as of the Extension Date.
5. Memorandum
of Extension Agreement. Concurrently herewith, each Credit
Facility Guarantor and the Administrative Agent are executing and delivering a
Memorandum of Extension Agreement and Reaffirmation of Loan Documents (the
“Memorandum
of Extension Agreement”). Borrower hereby agrees to cause
Title Insurer to record the Memorandum of Extension Agreement, and to issue such
endorsements to the Title Policies to the effect that the validity and priority
of the Deeds of Trust insured thereunder have not been and will not be impaired
by this Extension Agreement or the transactions contemplated by it, as may be
deemed reasonably necessary by the Administrative Agent, in such form as may be
reasonably acceptable to the Administrative Agent. Borrower hereby
agrees to pay to the Title Insurer all expenses and premiums of the Title
Insurer in connection with the issuance of such endorsements, and all recording
and filing fees payable in connection with recording the Memorandum of Extension
Agreement.
6. Fees and
Expenses. On or prior to the Extension Date, Borrower hereby
agrees to pay (which may be through a Borrowing) (a) all fees due and
payable as of the Extension Date to BofA and the Administrative Agent pursuant
to the Fee Letter and the Modification Fee Letter, (b) any other fees due
as of the Extension Date to the Administrative Agent pursuant to the Loan
Documents, and (c) any fees and expenses due as of the Extension Date to
the Administrative Agent of the type to be reimbursed by Borrower pursuant to
Section 10.04(a)(ii)
of the Credit Agreement with respect to the extension provided for in this
Extension Agreement and the other documents to be delivered pursuant hereto
(provided that, with respect to the fees and expenses of legal counsel to the
Administrative Agent, Borrower shall be furnished a reasonably detailed invoice
from such counsel and 90% of such fees and expenses shall be paid upon the
Extension Date, with the remaining 10% of such fees and expenses to be paid
promptly following the delivery by such legal counsel of closing binders with
respect to the extension pursuant hereto).
7. References. From
and after the Extension Date, all references in the Loan Documents to the “Credit Agreement” or
the “Loan
Documents” or to any Loan Document (whether by reference to a “Loan
Document” or to the specific document name or defined term for a document
included within the meaning of “Loan Document”) shall be deemed to refer to the
Credit Agreement, the Loan Documents or such Loan Document, as amended, modified
and supplemented hereby and, as applicable and subject to Section 9(g) below, by
the documents executed and delivered by the Loan Parties in connection with this
Extension Agreement.
(a) Borrower
hereby (i) reaffirms, ratifies, confirms, and acknowledges its obligations under
each Note, the Credit Agreement, and all the other Loan Documents, and agrees to
continue to be bound thereby and perform thereunder, and (ii) agrees and
acknowledges that all such Loan Documents and all of Borrower’s obligations
thereunder are and remain in full force and effect and, except as expressly
provided herein and in the reaffirmation documents referenced herein, have not
been modified.
(b) Concurrently
herewith, (i) each Credit Facility Guarantor is executing and delivering to the
Administrative Agent a Second Reaffirmation of Credit Facility Guaranty and (ii)
OP Guarantor is executing and delivering to the Administrative Agent a Second
Reaffirmation of OP Guaranty. Each such reaffirmation is a “Loan
Document” and all references herein, in the Credit Agreement and in the Loan
Documents to the “Guaranty” or to any
specific Loan Document included in the definition of Guaranty shall be deemed to
include the reaffirmation of such Guaranty.
(c) Concurrently
herewith, each Credit Facility Guarantor is executing and delivering to
Administrative Agent a Second Reaffirmation of Contribution
Agreement. Such reaffirmation is not a “Loan Document” and all
references herein, in the Credit Agreement and in the Loan Documents to the
“Contribution
Agreement” shall be deemed to include such reaffirmation.
(d) Concurrently
herewith, Borrower and the OP Guarantor are executing and delivering to
Administrative Agent a Second Reaffirmation of the Reimbursement
Agreement. Such reaffirmation is not a “Loan Document” and all
references herein, in the Credit Agreement and in the Loan Documents to the
“Reimbursement
Agreement” shall be deemed to include such reaffirmation.
(e) Concurrently
herewith, Property Manager is executing and delivering to Administrative Agent
the Reaffirmation of Property Manager’s Consent and Subordination
Agreement. Such reaffirmation is a “Loan Document” and all references
herein, in the Credit Agreement and in the Loan Documents to the “Property Manager’s
Consent” shall be deemed to include such reaffirmation.
9. Representations
and Warranties. Borrower hereby
represents and warrants to the Administrative Agent and the Lenders as
follows:
(a) Borrower
has full power and authority to enter into this Extension Agreement and the
reaffirmation documents referenced herein and perform its obligations hereunder
and thereunder, and Borrower’s execution and delivery of this Extension
Agreement and the reaffirmation documents referenced herein have been duly
authorized by all necessary limited liability company action. Except
for recordings or filings contemplated by this Extension Agreement or the other
Loan Documents, no approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority or any other Person
that has not been obtained, taken or performed is necessary or required in
connection with the execution, delivery or performance by Borrower of this
Extension Agreement, the reaffirmation documents referenced herein or any
document or instrument to be delivered by Borrower pursuant
hereto. This Extension Agreement, the reaffirmation documents
referenced herein and the documents and instruments delivered by Borrower
pursuant hereto have been duly executed and delivered, and constitute the legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors’ rights generally, or by
equitable principles relating to enforceability (whether such enforceability is
considered in a proceeding in equity or at law).
(b) As of the
date of the Extension Notice, the Extension Date and immediately after giving
effect to this Extension Agreement and the modifications to the Loan Documents
contemplated hereby, no Default or Event of Default or event which, if uncured
after the giving of notice, the passage of time, or both, would become an Event
of Default, exists.
(c) As of the
Extension Date, each Credit Facility Guarantor identified in Second Amended and Restated
Schedule 5.08 has good and marketable title in fee simple to, and/or
valid leasehold interests in (as disclosed in such Schedule), the corresponding
Borrowing Base Property listed in such Schedule, subject to no Liens, other than
Permitted Title Exceptions and rights of equipment lessors under equipment
leases that comply with the requirements of Section 7.03(e)
of the Credit Agreement. As of the date hereof, the property of
Borrower is subject to no Liens, other than Liens in favor of the Administrative
Agent. There are no outstanding options to purchase or rights of
first refusal to purchase affecting the Borrowing Base Properties.
(d) As of the
Extension Date and immediately after giving effect to this Extension Agreement
and the modifications to the Loan Documents contemplated hereby, Borrower
reaffirms all of its obligations under the Loan Documents (as so modified), and
Borrower acknowledges that it has no claims, offsets or defenses with respect to
the payment of sums due under any Note or any other Loan
Document. Without limiting the foregoing, as of the date hereof,
Borrower hereby confirms (i) that, as of the date hereof, Committed Loans in the
aggregate amount of $0 are outstanding; (ii) that, as of the date hereof, Swing
Line Loans in the aggregate amount of $0 are outstanding; (iii) that the L/C
Issuer has not issued any Letters of Credit which remain outstanding; and (iv)
that interest currently due on the Loans has been paid through (but not
including) September 30, 2009. The Notes heretofore issued pursuant
to the Credit Agreement shall continue to evidence the obligations arising under
the Credit Agreement as modified hereby.
(e) As of the
Extension Date and immediately after giving effect to this Extension Agreement
and the modifications to the Loan Documents contemplated thereby, except as set
forth on Exhibit
D hereto (and except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that the representations and
warranties contained in clauses (a) and (b) of Section 5.05 of the
Original Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a), (b), (c) and (d), of Section 6.01
thereof), all representations and warranties made and given by Borrower and
Guarantors in the Loan Documents are true, accurate and correct.
10. Miscellaneous.
(a) Controlling
Provisions. In the event of any inconsistencies between the
provisions of this Extension Agreement and the provisions of any other Loan
Document, the provisions of this Extension Agreement shall govern and
prevail. Except as expressly modified by this Extension Agreement and
the reaffirmation documents referenced herein, the Loan Documents shall not be
modified and shall remain in full force and effect.
(b) Further
Assurances. At the Administrative Agent’s request, Borrower
shall promptly execute any other document or instrument and/or seek any consent
or agreement from any third party that the Administrative Agent reasonably
determines is necessary to evidence or further, or is otherwise relevant to, the
intent of the parties, as set forth in this Extension Agreement, provided, the
same shall not result in a decrease of the rights of Borrower or result in an
increase in Borrower’s obligations under the Loan Documents. At the
Administrative Agent’s request, Borrower shall promptly cause any other Loan
Party or any of the holders of any equity interest in any other Loan Party, as
applicable, to execute any other document or instrument and/or diligently seek
any consent or agreement from any third party that the Administrative Agent
reasonably determines is necessary to evidence or further, or is otherwise
relevant to, the intent of the parties, as set forth in this Extension
Agreement, provided the same shall not result in a decrease of the rights of
such Loan Party or result in an increase in such Loan Party’s obligations under
the Loan Documents, as intended to be modified hereby.
(c) Counterparts. This
Extension Agreement may be executed by one or more of the parties to this
Extension Agreement in any number of separate counterparts, each of which, when
so executed, shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same
instrument.
(d) Entire
Agreement. This Extension Agreement, together with the other
Loan Documents, set forth the entire agreement and understanding among Borrower,
the Administrative Agent and the Lenders, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof. This
Extension Agreement shall not prejudice any rights or remedies of the
Administrative Agent or the Lenders under the Loan Documents. The
Administrative Agent and each Lender reserve, without limitation, all rights
which each has against any indemnitor, guarantor, or endorser of the
Notes. Nothing in this Extension Agreement shall impair the lien of
any Deed of Trust, which as hereby amended shall remain a deed of trust with a
power of sale, creating a first lien encumbering the applicable Borrowing Base
Property (subject to the Permitted Title Exceptions applicable to such Borrowing
Base Property).
(e) GOVERNING LAW. THIS
EXTENSION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF CALIFORNIA.
(f) Limitation of
Liability. The provisions of Section 10.20 of the Original Credit
Agreement shall apply to the terms of the Credit Agreement as amended by this
Extension Agreement and are hereby incorporated herein by this
reference.
(g) Loan
Documents. Notwithstanding anything to the contrary contained
herein, it is understood and agreed that none of the reaffirmations delivered
pursuant to this Extension Agreement with respect to any of the documents that
(pursuant to Section 10.23 of the Credit Agreement) are not Loan Documents shall
be considered “Loan Documents.”
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IN
WITNESS WHEREOF, Borrower, the Administrative Agent, the Swing Line Lender, the
L/C Issuer and the Lenders party hereto have caused this Extension Agreement to
be executed by their duly authorized representatives as of the day, month and
year first above written.
BORROWER:
XXXXXXX XXXXXX 2006, LLC,
a
Delaware limited liability company
|
|
By:
|
Xxxxxxx
Xxxxxx Management, Inc., a Delaware corporation, its
Manager
|
By:
________________________
Name: Xxxxxxx
Xxxxx
Title: Chief
Financial Officer
[Signatures
continue on the next page.]
LENDERS:
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer
and Swing
Line Lender
By: _________________________________
Name: _______________________________
Title: ________________________________
[Signatures
continue on the next page.]
BMO CAPITAL MARKETS FINANCING,
INC.,
as
Lender
By: _________________________________
Name: _______________________________
Title: ________________________________
[Signatures
continue on the next page.]
BAYERISCHE LANDESBANK, NEW YORK
BRANCH, as
Lender
By: _________________________________
Name: _______________________________
Title: ________________________________
By: _________________________________
Name: _______________________________
Title: ________________________________
[Signatures
continue on the next page.]
ING REAL ESTATE FINANCE (USA)
LLC, as Lender
By: _________________________________
Name: _______________________________
Title: ________________________________
By: _________________________________
Name: _______________________________
Title: ________________________________
[Signatures
continue on the next page.]
LANDESBANK BADEN-WÜRTTEMBERG, as Lender
By: _________________________________
Name: _______________________________
Title: ________________________________
By: _________________________________
Name: _______________________________
Title: ________________________________
[Signatures
continue on the next page.]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Lender
By: _________________________________
Name: _______________________________
Title: ________________________________
[Signatures
continue on the next page.]
ADMINISTRATIVE
AGENT:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Name: _______________________________
Title: ________________________________
