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EXHIBIT 10.76
AMENDMENT NO. 3 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this 31st day of
October, 1997, by and among CAPSTONE CAPITAL CORPORATION, a Maryland corporation
(herein called the "Borrower"), NATIONSBANK, NATIONAL ASSOCIATION (successor by
merger of NationsBank, N.A. (South)) (the "Agent"), as Agent for the lenders
(the "Lenders") party to the Amended and Restated Revolving Credit and
Reimbursement Agreement dated June 24, 1996, as amended, among such Lenders,
Borrower and the Agent (the "Agreement") and each of the Lenders party to the
Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the principal amount of $180,000,000 as evidenced by the Notes
(as defined in the Agreement); and
WHEREAS, the parties hereto desire further to amend the Agreement in
the manner herein set forth effective as of the date hereof;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. Amendments. Subject to the conditions hereof, clause (iv) of Section
8.07 of the Agreement is hereby amended, effective as of the date hereof, by
deleting the figure "$75,000,000" and inserting in lieu thereof the figure
"$100,000,000".
3. Guaranty. Each Subsidiary of the Borrower has joined in the
execution of this Amendment Agreement for the purpose of (i) agreeing to the
amendment to the Agreement and (ii) confirming its guarantee of payment of all
the Obligations.
4. Representations and Warranties. The Borrower hereby certifies that:
(a) The representations and warranties made by Borrower in Article
VI thereof are true on and as of the date hereof except that the
financial statements referred to in Section 6.01(f) shall be those most
recently furnished to each Lender pursuant to Section 7.01(a) and (b);
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(b) There has been no material change in the condition, financial
or otherwise, of the Borrower and its Subsidiaries since the date of
the most recent financial reports of the Borrower received by each
Lender under Section 7.01 thereof, other than changes in the ordinary
course of business, none of which has been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by each Lender
under Section 7.01 thereof have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constituted a
Default or an Event of Default on the part of the Borrower under the
Agreement or the Notes either immediately or with the lapse of time or
the giving of notice, or both.
5. Conditions. As a condition to the effectiveness of this Amendment
Agreement, the Borrower shall deliver, or cause to be delivered to the Agent,
twelve (12) executed counterparts of this Amendment Agreement.
6. Other Documents. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of Borrower to enter into the transactions contemplated by this Amendment
Agreement, in each case such documents, when appropriate, to be certified by
appropriate corporate or governmental authorities; and all proceedings of the
Borrowers relating to the matters provided for herein shall be satisfactory to
the Agent and its counsel.
7. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms of conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto, specifying such
change, modification, waiver or cancellation of such terms or conditions, or of
any proceeding or succeeding breach thereof.
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8. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
CAPSTONE CAPITAL CORPORATION
WITNESS:
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx Title: Vice President
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GUARANTORS:
CAPSTONE CAPITAL OF ALABAMA, INC.
CAPSTONE CAPITAL OF PENNSYLVANIA, INC.
CAPSTONE CAPITAL OF CALIFORNIA, INC.
CAPSTONE CAPITAL OF XXXXXX BAY, INC.
CAPSTONE CAPITAL OF CAPE CORAL, INC.
CAPSTONE CAPITAL OF SARASOTA, INC.
WITNESS: CAPSTONE CAPITAL OF TEXAS, INC.
CAPSTONE CAPITAL OF LAS VEGAS, INC.
CAPSTONE CAPITAL OF BAYTOWN, INC.
/s/ Xxxxx X. Xxxxxx
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/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
CAPSTONE OF XXXXXX BAY, LTD.
By its General Partner:
Capstone Capital of Xxxxxx Bay, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
CAPSTONE OF CAPE CORAL, LTD.
By its General Partner:
Capstone Capital of Cape Coral, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
CAPSTONE OF SARASOTA, LTD.
By its General Partner:
Capstone Capital of Sarasota, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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CAPSTONE CAPITAL OF SAN ANTONIO, LTD.
By its General Partner:
Capstone Capital of Cape Coral, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
CAPSTONE OF LAS VEGAS, LTD.
By its General Partner:
Capstone Capital of Las Vegas, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
CAPSTONE OF BAYTOWN, LTD.
By its General Partner:
Capstone Capital of Baytown, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
AMSOUTH BANK OF ALABAMA
By: /s/ J. Xxx XxXxxxx
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Name: J. Xxx XxXxxxx
Title: Commercial Banking Officer
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ X. Xxxxxxxx
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Name: Farboud Tavangar
Title: First Vice President
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Associate
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxxx
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Name: X.X. Xxxxx
Title: Vice President
FIRST COMMERCIAL BANK
By: /s/ J. Xxxxxxx Xxxxxx, Xx.
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Name: J. Xxxxxxx Xxxxxx, Xx.
Title: Commercial Loan Officer
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President & Mgr.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Asst. Vice President
