EXHIBIT 10.2
FIRST AMENDMENT TO
CREDIT AGREEMENT (BRIDGE LOAN)
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (BRIDGE LOAN) (the "Amendment") is
made as of the 14th day of August, 1998, by and among THE XXXXX COMPANY, a
Maryland corporation ("Borrower"), THE XXXXXX XXXXXX CORPORATION ("HHC"), XXXXXX
XXXXXX PROPERTIES, INC. ("HHP"), THE XXXXXX RESEARCH AND DEVELOPMENT CORPORATION
("HRD"; HHC, HHP and HRD are collectively referred to herein as "Guarantors"),
THE FIRST NATIONAL BANK OF CHICAGO, a national banking association ("First
Chicago"), in First Chicago's capacity as Administrative Agent and Lender under
the Credit Agreement described below, BANKERS TRUST COMPANY, a New York banking
corporation ("Bankers Trust"), in Bankers Trust's capacity as Syndication Agent
and Lender under the Credit Agreement (First Chicago and Bankers Trust in their
capacities as Lenders being referred to as the "Original Lenders") and the
additional banks identified on the signature pages of this Amendment (the "New
Lenders").
RECITALS
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A. Borrower, Guarantors and the Original Lenders entered into a certain
Credit Agreement (Bridge Loan) dated as of July 29, 1998 (the "Credit
Agreement"). All capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
B. Pursuant to the terms of the Credit Agreement, the Original Lenders
agreed to provide Borrower with a term loan credit facility in an aggregate
principal amount of up to $350,000,000. The parties hereto desire to amend the
Credit Agreement in order to, among other things, (i) admit each of the New
Lenders as a "Lender" under the Credit Agreement without increasing the
Aggregate Commitment; (ii) adjust the respective Percentages and Commitments of
the Lenders; and (iii) make certain other modifications to the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
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1. The foregoing Recitals to this Amendment hereby are incorporated into
and made a part of this Amendment.
2. From and after the "Effective Date", as defined below, each of the
Original Lenders and each New Lender shall be considered a "Lender" under the
Credit Agreement and the Loan Documents. Borrower, Guarantors and the Original
Lenders hereby consent to
the addition of each of the New Lenders as a Lender. From and after the
Effective Date, each New Lender's Commitment and Percentage shall be as shown
below such New Lender's signature block on this Amendment. The adjusted
Commitments and Percentages for the Original Lenders are also shown on the
signature pages to this Amendment.
3. The "Effective Date" shall be the date on which all of the following
conditions shall have been fulfilled (or waived by the Original Lenders and New
Lenders):
(i) no Default or Event of Default then exists;
(ii) Borrower shall have executed and delivered to the
Administrative Agent for delivery to each New Lender a Note in the form
attached hereto as Exhibit B-2 in the amount of such New Lender's
Commitment (each a "Primary Note");
(iii) Borrower shall have executed and delivered to the
Administrative Agent for delivery to each Original Lender an amended and
restated Note in the form attached hereto as Exhibit B-3 in the adjusted
amount of such Original Lender's Commitment (each a "Primary Note");
(iv) if any LIBOR Advances are then outstanding, it shall be
the last day of the LIBOR Interest Period for such LIBOR Advances, and the
only other Advances outstanding on such date shall be Alternate Base Rate
Advances;
(v) Borrower shall have executed and delivered, or caused to
be executed and delivered, to the Administrative Agent (and, upon receipt
from Borrower, the Administrative Agent shall deliver to the other Lenders)
a certificate dated as of the Effective Date signed by Borrower (i)
confirming that no Default or Event of Default exists under the Loan
Documents; and (ii) representing and warranting that the Loan Documents are
then in full force and effect and that, to the best of their knowledge,
Borrower then has no defenses or offsets to, or claims or counterclaims
relating to, its obligations under the Loan Documents;
(vi) the Original Lenders shall have paid in equal shares to
each of the New Lenders the agreed upon upfront fee payable to each such
New Lender; and
(vii) the Borrower, the Guarantors, the Administrative Agent,
the Original Lenders and the New Lenders shall have executed this
Amendment.
If the Effective Date has not occurred by August 31, 1998, either Borrower or
any New Lender may, by written notice to all other parties hereto, elect to
terminate this Amendment which thereupon shall have no further force or effect
and the Credit Agreement shall continue as if this Amendment had not been
executed. The Administrative Agent shall return (or cause to be returned) to
the Borrower the Notes previously executed and delivered by the
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Borrower to First Chicago and Bankers Trust dated July 29, 1998, in the
respective amounts of $175,000,000 each, on or promptly after the Effective
Date.
4. Each New Lender, on the Effective Date, agrees to purchase from each
of the Original Lenders, in equal shares, and each of the Original Lenders
hereby agrees to sell to each New Lender, in equal shares, without recourse, a
portion of the Obligations equal to such New Lender's Percentage of the then
outstanding principal balance of each Advance then outstanding and held by the
Original Lenders. Such purchases by each New Lender shall not change the
aggregate principal amount of all Advances outstanding on the Effective Date.
Each such purchase shall be effected by wire transfer of immediately available
funds in the appropriate amounts to the Administrative Agent for remittance to
each of the Original Lenders on the Effective Date. Borrower irrevocably and
unconditionally agrees that from and after the Effective Date the portion of
Obligations so funded by each of the New Lenders shall be evidenced by and shall
be deemed to be an Advance by such New Lender under such New Lender's Primary
Note as of the date of such purchase and shall be treated as such for purposes
of calculating interest and fees accruing from and after the date of such
purchase under the Credit Agreement (as amended by this Amendment). All
interest and fees accruing on such portion of the Obligations prior to the date
of such purchase shall be paid when due to the Administrative Agent for
remittance to the Original Lenders, as described in the Credit Agreement.
5. Section 1.1 of the Credit Agreement is hereby amended by adding the
following definition before the definition of "Gross Asset Value":
"Governmental Authority" means any nation or government, any state or
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other political subdivision thereof and any quasi-governmental agency
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
6. Section 1.1 of the Credit Agreement is hereby amended by adding the
following definition before the definition of "Total Outstanding Indebtedness":
"The Xxxxxx Corporation" means that certain Delaware corporation which
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is one of the Pledgors under the Pledge.
7. Section 2.16(iii) of the Credit Agreement is hereby amended by
deleting the words "[intentionally deleted]" and adding in lieu thereof the
words "to the payment of the Facility Fee to the Lenders, if then due, and to
the payment of all fees to the Administrative Agent on a pro rata basis".
8. Section 9.4 of the Credit Agreement is hereby amended by adding the
word "than" after the word "other" in the second line thereof.
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9. Section 14.13 of the Credit Agreement is hereby amended by deleting
the words "and Administrative Agent," after the word "Borrower" in the sixth
line thereof.
10. Section 7(d) of Exhibit K of the Credit Agreement is hereby amended by
adding the Roman numeral "(i)" before the word "sell" in the first line thereof
and adding after the words "to do so" in the third line thereof the phrase ", or
(ii) sell, assign, exchange or otherwise transfer, or encumber in any manner,
any Indebtedness (as defined in the Credit Agreement) owed to such Pledgor by
either HHC or HHP, or attempt or contract to do so."
11. Except as specifically modified hereby, the Credit Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed. All references in the Loan Documents to the "Agreement" or the "Term
Loan Agreement" henceforth shall be deemed to refer to the Credit Agreement as
amended by this Amendment. Each Guarantor, in its capacity as a Guarantor under
the Guaranty, hereby consents to this Amendment and specifically acknowledges
and agrees that its obligations under the Guaranty continue in full force and
effect with respect to all of the "Facility Indebtedness" and all "Obligations"
(as defined in the Guaranty) which are now or hereafter due to the Lenders or
the Administrative Agent under the Credit Agreement as amended by this
Amendment.
12. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart. This
Amendment shall be construed in accordance with the internal laws (and not the
law of conflicts) of the State of Illinois, but giving effect to federal laws
applicable to national banks. This Amendment shall be effective on the
Effective Date.
13. The Syndication Agent hereby advises the Borrower, and all parties
hereto agree, that the initial syndication of the Facility has been completed as
of the date hereof.
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IN WITNESS WHEREOF, the Borrower, the Guarantors, the Original Lenders, the
New Lenders, and the Administrative Agent have executed this Amendment as of the
date first above written.
THE XXXXX COMPANY, a Maryland corporation
By:________________________________________
Title:_____________________________________
THE XXXXXX XXXXXX CORPORATION
By:________________________________________
Title:_____________________________________
XXXXXX XXXXXX PROPERTIES, INC.
By:________________________________________
Title:_____________________________________
THE XXXXXX RESEARCH AND DEVELOPMENT CORPORATION
By:________________________________________
Title:_____________________________________
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THE FIRST NATIONAL BANK
OF CHICAGO, as Original Lender and as
Administrative Agent
By:________________________________________
Title:_____________________________________
Commitment: $57,968,750
Percentage of Aggregate Commitment: 16.5625%
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANKERS TRUST COMPANY, as Original Lender and as
Syndication Agent
By:________________________________________
Title:_____________________________________
Commitment: $57,968,750
Percentage of Aggregate Commitment: 16.5625%
Address for Notices:
Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as New Lender
By:_____________________________________
Title:__________________________________
Commitment: $43,750,000
Percentage of Aggregate Commitment: 12.5000%
Address for Notices:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE CHASE MANHATTAN BANK, N.A., as
New Lender
By:_____________________________________
Title:__________________________________
Commitment: $43,750,000
Percentage of Aggregate Commitment: 12.5000%
Address for Notices:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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NATIONSBANK N.A., as New Lender
By:_____________________________________
Title:__________________________________
Commitment: $43,750,000
Percentage of Aggregate Commitment: 12.5000%
Address for Notices:
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as New Lender
By:_____________________________________
Title:__________________________________
Commitment: $32,812,500
Percentage of Aggregate Commitment: 9.3750%
Address for Notices:
Real Estate Group
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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XXXXXXXX XXXX XX, XXX XXXX
BRANCH AND GRAND CAYMAN BRANCH,
as New Lender
By:_____________________________________
Title:__________________________________
Commitment: $32,812,500
Percentage of Aggregate Commitment: 9.3750%
Address for Notices:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH, as New Lender
By:
Title:
Commitment: $21,875,000
Percentage of Aggregate Commitment: 6.2500%
Address for Notices:
2 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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AMSOUTH BANK, as New Lender
By:_____________________________________
Title:__________________________________
Commitment: $15,312,500
Percentage of Aggregate Commitment: 4.3750%
Address for Notices:
Commercial Real Estate - Loan Department
0000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (205) 326-40
EXHIBITS
B-2 -- Form of Note
B-3 -- Form of Amended and Restated Note
EXHIBITS B-2 AND B-3 ARE OMITTED. ANY OMITTED EXHIBIT WILL BE FURNISHED
SUPPLEMENTALLY TO THE COMMISSION UPON REQUEST.
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