EXHIBIT 5
FIRST AMENDMENT TO CREDIT AGREEMENT
AND PLEDGE AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND PLEDGE AGREEMENT ("this
Amendment") dated as of October 7, 1996, is between BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION ("Bank") and XXXXX X. XXXXX and XXXXXX X. XXXXX,
in their individual capacities as Barrowers under the Credit Agreement referred
to below (collectively, the "Prices"), and XXXXX X. XXXXX, TRUSTEE OF THE PRICE
REVOCABLE TRUST AMENDMENT IN ENTIRETY, EXECUTED ON FEBRUARY 9, 1987, AS AMENDED,
in his capacity as a Barrower under the Credit Agreement and Pledgor under the
Pledge Agreement (the "Trustee").
RECITALS
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A. Bank, the Prices and the Trustee entered into a certain Credit
Agreement dated as of July 30, 1996 (the "Credit Agreement").
B. Bank and the Trustee entered into a certain Pledge Agreement dated
as of July 30, 1996 (the "Pledge Agreement").
C. Concurrently herewith, Bank and Mountaingate Land, L.P., are
refinancing the bridge loan evidenced by the Mountaingate Note dated as of July
30, 1996 and, in connection therewith, the Trust and the Prices are executing
and delivering a guaranty of certain obligations of Mountaingate Land, L.P.
thereunder. The parties hereto desire to amend the Credit Agreement and the
Pledge Agreement to refer to such new note and guaranty.
D. Bank and the Barrowers also desire to clarify certain collateral
coverage requirements in the Credit Agreement.
AGREEMENT
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1. Definitions. Capitalized terms used but not defined in this
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Amendment shall have the meaning given to them in the Credit Agreement or the
Pledge Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is amended as
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follows:
2.1 The definition of "Montaingate Note" in Paragraph 1.1 of the Credit
Agreement is amended and restated in its entirety as follows:
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"'Mountaingate Note' means the promissory note dated as of October 7,
1996 in the principal amount of $20,000,000 in favor of Bank given by
Mountaingate Land, L.P., as such note is amended, restated, superseded
or otherwise modified from time to time."
2.2 The last sentence of Paragraph 5.2 of the Credit Agreement is amended
and restated in its entirety as follows:
"If the Average Market Value of all such collateral is less than the sum
of (i) 175% of Bank's credit commitment under the Revolving Line, (ii)
175% of the then principal amount of the Term Loan and (iii) 100% of the
then outstanding principal amount under the Mountaingate Note up to
$4,000,000 (the "Required Minimum Market Value"), then, upon notice by
Bank, Borrower will immediately pledge additional partnership units of
NGOP to Bank such that the Average Market Value is at least the Required
Minimum Market Value."
3. Amendments to Pledge Agreement. The Pledge Agreement is amended as
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follows:
3.1 Recital 8 to the Pledge Agreement is amended and restated in its
entirety as follows:
"b Pursuant to a Payment Guaranty dated as of October 7, 1996 (as
amended, restated, superseded or otherwise modified from time to time,
the "Mountaingate Guaranty"), Pledgor and Xxxxx X. Xxxxx and Xxxxxx X.
Xxxxx, in their individual capacitles (collectively, the "Prices"), are
guarantying certain obligations of Mountaingate Land L.P. under a
promissory note dated as of October 7, 1996 in favor of Bank given by
Mountaingate Land, L.P. (as amended, restated, superseded or otherwise
modified from time to time, the "Mountaingate Note").
3.2 Section 1 of the Pledge Agreement is amended and restated in its
entirety as follows:
"1. Pledge of REIT Shares. To secure the payment and performance of
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(a) Pledgor's obligations under the Credit Agreement, (b) any guaranty of
interest rate protection agreements between Xxxxx X. Xxxxx and Bank, (c)
the obligations of Pledgor and the Prices under the Mountaingate
Guaranty, (d) and Pledgor's independent obligations hereunder
(collectively the "obligations"), Pledgor hereby pledges and grants to
Bank a security in and to the following (the "Pledged Stock Collateral"):
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3.3 A new Section 29 is inserted in the Pledge Agreement immediately
after Section 29 of the Pledge Agreement as follows:
"29 Actions with Respect to Obligations and Collateral. (a) The
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obligations hereunder are joint and several and independent of the
obligations of Mountaingate Land L.P. and the Prices (together with
Pledgor, the "Loan Parties" and individually, a "Loan Party"), and a
separate action or actions may be brought and prosecuted against any
Loan Party whether action is brought against any other Loan Party.
Pledgor authorizes Bank, without notice or demand and without affecting
Pledgor's liability hereunder, form time to time to (i) renew,
compromise, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Obligations or any part
thereof, including increase or decrease of the rate of interest or fees
thereon; (ii) take and hold additional security for the payment of the
Obligations, and exchange, enforce, waive, release, fail to perfect,
sell, or otherwise dispose of any such security; (iii) apply such
security and direct the order or manner of sale thereof as Bank in its
discretion may determine; and (iv) release or substitute any one or more
of any endorsers or guarantors.
"(b) Bank may, without notice to Pledgor and without affecting
Pledgor's obligations hereunder, assign the Obligations in whole or in
part. Pledgor waives any right to require Bank to (i) proceed against
any Loan Party; (ii) proceed against or exhaust any security held from
any Loan Party or third parties; or (iii) pursue any other remedy in
Bank's power whatsoever. Pledgor waives any defense arising by reason of
any disability or other defense of Pledgor, or the cessation from any
cause whatsoever of the liability of any Loan Party, or any claim that
Pledgor's obligations exceed or are more burdensome than those of any
other Loan Party. Pledgor agrees that any release which may be given by
Bank to any other Loan Party will not release Pledgor from its
obligations under this Agreement. Pledgor waives any right to assert
against Bank any defense, setoff, counterclaim, or claims which Pledgor
may have against any other Loan Party or any other party liable to Bank
for the obligations of Pledgor under this Agreement.
"(c) Pledgor agrees that he is solely responsible for keeping
himself informed as to the financial condition of any other Loan Party
and of all circumstances which bear upon the risk of nonpayment.
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Pledgor waives any right he may have to require the Bank to disclose
to Pledgor any information which the Bank may now or hereafter acquire
concerning the financial condition of any other Loan Party. Pledgor
waives all rights to notices of default or nonperformance by any other
Loan Party. Pledgor represents and warrants to Bank that he will
derive benefit, directly and indirectly, from the extension of credit
to the other Loan Parties. Pledgor agrees that Bank will not be
required to inquire as to the disposition by any Loan Party of funds
disbursed in accordance with the terms of any agreement.
(d) Pledgor waives any right of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or
otherwise), including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S. Code) or
any successor statute, which Pledgor may now or hereafter have against
any other Loan Party with respect to the Obligations. Pledgor waives
any right to enforce any remedy which Bank now has or may hereafter
have against any other Loan Party, and waives any benefit of, and any
right to participate in, any security how or hereafter held by Bank.
(e) Pledgor understands and acknowledges that if Bank
forecloses, either by judicial foreclosure or by exercise of power of
sale, any deed of trust securing the Obligations, that foreclosure
could impair or destroy any ability that Pledgor may have to seek
reimbursement, contribution or indemnification from any Loan Party or
others based on any right Pledgor may have of subrogation,
reimbursement, contribution or indemnification for any amounts paid by
Pledgor under this Agreement. Pledgor further understands and
acknowledges that in the absence of this paragraph, such potential
impairment or destruction of Pledgor's rights, if any, may entitle
Pledgor to assert a defense to this Agreement based on Section 580d of
the California Code of Civil Procedure as interpreted in Union Bank x.
Xxxxxxx, 265 Cal. App. 2d. 40 (1968). By executing this Agreement,
Pledgor freely, irrevocably and unconditionally: (i) waives and
relinquishes that defense and agrees that Pledgor will be fully liable
under this Agreement even though Bank may foreclose, either by
judicial foreclosure or by exercise of power of sale, any deed of
trust securing the indebtedness; (ii) agrees that Pledgor will not
assert that defense in any action or proceeding which Bank may
commence to in any action or proceeding which Bank may commence to
enforce this Agreement; (iii) acknowledges and agrees that the rights
and defenses waived by Pledgor in this
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Agreement include any right or defense that Pledgor may have or be
entitled to assert based upon or arising out of any one or more of
Sections 580a, 580b, 580d or 726 of the California Code of Civil
Procedure of Section 2848 of the California Civil Code; and (iv)
acknowledges and agrees that Bank is relying on this waiver in
creating the indebtedness, and that this waiver is a material part of
the consideration which Bank is receiving for creating the
Obligations.
4. Representations and Warranties. When the Trust and the Prices sign
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this Amendment, they jointly and severally represent and warrant to Bank that:
(a) there is no event which is, or with notice or lapse of time or both would
be, a default under the Credit Agreement or the Pledge Agreement, (b) the
representations and warranties in the Credit Agreement and the Pledge Agreement
are true as of the date of this Amendment as if made on the date of this
Amendment, (c) they have the full power, authority and legal right, and have
taken all necessary action to authorize the execution and delivery of this
Amendment, and this Amendment does not conflict with the Trust, and (d) this
Amendment does not conflict with any law, agreement, or obligation by which they
are bound.
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5. Effect of Amendment. Except as provided in this Amendment, all
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of the terms and conditions of the Credit Agreement and the Pledge Agreement
shall remain in full force and effect.
This Amendment is executed as of the date stated at the beginning of
this Amendment.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ X. Xxxx /s/ Xxxxx X. Xxxxx
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Xxxxx Xxxx XXXXX X. XXXXX
Vice President
/s/ Dallas P. Price
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DALLAS P. PRICE
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX TRUSTEE OF THE
PRICE REVOCABLE TRUST AMENDMENT
IN ENTIRETY, EXECUTED ON
FEBRUARY 9, 1987, AS AMENDED
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