AMENDMENT NO. 6 TO REVOLVING CREDIT AGREEMENT
Exhibit
99.1
AMENDMENT NO. 6 TO REVOLVING
CREDIT AGREEMENT
This Amendment No. 6 to Revolving
Credit Agreement (this “Amendment No. 6”) is made and entered into and has
an effective date as of the 11th day of March, 2008, by and among WHITESTONE
REIT OPERATING PARTNERSHIP, LP f/k/a XXXXXXX REIT OPERATING PARTNERSHIP, LP
(“Whitestone OP”), WHITESTONE REIT OPERATING PARTNERSHIP III, L.P. f/k/a XXXXXXX
REIT OPERATING PARTNERSHIP III, L.P. (“Whitestone III”) and the Subsidiaries of
Whitestone OP and/or Whitestone III which are listed on Schedule 1 (as such
Schedule 1 may be amended from time to time) (Whitestone OP, Whitestone III and
any such Subsidiary being hereinafter referred to collectively as the “Borrower”
unless referred to in their individual capacities) to a certain Revolving Credit
Agreement, dated as of March 11, 2005 (as amended, the “Credit Agreement”), each
having its principal place of business at 0000 Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, KEYBANK NATIONAL ASSOCIATION (“KeyBank”), having a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, and
certain other lenders individually and in certain agent capacities (collectively
with KeyBank, the “Lenders”) and KeyBank, as administrative agent for itself and
each other Lender (the “Agent”).
WHEREAS, the Borrower has requested
certain amendments to the Credit Agreement, including an extension of the
maturity date, as set forth herein.
NOW, THEREFORE, in consideration of One
Dollar ($1.00) and other good and valuable consideration by each of the parties
hereto, the receipt and sufficiency of which are hereby acknowledged, it is
agreed as follows:
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1.
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Capitalized
terms used but not defined herein shall have the respective meanings
assigned to such terms in the Credit Agreement.
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2.
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References to the
Borrower and Guarantor in the Loan
Documents.
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(a)
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All
references in the Loan Documents to Xxxxxxx REIT Operating Partnership, LP
shall be deemed to refer to Whitestone REIT Operating Partnership,
LP.
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(b)
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All
references in the Loan Documents to Xxxxxxx REIT Operating Partnership
III, L.P. shall be deemed to refer to Whitestone REIT Operating
Partnership III, L.P.
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(c)
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All
references in the Loan Documents to Xxxxxxx REIT Operating Partnership III
GP LLC shall be deemed to refer to Whitestone REIT Operating Partnership
III GP LLC.
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(d)
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All
references in the Loan Documents to Xxxxxxx Commercial Properties REIT
shall be deemed to refer to Whitestone
REIT.
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3.
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Amendments to Credit
Agreement. Effective from and after March 11,
2008:
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(a)
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The
term Loan Documents shall include this Amendment No. 6 to Revolving Credit
Agreement, dated as of March 11, 2008, among the Borrower, the Lenders and
the Agent.
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(b)
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The
definition of “Applicable Base Rate Margin” is amended to read in its
entirety as follows:
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“Applicable Base Rate
Margin. The Applicable Base Rate Margin is
1.625%.”
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(c)
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The
definition of “Applicable Libor Margin” is amended to read in its entirety
as follows:
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“Applicable Libor
Margin. The Applicable Libor Margin is
2.625%.”
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(d)
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Clause
(iv) contained in the definition of “Eligible Unencumbered Property(ies)”
is amended to read in its entirety as follows:
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“(iv)
is wholly-owned in fee simple by Whitestone III”.
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(e)
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Clause
(vi) contained in the definition of “Eligible Unencumbered Property(ies)”
is amended to read in its entirety as follows:
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“(vi)
does not comprise more than 15% of total Borrowing Base Asset Value
(except that one, but not more than one, Eligible Unencumbered Property
may comprise up to 20% of total Borrowing Base Asset
Value)”.
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(f)
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The
definition of “Financial Statement Date” is amended to read in its
entirety as follows:
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“Financial Statement
Date. September 30, 2007.”
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(g)
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The
definition of “Maturity Date” is amended to read in its entirety as
follows:
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“Maturity
Date. October 1, 2008, or such earlier date on
which the Revolving Credit Loans shall become due and payable pursuant to
the terms hereof.”
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(h)
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The
definition of “Mortgage Constant” is amended to read in its entirety as
follows:
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“Mortgage
Constant. As at any date of determination, a
ratio that represents the payment of principal and interest on an
amortizing mortgage loan based on (i) an interest rate equal to the
greater of (a) the actual weighted average interest rate on the Loans, (b)
the then 10-year treasury rate plus 2.25% and based on a 25-year
mortgage-style amortization schedule and (c)
7.25%.”
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2
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(i)
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The
definition of “Revolving Credit Notes” is amended by deleting the
reference to “$50,000,000” contained therein and by replacing it with the
following: “$75,000,000”.
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(j)
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The
second sentence of the definition of “Total Commitment” is amended to read
in its entirety as follows:
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“As
of the Sixth Amendment Date, the Total Commitment is
$75,000,000.”
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(k)
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Section
1.1 of the Credit Agreement is amended by inserting, in the appropriate
alphabetical order, the following new definitions:
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“Sixth
Amendment. Amendment No. 6 to Revolving Credit
Agreement, dated as of March 11, 2008, among the Borrower, the Lenders and
the Agent.”
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“Sixth Amendment
Date. March 11, 2008.”
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(l)
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Section
2.3(c) of the Credit Agreement is deleted in its
entirety.
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(m)
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Section
2.3(e) of the Credit Agreement is amended to read in its entirety as
follows:
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“The
Borrower agrees to pay to the Agent, for the accounts of the Lenders in
accordance with their respective Commitment Percentages, from the Closing
Date through the Maturity Date, a facility fee (the “Facility Fee”)
calculated at the rate of (i) for any day when the outstanding principal
balance of the Loans is less than or equal to 50% of the Total Commitment,
0.30% per annum, and (ii) for any day when the outstanding principal
balance of the Loans is greater than 50% of the Total Commitment, 0.15%
per annum, in each case calculated on the average daily amount, during
each fiscal quarter or portion thereof, of the unborrowed portion of the
Total Commitment. The Facility Fee shall be payable quarterly
in arrears on the first Business Day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the Closing Date through the Maturity Date, with a final payment
on the Maturity Date.”
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(n)
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Clause
(a) of Section 7.3 of the Credit Agreement is amended by deleting the
reference to “The Borrower” contained therein and be replacing it with the
following: “Whitestone III”.
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3
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(o)
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Section
7.4 of the Credit Agreement is amended by deleting the reference to
“December 31, 2003” and by replacing it with “December 31, 2006” and by
deleting the reference to “September 30, 2004 and by replacing it with the
“September 30, 2007”.
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(p)
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Section
7.21 of the Credit Agreement is amended by inserting, immediately
following the reference to “December 31, 2004” contained therein, the
following: “or December 31, 2005, December 31, 2006 or December 31,
2007”.
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(q)
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Section
9.1(i) of the Credit Agreement is amended by deleting the first
parenthetical contained therein and replacing it with the following
parenthetical: “(but not any other
Borrower)”.
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(r)
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Section
9.4(b) of the Credit Agreement is amended to insert the following new
sentence at the end thereof:
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“Notwithstanding
the foregoing or any other provision of this Agreement, in the event that
the Borrower sells, transfers otherwise disposes of any Eligible
Unencumbered Property, or obtains financing for any Eligible Unencumbered
Property, and as a result of any thereof, removes such Eligible
Unencumbered Property from the Borrowing Base Pool, the Borrower shall
retain and/or reinvest in Whitestone III, [within 120 days after receipt
thereof], the proceeds of such sale, transfer, disposition or refinancing
(net of customary fees and expenses).”
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(s)
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Sections
9.6(a) and 9.6(b) of the Credit Agreement are amended to read in its
entirety as follows:
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“(a)
The Borrower will not declare (nor will the Borrower at a subsequent date
make) (i) quarterly Distributions in an amount in excess of the amount of
quarterly Distributions declared and made with respect to the fiscal
quarter ended December 31, 2007, provided that in the event that the number
of shares of the Trust issued and outstanding as of the Sixth Amendment
Date is reduced, the amount of permitted Distributions shall be reduced by
the amount of such Distributions that would be attributable to the shares
that are no longer outstanding; or (ii) any Distributions during any
period after any Event of Default has occurred; provided, however, that (a) unless an Event of
Default under Section 14.1(g) or (h) has occurred or the Lenders have not
been paid in full in cash on the Maturity Date (or otherwise refinanced in
a manner acceptable to the Agent and the Lenders in their sole
discretion), the Borrower may at all times (including while any other
Event of Default not described above is continuing) make Distributions to
the minimum extent (after taking into account all available funds of the
Trust from all other sources) required in order to enable the Trust to
continue to qualify as a REIT.”
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“(b)
The Trust will not, during any period when any Event of Default has
occurred and is continuing, make any Distributions in excess of the
minimum Distributions (after taking into account all available funds of
the Trust from all other sources) required to be made by the Trust in
order to maintain its status as a REIT, provided that in the event of an Event of
Default under Section 14.1(g) or (h) or the Lenders have not been paid in
full in cash on the Maturity Date (or otherwise refinanced in a manner
acceptable to the Agent and the Lenders in their sole discretion), the
Trust will not declare or make any Distributions.”
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(t)
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Section
10.2 of the Credit Agreement is amended by deleting the reference to “2.00
to 1.0” contained therein and by replacing it with the following: “1.55 to
1.0”.
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(u)
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Section
10.3 of the Credit Agreement is amended by deleting the reference to “1.50
to 1.0” contained therein and by replacing it with the following: “1.40 to
1.0”.
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(v)
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Section
10.7 of the Credit Agreement is amended by deleting the reference to “ten
(10)” contained therein and by replacing it with the following: “fifteen
(15)”.
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(w)
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Section
10.8 of the Credit Agreement is amended to read in its entirety as
follows:
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“Consolidated Tangible
Net Worth. As at the end of any fiscal quarter or
any other date of measurement, the Consolidated Tangible Net Worth of the
Borrower shall not be less than the sum of (i) 75% of the Consolidated
Tangible Net Worth of the Borrower reflected in the audited financial
statements of the Borrower for the fiscal year ending December 31, 2007,
plus (ii) 75% of the aggregate
proceeds received by the Trust (net of fees and expenses customarily
incurred in transactions of such type) in connection with any offering of
stock in the Trust, plus (iii) 75% of
the aggregate value of operating units issued by the Borrower in
connection with asset or stock acquisitions (valued at the time of
issuance by reference to the terms of the agreement pursuant to which such
units are issued), provided that
issuances of operating units to the Trust in connection with additional
capital contributions made by the Trust in the Borrower shall be excluded
from this clause (iii), in each case after May 18, 2006 and on or prior to
the date such determination of Consolidated Tangible Net Worth is made,
plus (iv) 50% of the net income of
the Borrower for such period.”
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4.
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The
Borrower hereby represents and warrants as
follows:
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5
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(a)
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Representations in
Credit Agreement. Both before and after giving
effect to this Amendment No. 6, each of the representations and warranties
made by or on behalf of the Borrower, the Trust or any of their respective
Subsidiaries contained in the Credit Agreement or any of the other Loan
Documents, was true when made and is true on and as of the date hereof
with the same full force and effect as if each of such representations and
warranties had been made on the date hereof and in this Amendment No. 6,
except to the extent that such representations and warranties relate
expressly to an earlier date.
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(b)
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No Events of
Default. No Default or Event of Default exists on
the date hereof (both before and after giving effect to this Amendment No.
6).
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(c)
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Binding Effect of
Documents. This Amendment No. 6 has been duly
executed and delivered by the Borrower and the Trust and is in full force
and effect as of the date hereof, and the agreements and obligations of
the Borrower contained herein constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with their respective terms.
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5.
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Conditions Precedent
to Effectiveness. This Amendment No. 6 shall
become effective when each of the following conditions is met to the
satisfaction of the Agent:
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(a)
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receipt
by the Agent of this Amendment No. 6 duly and properly authorized,
executed and delivered by each of the Borrowers and the Lenders;
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(b)
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receipt
by the Agent of a Compliance Certificate demonstrating compliance with the
financial covenants contained in Section 10 of the Credit Agreement as of
December 31, 2007;
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(c)
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receipt
by the Agent of an officers’ or manager’s certificate dated as of the date
hereof signed by an officer or manager, as applicable, of each Borrower
certifying as to such matters as the Agent shall require and attaching
authorizing resolutions with respect to this Amendment No.
6;
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(d)
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receipt
by the Agent of title reports as of a recent date on each of the Eligible
Unencumbered Properties evidencing no Liens thereon and evidencing a
recorded Negative Pledge Agreement in favor of the Agent with respect to
each such Eligible Unencumbered Property;
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(e)
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receipt
by the Agent of each of the items set forth on the Closing Agenda attached
hereto as Annex
1;
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6
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(f)
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receipt
by the Agent of payment of the extension fees payable for the benefit of
the Lenders signatory hereto, which fee shall be fully-earned upon the
effectiveness hereof and shall be non-refundable for any
reason;
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(g)
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receipt
by the Agent of payment of any other fees due to the Agent, including all
of the Agent’s reasonable legal fees and expenses incurred in the
connection with the preparation and negotiation of this Amendment No. 6 or
otherwise outstanding; and
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(h)
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receipt
by the Agent of any other documents, agreements, certificates or other
items requested by the Agent in connection with this Amendment No.
6.
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6.
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Provisions of General
Application.
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(a)
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No Other
Changes. Except as otherwise expressly provided
by this Amendment No. 6, all of the terms, conditions and provisions of
the Credit Agreement and each of the other Loan Documents remain
unaltered. The Credit Agreement and this Amendment No. 6 shall
be read and construed as one agreement.
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(b)
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Governing
Law. This Amendment No. 6 is intended to take
effect as a sealed instrument and shall be deemed to be a contract under
the laws of the State of New York. This Amendment No. 6 and the
rights and obligations of each of the parties hereto shall be governed by
and interpreted and determined in accordance with the laws of the State of
New York (excluding the laws applicable to conflicts or choice of
law).
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(c)
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Binding Effect;
Assignment. This Amendment No. 6 shall be binding
upon and inure to the benefit of each of the parties hereto and their
respective successors in title and assigns.
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(d)
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Counterparts. This
Amendment No. 6 may be executed in any number of counterparts, but all
such counterparts shall together constitute but one and the same
agreement. In making proof of this Amendment No. 5, it shall
not be necessary to produce or account for more than one counterpart
thereof signed by each of the parties hereto.
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(e)
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Conflict with Other
Agreements. If any of the terms of this Amendment
No. 6 shall conflict in any respect with any of the terms of any of the
Credit Agreement or any other Loan Document, the terms of this Amendment
No. 6 shall be controlling.
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7
WITNESS
the execution hereof, under seal, as of the day and year first written
above
| KEYBANK NATIONAL ASSOCIATION, | |||
| as Agent and as a Lender | |||
| By: | |||
| Name: | |||
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Title:
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| RBS CITIZENS, NATIONAL ASSOCIATION, | |||
| as a Lender | |||
| By: | |||
| Name: | |||
| Title: | |||
| TRUSTMARK NATIONAL BANK, | |||
| as a Lender | |||
| By: | |||
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Name:
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| Title: | |||
| MERCANTIL COMMERCE BANK, N.A., | |||
| as a Lender | |||
| By: | |||
| Name: | |||
| Title: | |||
(Signatures
continued on next page)
8
| WHITESTONE REIT OPERATING PARTNERSHIP, LP | ||||
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By:
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Whitestone REIT, a Maryland real estate investment trust, its sole general partner | |||
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By:
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| Xxxxx X. Xxxxxxxxxx, CEO | ||||
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WHITESTONE
REIT OPERATING PARTNERSHIP III, L.P.
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By:
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Whitestone REIT Operating Partnership III GP LLC, a Texas limited liability company, its sole general partner | |||
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By:
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Whitestone
REIT Operating Partnership, LP, a Delaware limited partnership, its sole
member
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By:
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Whitestone
REIT, a Maryland real estate investment trust, its sole
member
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| By: | ||||
| Xxxxx X. Xxxxxxxxxx, CEO | ||||
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WHITESTONE REIT OPERATING
PARTNERSHIP III GP LLC, a Texas limited liability
company
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By:
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Whitestone
REIT Operating Partnership, LP, a Delaware limited partnership, its sole
member
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By:
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Whitestone
REIT, a Maryland real estate investment trust, its sole
member
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| By: | ||||
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Xxxxx
X. Xxxxxxxxxx, CEO
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9
| XXXXXXX REIT OPERATING PARTNERSHIP III LP LTD, a Texas limited partnership | ||||
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By:
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Whitestone
REIT Operating Partnership III GP LLC, a Texas limited liability company,
its sole general partner
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By:
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Whitestone
REIT Operating Partnership, LP, a Delaware limited partnership, its sole
member
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By:
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Whitestone
REIT, a Maryland real estate investment trust, its sole general
partner
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By:
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Xxxxx
X. Xxxxxxxxxx, CEO
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10
Each
Guarantor hereby acknowledges receipt of this Amendment No. 6, affirms its
obligations under the Guaranty, dated as of March 11, 2005, and agrees that all
“Obligations”, as defined in the Credit Agreement and after giving effect to
this Amendment No. 6, are Obligations under the Guaranty.
| WHITESTONE REIT, a Maryland real estate | ||||
| investment trust, Guarantor | ||||
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By:
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Xxxxx
X. Xxxxxxxxxx, CEO
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WHITESTONE REIT OPERATING
PARTNERSHIP III GP LLC, a Texas limited liability company,
Guarantor
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By:
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Whitestone
REIT Operating Partnership, LP, a Delaware limited partnership, its sole
member
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By:
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Whitestone
REIT, a Maryland real estate investment trust, its sole
member
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By:
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Xxxxx
X. Xxxxxxxxxx, CEO
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XXXXXXX REIT OPERATING
PARTNERSHIP III LP LTD, a Texas limited partnership,
Guarantor
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By:
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Whitestone
REIT Operating Partnership III GP LLC, a Texas limited liability company,
its sole general partner
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By:
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Whitestone
REIT Operating Partnership, LP, a Delaware limited partnership, its sole
member
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By:
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Whitestone
REIT, a Maryland real estate investment trust, its sole general
partner
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By:
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Xxxxx
X. Xxxxxxxxxx, CEO
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11
