Contract
Exhibit 99.3
SECOND
AMENDMENT TO LOAN AGREEMENT
AND REAFFIRMATION OF LOAN
DOCUMENTS
THIS
SECOND AMENDMENT TO LOAN AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS (this
"Second
Amendment") is made and entered into as of September 29, 2008, by
and among XXXXXXX
PROPERTIES-3161 XXXXXXXXX, LLC, a Delaware limited liability company
("3161"),
XXXXXXX PROPERTIES-PARK PLACE
PS2, LLC, a Delaware limited liability company ("PS2"),
and XXXXXXX PROPERTIES-PARK
PLACE PS5, LLC, a Delaware limited liability company ("PS5")
(individually and collectively, jointly and severally, "Borrower");
EUROHYPO AG, NEW YORK
BRANCH, as a Lender (in such capacity, "Eurohypo"),
LANDESBANK
BADEN-WURTTEMBERG, as a Lender, AIB DEBT MANAGEMENT LIMITED,
as a Lender, BANK OF THE
WEST, as a Lender, BAYERISCHE LANDESBANK, NEW YORK
BRANCH, as a Lender, LANDESBANK BADEN-WURTTEMBERG, NEW
YORK BRANCH, as a Lender, CAPMARK BANK, a Utah
industrial bank, as a Lender ("Capmark
Bank"), and MIDFIRST
BANK, a federally chartered savings association, as a Lender; and EUROHYPO AG, NEW YORK BRANCH,
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 becomes a lender party to the Loan Agreement
(as defined below) after the date hereof pursuant to Section 12.24(2)
of the Loan Agreement, are sometimes referred to herein individually as a "Lender"
and collectively as the "Lenders".
R E C I T A L S
:
A. Borrower,
the Administrative Agent, Eurohypo and Capmark Bank entered into that certain
Construction Loan Agreement, dated as of September 29, 2006 (the "Original
Loan Agreement"). Subsequent thereto, pursuant to various
Assignments and Acceptances, (i) Landesbank Sachsen Aktiengesellschaft,
(ii) AIB Debt Management Limited, (iii) Bank of the West,
(iv) Bayerische Landesbank, New York Branch, (v) Landesbank
Baden-Wurttemberg, New York Branch, and (vi) MidFirst Bank acquired their
respective interests as Lenders under the Original Loan Agreement.
B. Borrower,
the Administrative Agent and certain of the Lenders entered into that certain
First Amendment to Loan Agreement and Reaffirmation of Loan Documents dated as
of September 30, 2007 (the "First
Amendment", and together with the Original Loan Agreement, collectively
referred to herein as the “Loan
Agreement”). All capitalized terms used but not defined herein
shall have the meanings set forth in Loan Agreement, as modified
hereby.
C. In
connection with the First Amendment, Xxxxxxx Properties, L.P., a Maryland
limited partnership (“Guarantor”)
executed and delivered that certain Modification and Reaffirmation of Guarantor
Documents dated as of September 30, 2007 (the “Guarantor
Modification and Reaffirmation Agreement”) in favor of Administrative
Agent (on behalf of the Lenders).
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A G R E E M E N
T
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, Administrative Agent and Lenders agree as follows:
1. Conditions
to the Second Modification Effectiveness Time. The
effectiveness of the modifications to the Loan Agreement and the other Loan
Documents and the extension of the Maturity Date to September 28, 2009 (the
“Extended
Maturity Date”) provided for herein shall be subject to the satisfaction
of the conditions set forth herein, in each case to the satisfaction of the
Administrative Agent. The time as of which such conditions have been
satisfied is referred to herein as the “Second
Modification Effectiveness Time.” The conditions which must be
satisfied prior to the Second Modification Effectiveness Time are as
follows:
(a) Deposit of Loan Modification
Documents and Other Items. Borrower and the other Borrower
Parties identified below shall have executed and delivered to the Administrative
Agent the following amendments to or supplements of the Loan
Documents:
(i) Agreement Supplementing Deed
of Trust. A Second Agreement Supplementing Deed of Trust,
substantially in the form of Attachment A attached
hereto, executed by Borrower and in form for recording; and
(ii) Guarantor
Documents. A Second Modification and Reaffirmation Agreement
with respect to the Guarantor Documents, substantially in the form of Attachment B attached
hereto, executed by Guarantor (and consented to by PS2 and PS5 as provided
therein), together with an amended Guarantor Collateral Letter of Credit (as
such term is defined in the Guarantor Modification and Reaffirmation Agreement)
in the stated amount of not less than $12,600,000, which amended Guarantor
Collateral Letter of Credit shall have an expiration date that is not earlier
than the date that is thirty (30) days beyond the end of the First
Extension Period.
(b) Principal
Prepayment. Borrower shall have paid to the Administrative
Agent (on behalf of the Lenders), as a prepayment and reduction of the
outstanding principal amount of the Loans, the sum of Thirty-Three Million
Dollars ($33,000,000) (the “Principal
Reduction Amount”), in accordance with Section 2.4(4) of the Loan
Agreement.
(c) Tenant Improvement Reserve
Re-Balancing; Controlled Account Agreement.
(i) Borrower
shall have deposited with the Administrative Agent Seven Million Five Hundred
Thousand Dollars ($7,500,000) (the “TI
Re-Balancing Amount”) for deposit into an account at the Depository Bank
(the “TI
Reserve Account”), which TI Re
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Balancing
Amount shall be used to pay for Tenant Improvement Work and Tenant Improvement
Allowance costs at the Project and in accordance with the terms of the Loan
Agreement. After taking into account the deposit of the TI
Re-Balancing Amount into the TI Reserve Account, the total amount of funds for
Tenant Improvement Work and Tenant Improvement Allowance is
$20,300,000.
(ii) Borrower
shall have delivered to the Administrative Agent an amendment to the Cash
Management Agreement executed by Borrower and the Depository Bank with respect
to the TI Reserve Account.
(d) Hedge Agreement and Hedge
Agreement Pledge. In connection with the extension of the
Maturity Date, Borrower shall have delivered to the Administrative Agent a
replacement Hedge Agreement which complies with the provisions of Section 9.15
of the Loan Agreement, which shall have a expiration date of not earlier than
the end of the First Extension Period, together with a fully executed Hedge
Agreement Pledge, which shall be in form and substance satisfactory to
Administrative Agent and otherwise comply with the terms of Section 9.15 of the
Loan Agreement.
(e) Completion of the Base
Building Work; Liens; Government Approvals. In connection with
the extension of the Maturity Date, Borrower shall have provided evidence
satisfactory to the Administrative Agent that (i) it has satisfied the Base
Building Substantial Completion Conditions prior to the original Maturity Date;
(ii) the completion of all Tenant Improvement Work is on schedule and within the
amount allocated thereto on the Budget (as such Budget has been modified in
accordance with this Second Amendment); (iii) no construction liens,
materialman’s liens or mechanic’s liens exist on the Project, except for those
which are being contested in compliance with Section 9.23 of the Loan Agreement;
and (iv) it has obtained all Government Approvals for the Improvements to the
extent applicable as of the Second Modification Effectiveness Time, and copies
of the same (if applicable) have been delivered to the Administrative
Agent.
(f) Financial Statements;
Covenant Compliance Certificate. Borrower shall have delivered
to the Administrative Agent current financial statements of the Borrower and
Guarantor (dated not earlier than ninety (90) days prior to that certain
Letter from Borrower to the Administrative Agent dated June 1, 2008 exercising
Borrower’s election to extend the Maturity Date (the “First
Extension Notice”) and all other reports required pursuant to Section
8.1(1) and 8.1(2) of the Loan Agreement shall have been timely delivered to the
Administrative Agent. Borrower shall have delivered, or shall have
caused Guarantor to deliver a certificate executed by an Authorized Officer of
Guarantor certifying that Guarantor is in compliance with the Financial
Covenants, as modified by the Second Modification and Reaffirmation
Agreement.
(g) Title Insurance; Priority;
Recordation.
(i) Title
Endorsements. The Title Company shall have recorded the Second
Agreement Supplementing Deed of Trust, and shall have issued such endorsements
to the Title Policy to the effect that the validity and priority of the Mortgage
insured thereunder have not been and will not be impaired by this Second
Amendment or the transactions contemplated by it, and confirming the priority of
the Mortgage, as supplemented by the Second
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Agreement
Supplementing Deed of Trust, over all matters other than Permitted Exceptions
(including, without limitation, over all mechanics' and materialmen's liens) and
such other endorsements to the Title Policy as may be deemed reasonably
necessary by the Administrative Agent, in such form as may be reasonably
acceptable to the Administrative Agent; and
(ii) Costs and Expenses for Title
Coverage. Borrower shall have paid, or shall have made other
arrangements acceptable to the Title Company to pay, to the Title Company all
expenses and premiums of the Title Company in connection with the issuance of
such endorsements and all recording and filing fees payable in connection with
recording the Second Agreement Supplementing Deed of Trust.
(h) Legal
Opinions. The Administrative Agent shall have received
favorable written opinions, dated as of the Second Modification Effectiveness
Time, of counsel to Borrower and the Guarantor with respect to this Second
Amendment and the other documents to be delivered pursuant hereto, in such forms
as may be deemed satisfactory by the Administrative Agent.
(i) Organizational Documents;
Resolutions and Authorizations. The Administrative Agent shall
have received the following documents with respect to Borrower and the other
Borrower Parties identified below, in each case as constituted upon and after
giving effect to the Second Modification Effectiveness Time:
(i) Certificates
of Incorporation, Certificates of Formation, Certificates of Limited
Partnership, similar formation documents and all other Organizational Documents
for Borrower and each of the other parties as to whom such documentation was
delivered to the Administrative Agent in connection with the original closing of
the Loans, certified by the Secretary of State of the state of formation of such
Person as of a recent date, or, to the extent such documentation has not been
modified since the original closing of the Loans, a certificate to such effect
from Borrower;
(ii) The
applicable resolutions and authorizations of Borrower and each of the other
parties as to whom resolutions and authorizations were delivered to the
Administrative Agent in connection with the original closing of the Loans,
authorizing the execution and delivery of this Second Amendment and the other
documents to be delivered pursuant hereto, in each case certified by an
Authorized Officer on behalf of such party as of the Second Modification
Effectiveness Time as being accurate and complete, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, or, to the
extent such documentation has not been modified since the original closing of
the Loans, a certificate to such effect from Borrower;
(iii) Certificates
signed by an Authorized Officer on behalf of the applicable Person certifying
the name, incumbency and signature of one or more individuals authorized to
execute this Second Amendment and the other documents to be delivered pursuant
hereto, on which the Administrative Agent and the Lenders may rely;
and
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(iv) Good
standing certificates with respect to Borrower and each of the other parties as
to whom such certificates were delivered to the Administrative Agent in
connection with the original closing of the Loans, dated as of a current
date.
(j) Representations and
Warranties. As of the Second Modification Effectiveness Time,
all of the representations and warranties in the Loan Documents of Borrower,
Guarantor and the other Borrower Parties (except, (i) to the extent
resulting from the bankruptcy of New Century Financial Corporation and any
elections made by it in the bankruptcy case, for the representations, and
warranties of Borrower set forth in Section 6.1 of
the Loan Agreement with respect to the lack of any default on the part of any
tenant under any of the leases, (ii) for the representations and warranties
of Borrower and each Borrower Party with respect to financial statements set
forth in Section 7.3,
such representations and warranties shall refer to the most recent financial
statements of Borrower and each Borrower Party delivered to Administrative Agent
dated as of June 30, 2008, and (iii) for the representations and
warranties of Borrower with respect to Tenant Improvement Allowances set forth
in Section 7.33,
such representations and warranties shall refer to the summary of Tenant
Improvement Allowances set forth on the most current schedule of Tenant
Improvement Allowances delivered to Administrative Agent pursuant to such Section 7.33)
shall be true and correct, after giving effect to the modifications intended to
become effective as of the Second Modification Effectiveness Time.
(k) No Events of
Default. As of the Second Modification Effectiveness Time,
after giving effect to the modifications provided for in this Second Amendment,
no 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, shall
exist.
(l) Hyundai Lease and
Subordination Non-Disturbance and Attornment
Agreement. Borrower shall have delivered to the Administrative
Agent a Lease Agreement fully executed by Hyundai Motor Finance Company, a
California corporation (“Hyundai”),
as tenant, and 3161, as landlord, together with a Subordination Non-Disturbance
and Attornment Agreement executed by Hyundai and 3161, in each case, as approved
by the Administrative Agent.
(m) Revised
Budget. Borrower shall have delivered to Administrative Agent
a revised Budget reflecting changes to the line-items for tenant improvement
work and tenant improvement allowances at the Project, in form and substance
satisfactory to the Administrative Agent.
(n) Leasing Status
Update. Borrower shall have delivered to the Administrative
Agent an update with respect to the status of the leasing of the Project, in
such format as may be satisfactory to the Administrative Agent.
(o) Appraisal. Borrower
shall have a delivered to the Administrative Agent an updated Appraisal, in form
and substance satisfactory to the Administrative Agent in all
respects.
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(q) Fees and
Expenses. Borrower shall have paid (a) all fees then due and
payable to Eurohypo and the Administrative Agent pursuant to the Fee Letter, (b)
any other fees then due to the Administrative Agent pursuant to the Loan
Documents, and (c) any costs, fees and expenses due to the Administrative Agent
pursuant to Section 12.5 of
the Loan Agreement with respect to the modifications provided for in this Second
Amendment and the other documents to be delivered pursuant hereto, it being
understood that all costs, fees and expenses incurred by the Administrative
Agent in connection with this Second Amendment and the other documents to be
delivered pursuant hereto are costs, fees and expenses for which Borrower is
obligated to reimburse the Administrative Agent pursuant to Section 12.5 of
the Loan Agreement.
Notwithstanding
anything to the contrary set forth herein, this Second Amendment shall be null
and void and of no further force or effect unless the Second Modification
Effectiveness Time shall occur on or prior to the close of business, California
time, on the later of (a) the date the documents required under Section 1(a) are
executed and delivered by Borrower to the Administrative Agent (the “Closing Date”) and
(b) September 29, 2008.
2. Acknowledgement
of Extension of Maturity Date. Administrative Agent hereby
acknowledges receipt of the First Extension Notice and, upon the satisfaction of
the conditions set forth herein, as of the Second Modification Effectiveness
Time, the Maturity Date shall be deemed to be September 28, 2009.
3. Loan
Modifications. Upon the Second Modification Effectiveness
Time, the Loan Agreement and the other Loan Documents shall be modified as
follows:
(a) The
definition of “Applicable
Margin” set forth in Section 1.1(14) of
the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“Applicable
Margin” means (a) with respect to Base Rate Loans, two and
one-quarter percent (2.25%) per annum; and (b) for LIBOR-based Loans, three
percent (3.00%) per annum.
(b) Exhibit B of the Loan
Agreement (the Budget) and the Budget attached thereto are hereby deleted and
replaced in their entireties with the revised and amended Budget attached hereto
as Attachment
C. All references in the Loan Documents to the “Budget” shall
hereafter refer to Attachment C attached
hereto.
(c) The
definition of “Loan
Documents” set forth in Section 1.1(165) of
the Loan Agreement is hereby modified by adding the following sentence at the
end thereof: “The
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Second
Modification Agreement and each of the modifications to the Loan Documents
delivered pursuant thereto are each ‘Loan Documents.’”
(d) The
following additional defined terms are hereby added to the Loan
Agreement:
“Principal
Reduction Amount” has the meaning assigned to such term in the Second
Modification Agreement.
“Second
Guarantor Modification and Reaffirmation Agreement” means that certain
Second Modification and Reaffirmation Agreement, dated as of September 29, 2008
executed and delivered by Guarantor to the Administrative Agent for the benefit
of the Lenders.
“Second
Modification Agreement” means that certain Second Amendment to Loan
Agreement and Reaffirmation of Loan Documents, dated as of September 29, 2008,
entered into among Borrower, the Administrative Agent and the
Lenders.
“Second
Modification Effectiveness Time” has the meaning assigned to such term in
the Second Modification Agreement.
“TI
Re-Balancing Amount” has the meaning assigned to such term in the Second
Modification Agreement.
“TI
Reserve Account” has the meaning assigned to such term in the Second
Modification Agreement.
(e) Section
2.5(2) is hereby modified by adding thereto the following sentence at the end of
such Section:
Notwithstanding
anything to the contrary contained in this Section 2.5(2), as an additional
condition precedent to Borrower’s election to extend the Maturity Date for the
Second Extension Period, the written consent thereto shall have been obtained
from the Administrative Agent and all Lenders.
(f) Section
2.5(3) is hereby modified by adding thereto the following sentence at the end of
such Section:
Notwithstanding
anything to the contrary contained in this Section 2.5(3), as an additional
condition precedent to Borrower’s election to extend the Maturity Date for the
Third Extension Period, the written consent thereto shall have been obtained
from the Administrative Agent and all Lenders.
(g) The
provisions of Section 12.2 which permit the Majority Lenders to approve of
changes to the material conditions for the extensions to the Loan term set forth
in Section 2.5
shall not apply to the condition to the Borrower’s election to extend the
Maturity Date for the Second Extension Period or the Third Extension Period
which requires the written consent thereto from the Administrative Agent and all
Lenders, as provided for in Sections 1(e) and 1(f) of the Second Modification
Agreement. Any changes to such condition shall require the consent of
all Lenders.
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Section
15.8 TI Reserve
Account. Borrower shall deposit or cause to be deposited the
TI Re-Balancing Amount into the TI Reserve Account. Funds from the TI
Reserve Account shall be disbursed to Borrower upon request by Borrower in
accordance with and pursuant to the provisions of Article 4 of this Agreement
(including, without limitation, the provisions of Sections 4.9 and 4.10 of this
Agreement) for making advances of the Loans in connection with Tenant
Improvement Allowances and Tenant Improvement Work. The
Administrative Agent shall not be required to authorize any disbursement of any
Loans for the payment of Tenant Improvement Allowances and Tenant Improvement
Work pursuant to Sections 4.9 or 4.10 of this Agreement before the prior
application of the TI Re-Balancing Amount to the payment of such costs so as to
bring the Loans In Balance. Administrative Agent shall have the right
to designate the funds in the TI Reserve Account to the payment of Project Costs
other than costs for Tenant Improvement Allowances and Tenant Improvement Work,
in accordance with Administrative Agent’s right to reallocate Budget Line-Items
pursuant to Section 4.5.
(i) From
and after the Second Modification Effectiveness Time, all references in the Loan
Documents to the "Loan
Agreement," 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 Loan Agreement, the Loan
Documents and such Loan Document, as applicable, as amended, modified and
supplemented hereby and by the documents executed in connection with this Second
Amendment.
4. Reaffirmation
and Waiver.
(a) Borrower
hereby (i) reaffirms, ratifies, confirms, and acknowledges its obligations
under the Notes, the Loan Agreement, and all the other Loan Documents, and
agrees to continue to be bound thereby and perform thereunder, (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, have not been modified.
(b) Concurrently
herewith, Guarantor is executing and delivering to Administrative Agent the
Second Guarantor Modification and Reaffirmation Agreement referred to in Section 1(a)(ii)
above. Such reaffirmation is a "Loan Document" and all references
herein, in the Loan Agreement and in the Loan Documents to the "Loan Documents", to
the "Guarantor
Documents" or to any specific one of the Guarantor Documents shall be
deemed to include such reaffirmation.
5. Representations
and Warranties. Borrower hereby represents and warrants to the
Administrative Agent and the Lenders as of the date hereof and as of the Second
Modification Effectiveness Time as follows:
(a) Borrower
has full power and authority to enter into this Second Amendment and perform its
obligations hereunder, and Borrower's execution and delivery of this Second
Amendment has been duly authorized by all necessary partnership
action. No approval,
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consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by Borrower of this
Second Amendment or any document or instrument to be delivered by Borrower
pursuant hereto. This Second Amendment and the documents and
instruments to be 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, or similar laws affecting the enforcement of creditors' rights
generally, or by equitable principles relating to enforceability.
(b) As
of the Second Modification Effectiveness Time, no 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 date hereof and immediately after giving effect to this Second Amendment
and the actions contemplated thereby, Borrower reaffirms all of its obligations
under the Loan Documents, and Borrower acknowledges that it has no claims,
offsets or defenses with respect to the payment of sums due under the Notes or
any other Loan Document. Without limiting the foregoing, as of the
date hereof, Borrower hereby confirms that Loans in the aggregate amount of
$215,005,943.00 are outstanding and that interest on the Loans has been paid
through (but not including) August 31, 2008.
(d) As
of the date hereof and immediately after giving effect to this Second Amendment
and the actions contemplated thereby, all representations and warranties made
and given by Borrower in the Loan Documents are true, accurate and correct
(except, to the extent resulting from the bankruptcy of New Century Financial
Corporation and any elections made by it in the bankruptcy case, for the
representations and warranties of Borrower set forth in Section 6.1 of the Loan
Agreement with respect to the lack of any default on the part of any tenant
under any of the leases).
6. Miscellaneous.
(a) Controlling
Provisions. In the event of any inconsistencies between the
provisions of this Second Amendment and the provisions of any other Loan
Document, the provisions of this Second Amendment shall govern and
prevail. Except as expressly modified by this Second Amendment, the
Loan Documents shall not be modified and shall remain in full force and
effect.
(b) Further
Assurances. At 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 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 Second Amendment, 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 Administrative
Agent's request, Borrower shall promptly cause any other Borrower Party or any
of the holders of any equity interest in any other Borrower Party, as
applicable, to execute any other document or instrument and/or diligently seek
any consent or agreement from any third party that Agent
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reasonably
determines is necessary to evidence or further, or is otherwise relevant to, the
intent of the parties, as set forth in this Second Amendment, provided the same
shall not result in a decrease of the rights of such Borrower Party or result in
an increase in such Borrower Party's obligations under the Loan
Documents.
(c) Counterparts. This
Second Amendment may be executed by one or more of the parties to this Second
Amendment 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 Second Amendment, together with the other Loan
Documents and the Assignments and Acceptances referred to in the Recitals
hereto, 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
Second Amendment shall not prejudice any rights or remedies of Bank 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 Second Amendment shall
impair the lien of the Mortgage, which as hereby amended shall remain a deed of
trust with a power of sale, creating a first lien encumbering the
Project.
(e) GOVERNING
LAW. PURSUANT TO SECTION 12.21 OF
THE LOAN AGREEMENT, THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
(f) No Third Parties
Benefited. This Second Amendment is made and entered into for
the sole protection and legal benefit of Borrower, Administrative Agent, the
Lenders and their permitted successors and assigns, and no other Person shall be
a direct or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Second Amendment or any of the other
Loan Documents. Administrative Agent shall not have any obligation to
any Person not a party to this Second Amendment or the other Loan
Documents.
(g) Exculpation
Parties. The provisions of Article 13 of
the Loan Agreement are incorporated herein by this reference.
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IN WITNESS WHEREOF, Borrower, Administrative Agent, and the
Lenders have caused this Second Amendment to be executed by their duly
authorized representatives as of the day, month and year first above
written.
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BORROWER:
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XXXXXXX
PROPERTIES-3161
XXXXXXXXX,
LLC, a Delaware limited
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liability
company
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By:
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/s/
Xxxx X. Lammas
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Name:
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Xxxx X. Lammas | |
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Title:
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Vice President | |
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XXXXXXX
PROPERTIES-PARK PLACE
PS2,
LLC, a Delaware limited liability
company
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By:
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/s/
Xxxx X. Lammas
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Name:
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Xxxx X. Lammas | |
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Title:
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Vice President | |
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XXXXXXX
PROPERTIES-PARK PLACE
PS5,
LLC, a Delaware limited liability
company
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By:
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/s/
Xxxx X. Lammas
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Name:
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Xxxx X. Lammas | |
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Title:
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Vice President | |
S-1
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LENDERS:
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EUROHYPO
AG, NEW YORK BRANCH,
as
a Lender
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx Xxxxxx | |
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Title:
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Director | |
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By:
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/s/
Xxxx Xxxxx
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Name:
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Xxxx Xxxxx | |
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Title:
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Vice President | |
S-2
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LANDESBANK
BADEN-WURTTEMBERG,
NEW
YORK BRANCH,
as
a Lender
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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/s/ Xxxxxxx X. Xxxxx | |
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Title:
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Head of Real Estate
Finance Department
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By:
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/s/
Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx | |
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Title:
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Assistant Vice President | |
S-3
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AIB
DEBT MANAGEMENT LIMITED,
as
a Lender
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx Xxxxxx | |
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Title:
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Assistant Vice President
Investment Advisor to
AIB Debt Management,
Limited
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
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Xxxx Xxxxxxxx | |
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Title:
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Senior Vice President
Investment Advisor to
AIB Debt Management,
Limited
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S-4
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BANK
OF THE WEST, as a Lender
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By:
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/s/
Xxxxx Xxxx
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Name:
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Xxxxx Xxxx | |
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Title:
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Vice President | |
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By:
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/s/
Xxxxx Xxxxxxxxxxxx
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Name:
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Xxxxx Xxxxxxxxxxxx | |
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Title:
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Senior Vice President | |
S-5
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BAYERISCHE
LANDESBANK, NEW YORK
BRANCH,
as a Lender
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By:
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/s/
Xxxx Xxxxxx
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Name:
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Xxxx Xxxxxx | |
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Title:
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Vice President | |
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By:
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/s/
Xxxxxxxx Xxxxx
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Name:
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Xxxxxxxx Xxxxx | |
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Title:
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Vice President | |
S-6
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CAPMARK
BANK,
a
Utah industrial bank, as a Lender
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name:
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Xxxxxx Xxxxxxxxx | |
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Title:
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Vice President | |
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By:
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/s/
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Name:
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Title:
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S-7
S-8
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EUROHYPO
AG, NEW YORK BRANCH,
as
Administrative Agent
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx Xxxxxx | |
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Title:
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Director | |
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By:
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/s/
Xxxx Xxxxx
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Name:
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Xxxx Xxxxx | |
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Title:
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Vice President | |
S-9
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx X. Xxxxx
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Title:
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Head of Real Estate
Finance
Department
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By:
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/s/
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Name:
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Title:
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S-10
