Exhibit 10
FIRST AMENDMENT TO
REVOLVING CREDIT LOAN AGREEMENT
AMONG
XXXXX EQUITY, INC.
and
FLEET NATIONAL BANK, AS ARRANGER AND ADMINISTRATIVE AGENT
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS SYNDICATION AGENT
and
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, AS DOCUMENTATION AGENT
and
THE LENDERS PARTY HERETO
FIRST AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT is dated as of the
5th day of April, 2002, by and among XXXXX EQUITY, INC., a Florida corporation
(the "Borrower"), FLEET NATIONAL BANK, as agent for the Lenders under the Credit
Agreement described below (the "Agent"), and FLEET NATIONAL BANK ("Fleet"),
XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS SYNDICATION AGENT ("Xxxxx Fargo"),
COMPASS BANK ("Compass "), COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
AS DOCUMENTATION AGENT ("Commerzbank") and COMERICA BANK ("Comerica" and,
together with Fleet, Xxxxx Fargo, Compass, Commerzbank and each other lender
that may from time to time be a party to the Credit Agreement, the "Lenders")
WHEREAS, the Borrower, the Agent, Fleet, Xxxxx Fargo and Compass executed
and delivered that certain Revolving Credit Loan Agreement dated as December 28,
2001 (the "Credit Agreement"); and
WHEREAS, Fleet and Comerica entered into an Assignment and Acceptance
having an effective date of January 8, 2002 pursuant to which Comerica became a
Lender under the Credit Agreement; and
WHEREAS, Fleet and Commerzbank have entered into an Assignment and
Acceptance having the same effective date as this Amendment pursuant to which
Commerzbank is becoming a Lender under the Credit Agreement, and
WHEREAS, the parties to the Credit Agreement have agreed to amend certain
provisions thereof as set forth herein.
NOW, THEREFORE, the parties hereby agree that effective upon the date
hereof the Credit Agreement is amended as follows:
1. Amendment of ss.18.5. ss.18.5 is hereby amended by adding the following
sentence at the end thereof: "Notwithstanding the foregoing, after the
occurrence of an Event of Default said 49% limit shall no longer be applicable
and each Lender may sell such participations in all or any portion of such
Lender's rights and obligations under this Agreement."
2. Updated Schedules. The following Schedules to the Credit Agreement are
hereby replaced as follows:
(a) Schedule 1 is replaced with the revised Schedule 1 attached hereto.
(b) Schedule 1.1 is replaced with the revised Schedule 1.1 attached hereto.
3. Representations and Warranties. The Borrower represents and warrants
that, to its knowledge and belief, no Default or Event of Default has occurred
and is continuing on the date hereof.
4. Effectiveness of Loan Documents. The Borrower hereby confirms that each
of the Security Documents shall continue to secure the payment and performance
of all of the Obligations under the Credit Agreement as amended hereby and the
Borrower's obligations under the Security Documents shall continue to be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Every reference contained in the Loan Documents
to the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby and as the Credit Agreement may be further amended. Except as
specifically amended by this Amendment, the Credit Agreement and each of the
Loan Documents shall remain in full force and effect and are hereby ratified and
confirmed.
5. Miscellaneous. This Amendment shall be governed by, interpreted and
construed in accordance with all of the same provisions applicable under the
Credit Agreement including, without limitation, all definitions set forth in
ss.1.1, the rules of interpretation set forth in ss.1.2, the provisions relating
to governing law set forth in ss.20, the provisions relating to counterparts in
ss.22 and the provision relating to severability in ss.26.
6. Conditions to Effectiveness. This First Amendment to Credit Agreement
shall become effective when each of the following conditions shall have been
satisfied:
(a) This First Amendment to Credit Agreement shall have been duly executed
and delivered by all of the parties hereto.
(b) The Assignment and Acceptance between Fleet and Commerzbank shall have
been duly executed and delivered by all of the parties thereto.
(c) Fleet shall have shall have received funds from Commerzbank in the
amount of the consideration described in the Assignment and Acceptance between
Fleet and Commerzbank.
In the event that the effective date has not occurred on or before April
10, 2002 then this instrument shall be void and the Credit Agreement shall
remain in effect as though this instrument had never been executed.
[signature pages follow]
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
BORROWER:
XXXXX EQUITY, INC., a Florida corporation
By: /S/ Xxxxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
AGENT:
FLEET NATIONAL BANK, as Agent
By: /S/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Lender Signature Page
FLEET NATIONAL BANK
By: /S/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Commitment: $35,000,000
Commitment Percentage: 28%
Notice Address: Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Structured Real Estate
With a copy to:
Fleet National Bank.
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Director
Fax: (000)000-0000 or 000-0000
Lender Signature Page
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /S/ Xxxxx X. Xxxxx, III
-------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Vice President
Commitment: $40,000,000
Commitment Percentage: 32%
Notice Address: Xxxxx Fargo Bank, N.A.
c/o Wells Fargo Florida Real Estate Group
Suite 155
4010 Boy Scout Blvd.
Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, III
Fax: (000) 000-0000
With a copy to:
Xxxxx Fargo Bank, N.A.
Suite 1805
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Fax: (000)000-0000
Lender Signature Page
COMPASS BANK
By: /S/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Commitment: $20,000,000
Commitment Percentage: 16%
Notice Address: Compass Bank
00 Xxxxx 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Fax: (000) 000-0000
Lender Signature Page
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /S/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
By: /S/ E. Xxxxxx Xxxxx
-------------------------------------
Name: E. Xxxxxx Xxxxx
Title: Assistant Vice President
Commitment: $20,000,000
Commitment Percentage: 16%
Notice Address: Commerzbank AG, New York and
Grand Cayman Branches
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx Xxxxx, Assistant Vice President
Fax: (000) 000-0000
Lender Signature Page
COMERICA BANK
By: /S/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Commitment: $10,000,000
Commitment Percentage: 8%
Notice Address: Comerica Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx, Vice President
Fax: (000) 000-0000
SCHEDULE 1
Lenders; Domestic and LIBOR Lending Offices
--------------------------------------------------------------------------------
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
(Domestic and LIBOR)
--------------------------------------------------------------------------------
Xxxxx Fargo Bank, National Association
Suite 100
0000 Xxxx Xxxx Xxxxx
Xx Xxxxxxx, XX 00000
(Domestic and LIBOR)
--------------------------------------------------------------------------------
Compass Bank
00 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
(Domestic and LIBOR)
--------------------------------------------------------------------------------
Commerzbank AG, New York and
Grand Cayman Branches
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
(Domestic and LIBOR)
--------------------------------------------------------------------------------
Comerica Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
(Domestic and LIBOR)
--------------------------------------------------------------------------------
SCHEDULE 1.1
Commitments
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Lender Commitment Commitment Percentage
--------------------------------------------------------------------------------
Fleet National Bank $35,000,000 28%
--------------------------------------------------------------------------------
Xxxxx Fargo Bank, National Association $40,000,000 32%
--------------------------------------------------------------------------------
Compass Bank $20,000,000 16%
--------------------------------------------------------------------------------
Commerzbank AG, New York and $20,000,000 16%
Grand Cayman Branches
--------------------------------------------------------------------------------
Comerica Bank $10,000,000 8%
--------------------------------------------------------------------------------
Totals $125,000,000 100%
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