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EXHIBIT 10.47
FOURTH MODIFICATION AGREEMENT
This Fourth Modification Agreement ("Fourth Modification") is entered
into as of the 7th day of July, 2000 ("Agreement"), by and among Tokai Bank of
California, a California banking corporation (individually referred to as
"Tokai" and a "Lender" and in its capacity as Agent for Lenders, the "Agent"),
on the one hand, and Xxxxxxx-Xxxxxx, Inc., a Delaware corporation ("KW"),
Xxxxxxx-Xxxxxx International, Inc., a California corporation ("KWI"),
Xxxxxxx-Xxxxxx Properties, Ltd., a Delaware corporation ("KWPL"), and K-W
Properties, Inc., a California corporation ("KWP") (individually and
collectively, "Borrower"), on the other hand, with reference to the following
facts:
RECITALS
A. Borrower, Lenders and Agent are parties to a certain Revolving Loan
Agreement dated as of July 2, 1999 (as amended, "Loan Agreement"), providing for
a line of credit in the original aggregate principal sum of $15,000,000.00
("Credit").
B. Borrower's obligations to Tokai, as a Lender under the Loan Agreement
are further evidenced by a certain Promissory Note dated July 2, 1999 ("Note"),
in the original principal sum of $10,000,000.00 ("Tokai's Commitment").
The aforementioned Loan Agreement and Note and all other documents and
instruments executed in connection therewith are hereinafter individually and
collectively referred to as the "Loan Documents."
C. The Loan Agreement and the Note have heretofore been amended and/or
modified pursuant to the following:
1. That certain Modification Agreement dated as of November 15,
1999, by and between Tokai (acting as Agent and Lender) and Borrower.
2. That certain Second Modification Agreement dated as of
February 28, 2000 by and between Tokai (acting as Agent and Lender) and
Borrower.
3. That certain Third Modification Agreement dated as of June 20,
2000 by and between Tokai (acting as Agent and Lender) and Borrower.
D. At the time of the Third Modification Agreement, it was anticipated
by Tokai and Borrower that there would be additional amendments to the Loan
Agreement. Consistent therewith, Borrower and Tokai desire to further amend the
Loan Agreement, subject to the terms and conditions hereinafter set forth.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Agreement
shall have the meaning given to them in the Loan Agreement.
2. Amendments to Loan Agreement.
2.1 In Section 1.1 of the Loan Agreement, the definition of
"Tangible Net Worth" is amended in its entirety to read as follows:
"`Tangible Net Worth' means the excess of total Assets over
total liabilities, as adjusted as follows: (1) the following
shall be excluded from the determination of total Assets for
purposes of the determination of Tangible Net Worth: (a)
goodwill, organizational expenses, research and development
expenses, trademarks, trade names, copyrights, patents, patent
applications, licenses and rights in any thereof, and other
similar intangibles, (b) all prepaid expenses, deferred charges
or unamortized debt discount and expense, (c) all reserves
carried and not deducted from assets, (d) all notes or accounts
receivable from any Affiliate of Borrower or any officer of
Borrower, (e) securities which are not readily marketable, (f)
cash held in a sinking or other analogous fund established for
the purpose of redemption, retirement or prepayment of capital
stock or indebtedness, (g) any write-up in the book value of any
asset resulting from a revaluation thereof subsequent to the
date of this Agreement and (h) any items not included in clauses
(a) through (g) above which are treated as intangibles in
conformity with GAAP; and (2) the following shall be excluded
from the determination of total liabilities: debt subordinated
to Lender by agreement satisfactory to Lender."
2.2 In Section 1.1 of the Loan Agreement, the definition of
"Tokai's Commitment" is amended in its entirety to read as follows:
"`Tokai's Commitment' means the commitment of Tokai to lend
to Borrower the maximum principal sum of $13,000,000.00 as more
particularly described in Section 3.1 herein through and
including June 30, 2002."
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2.3 In Section 1.1 of the Loan Agreement, the definition of
"Leverage Ratio" is amended in its entirety to read as follows:
"`Leverage Ratio' shall be defined, with respect to the
Leverage Ratio requirements contained in the GATX Note
Agreement, as set forth in Schedule B of the GATX Note
Agreement, and with respect to the Leverage Ratio requirements
contained in the East-West Credit Agreement, as set forth in
Section 1.1 of the East-West Credit Agreement, which definitions
are incorporated by reference herein as though set forth in
full."
2.4 Section 1.1 of the Loan Agreement is further amended to add,
in appropriate alphabetical order, a definition for "Third Party Lender" to read
as follows:
"`Third Party Lender' means GATX Capital Corp., Combined
Insurance Company of America, Resource Life, and Virginia Surety
Company, Inc., individually and collectively, with Combined
Insurance Company of America, Resource Life and Virginia Surety
Company, Inc. being referred to hereinafter, individually and
collectively, as AON."
2.5 Section 1.1 of the Loan Agreement is further amended to add,
in appropriate alphabetical order, a definition for "GATX Note Agreement" to
read as follows:
"'GATX Note Agreement' shall mean that certain Note Purchase
Agreement, dated June 22, 2000, executed by KW in favor of GATX
Capital Corp."
2.6 Section 1.1 of the Loan Agreement is further amended to add,
in appropriate alphabetical order, a definition for "Third Party Loan Documents"
to read as follows:
"`Third Party Loan Documents' shall mean the GATX Note
Agreement, and the Note Purchase Agreements, dated June 22,
2000, executed by KW in favor of AON, and the documents and
instruments executed in connection therewith, individually and
collectively."
2.7 Section 1.1 of the Loan Agreement is further amended to add,
in appropriate alphabetical order, a definition for "East-West Credit Agreement"
to read as follows:
"`East-West Credit Agreement' shall mean that certain Credit
Agreement dated as of July 9, 1999, by and between KW and
East-West Bank, as amended pursuant to the terms of that certain
First Amendment to Loan Documents, dated June 6, 2000, by and
among KW, KWI, KWPL, KWP and East-West Bank (`First Amendment to
Loan Documents')."
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2.8 Section 1.1 of the Loan Agreement is further amended to add,
in appropriate alphabetical order, a definition for "East-West Loan Documents"
to read as follows:
"`East-West Loan Documents' shall mean the East-West Credit
Agreement and the documents and instruments executed in
connection therewith, as amended pursuant to the terms of that
certain First Amendment to Loan Documents, individually and
collectively."
2.9 Section 1.1 of the Loan Agreement is further amended to add,
in appropriate alphabetical order, a definition for "Direct Real Estate
Investments" to read as follows:
"`Direct Real Estate Investments' shall be defined as
provided for in Schedule B of the GATX Note Agreement as of June
22, 2000, which definition is incorporated by reference herein
as though set forth in full."
2.10 Section 4.11 of the Loan Agreement is amended in its
entirety to read as follows:
"4.11 FINANCIAL COVENANTS. KW shall maintain on a consolidated
basis, the following financial covenants, to be measured at the
end of each calendar quarter (other than (d) below), commencing
on September 30, 1999. All financial ratios shall be calculated
at the end of each calendar quarter, using the results of that
quarter and each of the three (3) immediately preceding quarters.
(a) Tangible Net Worth. Maintain on a consolidated basis
Tangible Net Worth equal to at least the amounts indicated for
each period specified below:
Period Amounts
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Ending December 31, 1999 $35,000,000.00
Ending December 31, 2000 $40,000,000.00
and thereafter
(b) Leverage Ratio. Maintain at all times the Leverage Ratio
requirements provided for in Section 10.4 of the GATX Note
Agreement as of June 22, 2000, and the Leverage Ratio
requirements provided for in Section 5.13 (a) of the East-West
Credit Agreement as of July 9, 1999, which are incorporated by
reference herein as though set forth in full.
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(c) Debt Coverage Ratio. Maintain on a consolidated basis a
Debt Coverage Ratio of at least the amounts indicated for each
period specified below:
Period Ratio
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Ending December 31, 1999 1.50:1.0
Ending December 31, 2000 2.00:1.0
and thereafter
(d) Positive Income. Earn positive net income in each
calendar year.
(e) Minimum Interest Coverage Ratio. Maintain at all times
the Interest Coverage Ratio (as defined in Schedule B of the
GATX Note Agreement) provided for in Section 10.3 of the GATX
Note Agreement as of June 22, 2000, which is incorporated by
reference herein as though set forth in full.
2.11 Section 4.13 (d) of the Loan Agreement is amended to read as
follows:
"(d) Liabilities and lines of credit in existence on the
date of this Agreement disclosed in writing to Lenders and the
obligations and indebtedness created by the Third Party Loan
Documents in accordance with Section 4.17, provided however,
that, without the prior consent of Agent, at no time shall the
aggregate amount of unsecured debt of KW and its subsidiaries,
in addition to the obligations and indebtedness created by the
Third Party Loan Documents, exceed $33,000,000.00, including the
lines of credit provided under this Agreement and by East-West
Bank under the East-West Loan Documents through and including
June 30, 2002."
2.12 Section 4.18 of the Loan Agreement is amended to read as
follows:
"4.18 ADDITIONAL PROVISIONS REGARDING THIRD PARTY LOAN
DOCUMENTS. Borrower shall, in addition to the financial
covenants set forth in Section 4.11 and any other covenants or
requirements under this Agreement, comply with each and all of
the terms and conditions of the Third Party Loan Documents,
including, without limitation the covenants contained in
Sections 9 and 10 of the GATX Note Agreement as of June 22,
2000, and will not amend of modify the terms of any of the Third
Party Loan Documents. In the event Borrower requests a waiver of
any term or condition of any Third Party Loan Documents from any
Third Party Lender, it shall so advise Lender, in writing, of
such request at the same time, and the reason for such request.
Any waiver of any provision of the Third Party Loan Documents
shall not be binding upon Agent or Lenders."
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2.13 Article 4 of the Loan Agreement is amended to add a new
Section 4.19 to read as follows:
"4.19 ADDITIONAL PROVISIONS REGARDING EAST-WEST LOAN
DOCUMENTS. Borrower shall, in addition to the financial covenants
set forth in Section 4.11 and any other covenants or requirements
under this Agreement, comply with each and all of the terms and
conditions of the East-West Loan Documents including, without,
limitation Section 5 of the East-West Credit Agreement as of July
9, 1999, and will not amend or modify the term of any of the
East-West Loan Documents. In the event Borrower requests a waiver
of any term or condition of any East-West Loan Documents from
East-West Bank, it shall so advise Agent, in writing, of such
request at the same time, and the reason for such request. Any
waiver of any provision of the East-West Loan Documents shall not
be binding upon Agent or Lenders."
2.14 Article 4 of the Loan Agreement is amended to add a new
Section 4.20 to read as follows:
"4.20 KEY MAN INSURANCE. KW will at all times maintain, with
financially sound and reputable insurers, a policy of life
insurance upon the life of Xxxxxxx X. XxXxxxxx in an amount of
not less than $5,000,000.00 and naming KW as assignee thereof."
2.15 Article 4 of the Loan Agreement is amended to add a new
Section 4.21 to read as follows:
"4.21 DIRECT REAL ESTATE INVESTMENTS. Borrower shall not
permit the book value of its Direct Real Estate Investments
determined in accordance with GAAP to exceed at any time more
than thirty percent (30%) of KW's Consolidated Net Worth. For
purposes of this Section 4.21 only, the term `Consolidated Net
Worth' shall be defined as set forth in Schedule B of the GATX
Note Agreement as of June 22, 2000, which definition is
incorporated by reference herein as though set forth in full."
2.16 Article 4 of the Loan Agreement is amended to add a new
Section 4.22 to read as follows:
"4.22 ADDITIONAL COMPLIANCE CERTIFICATES. Borrower shall
provide Agent those financial statements required to be provided
to GATX Capital Corp. pursuant to Section 7.1 (a) and Section 7.1
(b) of the GATX Note Agreement as of June 22, 2000 at such time
as the financial statements are required to be delivered to GATX
thereunder. In addition,
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the Chief Financial Officer of Borrower shall provide Agent a
copy of the Officer's Certificate required to be delivered to
GATX Capital Corp. pursuant to the terms of Section 7.2 of the
GATX Note Agreement as of June 22, 2000 at such time as such
certificate is required to be provided to GATX thereunder."
3. Representations and Warranties. Borrower hereby represents and
warrants to Agent and Lenders that: (i) no default specified in the Loan
Agreement and no event which with notice or lapse of time, or both, would become
such a default has occurred and is continuing; (ii) the representations and
warranties of Borrower pursuant to the Loan Agreement are true on and as of the
date hereof as if made on and as of said date; (iii) the making and performance
by Borrower of this Agreement have been duly authorized by all necessary action;
(iv) no consent, approval, authorization, permit or license is required in
connection with the making or performance of the Loan Agreement as amended
hereby; and (v) Borrower has provided Lender true and complete copies of each
and all of the Third Party Loan Documents and each and all of the East-West Loan
Documents, including, without limitation, any and all amendments or
modifications thereto.
4. Conditions Precedent. This Agreement will be effective when Agent
receives the following items, in form and content acceptable to Agent in its
sole opinion and judgment:
4.1 Evidence that Borrower has authority to carry out the
transactions contemplated by this Agreement.
4.2 Payment by Borrower of all attorneys' fees and out-of-pocket
expenses incurred by Lenders in connection with the negotiation, preparation,
execution, delivery, and administration of this Agreement and any matter related
thereto.
4.3 Such other documents as may be required by Agent.
5. Effect of Agreement. Except as provided in this Agreement, all of the
terms and conditions of the Loan Agreement shall remain in full force and
effect, and are hereby reaffirmed and ratified in their entirety. In the event
there is any conflict in any term or provision of this Agreement and any term or
provision of the Loan Agreement, such term or provision, as applicable, of this
Agreement shall control.
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6. Further Assurances. Borrower shall execute such other documents and
instruments as Agent shall request and provide such other assurances as Agent
may require from time to time to carry out the purposes of this Agreement.
This Fourth Modification Agreement is executed as of the date
first above written.
"Lender" and "Agent"
Tokai Bank of California, a California
banking corporation
By: /s/ XXXXX X. XXXXXXXXXX, XX.
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Name: Xxxxx X. Xxxxxxxxxx, Xx.
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Title: Vice President
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"Borrower"
Xxxxxxx-Xxxxxx, Inc., a Delaware corporation
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
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Title: EVP-CFO
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Xxxxxxx-Xxxxxx International, Inc.,
a California corporation
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
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Title: EVP-CFO
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Xxxxxxx-Xxxxxx Properties, Ltd., a
Delaware corporation
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
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Title: EVP-CFO
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K-W Properties, Inc.,
a California corporation
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
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Title: EVP-CFO
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