THIRD AMENDMENT TO LOAN AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS
Exhibit 99.4
THIRD
AMENDMENT TO LOAN AGREEMENT
AND REAFFIRMATION OF LOAN
DOCUMENTS
THIS
THIRD AMENDMENT TO LOAN AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS (this
"Third
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 "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 above-referenced Loan Agreement,
collectively referred to herein as the “Original
Loan Agreement”).
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).
D. Concurrently
herewith, Borrower, the Administrative Agent and the Lenders are entering into a
Second Amendment to Loan Agreement and Reaffirmation of Loan Documents
1
(the
“Second
Amendment”; the Original Loan Agreement, as amended thereby, is referred
to herein as the “Loan
Agreement”), and Guarantor has executed and delivered that certain Second
Modification and Reaffirmation of Guarantor Documents in favor of Administrative
Agent (on behalf of the Lenders).
E. In
connection with the documentation of the Second Amendment, the parties have
discovered a mistake in the Original Loan Agreement, and desire to enter into
this Third Amendment in order to take appropriate steps to correct that
mistake. All capitalized terms used but not defined herein shall have
the meanings set forth in Loan Agreement, as modified hereby.
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. Loan
Correction. The parties hereby agree that Section 2.1(3)(b) of
the Loan Agreement, insofar as it would result in the termination of the unused
Commitments remaining at the commencement of the First Extension Period, does
not reflect the true intent of the parties at the time the Loan Agreement was
entered into, was included in the Original Loan Agreement by mistake, and is
hereby waived, and the unused Commitments shall remain available for
disbursement in accordance with the Loan Agreement through the First Extension
Period. Section 2.1(3)(b) of
the Loan Agreement, insofar as it would result in the termination of the unused
Commitments remaining at the commencement of the Second Extension Period and
through the remainder of the term of the Loans, is hereby reaffirmed and remains
in full force and effect.
2. 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
Reaffirmation Agreement attached hereto. 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.
3. Miscellaneous.
(a) Controlling
Provisions. In the event of any inconsistencies between the
provisions of this Third Amendment and the provisions of any other Loan
Document, the provisions of this Third Amendment shall govern and
prevail. Except as expressly modified by
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this
Third 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 Third 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 reasonably determines
is necessary to evidence or further, or is otherwise relevant to, the intent of
the parties, as set forth in this Third 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
Third Amendment may be executed by one or more of the parties to this Third
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 Third 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
Third 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 Third 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 THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
(f)
No Third Parties
Benefited. This Third 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 Third Amendment or any of the other
Loan Documents. Administrative Agent shall not have any obligation to
any Person not a party to this Third 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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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/
Xxxx X. Xxxxxx
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Name:
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Xxxx X. Xxxxxx | |
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Title:
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Executive 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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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/
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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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 Adviser 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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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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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
S-7
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association,
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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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-8
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EUROHYPO
AG, NEW YORK BRANCH,
as
Administrative Agent
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By:
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/s/
Xxxx X. Xxxxxx
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Name:
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Xxxx X. Xxxxxx | |
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Title:
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Executive 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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By:
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/s/
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Name:
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Title:
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S-10
