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EXHIBIT 10.74
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this 28th day of
February, 1997, by and among CAPSTONE CAPITAL CORPORATION, a Maryland
corporation (herein called the "Borrower"), NATIONSBANK, N.A. (SOUTH) (the
"Agent"), as Agent for the lenders (the "Lenders") party to the Amended and
Restated Revolving Credit and Reimbursement Agreement dated June 24, 1996 among
such Lenders, Borrower and the Agent (the "Agreement") and each of the Lenders
party to the Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the principal amount of $150,000,000 as evidenced by the Notes
(as defined in the Agreement); and
WHEREAS, the parties hereto desire further to amend the Agreement in
the manner herein set forth effective as of the date hereof;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. Definitions. The term "Agreement" as used herein and in the
Loan Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. Amendments. Subject to the conditions hereof, the Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Total Revolving Credit Commitment" in
Section 1.01 is hereby amended in its entirety so that as amended it
shall read as follows:
"'Total Revolving Credit Commitment' means an amount
equal to (i) $170,000,000 or (ii) at such time as existing
Exhibit A hereto is amended by the entering into of an
Amendment Agreement in the form of Exhibit J by the Borrower,
the Agent and any lender or lenders agreeing to provide
additional Loans of up to $10,000,000, an amount equal to
$180,000,000, as such amounts are reduced from time to time in
accordance with Section 2.07;"
(b) Exhibit A to the Agreement is amended in its entirety so
that as amended it is in the form and content attached hereto as
Exhibit A; and
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(c) A new Exhibit J substantially in the form attached hereto
is added to the Agreement.
3. Each Subsidiary of the Borrower has joined in the execution of this
Amendment Agreement for the purpose of (i) agreeing to the amendment to the
Agreement including the increase in the Total Revolving Credit Commitment to
$180,000,000 and (ii) confirming its guarantee of payment of all the
Obligations. Each Lender agrees that the Total Revolving Credit Commitment may
be increased to $180,000,000 without the requirement that such Lender join in
the execution of an Amendment Agreement in the form of Exhibit J hereto.
4. Representations and Warranties. The Borrower hereby certifies that:
(a) The representations and warranties made by Borrower in
Article VI thereof are true on and as of the date hereof except that
the financial statements referred to in Section 6.01(f) shall be those
most recently furnished to each Lender pursuant to Section 7.01(a) and
(b);
(b) There has been no material change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the
date of the most recent financial reports of the Borrower received by
each Lender under Section 7.01 thereof, other than changes in the
ordinary course of business, none of which has been a material adverse
change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by each Lender
under Section 7.01 thereof have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constituted a
Default or an Event of Default on the part of the Borrower under the
Agreement or the Notes either immediately or with the lapse of time or
the giving of notice, or both.
5. Conditions. As a condition to the effectiveness of this
Amendment Agreement, the Borrower shall deliver, or cause to be delivered to the
Agent, the following:
(a) Twelve (12) executed counterparts of this Amendment
Agreement;
(b) Executed Notes;
(c) Resolution of the Board of Directors of Borrower and
each Subsidiary;
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(d) a certificate of the Secretary or Assistant Secretary
of the Borrower as to Charter, Bylaws, Resolutions and incumbency of
officers executing this Amendment Agreement;
(e) a certificate of the Secretary or Assistant Secretary
of each Subsidiary as to the Charter, Bylaws, Resolutions and
incumbency of officers executing this Amendment Agreement;
(f) an opinion of counsel for the Borrower and its
Subsidiaries in form and content acceptable to the Agent;
(g) a certificate of an Authorized Representative
demonstrating compliance, as of December 31, 1996, with Sections 8.01,
8.02, 8.03, 8.04, 8.05 and 8.06 of the Agreement, which certificate
shall be substantially in the form of Exhibit I to the Agreement;
(h) such other instruments and documents as the Agent may
reasonably request; and
(i) receipt by the Agent for the benefit of itself and
the Lenders of all fees payable to the Agent and the Lenders.
6. Other Documents. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of Borrower to enter into the transactions contemplated by this Amendment
Agreement, in each case such documents, when appropriate, to be certified by
appropriate corporate or governmental authorities; and all proceedings of the
Borrowers relating to the matters provided for herein shall be satisfactory to
the Agent and its counsel.
7. Entire Agreement. This Amendment Agreement sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter. No promise, conditions,
representation or warranty, express or implied, not herein set forth shall bind
any party hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms of conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto, specifying such
change, modification, waiver or cancellation of such terms or conditions, or of
any proceeding or succeeding breach thereof.
8. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified or supplemented, the Agreement and all of the
other Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
CAPSTONE CAPITAL CORPORATION
WITNESS:
/s/ Xxxxx Xxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
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GUARANTORS:
CAPSTONE CAPITAL OF ALABAMA, INC.
CAPSTONE CAPITAL OF PENNSYLVANIA, INC.
CAPSTONE CAPITAL OF CALIFORNIA, INC.
CAPSTONE CAPITAL OF XXXXXX BAY, INC.
CAPSTONE CAPITAL OF CAPE CORAL, INC.
CAPSTONE CAPITAL OF SARASOTA, INC.
WITNESS: CAPSTONE CAPITAL OF TEXAS, INC.
CAPSTONE CAPITAL OF LAS VEGAS, INC.
/s/ Xxxxx Xxx Xxxxx CAPSTONE CAPITAL OF BAYTOWN, INC.
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By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
CAPSTONE OF XXXXXX BAY, LTD.
By its General Partner:
Capstone Capital of Xxxxxx Bay, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
CAPSTONE OF CAPE CORAL, LTD.
By its General Partner:
Capstone Capital of Cape Coral, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
CAPSTONE OF SARASOTA, LTD.
By its General Partner:
Capstone Capital of Sarasota, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
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CAPSTONE CAPITAL OF SAN ANTONIO, LTD.
By its General Partner:
Capstone Capital of Cape Coral, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
CAPSTONE OF LAS VEGAS, LTD.
By its General Partner:
Capstone Capital of Las Vegas, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
CAPSTONE OF BAYTOWN, LTD.
By its General Partner:
Capstone Capital of Baytown, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Secretary/Treasurer
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Agent
By: /s/ Xxxxx X. Xxxxxxx
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Name: XXXXX X. XXXXXXX
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Title: VICE PRESIDENT
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AMSOUTH BANK OF ALABAMA
By: /s/ Xxxx Xxxxxx
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Name: L. XXXX XXXXXX
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Title: COMMERCIAL BANKING OFFICER
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Farboud Tavangar
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Name: Farboud Tavangar
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Title: First Vice President
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XXXXXXXX XXXX XXXX XX XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Executive Vice President
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By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Senior Associate
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XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxx Xxxxxxx
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Name: XXXX XXXXXXX
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Title: RELATIONSHIP MANAGER
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FIRST COMMERCIAL BANK
By: /s/ Xxxxx Xxxxxxx Pnebub Jr.
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Name: XXXXX XXXXXXX PNEBUB JR.
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Title: COMMERCIAL LOAN OFFICER
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THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
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Title: VICE PRESIDENT & MANAGER
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By: /s/ Xxxxxx X. Xxxxxxxx
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Name: XXXXXX X. XXXXXXXX
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Title: ASST. VICE PRESIDENT
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EXHIBIT A
Applicable Commitment Percentages
Applicable
Revolving Credit Commitment
Lender Commitment Percentage
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NationsBank, N.A. (South) $ 45,000,000 26.470588235%
AmSouth Bank of Alabama $ 25,000,000 14.705882353%
Credit Lyonnais New York Branch $ 30,000,000 17.647058824%
National City Bank of Kentucky $ 15,000,000 8.823529412%
Creditanstalt Corporate Finance, Inc. $ 25,000,000 14.000000000%
The Bank of Nova Scotia $ 10,000,000 5.000000000%
First Commercial Bank $ 10,000,000 5.882352941%
The Sumitomo Bank, Limited $ 10,000,000 5.882352941%
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Total $170,000,000 100%
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