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EXHIBIT 10.62
FIRST AMENDMENT
First Amendment dated as of July 15, 1997, to the Credit Agreement dated
as October 28, 1996 (the "Credit Agreement") among The Xxxxx Corporation, a
Delaware corporation (together with its successors and assigns, the "REIT"), The
Xxxxx Limited Partnership, a Delaware limited partnership (together with its
successors and assigns, the "Borrower"), Sawgrass Xxxxx Phase II Limited
Partnership, a Delaware limited partnership (together with its successors and
assigns, "Sawgrass"), Sunrise Xxxxx (MLP) Limited Partnership, a District of
Columbia limited partnership (together with its successors and assigns,
"Sunrise" and together with Sawgrass, the "Subsidiary Partnerships" and each, a
"Subsidiary Partnership") and Credit Suisse First Boston Mortgage Capital LLC,
successor by merger to CS First Boston Mortgage Capital Corp. (together with its
successors and assigns, the "Lender").
R E C I T A L S:
WHEREAS, the REIT, the Borrower, the Subsidiary Partnerships and the
Lender are parties to the Credit Agreement; and
WHEREAS, CS First Boston Mortgage Capital Corp. has been merged with and
into Credit Suisse First Boston Mortgage Capital LLC; and
WHEREAS, the Company desires that the Commitment be increased from
$40,000,000 to $60,000,000; and
WHEREAS, the parties hereto wish to make certain other changes in the
terms and conditions of the Credit Agreement and certain of the other Loan
Documents;
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto mutually agree as follows:
1. Capitalized terms used herein without definition shall have the
meanings given to such terms in the Credit Agreement.
2. All references in the Credit Agreement and in the other Loan
Documents to "CS First Boston Mortgage Capital Corp." are hereby modified to
read "Credit Suisse First Boston Mortgage Capital LLC."
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3. The definition of "Commitment" contained in Section 1.1 of the
Credit Agreement is hereby modified to change the amount "Forty Million Dollars
($40,000,000)" to read "Sixty Million Dollars ($60,000,000)", and all references
in the Credit Agreement and in the other Loan Documents to "Commitment" shall
mean from and after the date hereof the term "Commitment" as modified hereby.
4. The "Effective Date" referred to in paragraph (b) of Section 3.2
of the Credit Agreement shall hereafter be deemed to refer to the Effective Date
of this Agreement. Notwithstanding anything to the contrary contained in the
Credit Agreement, and in furtherance of this Section 4, it is hereby agreed that
no prepayment heretofore made or required to be made pursuant to Section 3.2(b)
of the Credit Agreement shall result in any reduction of the Commitment, as
increased hereby, pursuant to the terms of such Section 3.2(b), but that any
prepayment hereafter made or required to be made pursuant to Section 3.2(b) of
the Credit Agreement shall result in a reduction of the Commitment in accordance
with the terms thereof.
5. Clause (vii) of Section 7.3 of the Credit Agreement is hereby
modified to change the amount $2,000,000" referred to therein to read
$6,000,000".
6. Clause (vi) of Section 10.4 of the Credit Agreement is hereby
modified to read as follows:
"(iv) the Lender:
Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Moses & Singer LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000"
7. Exhibit C to the Credit Agreement (Notice of Borrowing) is hereby
modified to change the name and address of the Lender appearing therein to read
as follows:
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"Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000"
8. Clause (b) of each of Section 18 of the General Pledge and
Security Agreement and Section 17 of the Intercompany Pledge and Security
Agreement are each hereby modified to read as follows:
"(b) the Pledgee:
Credit Suisse First Boston Mortgage Capital LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Moses & Singer LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000"
9. The Borrower shall pay to the Lender on the date hereof a
structuring and advisory fee of $615,000.
10. Contemporaneously with the execution and delivery of this
Amendment, and as a condition to its effectiveness, the Borrower shall have
delivered to the Lender a duly executed Note dated as of the date hereof (the
"New Note"), in substantionally the form of Exhibit A to the Credit Agreement as
amended hereby but reflecting the increase in the Commitment, and the Lender
shall surrender to the Borrower for cancellation the Note delivered to it under
the Credit Agreement prior to this Agreement marked "SUPERSEDED". (Each
reference to the "Note" in the Credit Agreement and in the other Loan Documents
shall henceforth be construed to refer to the New Note.)
11. Contemporaneously with the execution and delivery of this
Amendment, and as a condition to its effectiveness, the Lender shall have
received each of the following:
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(i) an opinion of Xxxxxxx & Xxxxx, counsel to the Borrower, covering
such matters as the Lender may reasonably request, and otherwise in form, scope
and substance satisfactory to the Lender;
(ii) from each of (i) Sunrise Xxxxx L.L.C., as general partner of
Sunrise and (ii) Sawgrass Xxxxx Phase II, L.L.C., as general partner of
Sawgrass, such acknowledgments and confirmations in respect of the Consent
Agreement executed by each of them, each to be in form and substance
satisfactory to the Lender; and
(iii) all corporate and partnership documents, instruments and
agreements in connection with the transactions contemplated by this Amendment
and the Loan Document as amended hereby, reasonably satisfactory in form and
substance to the Lender, and all information and copies of all documents and
papers, including records of corporate proceedings, governmentals approvals,
good standing certificates and bring-down telegrams, if any, which the Lender
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate, partnership or
governmental authorities.
12. Each of the REIT, the Borrower and each Subsidiary Partnership
represents and warrants that (i) it has the right, power and capacity and has
been duly authorized and empowered by all requisite corporate, partnership and
other action to enter into, execute, deliver and perform this Amendment, the New
Note and the other agreements, instruments and documents contemplated hereby to
which it is a party (collectively, the "Amendment Documents"); (ii) this
Amendment and the other Amendment Documents to which it is a party constitute
legally valid and binding obligations, enforceable against it in accordance with
its terms except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law); (iii) the
execution, delivery and performance of this Amendment and of the other Amendment
Documents to which is it a party do not and will not in a manner, the effect of
which would be materially adverse to the Borrower or the Company, violate any
provision of its organizational documents or any contractual provision to which
it is a party or to which it or any of its property is subject; (iv) all
representations and warranties contained in the Credit Agreement and in the
other Loan Documents are true and correct in all material respects with the same
effect as though such representations and warranties have been made on and as of
the date hereof, except as to any matters that have changed in accordance with
or are permitted by the Credit Agreement; and (v) no Unmatured Default or Event
of Default has occurred and is continuing.
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13. The Borrower shall pay on demand all reasonable costs and
expenses of the Lender incurred by it in connection with or arising out of the
negotiation, preparation, review, execution and delivery of this Amendment, the
other Amendment Documents and the agreements and instruments referred to herein
or therein (including, without limitation, the reasonable fees and expenses of
the Lender's special counsel, Moses & Singer LLP).
14. Upon the execution and delivery of this Amendment by all parties,
the Credit Agreement and the other Loan Documents, each as amended hereby, shall
continue in full force and effect and each reference in the Credit Agreement or
the other Loan Documents to "this Agreement", "thereunder", "hereof", or words
of like import, shall mean, respectively, the Credit Agreement or such other
Loan Documents as each is amended hereby.
15. This Amendment sets forth the entire agreement of the parties
with respect to the subject matter contained herein.
16. This Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of New York in effect from time to time
applicable to contracts made and to be performed wholly within such State,
without regard to any choice or conflict of laws rules.
17. This Amendment may be executed in counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute
one and the same instrument.
18. This Amendment shall become effective on the date (the "Effective
Date") upon which the Lender shall have received (i) a counterpart of this
Amendment duly executed by each of the parties hereto, (ii) the structuring and
advisory fee referred to in Section 9 and evidence of this payment of all sums
due pursuant to Section 13, (iii) the New Note and (iv) each of the items set
forth in Section 11.
19. Except as modified hereby, the Credit Agreement and each of the
other Loan Documents is hereby ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto, each by its duly authorized
officer, have executed this Amendment as of the date and year first set forth
above.
THE XXXXX CORPORATION
By:
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
THE XXXXX LIMITED PARTNERSHIP
By: The Xxxxx Corporation,
its General Partner
By:
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
SAWGRASS XXXXX PHASE II LIMITED
PARTNERSHIP
By: Sawgrass Xxxxx Phase II, L.L.C.,
its General Partner
By: The Xxxxx Limited Partnership,
its Manager
By: The Xxxxx Corporation,
its General Partner
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
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SUNRISE XXXXX (MLP) LIMITED
PARTNERSHIP
By: Sunrise Xxxxx L.L.C.,
its General Partner
By: The Xxxxx Limited Partnership
its Manager
By: The Xxxxx Corporation,
its General Partner
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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