EXHIBIT 10.22(ii)
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
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AMENDMENT NO. 1 (this "Amendment") dated as of January 21, 1998, to
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the Credit Agreement dated as of August 28, 1997 (the "Credit Agreement"), by
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and among CB COMMERCIAL REAL ESTATE SERVICES GROUP, INC., a Delaware corporation
(the "Company"), the BANKS (as such term is defined in the Credit Agreement),
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THE SUMITOMO BANK, LIMITED, as senior managing agent for the Banks (the "Senior
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Managing Agent"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
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Issuing Bank and as Agent, and XXXXX FARGO BANK, N.A., BHF-BANK
AKTIENGESELLSCHAFT, CREDIT LYONNAIS LOS ANGELES BRANCH, DRESDNER BANK AG, NEW
YORK BRANCH AND GRAND CAYMAN BRANCH, and KEY BANK NATIONAL ASSOCIATION, as Co-
Agents (collectively, the "Co-Agents"; individually, a "Co-Agent").
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RECITALS
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A. The Company has proposed to repurchase all of its outstanding
shares of Convertible Preferred Stock for a purchase price (including payment of
accrued dividends thereon) not to exceed $82,000,000 in the aggregate (the
"Stock Repurchase"), which shares are currently held by four institutions.
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B. The Company has requested that the Credit Agreement be amended to
permit, among other things, the amount of the Combined Commitments, in an
aggregate amount not to exceed $82,000,000, to be used for the Company's general
corporate purposes, including the repurchase of the Convertible Preferred Stock
of the Company and payment of accrued dividends thereon, and each of the Agent,
the Issuing Bank and the Banks is willing to agree to such amendments subject to
the terms and conditions hereinafter set forth.
C. Section 11.01 of the Credit Agreement provides that the Credit
Agreement may be amended after the Closing Date with the written consent of the
Company, and, in certain circumstances, the Required Banks.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. RELATION TO THE CREDIT AGREEMENT; DEFINITIONS.
1.1 Relation to Credit Agreement. This Amendment constitutes an
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integral part of the Credit Agreement.
1.2 Capitalized Terms. For all purposes of this Amendment,
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capitalized terms used herein without definition shall have the meanings
specified in the Credit Agreement, as said agreement shall be in effect on the
Effective Date after giving effect to this Amendment.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
2.1 Amendment to Section 1.01 of the Credit Agreement. (a) Section
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1.01 of the Credit Agreement is amended to add the following definitions, in
alphabetical order:
"Amendment" means Amendment No. 1 to Credit Agreement dated as of
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January 21, 1998 by and among the Company, the Banks, the Issuing
Bank, the Senior Managing Agent, the Co-Agents and the Agent.
"Stock Repurchase" has the meaning specified in the Amendment.
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(b) Section 1.01 of the Credit Agreement is amended by deleting
each of the definitions of "Agreement," "EBITDA," "Indebtedness," "Interest
Period," "Inventory Property Loan" and "Restricted Payment" in its entirety and
replacing it with the following:
"Agreement" means this Credit Agreement, as amended from time to
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time.
"EBITDA" means for any period for which the amount thereof is to
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be determined, the consolidated net income of such Person for such
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period plus the aggregate amounts deducted in determining such
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consolidated net income in respect of (i) consolidated interest
expense of such Person for such period, (ii) income and other taxes
measured by income or profits of such Person for such period, and
(iii) depreciation and amortization for such period, in each case in
accordance with GAAP; provided, however, that consolidated net income
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shall be computed for these purposes without giving effect to
extraordinary losses or extraordinary gains and without giving effect
to any income contributed by the Inventory Property Loan.
"Indebtedness" of any Person means, without duplication, (a) all
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indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into or commissions or
bonuses payable in the ordinary course of business on ordinary terms);
(c) all non-contingent reimbursement or payment obligations with
respect to Surety Instruments; (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property,
assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred
as financing, in either case with respect to property acquired by the
Person (even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations with
respect to capital leases; (g) all indebtedness referred to in clauses
(a) through (f) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness; and
(h) all Contingent Obligations (excluding any portion of recorded
liabilities for legal judgments which are collateralized by cash
secured letters of credit); provided, that, with respect to clauses
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(a), (d), (e) and (f) above, the term "Indebtedness" shall exclude the
obligations evidenced by the Inventory Property Loan in an aggregate
amount not to exceed $7,400,000.
For all purposes of this Agreement, the Indebtedness of any Person
shall include all obligations of such Person of the character
described in
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clauses (a) through (h) above to the extent such Person remains
legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP, and the
Indebtedness of any Person shall include all recourse Indebtedness of
any partnership or joint venture or limited liability company in which
such Person is a general partner or a joint venturer or a member.
"Interest Period" means, as to any Offshore Rate Loan, the period
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commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date seven (7)
days or one (1), two (2), three (3) or six (6) months thereafter as
selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided, that, the Company may only select a
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seven (7)-day Interest Period up to six (6) times per calendar year;
provided, further that:
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(i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(ii) other than with respect to a seven (7) day Interest Period,
any Interest Period pertaining to an Offshore Rate Loan that begins on
the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the
Revolving Termination Date.
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"Inventory Property Loan" means the obligations as evidenced by
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each of the Second Amended and Restated Promissory Note One dated as
of December 30, 1994, as amended, and the Second Amended and Restated
Promissory Note Two dated as of December 30, 1994, as amended, each
between CB Commercial Warehouse Property Corp., a Delaware corporation
and General Electric Capital Corporation, a New York corporation, now
held by GELCO Corporation, a Minnesota corporation.
"Restricted Payment" means, (a) any dividend or other
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distribution, direct or indirect, in respect of any shares of the
Capital Stock of the Company or any of its Subsidiaries, other than
dividends or other distributions payable solely in shares of its
Capital Stock, or warrants, rights, or options therefor, and dividends
or other distributions by any of its Subsidiaries to the Company or
another Subsidiary; and (b) any purchase, redemption, retirement or
other acquisition of any shares of Capital Stock of the Company or any
of its Subsidiaries, now or hereafter outstanding (except for the
Stock Repurchase or any purchase, redemption, retirement or other
acquisition of any shares of Capital Stock of any Subsidiary by the
Company), or of any warrants, rights or options evidencing a right to
purchase or acquire any such shares (except in exchange for other
shares of Capital Stock or warrants, rights or options evidencing a
right to purchase or acquire any such shares).
2.2 Amendment to Section 7.12 of the Credit Agreement. Section 7.12 of
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the Credit Agreement is amended by deleting it in its entirety and replacing it
with the following.
7.12 Use of Proceeds. The Company shall use the proceeds of the
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Loans (i) to refinance a portion of outstanding indebtedness of the Company
to The Sumitomo Bank, Limited and certain other creditors in an aggregate
amount up to $165,000,000; (ii) to prepay a portion of outstanding
Indebtedness of Xxxx in an aggregate amount up to $55,000,000 in connection
with the Merger; (iii) to pay expenses and costs associated with the Loans
and the Merger; and (iv) to provide for general corporate purposes
including funding working capital needs, funding the Stock Repurchase (in
an aggregate amount not exceeding $82,000,000), issuing letters of credit,
and financing future acquisitions
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not in contravention of any Requirement of Law or of any Loan Document.
2.3 Amendment to Section 8.11 of the Credit Agreement. Section 8.11 of the
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Credit Agreement is amended by deleting it in its entirety and replacing it with
the following:
8.11 Maintenance of Consolidated Net Worth. The Company shall not
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permit Consolidated Net Worth at any time to be less than the sum of (i)
seventy-five percent (75%) of Consolidated Net Worth as of December 31,
1997, determined on a pro forma basis to give effect to the Stock
Repurchase (provided, that in no event shall such Consolidated Net Worth be
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less than $57,000,000) plus (ii) seventy percent (70%) of Consolidated Net
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Income for each completed fiscal quarter beginning with the fiscal quarter
ended March 31, 1998, for which Consolidated Net Income is a positive
number (Consolidated Net Income for any such fiscal quarter where
Consolidated Net Income is a loss having no effect on the calculation of
the amount referred to in this clause (ii)), plus (iii) seventy percent
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(70%) of any new equity issuances of the Company and its Subsidiaries after
December 31, 1997.
SECTION 3. REPRESENTATION AND WARRANTIES OF THE COMPANY.
3.1 Representations and Warranties. To induce each of the Agent, the
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Issuing Bank and the Banks to execute and deliver this Amendment (which
representations shall survive the execution and deliver of this Amendment), the
Company represents and warrants to each of the Agent, the Issuing Bank and the
Banks that:
(a) Authority. This Amendment has been duly authorized, executed and
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delivered by it and this Amendment constitutes the legal, valid and binding
obligation, contract and agreement of the Company enforceable against it in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
(b) Validity of Amendment. The Loan Documents, as amended by this
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Amendment, constitute the legal, valid and binding obligations, contracts and
agreements of the Company enforceable against it in accordance with their
respective terms, except
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as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) Authorization; No Violation. The execution, delivery and
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performance by the Company of this Amendment (i) has been duly authorized by all
requisite corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body or
agency, and (iii) will not (A) violate (1) any provision of law, statute, rule
or regulation or its certificate of incorporation or bylaws, (2) any order of
any court or any rule, regulation or order of any other agency or government
binding upon it, or (3) any provision of any material indenture, agreement or
other instrument to which it is a party or by which its properties or assets are
or may be bound, or (B) result in a breach or constitute (alone or with due
notice or lapse of time or both) a default under any indenture, agreement or
other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d) No Default or Event of Default. As of the date hereof and after
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giving effect to this Amendment, no Default or Event of Default has occurred
which is continuing; and
(e) All Other Representations and Warranties. All the
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representations and warranties contained in Section VI of the Credit Agreement
are true and correct in all materials respects with the same force and effect as
if made by the Company on and as of the date hereof (except as to the extent
that any such representations or warranties relate to a specific prior date or
period).
SECTION 4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT.
4.1 Effective Date. This Amendment shall not become effective until, and
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shall become effective when, each and every one of the following conditions
shall have been satisfied or waived by the Agent, the Issuing Bank and the
Required Banks (the "Effective Date"); provided, however, that the provisions of
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Section 2.1 of this Amendment, to the extent such provisions add or change
definitions of terms used in the Credit Agreement as amended by this Amendment
(other than with respect to the definition of "Restricted Payment"), shall
become effective as of the date on which each of the following conditions (other
than clause (c)) shall have been satisfied or waived by the Agent, the Issuing
Bank and the Required Banks.
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(a) Execution of Counterparts. Counterparts of this Amendment shall
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have been executed and delivered by each of the Company, the Guarantors, the
Agent, the Issuing Bank and the Banks.
(b) Representations True; No Event of Default. The Company shall
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have delivered to the Agent an Officer's Certificate, dated the Effective Date,
certifying that the representations and warranties of the Company contained
herein shall be true on and as of the Effective Date (except as to the extent
that any such representations or warranties relate to a specific prior date or
period) and that there exists no Event of Default or Default, assuming for this
purpose that this Amendment had been effective from and after the date hereof.
(c) Consummation of Stock Repurchase. Concurrently with or
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immediately after the consummation of the transactions hereunder and in any
event not later than March 30, 1998, the Stock Repurchase shall have been
consummated in accordance with all applicable statutes, laws, rules and
regulations.
(d) No Material Adverse Change. There shall have been no material
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adverse change in the business, earnings, prospects, properties or condition
(financial or otherwise) of the Company or any of its Subsidiaries since
December 31, 1997.
(e) Fees and Disbursements of Special Counsel for the Agent. The
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Agent's special counsel, Paul, Hastings, Xxxxxxxx & Xxxxxx LLP ("Special
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Counsel"), shall have received payment of the invoice rendered for its fees and
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disbursements posted through the date of such invoice (with the understanding
that a supplemental statement for fees and disbursements subsequently posted is
to be rendered at a later date) in connection with the consummation of the
transactions contemplated hereunder.
(f) Amendment Fee. The Company shall pay to the Agent for the account
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of each Bank , which (i) indicates its approval to this Amendment by executing a
copy of the letter from the Agent to each Bank dated January 16, 1998 and
returning such letter by telecopy to the Agent by no later than 5:00 p.m. (Los
Angeles time) on January 21, 1998 and (ii) executes a counterpart of this
Amendment, an amendment fee equal to one-eighth of one percent (1/8%) of such
Bank's Commitment, and such amendment fee shall be due and payable on the
Effective Date whether or not the Stock Repurchase has been or will be
consummated.
(g) Consents. The Company shall have delivered to the Agent an
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Officer's Certificate, dated the Effective Date, certifying that any necessary
consents,
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waivers, approvals, authorizations, registrations, filings and notifications in
connection with the authorization, execution and delivery of this Amendment have
been obtained or made and are in full force and effect.
(h) Proceedings, Instruments, etc. All proceedings and actions taken
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on or prior to the Effective Date in connection with the transactions
contemplated by this Amendment and all instruments incident thereto shall be in
form and substance satisfactory to the Agent and its Special Counsel, and the
Agent and its Special Counsel shall have received copies of all documents that
it or they may request in connection with such proceedings, actions and
transactions (including, without limitation, copies of court documents,
certifications, and evidence of the correctness of the representations and
warranties contained herein and certifications and evidence of the compliance
with the terms and the fulfillment of the conditions of this Amendment) in the
form and substance satisfactory to the Agent and its Special Counsel.
SECTION 5. PAYMENT OF AGENT'S COUNSEL FEES AND EXPENSES.
5.1 The Company agrees to pay upon demand, the reasonable fees and
expenses of Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP, counsel to the Agent, in
connection with the negotiation, preparation, approval, execution and delivery
of this Amendment.
SECTION 6. CONSENT OF GUARANTORS.
6.1 Each Guarantor, as a guarantor under the Credit Agreement, hereby
consents to the terms of this Amendment and hereby confirms and agrees that its
Guaranty is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects.
SECTION 7. CONSENT OF AGENT AND BANKS.
7.1 Pursuant to Section 11.01 of the Credit Agreement, each of the Agent,
the Issuing Bank and the Banks hereby consents to the Stock Repurchase by the
Company.
SECTION 8. MISCELLANEOUS.
8.1 Cross-References. References in this Amendment to any Section are,
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unless otherwise specified, to such Section of this Amendment.
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8.2 Instrument Pursuant to Existing Credit Agreement;
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Limited Amendment. This Amendment is executed pursuant to Section
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11.01 of the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered, and applied in accordance with all of the
terms and provisions of the Credit Agreement, including Section 11.01 thereof.
Except as expressly amended, any conditions of the Credit Agreement shall remain
unamended and unwaived. The amendments set forth herein shall be limited
precisely as provided for herein to the provisions expressly amended herein and
shall not be deemed to be a waiver of, amendment of, consent to or modification
of any other term or provision of any other document or of any transaction or
further action on the part of the Company or the Guarantors which would require
the consent of any Bank, the Issuing Bank or the Agent under the Credit
Agreement.
8.3. Successors and Assigns. This Amendment shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns.
8.4 Counterparts. This Amendment may be executed simultaneously in two or
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more counterparts, each of which shall be deemed to be an original but all of
which shall constitute together but one and the same instrument.
8.5 Governing Law. This Amendment and the notes shall be governed by and
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construed in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CB COMMERCIAL REAL ESTATE
SERVICES GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
Agency Specialist
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XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Bank
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Joint General Manger
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Xxx Xxxxxxxxxxx
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Name: Xxx Xxxxxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Assistant Treasurer
CREDIT LYONNAIS LOS ANGELES
BRANCH
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President and Manager
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
KEY BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx. Jr.
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Name: Xxxxxxx X. Xxxxx. Jr.
Title: Assistant Vice President
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XXX XXXX XX XXXX XXXXXX
By: /s/ X. Xxx Xxxxxxxx
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Name: X. Xxx Xxxxxxxx
Title: Senior Relationship Manager
LASALLE NATIONAL BANK
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Yasushi Satomi
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Name: Yasushi Satomi
Title: Senior Vice President
THE SAKURA BANK, LIMITED
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Senior Vice President and Assistant
General Manager
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XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
MELLON BANK, N.A.
By: /s/ X.X. Xxxx
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Name: X.X. Xxxx
Title: Vice President
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Joint General Manager
NATEXIS BANQUE-BFCE
By: Not a signatory
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Name:
Title:
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BANK OF MONTREAL
By: /s/ X.X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: Senior Vice President
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The foregoing Amendment is
consented to and accepted:
CB COMMERCIAL REAL ESTATE GROUP, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
XXXX MANAGEMENT SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
WESTMARK REALTY ADVISORS LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Assistant Treasurer
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X.X. XXXXXX & COMPANY,
a Texas corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Treasurer
CB COMMERCIAL/XXXX CORPORATE FACILITIES MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Assistant Treasurer
XXXX INVESTMENT MANAGEMENT, INC.,
a California corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Assistant Treasurer
XXXX XXXX REALTY ADVISORS, INC.,
Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
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CBS INVESTMENT REALTY, INC.,
an Arizona corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
XXXX PARTNERSHIPS I, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
XXXX PARTNERSHIPS II, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
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XXXX/CC&F MANAGEMENT SERVICES,
a California general partnership
By: XXXX MANAGEMENT SERVICES, INC.,
General Partner
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Executive Vice President,
Chief Financial Officer and Treasurer
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