Exhibit 10.4(b)
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") to the Credit Agreement referred
to below is entered into as of the 26th day of November, 2001, by and among
INSIGNIA FINANCIAL GROUP, INC., a corporation organized under the laws of
Delaware (the "Borrower"), THE LENDERS SIGNATORY HERETO (collectively, the
"Lenders"), FIRST UNION NATIONAL BANK, as Administrative Agent, XXXXXX
COMMERCIAL PAPER INC., as Syndication Agent (collectively, the "Agents"), and
BANK OF AMERICA, N.A., as Documentation Agent.
STATEMENT OF PURPOSE
The Borrower, the Lenders and the Agents are parties to a certain
Credit Agreement dated as of May 4, 2001 (the "Credit Agreement"), pursuant to
which the Lenders have agreed to make, and have made, certain Extensions of
Credit to the Borrower.
The Borrower has requested the Lenders to amend the Credit Agreement in
the respects provided in this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto hereby agree as follows:
I. AMENDMENT OF CREDIT AGREEMENT.
(a) Section 9.1 is hereby amended by deleting the text thereof in
its entirety and inserting the following in lieu thereof:
Leverage Ratio. Permit the ratio of (a) Total Debt as
of the end of any fiscal quarter to (b) EBITDA for the period
of four (4) consecutive fiscal quarters ending on such date to
be greater than the correspondending ratio set forth below:
Quarter End Ratio
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December 31, 2001 3.25 to 1.0
March 31, 2002 3.25 to 1.0
June 30, 2002 3.25 to 1.0
September 30, 2002 and each quarter end thereafter 3.00 to 1.0
II. ACKNOWLEDGMENT AND CONSENT. The Lenders acknowledge and consent to
the sale of Realty One, Inc., and Atlantic Fund Management Limited and agree
that the Aggregate Commitment shall not be reduced by the amount of net proceeds
realized from the sale of such assets.
III. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
only upon the satisfaction of all of the following conditions precedent (the
date of satisfaction of all such conditions being referred to herein as the
"First Amendment Effective Date"):
(a) On or before the First Amendment Effective Date, the
Borrower shall have delivered to the Administrative Agent executed
copies of this Amendment (with sufficient originally executed copies
for each Lender and its counsel) dated the First Amendment Effective
Date.
(b) On or before the First Amendment Effective Date, all
corporate and other proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by the Administrative Agent,
acting on behalf of the Lenders, and its counsel, shall be satisfactory
in form and substance to the Administrative Agent and such counsel, and
the Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as the
Administrative Agent may reasonably request.
(c) On or before the First Amendment Effective Date, the
Borrower shall have paid to the Administrative Agent, for the account
of each Lender who has consented to and joined in the execution of this
Amendment by 5:00 p.m. on November 26, 2001 (each a "Consenting
Lender"), an amendment fee equal to the product of (i) the Commitment
of such Consenting Lender and (ii) 0.125%. Such amendment fee shall be
distributed by the Administrative Agent to each Consenting Lender by
wire transfer of immediately available Federal funds.
IV. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Agents and the Lenders that:
(a) The execution and delivery of this Amendment by the
Borrower and the Subsidiary Guarantors and the performance of the
Credit Agreement, as amended and modified by this Amendment, and the
other Loan Documents, do not and will not violate any law, rule or
regulation, or constitute a breach of the Articles of Incorporation,
Bylaws or corporate resolutions of the Borrower or any Subsidiary
Guarantor or any agreement to which the Borrower or any Subsidiary
Guarantor is a party or by which its or their assets are bound. The
Borrower and each of the Subsidiary Guarantors has the power and
authority and has taken all necessary action to authorize the
execution, delivery and performance of this Amendment. The Credit
Agreement, as amended and modified by this Amendment, and the other
Loan Documents, constitute legal, valid and binding obligations of the
Borrower and the Subsidiary Guarantors, enforceable in accordance with
their respective terms.
(b) The representations and warranties of the Borrower and its
Subsidiaries contained in Article VI of the Credit Agreement and in the
other Loan Documents are true and correct in all material respects on
and as of the date of this Amendment with the same effect as if made on
and as of such date, except to the extent that such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties were true and correct in all material
respects on and as of such earlier date).
(c) No Default or Event of Default exists.
V. GENERAL PROVISIONS.
(a) Limited Amendment. Except as otherwise provided herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Amendment shall not be deemed (i) to be a waiver
of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or of any other term or condition of the other
Loan Documents or (ii) to prejudice any other right or rights which the Agents
or any Lender may now have or may have in the future under or in connection with
the Credit Agreement or the other Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
(b) Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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(c) Definitions. All capitalized terms used and not defined herein
shall have the meanings given thereto in the Credit Agreement.
(d) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(e) Expenses. All expenses incurred in connection with the preparation
and negotiation of this Amendment and with the fulfillment of the requirements
hereunder shall be borne by the Borrower. If any documentary or recording tax
should be assessed or the affixing of any stamps be required by local, state or
federal governments, the Borrower shall pay the tax and cost of such stamps.
(f) Conflicting Terms. In the event of any conflict or inconsistency
between the terms of this Amendment and the Credit Agreement and the other Loan
Documents, this Amendment shall control.
(g) Cross-References. All references in the Credit Agreement, or in any
other Loan Document, to the terms "Credit Agreement" or "Agreement" or other
similar reference shall be deemed to refer to the Credit Agreement as amended or
modified by this Amendment. In addition, all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of
this Amendment may refer to the Credit Agreement without making specific
reference to this Amendment, but nevertheless all such references shall include
this amendment of the Credit Agreement unless the context otherwise requires.
(h) Successors and Assigns. Whenever in this Amendment any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in this Amendment
shall inure to the benefit of the successors and assigns of the Agents and
Lenders.
VI. JOINDER OF THE GUARANTORS. The Subsidiary Guarantors join in the
execution and delivery of this Amendment solely for the purpose of evidencing
their consent thereto, and to acknowledge that the Guaranty Agreement remains in
full force and effect with respect to the Credit Agreement as amended hereby.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
BORROWER:
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------
Title: Executive Vice President
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LENDERS:
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------
Title: Vice President
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XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent and Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
XXXXXX BROTHERS BANKHAUS AG. LONDON BRANCH
As Lender
By: /s/ X. Xxxxxxx
----------------------------------------
Name: X. Xxxxxxx
-----------------------------------
Title: Authorized Signatory
----------------------------------
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------------
Title: Authorized Signatory
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BANK OF AMERICA, N.A.,
as Documentation Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
-------------------------
Title: Senior Vice President
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THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxx
------------------------
Name: Xxxxxxx Xxxxx
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Title: Vice President
------------------
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx X Xxxxxx
--------------------------
Title: Vice President
-------------------------
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FIRSTAR BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------
Title: Executive Vice President
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BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
----------------------------
Title: Director
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CITIBANK, N.A., successor to
European American Bank
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------
Title: Vice President
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NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-------------------------
Title: Vice President
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XXX XXXXX XXXX XX XXXXXXXX PLC
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Senior Corporate Manager
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GUARANTORS:
IFS SECURITIES, INC.
INSIGNIA FINANCIAL SERVICES, INC.
INSIGNIA INVESTMENT MANAGEMENT, INC.
INSIGNIA OPPORTUNITY DIRECTIVES II, LLC
BY: INSIGNIA FINANCIAL SERVICES, INC., ITS MANAGING
MEMBER
INSIGNIA PERFORMANCE DIRECTIVES, LLC
BY: INSIGNIA FINANCIAL SERVICES, INC., ITS MANAGING
MEMBER
INSIGNIA PERFORMANCE PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
XXXXX COMMERCIAL REALTY, INC.
XXXXXX XXXXXX XXXXXX & XXXXXX
MANAGEMENT SERVICES, L.L.C.
By: Insignia/ESG, Inc., its Manager
CONSTRUCTION INTERIORS, INC.
INSIGNIA XXXXXXX XXXXXXX, LLC
By: Insignia Residential Group, Inc.,
its Managing Member
E.S.G. OPERATING CO., INC.
XXXXXX X. XXXXXX MANAGEMENT
CORPORATION
FC&S MANAGEMENT COMPANY
FIRST OHIO ESCROW CORPORATION, INC.
XXXXXX X. XXXXX & COMPANY
I/ESG KENSINGTON INVESTORS, LLC
By: Insignia Commercial Investments, Inc.,
its Managing Member
IBTHAI, INC.
IBT II, INC.
IBT III, INC.
IBT IV, INC.
IBT V, INC.
IBT VI, INC.
ICIG 101 MARIETTA, LLC
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
ICIG AIRPORT TECHNOLOGY, LLC
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
ICIG XXXXXXX, LLC
By: Insignia/ESG, Inc., its Managing Member
ICIG COUNTRY CLUB MANOR, L.L.C.
By: Insignia Commercial Investments Group, Inc.,
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its Managing Member
ICIG DIRECTIVES, L.L.C.
By: Insignia/ESG, Inc., its Managing Member
ICIG FRESH XXXXXXX, L.L.C.
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
ICIG MOCKINGBIRD, L.L.C
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
ICIG OAKHILL DIRECTIVES, L.L.C.
By: Insignia/ESG, Inc., its Managing Member
ICIG PARKWAY TOWER, L.L.C.
By: Insignia/ESG, Inc., its Managing Member
ICIG SANTA XXXX, LLC
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
IFC ACQUISITION CORP. I
IFC ACQUISITION CORP. II
IFS ACQUISITION LLC II
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
IFS ACQUISITION LLC III
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
IFS ACQUISITION LLC IV
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
IFS ACQUISITION DIRECTIVES, LLC
By: Insignia Commercial Group, Inc., its
Managing Member
IFS SOUTHLAND INVESTORS LLC
By: Insignia Realty Investors, LLC, its Managing
Member
IFSE HOLDING CO., LLC
By: Insignia/ESG, Inc., its Managing Member
IPCG, INC.
INSIGNIA/ESG, INC.
INSIGNIA/ESG OF COLORADO, INC.
INSIGNIA/ESG CAPITAL CORPORATION
INSIGNIA ACQUISITION CORPORATION
INSIGNIA CAPITAL INVESTMENTS, INC.
INSIGNIA CLINTON DIRECTIVES, LLC
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
INSIGNIA COMMERCIAL INVESTMENTS
GROUP, INC.
INSIGNIA COMMERCIAL MANAGEMENT, INC.
INSIGNIA DEVELOPMENT GROUP, INC.
INSIGNIA EC CORPORATION
INSIGNIA/ESG NORTHEAST, INC.
INSIGNIA RO, INC.
INSIGNIA REALTY INVESTORS, LLC
By: Insignia Commercial Investments Group, Inc.,
its Managing Member
INSIGNIA RELOCATION MANAGEMENT, INC.
INSIGNIA RESIDENTIAL GROUP, INC.
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INSIGNIA RESIDENTIAL INVESTMENT
CORPORATION
MAP VII ACQUISITION CORPORATION
METROPOLITAN ACQUISITION VII, L.L.C.
By: MAP VII Acquisition Corporation, its Managing Member
XXXXXXXXXXX-XXXX VILLAGE PROPERTIES, INC.
PAYROLL SERVICES, INC.
RAQZ CORP.
REALTY ONE, INC.
S.I.A., INC.
SECURED INVESTMENT CORPORATION
WASHINGTON VILLAGE HOUSING CORPORATION
WESTVILLE PROPERTIES, INC.
By: //s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
