EXHIBIT 10.13
FIRST AMENDMENT
TO REVOLVING CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AND GUARANTY AGREEMENT (this
"Amendment") is made as of the 30th day of March, 2001, by and among (i) XX
XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"Borrower"), (ii) XX XXXXX REALTY CORP., a Maryland corporation (the "Company",
and a "Guarantor", as such term is defined herein), (iii) each of the direct and
indirect Subsidiaries of the Borrower or the Company that is a signatory hereto
under the caption "Guarantors" on the signature pages hereto, (iv) each of the
financial institutions that is a signatory hereto under the caption "Lenders" on
the signature pages hereto (individually, a "Lender" and, collectively, the
"Lenders"), (v) FLEET NATIONAL BANK, NA, a national banking association, as
administrative agent for the Lenders hereunder (in such capacity, the "Agent"),
(vi) XXXXXXX XXXXX XXXXXX INC., as syndication agent for the Lenders hereunder
(the "Syndication Agent"), and (vii) BANKERS TRUST COMPANY, as documentation
agent for the Lenders hereunder (the "Documentation Agent"), and is made with
reference to that certain Revolving Credit and Guaranty Agreement dated as of
June 27, 2000, by and among Borrower, Guarantors, Lenders, Agent, Syndication
Agent, and Documentation Agent (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
R E C I T A L S:
WHEREAS, under the terms of the Credit Agreement, the Lenders provide
to the Borrower an unsecured revolving credit facility in the maximum amount of
$250,000,000 (the "Facility"); and
WHEREAS, under the terms of the Credit Agreement, the Obligations of
the Borrower are jointly and severally unconditionally guaranteed by the
Guarantors; and
WHEREAS, Borrower has requested, pursuant to Section 2.2 of the Credit
Agreement, that the Total Commitment of the Lenders be increased to
$300,000,000, and certain Lenders have agreed to increase their Commitments such
that the Total Commitment shall be $300,000,000; and
WHEREAS, at the request of Borrower, Lenders have agreed to amend the
Credit Agreement and Schedule 1.2 thereto in accordance with Section 2.2(d) of
the Credit Agreement in order to reflect the increase in Total Commitment; and
WHEREAS, the parties hereto intend that this Amendment not constitute
a novation or satisfaction of the Obligations or be deemed to evidence or
constitute a repayment of all or any portion of such Obligations.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT OF CREDIT AGREEMENT AND RELATED MATTERS
1.1 DEFINITIONS. The definition of "Treasury Rate" in Section 1.1 of
the Credit Agreement is amended by deleting therefrom the words "plus 1.75%."
1.2 SCHEDULE 1.2. Schedule 1.2 to the Credit Agreement is hereby
amended and restated in its entirety in the form attached as Exhibit A hereto.
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement and the Schedules thereto in the manner provided herein, the
Borrower and the Guarantors jointly and severally represent and warrant to each
Lender that the following statements are true, correct and complete:
(i) each of the Borrower and each Guarantor has all requisite
corporate, limited liability company, or partnership power and authority to
enter into this Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Credit Agreement as amended by this Amendment
(the "Amended Agreement");
(ii) the execution and delivery of this Amendment and the performance
of the Amended Agreement have been duly authorized by all necessary corporate,
limited liability company, or partnership action (as the case may be) on the
part of Borrower and each Guarantor;
(iii) the execution and delivery by the Borrower and each Guarantor of
this Amendment and the performance by the Borrower and each Guarantor of the
Amended Agreement (i) are within the authority of the Borrower or such
Guarantor, (ii) have been duly authorized by all necessary proceedings on the
part of the Borrower or such Guarantor, (iii) do not conflict with or result in
any breach or contravention of any provision of law, statute, rule or regulation
to which the Borrower or such Guarantor is subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrower or such Guarantor and
(iv) do not conflict with any provision of the Borrower or such Guarantor's
charter documents or bylaws, partnership agreement, declaration of trust, or any
agreement (except agreements as to which such a conflict would not result in a
Material Adverse Effect) or other instrument binding upon the Borrower or such
Guarantor or to which any of the Borrower's or such Guarantor's properties are
subject;
(iv) the execution and delivery by the Borrower and each Guarantor of
this Amendment and the performance by the Borrower and each Guarantor of the
Amended Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body;
(v) this Amendment and the Amended Agreement have been duly executed
and delivered by the Borrower and each Guarantor and are the legally valid and
binding obligations of the Borrower and each Guarantor, enforceable against the
Borrower and each Guarantor in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency,
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reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability; and
(vi) no event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Amendment that would
constitute a Default or an Event of Default.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First Amendment
Effective Date"):
(i) On or before the First Amendment Effective Date, the Borrower
and each Guarantor shall have delivered to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) executed originals of this Amendment;
(ii) On or before the First Amendment Effective Date, the Borrower
shall execute and deliver to the Agent new Notes for each Lender whose
Commitment (as reflected on Schedule 1.2, as amended pursuant to this Amendment)
has changed so that the maximum principal amount of such Lender's Note shall
equal its Commitment;
(iii) On or before the First Amendment Effective Date, Lenders shall
have received originally executed copies of a written opinion of counsel,
addressed to the Lenders and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the enforceability thereof,
substantially in the form of the relevant portions of the opinion delivered
pursuant to Section 10.6 of the Credit Agreement.
(iv) The Borrower shall have paid to the Agent all fees due and
payable by the Borrower pursuant to Section 4.1 of the Credit Agreement and
shall have paid all other expenses as provided in Section 15 of the Credit
Agreement due and payable by the Borrower as of the First Amendment Effective
Date.
In furtherance of the foregoing clause (ii), each Lender receiving a
replacement Note pursuant to the foregoing clause (ii) covenants that it shall
promptly surrender to the Agent, and the Agent covenants that it shall promptly
thereafter return to the Borrower for cancellation, such Lender's existing Note
replaced thereby.
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SECTION 4. ACKNOWLEDGEMENT AND CONSENT
(i) Each of the Borrower, the Company and each other Guarantor (each
individually a "Credit Support Party" and collectively, the "Credit Support
Parties") hereby acknowledges that it has reviewed the terms and provisions of
the Credit Agreement and this Amendment and consents to the amendment of the
Credit Agreement and the Schedule 1.2 thereto effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Loan Document to
which it is a party or otherwise bound will continue to guaranty or secure, as
the case may be, to the fullest extent possible the payment and performance of
all Obligations of Borrower now or hereafter existing under or in respect of the
Credit Agreement and the Notes.
(ii) In accordance with Section 5.6 of the Credit Agreement, each of the
undersigned Green 286 Madison LLC, Green 292 Madison LLC, and Green 0000
Xxxxxxxx LLC (collectively, the "New Guarantors", and individually, a "New
Guarantor") agrees to be bound by all the terms and provisions of the Credit
Agreement and the other Loan Documents applicable to it as a Guarantor
thereunder. In furtherance of the foregoing, each reference to a Guarantor in
the Credit Agreement, this Amendment and the Amended Agreement shall be deemed
to include the New Guarantors.
SECTION 5. INTENTIONALLY OMITTED
SECTION 6. MISCELLANEOUS
A REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the effective date of this Amendment,
each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit Agreement and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
hereby.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under the Credit Agreement or any of the other Loan Documents.
B FEES AND EXPENSES. Borrower acknowledges that all costs, fees
and expenses as described in Section 15 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrower.
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C HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 3 hereof) shall become effective upon the execution of a counterpart
hereof by Borrower, Lenders and each of the Credit Support Parties and receipt
by Agent of written or telephonic notification of such execution and
authorization of delivery thereof. Section 1 of this Amendment shall become
effective only in the manner set forth in Section 3 of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have signed, or caused their
duly elected officer to sign on the date first Written above.
BORROWER:
XX XXXXX OPERATING PARTNERSHIP, L.P.
By: XX XXXXX REALTY CORP., its general
partner
By:
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
XX XXXXX REALTY CORP.
By:
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
NEW GREEN 1140 REALTY LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP., its
general partner
By:
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
SLG 17 BATTERY LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP.,
its general partner
By:
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
XX XXXXX MANAGEMENT LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP.,
its general partner
By:
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
SLG IRP REALTY LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP.,
its general partner
By:
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
GREEN 286 MADISON LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP.,
its general partner
By:
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
GREEN 292 MADISON LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP.,
its general partner
By:
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
GUARANTOR:
GREEN 0000 XXXXXXXX LLC
By: XX XXXXX OPERATING PARTNERSHIP,
L.P., its managing member,
By: XX XXXXX REALTY CORP.,
its general partner
By:
-----------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Investment Officer
ADMINISTRATIVE AGENT:
FLEET NATIONAL BANK, NA
As Administrative Agent
By:
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
LENDER:
FLEET NATIONAL BANK, NA
By:
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
LENDER:
CITICORP REAL ESTATE, INC.
By:
-------------------------------------
Name:
Title:
LENDER:
BANKERS TRUST COMPANY
By:
-------------------------------------
Name:
Title:
LENDER:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
By:
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
LENDER:
THE BANK OF NEW YORK
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
LENDER:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
LENDER:
BANK LEUMI USA
By:
-------------------------------------
Name:
Title:
LENDER:
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
LENDER:
KEY BANK NATIONAL ASSOCIATION
By:
-------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
EXHIBIT A
SCHEDULE 1.2
Commitments and Commitment Percentages
Commitment
Financial Institution Commitment Percentage
---------------------------------------------------------------------------------------------------------------------
Fleet National Bank, NA $ 50,000,000 16.6667%
Xxxxx Fargo Bank, National Association $ 47,500,000 15.8333%
Commerzbank Aktiengesellschaft, New York Branch $ 47,500,000 15.8333%
Bankers Trust Company $ 42,500,000 14.1667%
The Bank of New York $ 35,000,000 11.6667%
Citicorp Real Estate, Inc. $ 27,500,000 9.1667%
PNC Bank, National Association $ 20,000,000 6.6667%
Key Bank National Association $ 20,000,000 6.6667%
Bank Leumi USA $ 10,000,000 3.3333%
