FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS
This First Amendment to First Amended and Restated Revolving Credit
Agreement and other Loan Documents (the "First Amendment") is entered into as of
November 7, 1996 , by and among Xxxx Holdings Limited Partnership ("Holdings"),
Xxxx Subsidiary II Limited Partnership ("Saul D.C."), Xxxx Centers, Inc. ("Xxxx
Centers"), The First National Bank of Chicago ("First Chicago"), First Bank
National Association ("First Bank.), BHF Bank-Aktiengesellschaft ("BHF"),
Crestar Bank ("Crestar"), Bank of America Illinois ("Bank of America")
(collectively, First Chicago, First Bank, BHF, Crestar and Bank of America are
the "Lenders") and First Chicago, as Agent.
RECITALS
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A. The parties hereto (other than Xxxx Centers) are parties to a certain
First Amended and Restated Revolving Credit Agreement, dated as of November 2,
1995 (the "Agreement").
B. Holdings and Saul D.C. (collectively, the "Borrower") have requested,
and the Lenders have agreed, that seven of the Properties shall be released from
serving as Collateral for the Facility and Saul D.C. will be released as a
borrower under the Agreement, in exchange for a reduction in the maximum
aggregate amount available under the Facility to the Borrower, all upon the
terms and conditions contained herein.
C. Upon the execution of this First Amendment, Bank of America and BHF
will no longer be Lenders and the Commitments of First Bank, First Chicago and
Crestar will be as set forth on the signature page to this First Amendment.
D. The parties hereto agree to amend the Agreement as provided herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
I. Capitalized Terms. The capitalized terms used herein shall have the
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meanings set forth in the Agreement, unless otherwise provided herein. All
references in this First Amendment to Articles and Sections are to Articles and
Sections, respectively, of the Agreement, unless otherwise provided herein.
II. Definitions.
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A. The following definitions in Section 1.1 shall be deleted:
1. Advance Percentage Reduction Date.
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2. Excess Usage Period.
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B. The following definitions in Section 1.1 shall be amended as follows:
1. Advance Percentage. The definition of Advance Percentage shall be
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deleted in its entirety and replaced with the following:
"Advance Percentage" means fifty percent (50%).
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2. Aggregate Commitment. The definition of Aggregate Commitment
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shall be deleted in its entirety and replaced with the following:
"Aggregate Commitment" means, as of any date, the sum of all of
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the Lenders' then- current Commitments. As of the date of the
First Amendment, the Aggregate Commitment is $44,000,000.
3. Borrower. The definition of Borrower shall be deleted in its
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entirety and replaced with the following:
"Borrower" means Xxxx Holdings Limited Partnership, a Maryland
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limited partnership, along with its permitted successors and
assigns.
The last sentence of Recital F which also contained a definition of "Borrower"
is also hereby deleted.
4. Borrowing Base. The definition of Borrowing Base shall be deleted
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in its entirety and replaced with the following:
"Borrowing Base" means, as of any date, the sum of the as
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completed value of Seven Corners determined by an Appraisal
multiplied by the Seven Corners Advance Percentage and the as-is
value of all other Properties determined by Appraisals multiplied
by the Advance Percentage.
5. CBR Added Percentage. The definition of CBR Added Percentage
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shall be deleted in its entirety and replaced with the following:
"CBR Added Percentage" means three-eighths of one percent
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(0.375%).
6. LIBOR Added Percentage. The definition of LIBOR Added Percentage
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shall be deleted in its entirety and replaced with the following:
"LIBOR Added Percentage" means one and seven-eighths of one
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percent (1.875%).
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C. The following definitions shall be added to Section 1.1 in
alphabetical order:
"First Amendment" means the First Amendment to First Amended and
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Restated Revolving Credit Agreement and other Loan Documents, dated
as of November 7, 1996, by and among the Holdings, Xxxx Centers,
Inc., Saul D.C. and the Lenders.
"Released Properties" shall mean Avenel I, Avenel II,
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Avenel III, Leesburg Pike, Xxx Xxxx, Village Center at Sully Station
and Lumberton.
"Seven Corners Advance Percentage" means sixty percent (60%).
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III. Deletions, Amendments and Additions to Existing Sections of Agreement.
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A. Section 2.1 The Facility. The second sentence of Section 2.1 is
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hereby deleted in its entirety.
B. Section 6.3 Compliance with Borrowing Base and Imputed Cash Flow
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Ratio. SECTION 6.3 shall be deleted in its entirety and replaced with the
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following:
6.3 Compliance with Borrowing Base and Imputed Cash Flow Ratio.
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(a) The Borrowing Base shall be calculated on the first day of each
quarter and shall be subject to the conditions contained in subsection
(b) below. If the amount of Advances outstanding under the Facility at
the time the Borrowing Base is calculated exceeds the Borrowing Base
for any reason, the Borrower shall, within ninety (90) days of such
date, take either or both of the following actions, at the option of
the Borrower: (i) repay the amount of Advances outstanding under the
Facili excess of the Borrowing Base or (ii) provide Additional
Collateral in accordance with Section 2.17 to Lenders in an amount so
that after the inclusion of such Additional Collateral in the
Borrowing Base, the amount of Advances outstanding under the Facility
will be equal to or less than the Borrowing Base.
(b) If the Imputed Cash Flow Ratio, calculated on the last day of
each fiscal quarter, for the immediately preceding four (4)
fiscal quarters, is:
(i) less than 1.35 to 1, until the earlier of the first fiscal
quarter during which (A) Shoppers Food Warehouse at Seven Corners
begins to pay rent or (B) the date that is 18 months after the
date of the First Amendment or
(ii) less than 1.5 to 1, thereafter,
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then within ten (10) Business Days after a demand for compliance by the
Agent, the Borrower shall cause the Imputed Cash Flow Ratio to be equal to
or greater than the ratio required in this Section 6.3(b) by taking either
or both of the following actions, at the option of the Borrower:
(x) delivering a written agreement permanently reducing the Aggregate
Commitment and repaying such portion of the outstanding Advances as is
necessary to reduce the outstanding Advances to an amount less than the
reduced Aggregate Commitment or
(y) commencing and continuing to diligently pursue designating Additional
Collateral satisfactory to the Lenders and delivering such agreements or
other documentation necessary to create a perfected, first priority lien
in favor of Lenders in such Additional Collateral, all in accordance with
Section 2.17, provided that the delivery and documentation of such
Additional Collateral shall be completed not later than thirty (30) days
following the original demand for compliance by the Agent.
(c) For purposes of determining the Imputed Cash Flow Ratio, for both the
lease for Shoppers Food Warehouse and Home Depot at Seven Corners, once the
tenant thereunder has begun making rent payments, the Imputed Cash Flow
Ratio shall be calculated as if the tenant had been making such rent
payments for the preceding four quarters.
C. Section 7.1(h) Maintenance of Consolidated Cash Flow Ratio. SECTION
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7.1(h) shall be deleted in its entirety and replaced with the following:
(h) Maintenance of Consolidated Cash Flow Ratio. Permit the Consolidate
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Operating Partnership to maintain a Consolidated Cash Flow Ratio of less
than 1.9 to 1 as of the end of any fiscal quarter, based on the results for
the previous four fiscal quarters.
IV. Amendment to Notes and Deeds of Trust. The Notes for BHF, Bank of
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America, and First Chicago will be amended and restated into two notes, for each
Lender, substantially in the form of their existing Notes but with different
principal amounts which together will equal the principal amount of their
current Note. Agent shall enter into such amendments to the Deeds of Trust as
may be required in connection with reflecting the amendment and restatement of
certain Notes and the assignment of certain of the Deeds of Trust. Upon the
effective date of this First Amendment, Holdings and each Lender that is
remaining in the Facility whose Note is not being amended and restated agrees to
execute and attach to its note an Allonge in the form attached hereto as EXHIBIT
A.
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V. Amendment to Environmental Indemnity Agreement and other Loan Documents.
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The Amended and Restated Environmental Indemnity dated as of November 2,
1995 from Holdings and Saul D.C. and Xxxx Centers in favor of The First National
Bank of Chicago, as Agent, is hereby amended by deleting Saul D.C. as an Obligor
thereunder for all obligations accruing after the effective date of this
Amendment. In addition, Saul D.C. is hereby released as Borrower, debtor, and
obligor under each of the other Loan Documents.
VI. Additional Provisions.
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A. Conditions to Closing of First Amendment. When the following terms and
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conditions have been satisfied, the Released Properties shall be released from
serving as Collateral, Saul D.C. shall be released as a Borrower under the
Facility and Bank of America and BHF shall no longer be Lenders under the
Facility (and shall have no further rights or obligations relating thereto or to
the Loan Documents or the Intercreditor Agreement dated as November 2, 1995
among Agent and the Lenders), a First Amendment and the other amendment
documents listed below shall become effective:
1. The Borrower repays amounts borrowed under the Facility sufficient to
cause the aggregate outstanding principal amount to be less than or equal to the
Borrowing Base, as set forth in Section 6.3 of the Agreement, as amended by this
First Amendment. All amounts repaid shall be applied first to repay amounts due
to Bank of America and BHF who will no longer be Lenders after the effective
date of this First Amendment. Any remaining amounts paid shall be applied to
amounts due to the ot Lenders on a pro rata basis. Notwithstanding anything to
the contrary herein or in the Loan Documents, Bank of America and BHF shall be
entitled to all rights of Lenders with respect to matters accruing prior to the
effective date of this First Amendment.
2. This First Amendment, each of the Allonges referred to in Paragraph IV
hereof, and all of the amended and restated promissory notes, amendments to
deeds of trust and assignments of deeds of trust delivered pursuant to this
First Amendment have been duly executed by all parties thereto.
3. Copies of appropriate resolutions of the General Partner, authorizing
the execution of this First Amendment and the other amendment documents executed
in connection therewith, have been delivered to Agent.
4. An incumbency certificate which shall identify by name and title and
bear the signature of the officer or officers of the Borrower authorized to sign
the First Amendment and to request Advances under the Facility has been
delivered to Agent.
5. A written opinion of Xxxx Xxxxxxx Xxxxx & Xxxxxxxxxx, in form
satisfactory to Agent and its counsel, has been delivered to Agent.
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6. The Borrower has made payment of an amendment fee to each Lender
remaining in the Facility after the execution of this First Amendment equal to
.03% of the then-current Commitment of each Lender.
7. The Borrower has made payment of all reasonable expenses of Agent and
its counsel in connection with the preparation and execution of this First
Amendment and the other amendment documents executed in connection therewith.
8. Date-down title endorsements for Seven Corners, Clarendon, Boulevard,
Shops at Fairfax, Germantown and Flagship have been received by Agent.
9. Such other documents as the Lenders may reasonably request have been
executed and received by Agent.
B. Closing Certificate. By execution of this First Amendment, the General
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Partner on behalf of the Borrower hereby certifies that on the date hereof (i)
the representations and warranties contained in the Agreement, as amended by
this First Amendment, are correct on and as of the date hereof except as
disclosed on Exhibit C attached hereto; (ii) there has been no Material Adverse
Financial Change since December 31, 1995; (iii) no Default or Event of Default
has occurred and is continuing; and (iv) the Borrower has no defenses or offsets
to the enforcement of the Loan Documents, as amended.
C. Borrower Base Calculation. A calculation of the Borrowing Base as of the
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effective date of this Amendment is attached hereto as Exhibit B.
D. Effect on Agreement. Except as specifically provided herein, the
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Agreement and all other Loan Documents remain in full force and effect and are
hereby ratified and confirmed in their entirety by the Borrower. All references
in any of the Loan Documents to the Agreement shall refer to the Agreement as
amended hereby.
E. Consent of Guarantor. Xxxx Centers hereby consents to the terms of this
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First Amendment and reaffirms its obligations under the terms of that certain
Amended and Restated Guaranty dated as of November 2, 1995.
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment to
First Amended and Restated Revolving Credit Agreement and other Loan Documents
as of the date first written above.
BORROWER: XXXX HOLDINGS LIMITED PARTNERSHIP
By: Xxxx Centers, Inc., its general partner
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
XXXX SUBSIDIARY II LIMITED PARTNERSHIP
By: Xxxx Centers, Inc., its general partner
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
GUARANTOR: XXXX CENTERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
LENDERS: THE FIRST NATIONAL BANK OF CHICAGO
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
Commitment: $19,500,000
Percentage: 44.31818181818%
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FIRST BANK NATIONAL ASSOCIATION
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
Commitment: $19,500,000
Percentage: 44.31818181818%
CRESTAR BANK
/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Commitment: $5,000,000
Percentage: 11.11363636364%
AGENT: THE FIRST NATIONAL BANK OF CHICAGO
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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The undersigned Lenders are executing this Amendment for the sole purpose of
confirming that from and after the effective date of this Amendment, they will
no longer be Lenders provided that all sums due to them have been paid.
BHF-BANK AKIIENGESELLSCHAFT
/s/ Xxxxxxxxx
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Name: C. H.
Title: Vice President
/s/ Xxxxxx Svehnhof
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Name: Xxxxxx Svehnhof
Title: Senior Vice President
BANK OF AMERICA ILLINOIS
/s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Title: Vice President
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EXHIBIT A
FORM OF ALLONGE
The undersigned hereby confirm that Xxxx Subsidiary II Limited Partnership
has been released as an obligor under the foregoing Amended and Restated
Promissory Note dated November2, 1995, payable to __________________________,
pursuant to the terms of that certain First Amendment to First Amended and
Restated Revolving Credit Agreement and other Loan Documents among Xxxx Holdings
Limited Partnership, Xxxx Subsidiary II Limited Partnership, The First National
Bank of Chicago, as agent, and the Lenders name therein, dated as of , 1996, and
that all references in the foregoing Note to the "Agreement" shall refer to the
Agreement as amended from time to time.
[SIGNATURE BLOCK OF
APPLICABLE LENDER]
XXXX HOLDINGS LIMITED PARTNERSHIP
By: Xxxx Centers, Inc., its general partner
By:
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EXHIBIT B
BORROWING BASE CALCULATION
Property Appraised Value Margin Borrowing Base
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Seven Corners $ 58,000,000 60% $ 34,800,000
Germantown 4,000,000 50% 2,000,000
Shops at Fairfax 5,800,000 50% 2,900,000
Clarendon 1,800,000 50% 900,000
Boulevard 4,800,000 50% 2,400,000
Flagship 2,000,000 50% 1,000,000
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Total Borrowing Base $ 44,000,000
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EXHIBIT C
EXCEPTIONS TO REAFFIRMATION OF
REPRESENTATIONS AND WARRANTIES
Attached hereto are supplemental Schedules 5.10 and 5.22 to the Credit
Agreement, reflecting litigation and lease defaults, respectively, as of the
date hereof.
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Schedule 5.10
Litigation
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SEVEN CORNERS
PETSTUFF: Petstuff has not paid rent for the months of March
through May, 1996, and the months of July through October 1996.
Tenant maintains that its actions of non- payment of rent should
have forced the Landlord to choose between terminating the lease
or reentering/mitigating damage by releasing the space. The
lease does not support Tenant's claim and Landlord is suing to
enforce all of its rights to collect rent under the Lease and at
law. Furthermore, Landlord maintains that the lease remains in
effect, although in default, and further that any obligation to
mitigate damages has not been triggered because of the following
language in the lease:
However, Landlord shall not be obligated to offer the
Demised Premises to a prospective tenant when other
premises in the Shopping Center suitable for that
prospective tenant's use are (or soon will be) available.
Thus, any duty of Xxxx Centers to mitigate its damages by
reletting the premises once occupied by Petstuff is not
triggered unless and until the landlord enters upon and takes
possession of the premises and no other space in the shopping
center that would be acceptable to a prospective tenant is
available. Xxxx Centers has not entered and taken possession of
the premises. Moreover, since the date that Petstuff defaulted,
the space once occupied by F&M has also been available. Thus,
any dut of Xxxx Centers to mitigate has not yet been triggered.
Subsequent to these events, on November 1, 1996, Tenant called a meeting
with Landlord and proposed to bring lease current and requested that Landlord
approve a sub-lease which they claim to have procured for the space. Landlord is
currently considering Tenant's proposal.
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Schedule 5.22
Leases in Default
Tenant Delinquencies over 30 Days
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PROPERTY TENANT AMOUNT
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Germantown Wings To Go $ 9,202.94
Clarendon Red, Hot & Blue $ 1,261.01
Seven Corners Petstuff $169,073.76
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