SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT, dated as of May 23, 2017 (this “Agreement”), to the Amended and Restated Credit Agreement, dated as of January 9, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement), among American Assets Trust, Inc., a Maryland corporation, American Assets Trust, L.P., a Maryland limited partnership (the “Borrower”), the lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender thereunder. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
WHEREAS, the parties hereto propose to amend certain provisions of the Credit Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement. Subject to all of the terms and conditions set forth in this Agreement:
1.1 Definition of Change of Control. Clause (b) of the definition of “Change of Control” contained in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(b) [Intentionally omitted]”
1.2 Definition of Eurodollar Rate. The definition of “Eurodollar Rate” contained in Section 1.01 of the Credit Agreement is hereby amended to add the following sentence at the end thereof:
“Notwithstanding anything to the contrary contained herein, at any time that the Eurodollar Rate determined in accordance with the foregoing is less than zero, such rate shall be deemed zero for purposes of this Agreement.”
SECTION 2. Conditions to Effectiveness. This Agreement shall not become effective until the date on which the Administrative Agent shall have received counterparts of this Agreement duly executed by each of the Loan Parties, the Administrative Agent and the Required Lenders.
SECTION 3. Representations and Warranties. Each of the Loan Parties reaffirms and restates the representations and warranties made by it in the Credit Agreement, and the other Loan Documents, in each case, after giving effect to the amendments to the Credit Agreement contemplated hereby, and all such representations and warranties are true and correct in all material respects on the date of this Agreement with the same force and effect as if made on such date (except to the extent (i) such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall be true and correct as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects after giving effect to such qualification and (iii) the representation and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement). Each of the Loan Parties additionally represents and warrants (which representations and warranties shall survive the execution and delivery hereof) to the Administrative Agent, the Swing Line Lender, the L/C Issuer and the Lenders that:
(a) it has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and the transactions contemplated hereby and has taken or caused to be taken all necessary action to authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby;
(b) no consent of any Person (including, without limitation, any of its equity holders or creditors), and no action of, or filing with, any governmental or public body or authority is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Agreement, except for the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(c) this Agreement has been duly executed and delivered on its behalf by a duly authorized officer, and constitutes its legal, valid and binding obligation enforceable in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and the exercise of judicial discretion in accordance with general principles of equity;
(d) no Default or Event of Default has occurred and is continuing;
(e) the execution, delivery and performance of this Agreement will not (i) contravene the terms of any of its Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual Obligation to which it is a party or affecting it or its properties or the properties of any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which it or its property is subject; or (ii) violate any Law, except in each case referred to in clause (ii) or (iii) hereof, to the extent the same could not reasonably be expected to have a Material Adverse Effect; and
(f) it believes, and will take the position, that the amendments to the Credit Agreement contained in this Agreement, taken as a whole, do not constitute a “significant modification” of the Credit Agreement within the meaning of Treasury Regulation Section 1.1001-3(e) and accordingly believes that after giving effect to this Agreement the Obligations will qualify as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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SECTION 4. Affirmation of Guarantors. Each Guarantor hereby approves and consents to this Agreement and the transactions contemplated by this Agreement and agrees and affirms that its guarantee of the Obligations continues to be in full force and effect and is hereby ratified and confirmed in all respects and shall apply to the Credit Agreement and all of the other Loan Documents, as such are amended, restated, supplemented or otherwise modified from time to time in accordance with their terms.
SECTION 5. Costs and Expenses. The Borrower acknowledges and agrees that its payment obligations set forth in Section 10.04 of the Credit Agreement include the costs and expenses incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Agreement and any other documentation contemplated hereby (whether or not this Agreement becomes effective or the transactions contemplated hereby are consummated and whether or not a Default or Event of Default has occurred or is continuing), including, but not limited to, the reasonable fees and disbursements of Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, counsel to the Administrative Agent.
SECTION 6. Ratification.
(a)The Credit Agreement, as amended by this Agreement, and the other Loan Documents remain in full force and effect and are hereby ratified and affirmed by the Loan Parties. Each of the Loan Parties hereby (i) confirms and agrees that the Borrower is truly and justly indebted to the Administrative Agent, the Swing Line Lender, the L/C Issuer and the Lenders in the aggregate amount of the Obligations without defense, counterclaim or offset of any kind whatsoever, and (ii) reaffirms and admits the validity and enforceability of the Credit Agreement, as amended by this Agreement, and the other Loan Documents.
(b) This Agreement shall be limited precisely as written and, except as expressly provided herein, shall not be deemed (i) to be a consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Credit Agreement, any other Loan Document or any of the instruments or agreements referred to in any thereof or a waiver of any Default or Event of Default, whether or not known to the Administrative Agent, the Swing Line Lender, the L/C Issuer or any of the Lenders, or (ii) to prejudice any right or remedy which the Administrative Agent, the Swing Line Lender, the L/C Issuer or any of the Lenders may now have or have in the future against any Person under or in connection with the Credit Agreement, any of the instruments or agreements referred to therein or any of the transactions contemplated thereby.
SECTION 7. Modifications. Neither this Agreement, nor any provision hereof, may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the parties hereto.
SECTION 8. References. The Loan Parties acknowledge and agree that this Agreement constitutes a Loan Document. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in each other Loan Document (and the other documents and instruments delivered pursuant to or in connection therewith) to the “Credit Agreement”, “thereunder”, “thereof” or words of like import,
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shall mean and be a reference to the Credit Agreement as modified hereby and as each may in the future be amended, restated, supplemented or modified from time to time.
SECTION 9. Counterparts. This Agreement may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page by telecopier or electronic mail (in a .pdf format) shall be effective as delivery of a manually executed counterpart.
SECTION 10. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 11. Severability. If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without in any manner affecting the validity or enforceability of such provision in any other jurisdiction or the remaining provisions of this Agreement in any jurisdiction.
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF).
SECTION 13. Headings. Section headings in this Agreement are included for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
[The remainder of this page left blank intentionally]
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IN WITNESS WHEREOF, the Loan Parties, the Administrative Agent, the Swing Line Lender, the L/C Issuer and the Lenders have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
BY: AMERICAN ASSETS TRUST, INC., its General Partner | ||
BY: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx Xxxxxx | ||
Title: Chief Financial Officer | ||
BY: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
AMERICAN ASSETS TRUST, INC. | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
AMERICAN ASSETS TRUST | ||
MANAGEMENT LLC | ||
PACIFIC DEL MAR ASSETS LLC | ||
PACIFIC CARMEL MOUNTAIN ASSETS | ||
LLC | ||
PACIFIC SOLANA BEACH ASSETS LLC | ||
AAT DEL MONTE, LLC | ||
BEACH WALK HOLDINGS LLC | ||
ICW PLAZA MERGER SUB LLC | ||
PACIFIC SOUTH COURT ASSETS LLC | ||
PACIFIC TORREY DAYCARE ASSETS LLC | ||
LANDMARK VENTURE JV, LLC | ||
PACIFIC FIRECREEK HOLDINGS, LLC | ||
IMPERIAL STRAND HOLDINGS, LLC | ||
MARINER’S POINT HOLDINGS, LLC | ||
BROADWAY 225 SORRENTO HOLDINGS, | ||
LLC | ||
BROADWAY 225 STONECREST HOLDINGS, LLC | ||
EBW HOTEL LLC | ||
WAIKELE VENTURE HOLDINGS LLC | ||
PACIFIC SANTA FE ASSETS LLC | ||
SB CORPORATE CENTRE LLC | ||
XX XXXXX CENTRE, LLC | ||
AAT Solana 101, LLC | ||
AAT Alamo Quarry, LLC | ||
AAT Xxxxx Marketplace, LLC | ||
AAT Torrey Reserve 6, LLC | ||
AAT Torrey Reserve 5, LLC | ||
AAT Torrey 13-14, LLC | ||
AAT Xxxxx District, LLC | ||
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
AAT Sorrento Pointe, LLC | ||
Carmel Mountain Pad, LLC | ||
Pacific Waikiki Assets LLC | ||
AAT Waikele Center, LLC | ||
Southbay Marketplace Holdings, | ||
LLC | ||
AAT Oregon Office I, LLC | ||
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
AMERICAN ASSETS TRUST, L.P., its General Partner | ||
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
CARMEL COUNTRY PLAZA, L.P. | ||
By: | PACIFIC DEL MAR ASSETS LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
PACIFIC CARMEL MOUNTAIN HOLDINGS, L.P. | ||
By: | PACIFIC CARMEL MOUNTAIN ASSETS LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
PACIFIC SOLANA BEACH HOLDINGS, L.P. | ||
By: | PACIFIC SOLANA BEACH ASSETS LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
ABW XXXXXX LLC | ||
By: | AMERICAN ASSETS TRUST, L.P., its Managing Member | |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
ABW 2181 HOLDINGS LLC | ||
By: | ABW XXXXXX LLC, its Sole Member | |
By: | AMERICAN ASSETS TRUST, L.P., its Managing Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
AAT TORREY PLAZA, LLC | ||
By: | ICW PLAZA MERGER SUB LLC, its Sole Member | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
PACIFIC SOUTH COURT HOLDINGS, L.P. | ||
By: | PACIFIC SOUTH COURT ASSETS LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
PACIFIC TORREY DAYCARE HOLDINGS, L.P. | ||
By: | PACIFIC TORREY DAYCARE ASSETS, LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
PACIFIC SANTA FE HOLDINGS, L.P. | ||
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
By: | PACIFIC SANTA FE ASSETS LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
LANDMARK VENTURE HOLDINGS, LLC | ||
By: | LANDMARK VENTURE JV, LLC, its Sole Member | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
LANDMARK FIREHILL HOLDINGS, LLC | ||
By: | PACIFIC FIRECREEK HOLDINGS, LLC, its Sole Member | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
PACIFIC WAIKIKI HOLDINGS, L.P. | ||
By: | PACIFIC WAIKIKI ASSETS, LLC, its General Partner | |
By: | AMERICAN ASSETS TRUST, L.P., its Sole Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
ABW HOLDINGS LLC | ||
By: | ABW XXXXXX LLC, its Sole Member | |
By: | AMERICAN ASSETS TRUST, L.P., its Managing Member | |
By: | AMERICAN ASSETS TRUST, INC., its General Partner | |
By: | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx | ||
Title: Chief Financial Officer | ||
By: | /s/ Xxxx Xxxx | |
Name: Xxxx Xxxx | ||
Title: Senior Vice President | ||
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
BANK OF AMERICA, N.A., as Administrative Agent | |
By: | /s/ Bank of America, N.A. |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender | |
By: | /s/ Bank of America, N.A. |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
XXXXX FARGO BANK, N.A., as a Lender | |
By: | /s/ Xxxxx Fargo Bank, N.A. |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
ROYAL BANK OF CANADA, as a Lender | |
By: | /s/ Royal Bank of Canada |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION, as a Lender | |
By: | /s/ U.S. Bank National Association |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
PNC BANK NATIONAL ASSOCIATION, as a Lender | |
By: | /s/ PNC Bank of National Association |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
KEYBANK NATIONAL ASSOCIATION, as a Lender | |
By: | /s/ KeyBank National Association |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
XXXXXX XXXXXXX BANK, N.A., as a Lender | |
By: | /s/ Xxxxxx Xxxxxxx Bank, N.A. |
[Signature Page to Second Amendment to AAT A&R Credit Agreement]
