Exhibit 10.1
AMENDMENT TO LOAN
AGREEMENT
AND REAFFIRMATION OF LOAN
DOCUMENTS
THIS AMENDMENT TO LOAN AGREEMENT AND
REAFFIRMATION OF LOAN DOCUMENTS (this “
Amendment ”) is made and entered into as of
August 4, 2009, by and among MAGUIRE PARTNERS-PLAZA LAS FUENTES,
LLC , a Delaware limited liability company (“
Borrower ”); EUROHYPO AG, NEW YORK
BRANCH , as a Lender (in such capacity, “
Eurohypo ”), WELLS FARGO BANK, N.A. , as
a Lender (“ Wells Fargo ”); EUROHYPO
AG, NEW YORK BRANCH , as administrative agent for the Lenders
(in such capacity, together with its successors in such capacity,
the “ Administrative Agent ”); and
WELLS FARGO BANK, N.A. , as Syndication Agent (“
Syndication Agent ”). Each of the
parties identified above as a Lender, together with any other party
who becomes a lender party to the Loan Agreement (as defined below)
after the date hereof pursuant to Section 12.24(2) of
the Loan Agreement, are sometimes referred to herein individually
as a “ Lender ” and collectively as the
“ Lenders ”. All capitalized
terms used but not defined herein shall have the meanings set forth
in Loan Agreement, as modified hereby.
R E C I T A L S
:
A. Borrower,
the Administrative Agent, Syndication Agent, Eurohypo and Wells
Fargo entered into that certain Loan Agreement, dated as of
September 29, 2008 (the “ Loan Agreement
”). Subsequent thereto, pursuant to various
Assignments and Acceptances, AIB Debt Management Limited acquired
its interest as a Lender under the Loan Agreement.
B. In
connection with the Loan Agreement, Maguire Properties, L.P., a
Maryland limited partnership (“ Guarantor
”), executed and delivered that certain Recourse Guaranty
(the “ Recourse Guaranty ”) and that
certain Lease Reserve and Interest Carry Guaranty (the “
Lease Reserve/Interest Guaranty ”), each dated
as of September 29, 2008, in favor of the Administrative Agent and
the Lenders.
C. The
parties hereto desire to enter into this Amendment in order to set
forth certain modifications to the Loan Agreement and Loan
Documents, and to provide for the delivery of certain modifications
to the Recourse Guaranty, the Lease Reserve/Interest Guaranty, the
Mortgage, and the Borrower Cash Management Agreement, all upon the
satisfaction of the conditions set forth herein. The
Lenders party hereto are all of the Lenders from whom consents for
the modifications provided for herein are required to be obtained
pursuant to Section 12.2 of the Loan Agreement.
A G R E E M E N
T
NOW, THEREFORE, in consideration of the
foregoing and of the mutual covenants, conditions and agreements
herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
Borrower, Administrative Agent, Syndication Agent and Lenders party
hereto agree as follows:
(a)
Deposit of Loan Modification Documents and Other Items
. Borrower and the other Borrower Parties identified
below shall have executed and delivered to the Administrative Agent
this Amendment and the following amendments to or supplements of
the Loan Documents:
(i)
Agreement Supplementing Deed of Trust . An
Agreement Supplementing Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Fixture Filing, substantially in the
form of Attachment A attached hereto, executed by Borrower
and in form for recording (the “ Agreement
Supplementing Deed of Trust ”);
(ii)
Guarantor Documents . A Modification and
Reaffirmation of Guarantor Documents with respect to the Recourse
Guaranty, the Lease Reserve/Interest Guaranty and Guarantor’s
obligations under the Environmental Indemnity, substantially in the
form of Attachment B attached hereto, executed by Guarantor
(the “ Guarantor Modification and Reaffirmation
Agreement ”);
(iii)
Operating Lessee’s Consent . The consent
and reaffirmation from the Operating Lessee in the form of
Attachment C attached hereto, executed by the Operating
Lessee; and
(iv)
Amendment to Cash Management Agreement . An
Amendment to Cash Management Agreement (Borrower) executed by
Borrower, the Property Manager and the Depository Bank in the form
of Attachment D attached hereto.
(b)
Principal Prepayment . In accordance with the
provisions of Section 2(g) below, Borrower shall have paid
to the Administrative Agent for distribution to the Lenders, a
principal prepayment in the amount of Four Million Dollars
($4,000,000), in immediately available funds. No
prepayment premium shall be applicable to such principal
prepayment.
(c)
Covenant Compliance Certificate . Guarantor shall
have delivered a certificate executed by an Authorized Officer of
Guarantor certifying that, as of June 30, 2009 and as of the
Modification Effectiveness Time, Guarantor is in compliance with
the covenants set forth in Section 3.04 of each of the
Recourse Guaranty and the Lease Reserve/Interest Guaranty, as
modified by the Guarantor Modification and Reaffirmation
Agreement.
(d)
Title Insurance; Priority; Recordation .
(i)
Title Endorsements . The title insurance company
which insured the Mortgage shall have recorded or be irrevocably
and unconditionally committed to record the
Agreement
Supplementing Deed of Trust described above, and shall have issued
such endorsements (including without limitation a CLTA Endorsement
No. 110.5, without deletion or exception other than as approved by
Administrative Agent) to the title insurance policy that insures
the Mortgage to the effect that the validity and priority of the
Mortgage insured thereunder have not been and will not be impaired
by this Amendment or the transactions contemplated by it, and
confirming the priority of the Mortgage, as supplemented by the
Agreement Supplementing Deed of Trust, over all matters other than
Permitted Encumbrances (including, without limitation, over all
mechanics’ and materialmen’s liens) and such other
endorsements to such title insurance policy as may be deemed
reasonably necessary by the Administrative Agent, in such form as
may be reasonably acceptable to the Administrative Agent;
and
(ii)
Costs and Expenses for Title Coverage . Borrower
shall have paid, or shall have made other arrangements acceptable
to the Title Company to pay, to the title insurance company all
expenses and premiums of the title insurance company in connection
with the issuance of such endorsements and all recording and filing
fees payable in connection with recording the Agreement
Supplementing Deed of Trust.
(e)
Legal Opinions . The Administrative Agent shall
have received favorable written opinions, dated as of the
Modification Effectiveness Time, of counsel to Borrower and the
Guarantor with respect to this Amendment and the other documents to
be delivered pursuant hereto, as reasonably required by
Administrative Agent and in such forms as may be deemed
satisfactory by the Administrative Agent.
(f)
Organizational Documents; Resolutions and Authorizations
. The Administrative Agent shall have received the
following documents with respect to Borrower and the other Borrower
Parties identified below, in each case as constituted upon and
after giving effect to the Modification Effectiveness
Time:
(i) Certificates
of Incorporation, Certificates of Formation, Certificates of
Limited Partnership, similar formation documents and all other
Organizational Documents for Borrower and each of the other parties
as to whom such documentation was delivered to the Administrative
Agent in connection with the original closing of the Loans,
certified by the Secretary of State of the state of formation of
such Person as of a recent date, or, to the extent such
documentation has not been modified since the original closing of
the Loans, a certificate to such effect from Borrower;
(ii) The
applicable resolutions and authorizations of Borrower and each of
the other parties as to whom resolutions and authorizations were
delivered to the Administrative Agent in connection with the
original closing of the Loans, authorizing the execution and
delivery of this Amendment and the other documents to be delivered
pursuant hereto, in each case certified by an Authorized Officer on
behalf of such party as of the Modification Effectiveness Time as
being accurate and complete, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel, or, to
the extent such documentation has not been modified since the
original closing of the Loans, a certificate to such effect from
Borrower;
(iv) Good
standing certificates with respect to Borrower and each of the
other parties as to whom such certificates were delivered to the
Administrative Agent in connection with the original closing of the
Loans, dated as of a current date.
(g)
Representations and Warranties . As of the
Modification Effectiveness Time, all of the representations and
warranties in the Loan Documents of Borrower, Guarantor and the
other Borrower Parties (except that, the representations and
warranties of Borrower and each Borrower Party with respect to
financial statements set forth in Section 7.3 of the
Loan Agreement shall refer to the most recent financial statements
of Borrower and each Borrower Party delivered to Administrative
Agent) shall be true and correct, after giving effect to the
modifications intended to become effective as of the Modification
Effectiveness Time.
(h)
No Events of Default . As of the Modification
Effectiveness Time, after giving effect to the modifications
provided for in this Amendment, no Event of Default or Potential
Default shall exist.
(i)
Fees and Expenses . Borrower shall have paid any
costs, fees and expenses due to the Administrative Agent or
Syndication Agent pursuant to Section 12.5 of the Loan
Agreement with respect to the modifications provided for in this
Amendment and the other documents to be delivered pursuant hereto
or otherwise incurred pursuant to Section 12.5 prior hereto,
it being understood that all costs, fees and expenses incurred by
the Administrative Agent or Syndication Agent in connection with
this Amendment and the other documents to be delivered pursuant
hereto are costs, fees and expenses for which Borrower is obligated
to reimburse the Administrative Agent or Syndication Agent,
respectively, pursuant to Section 12.5 of the Loan
Agreement.
Notwithstanding
anything to the contrary set forth herein, this Amendment shall be
null and void and of no further force or effect unless the
Modification Effectiveness Time shall occur on or prior to the
close of business, California time, on August 4, 2009.
2.
Loan Modifications . Upon the Modification
Effectiveness Time, the Loan Agreement and the other Loan Documents
shall be modified as follows:
(a) The
following additional defined terms are hereby added to the Loan
Agreement:
“ Accelerated Principal Pay-Down
Period ” means the period commencing on the
Modification Effectiveness Time and ending on the date on which the
aggregate principal prepayments made pursuant to
Section 1(b) of the Modification Agreement and
Section 3.3(a)(xi)(i) of the Cash Management Agreement equal
Seven Million Dollars ($7,000,000).
“ Guarantor Modification and
Reaffirmation Agreement ” means that certain
Modification and Reaffirmation of Guarantor Documents, dated as of
August 4, 2009
executed and
delivered by Guarantor to the Administrative Agent for the benefit
of the Lenders.
(b) The
definition of “ Loan Documents ” set
forth in Section 1.1(148) of the Loan Agreement is hereby
modified by adding the following sentence at the end
thereof:
The
Modification Agreement and each of the modifications to the Loan
Documents delivered pursuant thereto are each ‘Loan
Documents.’
(c) The
following defined terms are hereby added to the Loan
Agreement:
“ Modification Agreement
” means that certain Amendment to Loan Agreement and
Reaffirmation of Loan Documents, dated as of August 4, 2009,
entered into among Borrower, the Administrative Agent and the
Lenders.
“ Modification Effectiveness
Time ” has the meaning assigned to such term in the
Modification Agreement.
(d)
Section 2.4(2)(a) of the Loan Agreement is hereby modified
by adding thereto the following sentences at the end of such
Section:
On each Payment
Date after the Modification Effectiveness Time, commencing August
9, 2009, and until the Accelerated Principal Pay-Down Period ends,
the sums that are required to be deposited in the Debt Service
Reserve Account pursuant to Section 3.3(a)(xi)(i) of the
Borrower Cash Management Agreement shall be applied (in accordance
with Section 2(g) of the Modification Agreement) as a
principal prepayment, without prepayment premium. In
addition, on the First Payment Date after the Accelerated Principal
Pay-Down Period ends, and on each Payment Date thereafter, the
monthly principal reduction payment required to be made pursuant to
the first sentence of this Section 2.4(2)(a) shall be
increased to Two Hundred Thousand Dollars ($200,000).
(e)
Section 4.5(1) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
Deposits . During any Low DSCR Trigger Period
which exists or occurs after the Accelerated Principal Pay-Down
Period ends, Borrower shall cause all funds remaining in the
Borrower Cash Management Account (after giving effect to deposits
required pursuant to Sections 3.3(a)(i) through (ix)
and Section 3.3(a)(xi)(i) of the Borrower Cash Management
Agreement) (“ Excess Cash ”) to be paid
each month directly to Administrative Agent for deposit in the
Sweep Account as additional collateral for the
Loans. Amounts so deposited shall hereinafter be
collectively referred to as the “ Low DSCR Reserve
Fund ”.
(f)
From and after the Modification Effectiveness Time, all references
in the Loan Documents to the “ Loan Agreement ,”
the “ Loan Documents ” or to any Loan Document
(whether by reference to a “Loan Document” or to the
specific document name or defined term for a document included
within the meaning of “Loan Document”) shall be deemed
to refer to the Loan Agreement, the Loan Documents and such Loan
Document, as applicable, as amended, modified and supplemented
hereby and by the documents executed in connection wit
