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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First
Amendment") is dated as of the 22nd day of November, 2006, among
NNN APARTMENT REIT HOLDINGS, L.P. ("Borrower"), NNN
APARTMENT REIT, INC., APARTMENT REIT WALKER RANCH, LP and
APARTMENT REIT WALKER RANCH GP, LLC (collectively, the
"Guarantors"), WACHOVIA BANK, NATIONAL ASSOCIATION , as
Agent (the "Agent"), and the lenders a party hereto (collectively,
the "Lenders").
W I T N E
S S E T H:
WHEREAS , the Borrower, the Agent and the Lenders are
party to that certain Credit Agreement, dated as of
October 31, 2006 (the "Credit Agreement");
WHEREAS , the Borrower has requested, and the Agent and
the Lenders have agreed to, certain amendments to the Credit
Agreement, subject to the terms and conditions hereof;
NOW, THEREFORE , for and in consideration of the above
premises and other good and valuable consideration, the receipt and
sufficiency of which hereby is acknowledged by the parties hereto,
the Borrower, the Guarantors, the Agent and the Lenders hereby
covenant and agree as follows:
1. Definitions . Unless otherwise specifically
defined herein, each term used herein which is defined in the
Credit Agreement shall have the meaning assigned to such term in
the Credit Agreement. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall from and after the date
hereof refer to the Credit Agreement as amended hereby.
2. Modification of the Credit Agreement . The
Borrower, the Agent and the Lenders do hereby modify and amend the
Credit Agreement as follows:
(a) By deleting the definition of "Interest Period" in
Section 1.1 of the Credit Agreement in its entirety, and
inserting in lieu thereof the following language:
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"" Interest Period " means with respect to any LIBOR
Loan, each period commencing on the date such LIBOR Loan is made or
the last day of the next preceding Interest Period for such Loan
and ending one, two, three or six months (or, with the approval of
all Lenders, less than thirty (30) days) thereafter, as the
Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except
that each Interest Period of one, two, three or six months that
commences on the last Business Day of a calendar month shall end on
the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period for a
Revolving Loan shall end after the Revolving Loan Termination Date;
and (ii) each Interest Period that would otherwise end on a
day which is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business
Day)."
(b) By deleting the language appearing in Section 11.8
of the Credit Agreement in its entirety, and inserting in lieu
thereof the following language:
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"The Agent may resign at any time as Agent under the Loan
Documents by giving written notice thereof to the Lenders and the
Borrower. In the event that Wachovia Bank shall assign all or any
portion of its Commitment and (a) as a result thereof, its
Commitment is less than $15,000,000.00 and (b) immediately
after giving effect to such assignment LaSalle Bank National
Association has a Commitment of $15,000,000.00 or greater, then
Wachovia Bank shall promptly provide written notice to the Lenders
and the Requisite Lenders (excluding Wachovia Bank) shall have the
right (so long as LaSalle Bank National Association has a
Commitment of $15,000,000.00 or greater), to be exercised within
fifteen (15) days of delivery of such notice by Wachovia Bank,
to elect to remove Wachovia Bank as Agent and replace Wachovia Bank
as Agent, subject to the terms of this Section 11.8. Any such
resignation or removal shall also constitute Agent’s
resignation as Swingline Lender and may, at such Agent’s
option, also constitute its resignation as Issuing Lender. Upon any
such resignation or removal, the Requisite Lenders shall have the
right to appoint a successor Agent, Swingline Lender and Issuing
Lender, as applicable, which shall be a Lender, if any Lender shall
be willing to serve, and otherwise shall be a commercial bank
having total combined assets of at least $5,000,000,000.00, which
appointment shall, provided no Default or Event of Default shall
have occurred and be continuing, be subject to the Borrower’s
approval, which approval shall not be unreasonably withheld or
delayed (except that the Borrower shall, in all events, be deemed
to have approved each Lender and its affiliates as a successor
Agent, Swingline Lender and Issuing Lender). If no successor Agent
shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment,
within thirty (30) days after the resigning Agent’s
giving of notice of resignation, then the resigning Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise
shall be a commercial bank having total combined assets of at least
$5,000,000,000.00. Upon the
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