Exhibit 10.35
FIRST AMENDMENT TO LOAN AGREEMENT
[$18,000,000]
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment"), is made as of
April 30, 1996, 1996 by and between THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation ("Lender"), and BRE PROPERTIES, INC., a
Maryland corporation ("Borrower"), as ultimate successor-in-interest by merger
to Real Estate Investment Trust of California, a California real estate
investment trust ("Original Borrower").
RECITALS:
A. Lender has made a loan (the "Loan") to Original Borrower in the
original principal amount of $18,000,000, which loan is governed by that certain
Loan Agreement dated as of July 7, 1995 by and between Original Borrower and
Lender (the "Loan Agreement") and evidenced by that certain Promissory Note
dated as of July 7, 1995 executed by Original Borrower in favor of Lender (the
"Note").
B. Pursuant to a series of mergers, Original Borrower merged into Real
Estate Investment Trust of Maryland, a Maryland real estate investment trust,
which in turn merged into BRE Properties Inc., a Delaware corporation, which in
turn merged into Borrower (which was then and formerly known as BRE Maryland,
Inc., a Maryland corporation).
C. Pursuant to the terms of that certain Assumption Agreement dated as of
even date herewith by and between Borrower and Lender, Borrower absolutely and
irrevocably assumed the Loan, the Loan Agreement, the Note and the other Loan
Documents and the obligations of Original Borrower thereunder.
D. Borrower and Lender have agreed to modify and amend the Loan Agreement
as provided herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
AGREEMENT:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined, shall have the meanings given thereto in the Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT. Borrower and Lender agree that the Loan
Agreement shall be amended as provided in this Paragraph 2.
2.1. Section 1.1 of the Loan Agreement shall be amended by replacing the
definition of Approved Indebtedness, in its entirety, with the following revised
definition therefor:
"APPROVED INDEBTEDNESS" means collectively, (i) this
Loan, (ii) the 525 Prudential Loan, (iii) the Sanwa Line of
Credit (including amounts borrowed thereunder after the
Closing Date in compliance with the terms hereof), (iv) the
PruExpress Loans, (v) the Tango Loan, (vi) the Bank of
America Line of Credit (including amounts borrowed
thereunder after the Closing Date in compliance with the
terms hereof), (vii) debt incurred in the ordinary course of
business to acquire goods, supplies, services or merchandise
on normal trade credit, (viii) surety bonds which are
obtained in the ordinary course of business,
(ix) Indebtedness secured by New Purchase Money Liens,
(x) Existing BRE Secured Debt, and (xi) Capital Lease
Obligations in an amount not to exceed, at any time,
$1,000,000; provided, however, that in any and all events,
such Approved Indebtedness shall be subject to, and included
within the calculations relating to, the financial covenants
set forth in Section 6.9 hereof.
2.2. Section 1.1 of the Loan Agreement shall be amended by replacing the
definition of Approved Liens, in its entirety, with the following revised
definition therefor:
"APPROVED LIENS" means the Prudential Liens, the
PruExpress Liens, the Tango Lien, the Existing BRE Liens,
any New Purchase Money Liens, and liens for real property
taxes described in Section 6.2(i) hereof.
2.3. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"BANK OF AMERICA LINE OF CREDIT" means that certain unsecured
line of credit in the maximum amount of $70,000,000 provided to
Borrower by Bank of America, NT&SA.
2.4. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"EXISTING BRE LIENS" means the Liens on the Existing BRE
Properties which secure the Existing BRE Secured Debt.
2.5. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"EXISTING BRE SECURED DEBT" means the Indebtedness of Borrower
existing as of the date of merger with the Original Borrower as
identified in EXHIBIT M attached hereto and incorporated herein, which
is secured by the Facilities described in such Exhibit (collectively,
the "Existing BRE Facilities").
2.6. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"NEW PURCHASE MONEY LIENS" means Liens entered into or
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assumed after April 30, 1996 which (i) finances the purchase and
acquisition by Borrower of any New Facility as permitted under Section
6.1 hereof, (ii) secures an amount equal to the lesser of (x) the then
existing indebtedness on such New Facility prior to the time of
purchase, or (y) seventy-five percent (75%) of the purchase price of
such New Facility, and (iii) encumbers only the New Facility so
acquired by Borrower.
2.7. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"PRUEXPRESS LOANS" means that certain $13,000,000 term loan made
by Lender to Borrower under Loan No. 0-000-000 secured by the real
property commonly known as Xxxxx Ranch and that certain $17,500,000
term loan made by Lender to Borrower under Loan No. 0-000-000 secured
by the real property commonly known as Montanosa Apartments.
2.8. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"PRUEXPRESS LIENS" means the Liens securing the PruExpress Loans.
2.9. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"UNENCUMBERED ASSETS" means the sum of the Consolidated
Book Value of all Facilities which are not encumbered in
whole or in part by any Lien.
2.10. Section 1.1 of the Loan Agreement shall be amended by adding the
following definition to be inserted therein in alphabetical order:
"UNSECURED DEBT" means the aggregate of all
Indebtedness which is not secured in whole or in part by any
Lien.
2.11. Section 1.1 of the Loan Agreement shall be amended by deleting
the definitions of "Union Line of Credit" and "Union Liens."
2.12. Section 5.12 of the Loan Agreement shall be amended, in its
entirety, to provide as follows:
5.12 OBTAIN/MAINTAIN RATING.
On or before November 30, 1996, Borrower will obtain, and shall
thereafter always maintain in effect, a rating for the long-term
unsecured debt of Borrower from Standard & Poor's Rating Group, Xxxxx
Investor Services, Fitch Investor Services, Duff & Xxxxxx or any other
nationally recognized rating agency approved by Lender (an "Approved
Rating Agency"). After receiving such rating, Borrower shall take all
steps necessary to maintain such rating and shall provide the Approved
Rating Agency and Lender with all such information as may be necessary
to monitor, assess and maintain such rating. Borrower shall pay all of
the fees, costs and expenses incurred in connection with obtaining and
maintaining such rating.
2.13. A new Section 5.13 of the Loan Agreement shall be added thereto
and shall provide, in its entirety, as follows:
5.13 INFORMATION REQUIRED BY RULE 144A. Borrower
covenants that it will, upon the request of
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Lender, provide Lender, and any qualified institutional buyer
designated by Lender, such financial and other information as such
holder may reasonably determine to be necessary in order to permit
compliance with the information requirements of Rule 144A under the
Securities Act of 1933 in connection with the resale of the Loan and
the Note, except at such times as the Borrower is subject to the
reporting requirements of section 13 or 15(d) of the Securities
Exchange Act of 1934. For the purpose of this Section 5.13, the term
"qualified institutional buyer" shall have the meaning specified in
Rule 144A under the Securities Act of 1933.
2.14. Section 6.9 of the Loan Agreement shall be amended, in its
entirety, to provide as follows:
6.9 FINANCIAL COVENANTS.
Borrower shall at all times comply with the terms of this Section
6.9 provided that compliance with the terms of this Section 6.9 shall
be measured quarterly as of the last day of each fiscal quarter of
Borrower.
A. TANGIBLE NET WORTH. Borrower will not permit its
Tangible Net Worth to be less than Three Hundred Million Dollars
($300,000,000).
B. INDEBTEDNESS TO CONSOLIDATED BOOK VALUE. Borrower and
the Consolidated Partnership shall not create, incur, suffer or
allow to exist Indebtedness (including, with respect to the Sanwa
Line of Credit and the Bank of America Line of Credit, only the
funded portion of such line of credit indebtedness within the
calculation of Indebtedness) in excess of fifty-five percent
(55%) of Consolidated Book Value.
C. MAXIMUM SECURED DEBT. Borrower and the Consolidated
Partnership shall not create, incur, suffer or allow to exist
Indebtedness secured in whole or in part by any of its properties
(including, without limitation, the Facilities, but excluding,
for the purpose of this Section 6.9.C only, this Loan from the
calculation of such secured Indebtedness) or other assets which
at any time exceeds twenty-five percent (25%) of Consolidated
Book Value.
D. DEBT SERVICE COVERAGE. Borrower and the Consolidated
Partnership shall not permit or allow the Debt Service Coverage
to be less than 2.2 to 1.0.
E. UNSECURED DEBT TO UNENCUMBERED ASSETS. Borrower and the
Consolidated Partnership shall not create, incur, suffer or allow
to exist Unsecured Debt (including, with respect to the Sanwa
Line of Credit and the Bank of America Line of Credit, only the
funded portion of such line of credit indebtedness within the
calculation of Indebtedness) in excess of fifty percent (50%) of
Unencumbered Assets.
2.15. Section 6.12 of the Loan Agreement shall be amended, in its
entirety, to provide as follows:
6.12 NO COLLATERAL FOR LINES OF CREDIT.
As of the date hereof, Borrower shall have converted
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the Sanwa Line of Credit into an unsecured facility and shall have
caused a release and reconveyance of all Liens on the Sanwa
Properties. Neither the Sanwa Line of Credit, the Bank of America
Line of Credit nor any other revolving, line of credit, or other
general Indebtedness shall be at any time secured in whole or in part
by the Facilities or any assets of Borrower.
2.16. Section 7.2.A of the Loan Agreement shall be amended, in its
entirety, to provide as follows:
A. FAILURE TO MAKE PAYMENTS. Failure of Borrower or
the Consolidated Partnership to pay when due any principal
or interest on any Indebtedness (including, without
limitation, the Tango Loan, the Sanwa Line of Credit, the
Bank of America Line of Credit, and/or the Existing BRE
Secured Debt) (other than Indebtedness referred to in
Section 7.1 and Section 7.2.C) or Contingent Obligation; or
2.17. Section 7.2.C of the Loan Agreement shall be amended, in its
entirety, to provide as follows:
C. DEFAULT UNDER PRUDENTIAL LOANS. Any default,
Event of Default or Potential Event of Default under or as
defined in any of the 525 Loan Documents or under or with
respect to any loan document evidencing, securing or
relating to any of the PruExpress Loans; or
2.18. Section 7.14 of the Loan Agreement shall be amended, in its
entirety, to provide as follows:
7.14 FAILURE TO OBTAIN/MAINTAIN RATING.
On and after November 30, 1996, Borrower shall have failed to
obtain or maintain a rating for the long-term unsecured debt of
Borrower from an Approved Rating Agency;
2.19. A new Section 9.5 shall be added to the Loan Agreement which
shall provide, in its entirety, as follows:
9.5 CONVERSION OF PRUEXPRESS LOANS TO UNSECURED LOANS.
A. Borrower and Lender understand, acknowledge and agree that in
connection with obtaining Lender's consent and approval of
Borrower's assumption of Original Borrower's obligations,
Borrower and Lender have mutually agreed that, upon Lender's
election (to be exercised or not exercised by Lender in its sole
and absolute discretion), the PruExpress Loans shall be converted
into unsecured facilities and shall be amended such that (i) the
PruExpress Loans shall be fully recourse to Borrower, (ii) the
PruExpress Loans shall be governed by a loan agreement and
financial covenants in substantially the same form and substance
of this Agreement, (iii) the PruExpress Liens shall be released
and reconveyed as security for the PruExpress Loans, and (iv) on
and after such conversion, the PruExpress Loans shall be
unsecured loans and the California one-action and antideficiency
laws relating to real property secured transactions (including,
without limitation, Sections 580a, 580b, 580d, and 726 of the
California Code of Civil Procedure) shall not apply to the
PruExpress Loans or be available to Borrower as a defense or
right with respect to the PruExpress Loans.
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2.20. EXHIBIT A to the Loan Agreement shall be replaced with SCHEDULE
ONE attached hereto.
2.21. EXHIBIT F to the Loan Agreement shall be replaced with an update
thereto attached as SCHEDULE TWO hereto.
2.22. A new EXHIBIT M shall be added to the Loan Agreement in the form
attached hereto as SCHEDULE THREE.
3. REPRESENTATIONS AND WARRANTIES. Borrower makes the following
representations and warranties to Lender all of which are material and are made
to induce Lender to enter into this Amendment.
3.1. All representations and warranties in the Loan Documents were
true, accurate and complete in every material respect as of the date
made and are true, accurate and complete in every respect as of the
date hereof, and do not fail to disclose any material fact necessary
to make the representations not misleading.
3.2. Borrower has full power, legal capacity and authority to execute
and deliver this Amendment.
3.3. This Amendment has been duly authorized, executed and delivered
by Borrower.
4. NO OTHER MODIFICATIONS. Except as provided herein, the Loan Agreement
shall remain unchanged and in full force and effect.
5. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of California.
6. SEVERABILITY. If any term, provision, covenant or condition of this
Amendment or any application thereof should be held by a court of competent
jurisdiction to be invalid, void or unenforceable, all terms, provisions,
covenants and conditions hereof and all applications thereof not held invalid,
void or unenforceable shall continue in full force and effect and shall in no
way be affected, impaired or invalidated thereby.
7. SUCCESSOR AND ASSIGNS. The provisions of this Amendment shall be
binding upon and inure solely to the benefit of Lender and Borrower, and their
respective heirs, legal representatives, successors and assigns.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original, and all of which counterparts, taken together, shall constitute but
one and the same Amendment.
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IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to be
executed as of the day and year first above written.
BORROWER:
BRE PROPERTIES, INC., a Maryland corporation
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDER:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
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Its:
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SCHEDULE ONE
EXHIBIT A
COMPLIANCE CERTIFICATE
The Prudential Insurance
Company of America
Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Regional Counsel
Gentlemen:
I, the undersigned, the _________________________ of BRE Properties,
Inc., a Maryland corporation ("Borrower"), do hereby certify, represent and
warrant as follows:
1. This Certificate is furnished pursuant to [Section 3.1.L] [Section
5.1.A.[(i)][(b)]] of that certain Loan Agreement dated as of July 5, 1995, as
amended ______, 1996, as further amended from time to time (the "Loan
Agreement", the terms defined therein being used herein as therein defined) by
and between Borrower and The Prudential Insurance Company of America, a New
Jersey corporation ("Lender").
2. SCHEDULE 1 attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with Section 6.9 of the Loan Agreement, all
of which data and computations are complete, true and correct.
3. No Event of Default or Potential Event of Default under the Loan
Agreement or the other Loan Documents has occurred and is continuing.
4. The representations and warranties set forth in Article 4 of the Loan
Agreement are true and correct as of the date hereof as though made on and as of
the date hereof.
5. The total credit commitments relating to, and the principal balance
of, all Indebtedness of the Borrower and the Consolidated Partnership as of
___________ __, 19__ are as follows:
LENDER/CREDITOR COMMITTED AMOUNT PRINCIPAL BALANCE
--------------- ---------------- -----------------
Prudential $18,000,000 $_____________
525 Prudential Loan $55,000,000 $_____________
Sanwa $__________ $_____________
Bank of America $70,000,000 $_____________
Tango Loan $ 4,300,000 $_____________
Existing BRE
Secured Debt ___________ $_____________
New Purchase
Money Liens ___________ $_____________
_______________ ___________ $_____________
6. The total credit commitments relating to, and the principal balance
of, all secured Indebtedness of the Borrower and the Consolidated Partnership as
of ___________ __, 19__ are as follows:
LENDER/CREDITOR COMMITTED AMOUNT PRINCIPAL BALANCE
--------------- ---------------- -----------------
Prudential $18,000,000 $_____________
Tango Loan $ 4,300,000 $_____________
Existing BRE
Secured Debt $___________ $_____________
New Purchase
Money Liens $___________ $_____________
The only properties and/or assets serving as security for secured
Indebtedness of the Borrower and the Consolidated Partnership are the Secured
Facilities, the Existing BRE Properties, the Tango Property, and the New
Facilities encumbered by the New Purchase Money Liens as shown on SCHEDULE 2
attached hereto.
7. The total credit commitments relating to, and the principal balance
of, all unsecured Indebtedness of the Borrower and the Consolidated Partnership
as of ___________ __, 19__ are as follows:
LENDER/CREDITOR COMMITTED AMOUNT PRINCIPAL BALANCE
--------------- ---------------- -----------------
525 Prudential Loan $55,000,000 $_____________
Sanwa $__________ $_____________
Bank of America $70,000,000 $_____________
_______________ $_____________
_______________ $_____________
8. The total unencumbered assets/Facilities of Borrower (as well as the
Consolidated Book Value thereof) are listed on the attached SCHEDULE 3 hereof.
Executed this ____ day of _____________, 19__.
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Name:
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Title:
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Schedule 1
To
Compliance Certificate
For the _____________ Ended ______________, 19__
SECTION 6.9.A TANGIBLE NET WORTH ($ Thousands)
A. Consolidated Book Value:
(i) Facilities (net of accumulated
depreciation), PLUS $___________
(ii) Cash, PLUS $___________
(iii) Permitted Investments, PLUS $___________
(iv) Prepaid Expenses, PLUS $___________
(v) Equity interest in Unconsolidated
Partnership (net of Borrower's pro rata
share of Unconsolidated Partnership's
secured indebtedness), PLUS $___________
(vi) Leasehold Projects (sum of
(A)(1), and (2)) $___________
(1) aggregate book value of
Finance Leases, PLUS $___________
(2) aggregate book value of all
outstanding Existing Purchase
Money Mortgages not in default $___________
(vii) Consolidated Book Value (sum of
(A)(i) through (A)(vi), inclusive) $___________
B. Consolidated total liabilities of
Borrower and the Consolidated Partnership: $___________
C. Tangible Net Worth (A(vii)-B): $___________
D. MINIMUM TANGIBLE NET WORTH ($ THOUSANDS): $300,000
SECTION 6.9.B INDEBTEDNESS TO CONSOLIDATED
BOOK VALUE ($ Thousands)
A. Indebtedness: $___________
B. Consolidated Book Value
(from A(vii) above): $___________
C. Indebtedness to Consolidated
Book Value (A/B): ____: 1.00
D. MAXIMUM INDEBTEDNESS TO CONSOLIDATED
BOOK VALUE: .55: 1.00
SECTION 6.9.C MAXIMUM SECURED DEBT ($ Thousands)
A. Secured Indebtedness (excluding this Loan): $___________
B. MAXIMUM SECURED INDEBTEDNESS -
(TWENTY-FIVE (25%) OF
CONSOLIDATED BOOK VALUE (FROM A(vii) ABOVE): $___________
SECTION 6.9.D. DEBT SERVICE COVERAGE ($ Thousands)
(All figures are for the period from
___________ __, 19__ to ____________ __, 19__,
inclusive)
A. Net Operating Income:
(i) gross income derived from Facilities,
PLUS $___________
(ii) earnings derived from cash and
cash equivalents, PLUS $___________
(iii) net earnings derived from Unconsolidated
Partnership Interest, PLUS $___________
(iv) net rent from Leasehold Projects, PLUS $___________
(v) interest payments on Existing Purchase
Money Mortgages not in default $___________
(vi) Gross Income (sum of (i) through (v)) $___________
(vii) Operating Expenses $___________
(viii) Administrative Expenses $___________
(ix) Net Operating Income ((vi)-((vii)+(viii)) $___________
B. Debt Service
(i) Interest payments on Loan: $___________
(ii) Interest payments on all
other Indebtedness: $___________
(iii) Debt Service ((i)+(ii)) $___________
C. Debt Service Coverage Ratio ((A)(viii)/B(iii)) ____ to 1.0
D. MAXIMUM DEBT SERVICE COVERAGE RATIO: 2.2 TO 1.0
SECTION 6.9.E UNSECURED INDEBTEDNESS TO
UNENCUMBERED ASSETS ($ Thousands)
A. Unsecured Indebtedness: $___________
B. Unencumbered Assets: $___________
C. Unsecured Indebtedness to Unencumbered
Assets (A/B): ____: 1.00
D. MAXIMUM UNSECURED INDEBTEDNESS TO
UNENCUMBERED ASSETS: .50: 1.00
Schedule 2
To
Compliance Certificate
For the _____________ Ended ______________, 19__
[New Purchase Money Liens]
PROP LOC UNITS PUR PRICE LIEN AMT LTV LENDER MAT DATE %RATE
---- ---- ----- --------- -------- --- ------ -------- -----
Schedule 3
To
Compliance Certificate
For the _____________ Ended ______________, 19__
[Unencumbered Assets]
PROPERTY LOCATION UNITS CONSOLD BOOK VALUE
-------- -------- ----- ------------------
SCHEDULE TWO
Exhibit F
[Existing Facilities]
SCHEDULE THREE
Exhibit M
[Existing BRE Secured Debt]
PROPERTY LOCATION UNITS LOAN BALANCE LENDER MAT DATE %RATE
-------- -------- ----- ------------ ------ -------- -----
