AMENDED AND RESTATED
MODIFICATION AGREEMENT
TO SYNDICATE LOAN
TO
BRE PROPERTIES, INC.
MADE BY VARIOUS
FINANCIAL INSTITUTIONS
WITH
BANK OF AMERICA NT & SA
AS AGENT
TABLE OF CONTENTS
Page
----
Agreement.................................................................... 1
1. RECITALS........................................................... 1
2. DEFINITIONS........................................................ 1
3. MODIFICATION OF LOAN DOCUMENTS..................................... 5
4. THE CREDIT FACILITIES.............................................. 5
5. APPOINTMENT AND AUTHORIZATION OF AGENT............................. 7
6. LOAN ACCOUNTS...................................................... 8
7. PROCEDURE FOR BORROWING............................................ 9
8. CONTRACT RATE ELECTIONS WITH RESPECT TO COMMITTED LOANS............ 13
9. FEES............................................................... 13
10. PAYMENTS BY THE BORROWER........................................... 13
11. PREPAYMENTS........................................................ 14
12. USURY.............................................................. 15
13. INCREASED COSTS AND REDUCTION OF RETURN............................ 15
14. COSTS AND EXPENSES................................................. 16
15. INDEMNIFICATION BY THE BORROWER.................................... 16
16. ASSIGNMENTS, PARTICIPATIONS, ETC................................... 16
17. PUBLICITY.......................................................... 20
18. CONDITIONS PRECEDENT............................................... 20
19. CONDITIONS TO ALL BORROWINGS....................................... 20
20. AUTHORIZATION AND ENFORCEABILITY REPRESENTATIONS................... 20
21. CONSENT TO JURISDICTION............................................ 20
22. INCORPORATION...................................................... 20
23. NO IMPAIRMENT...................................................... 21
24. EFFECTIVENESS; ALLOCATION OF CERTAIN PAYMENTS; INTEGRATION......... 21
25. ELECTRONIC NOTICES................................................. 21
26. NOTICES............................................................ 21
27. NO BANKRUPTCY PROCEEDINGS AGAINST DESIGNATED BID LENDERS........... 22
28. MISCELLANEOUS...................................................... 23
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AMENDED AND RESTATED
MODIFICATION AGREEMENT
TO SYNDICATE LOAN
This Amended and Restated Modification Agreement ("Agreement") is made as
of July 8, 1997, by BRE PROPERTIES, INC., a Maryland corporation (the
"Borrower"); BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association ("BofA"); the several financial institutions from time to
time party to this Agreement (collectively, the "Banks", and individually a
"Bank"); and such entities as may from time to time hereafter become Designated
Bid Lenders (as defined below) in accordance with the provisions hereof.
FACTUAL BACKGROUND
A. Bank of America National Trust and Savings Association ("BofA"),
Manufacturers Bank ("Manufacturers"), The Industrial Bank of Japan, Limited, Los
Angeles Agency ("IBJ"), and Commerzbank AG, Los Angeles Branch ("Commerzbank")
have agreed to make a loan (the "Loan") to the Borrower in accordance with an
Unsecured Line of Credit Loan Agreement dated April 4, 1996, as amended by the
Modification Agreement to Syndicate Loan, dated as of April 4, 1996 (the "First
Modification"), by the Second Modification Agreement, dated as of October 22,
1996 ("Second Modification"), and by a letter agreement dated February 7, 1997
(as so amended, and as at any time further amended (including, without
limitation, pursuant to the amendment and restatement referred to below), the
"Loan Agreement"). IBJ acquired its interest in the Loan pursuant to an
Assignment and Assumption Agreement dated as of June 19, 1996 between BofA and
IBJ (the "IBJ Assignment"). Capitalized terms used herein without definition
have the meanings given to them in the Loan Agreement or in the Note, as
applicable. The Loan is currently evidenced by an Amended and Restated
Promissory Note dated as of April 4, 1996 in the stated principal amount of
$120,000,000.
B. The Borrower and the Banks desire to amend the Loan Documents, among
other things, to decrease the Commitment from $120,000,000 to $115,000,000 (and,
in connection therewith, to decrease BofA's share of the Commitment from
$55,000,000 to $50,000,000), to extend the Maturity Date of the Line of Credit,
to change the Applicable Margin and fees applicable to the credit facilities
provided for under the Loan Documents, to provide for the availability of
advances on a bid basis, and to make certain related modifications to the Loan
Documents.
C. In connection with the foregoing modifications, (i) the Borrower and
BofA have entered into an Amended and Restated Unsecured Line of Credit Loan
Agreement dated as of July 8, 1997, and (ii) the Borrower, the Agent and the
Banks wish to amend and restate the Modification Agreement to Syndicate Loan,
all as set forth herein.
AGREEMENT
Therefore, the Borrower and Banks agree as follows:
1. RECITALS. The recitals set forth above in the Factual Background are
correct.
2. DEFINITIONS. As used herein, the following words have the meanings
indicated.
"ABSOLUTE RATE" means, in connection with any Absolute Rate Auction,
the rate of interest per annum (expressed in multiples of 1/1000th of one
basis point) offered for any Bid Loan to be made pursuant thereto.
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 7(b).
"ABSOLUTE RATE BID LOAN" means a Bid Loan that bears interest at an
Absolute Rate.
"ADVANCE" means any advance of proceeds, whether of a Committed Loan
or a Bid Loan, made pursuant to the terms of the Loan Documents.
"AFFILIATE" means, as to any Person, any other Person, which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, by contract or otherwise.
"AGENT" means BofA in its capacity as agent for the Banks hereunder,
and any successor agent.
"AGENT-RELATED PERSONS" means BofA and any successor agent hereunder,
together with their respective Affiliates and the officers, directors,
employees and agents of such Persons.
"AGENT'S PAYMENT OFFICE" means the address for payments set forth
herein for the Agent, or such other address as the Agent may specify.
"BANK" has the meaning specified in the introductory sentence of this
Agreement; BofA in its capacity as a lender hereunder is one of the Banks.
"BID LOAN" means an Advance by a Bank or its Designated Bid Lender
pursuant to the Bid Loan Facility, and may be either an Absolute Rate Bid
Loan or a LIBOR Bid Loan.
"BID LOAN FACILITY" means the credit facility for the requesting and
making of Bid Loans described in Section 7(b).
"BID LOAN RATE PERIOD" means (i) with respect to a LIBOR Bid Loan, the
period, commencing on the date of such LIBOR Bid Loan and ending on a date
(determined by the Agent in accordance with the practices of the London
U.S. dollar inter-bank market) that is one, two, three or six months later,
but not extending beyond the Maturity Date; and (ii) with respect to an
Absolute Rate Bid Loan, commencing on the date of such Absolute Rate Bid
Loan and ending on a Banking Day that is at least 14, but no more than 180
days, later (but not extending beyond the Maturity Date), as specified by
the Borrower in the relevant Competitive Bid Request.
"BID LOAN FACILITY LIMIT" means, at any time, an amount equal to fifty
percent (50%) of the Maximum Loan Amount.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"BORROWING" means a borrowing hereunder consisting of Advances of the
same type (I.E., Committed Loans, Absolute Rate Bid Loans, or LIBOR Bid
Loans) made to the Borrower on the same day and (except in the case of
Committed Loans accruing interest at the Reference-based Rate) having the
same Rate Period or Bid Loan Rate Period, as the case may be.
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"CAPITAL ADEQUACY REGULATION" means any guideline or directive of any
central bank or other Governmental Authority, or any other law, rule or
regulation regarding capital adequacy of a Bank or of any corporation
controlling a Bank.
"COMMITTED LOAN" means an Advance made by the Banks pursuant to the
Line of Credit described in Section 1.1 of the Loan Agreement.
"COMMITTED LOAN AVAILABILITY" means, at any time, the Maximum Loan
Amount less the aggregate principal amount of all Bid Loans then
outstanding.
"COMMITMENT" means the amount of the Line of Credit for which each
Bank is obligated.
"COMPETITIVE BID" means an offer by a Bank to make a Bid Loan in
response to a Competitive Bid Request.
"COMPETITIVE BID REQUEST" means a notice, in substantially the form of
Exhibit C, requesting that the Banks submit bids for a Bid Loan.
"DESIGNATED BID LENDER" means a special purpose corporation, organized
under the laws of the United States or any subdivision thereof, that is
engaged in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business and that (i) shall have become a party
to this Agreement and the Co-Lender Agreement pursuant to Section 16(e),
and (ii) is not otherwise a Bank. References herein to a Bank's Designated
Bid Lender or a Designating Bank's Designated Bid Lender mean the
Designated Bid Lender party to a Designation Agreement with such Bank or
Designating Bank.
"DESIGNATING BANK" means a Bank that has entered into a Designation
Agreement with a Designated Bid Lender pursuant to Section 16(e).
"DESIGNATION AGREEMENT" means a designation agreement, in
substantially the form of Exhibit E, entered into by a Bank and a
Designated Bid Lender and accepted by the Borrower and the Agent.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank or investment bank
organized under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $100,000,000; (ii) a
Person that is primarily engaged in the business of commercial banking and
is an Affiliate of a Bank; and (iii) any other Person approved by Majority
Banks and the Agent.
"FEDERAL FUNDS RATE" means, for any day, the rate published by the
Federal Reserve Bank of New York for the preceding Banking Day as "Federal
Funds (Effective)"; (or, if not published, the arithmetic mean of the rates
for overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day quoted by three brokers of Federal Funds in New York City
as determined by the Agent).
"INDEMNIFIED LIABILITIES" has the meaning given in Section 15 entitled
"Indemnification by the Borrower".
"INDEMNIFIED PERSON" has the meaning given in Section 15 entitled
"Indemnification by the Borrower".
"GAAP" means generally accepted accounting principles set forth in
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the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" means any government, state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any entity owned or controlled through
capital ownership or otherwise by any of the foregoing.
"LENDING OFFICE" means, as to any Bank or Designated Bid Lender, the
office specified as its Lending Office on Schedule I or as such Person may
designate to the Borrower and the Agent.
"LIBOR AUCTION" means a solicitation of Competitive Bids setting forth
LIBOR Bid Margins pursuant to Section 7(b).
"LIBOR BID LOAN" means a Bid Loan that bears interest at the relevant
LIBOR Bid Margin above (or below, as the case may be) the LIBOR Rate
(determined as described in the definition of "LIBOR Bid Margin").
"LIBOR BID MARGIN" means, in connection with any LIBOR Auction, a
margin (expressed in multiples of 1/1000th of one basis point) above or
below the LIBOR Rate (determined, with respect to any LIBOR Bid Loan, in
the same manner as the LIBOR Rate is determined under the Note, except
based on the principal amount and Bid Loan Rate Period of the relevant
LIBOR Bid Loan) offered for any Bid Loan to be made pursuant thereto.
"LIQUIDITY PROVIDER" means, for any Designated Bid Lender and at any
time, on a collective basis, the financial institutions that at such date
are providing liquidity or credit support facilities to or for the account
of such Designated Bid Lender to fund such Designated Bid Lender's
obligations hereunder or to support the securities, if any, issued by such
Designated Bid Lender to fund such obligations.
"LOAN DOCUMENTS" means the Loan Agreement, the Note and any other
documents designated as "Loan Documents" in the Loan Agreement. This
Agreement is a Loan Document.
"MAJORITY BANKS" means, at any time, a Bank or Banks then having in
excess of 66 2/3% of the Commitments (or, if the Commitments have been
terminated pursuant to the Loan Documents, holding in excess of 66 2/3% of
the then aggregate unpaid principal amount of the Advances, determined as
if each Designating Bank held (in addition to outstanding Committed Loans
and Bid Loans made for its own account) all outstanding Bid Loans made by
its Designated Bid Lender).
"NOTE" means the Amended and Restated Promissory Note executed by the
Borrower in favor of the Agent pursuant to the amendment and restatement of
the Loan Agreement referred to above.
"OBLIGATIONS" means all advances, debts, liabilities, obligations and
covenants arising under any Loan Document owing by the Borrower to any Bank
or Designated Bid Lender, the Agent or any Indemnified Person, whether
absolute or contingent, due or to become due, now existing or hereafter
arising.
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"PERSON" means any natural person, employee, corporation, limited
partnership, general partnership, joint stock company, limited liability
company, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, or any other non-governmental entity, or any Governmental
Authority.
"PRO RATA SHARE" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal rounded to the eleventh decimal place)
at such time of such Bank's share of the Maximum Loan Amount.
"SUBSIDIARY" of a Person means any other Person of which 50% or more
of the voting stock, membership interests or other equity interests is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof.
3. MODIFICATION OF LOAN DOCUMENTS. The Loan Documents are hereby amended
as follows, subject to the terms and conditions hereof:
(a) The Note is modified so that:
(i) "Bank" means the Agent acting as agent for the Banks, except
that each reference to "Bank" in Sections 6, 7 and 18 of the Note and in
Paragraph 5 of Exhibit B to the Note is modified to mean "Banks and
Designated Bid Lenders", or "each Bank or Designated Bid Lender", as the
context requires;
(ii) "Banking Day" means, with respect to any LIBOR Bid Loan, the
same as "Banking Day" with respect to the LIBOR Alternative;
(iii) "Rate Period" means, in any context relating to a Bid
Loan, the applicable Bid Loan Rate Period; and
The Note shall evidence all Advances, and, except to the extent
inconsistent with the express provisions of this Agreement, the terms of
the Note (including, without limitation, the provisions relating to the
Default Rate) shall apply to Bid Loans in addition to Committed Loans.
(b) The Loan Agreement is modified so that "Bank" means the Agent
acting as agent for the Banks, except that (i) in Sections 1.4(d) and 6.4(h),
the reference to "Bank" is modified to mean "BofA", (ii) each reference to
"Bank" in Section 5 (all subsections) and Section 9.8 of the Loan Agreement is
modified to mean "Banks" or "each Bank", as the context requires, and (iii) the
reference to "Bank" in Section 9.9 of the Loan Agreement is modified to mean
"Banks and Designated Bid Lenders".
4. THE CREDIT FACILITIES.
(a) LINE OF CREDIT.
(i) Subject to the terms and conditions hereof, each Bank agrees
to fund its Pro Rata Share of each Committed Loan under the Line of Credit
from time to time during the Availability Period; PROVIDED, HOWEVER, that
at no time shall the aggregate principal amount of all Committed Loans then
outstanding exceed the Committed Loan Availability. The proceeds of each
such Advance shall be delivered to the Borrower in accordance with the
provisions of the Loan Documents.
(ii) The Borrower and each Bank acknowledge that, as of the
Effective Date, the Loan, the principal amount outstanding thereunder, and
each Bank's Pro Rata Share and Commitment (by dollar amount) are:
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(A) The Loan: $115,000,000
(B) Total Current Outstanding Principal
(as of the date of this Agreement): $ 0.00
(C) Each Bank's Pro Rata Share of the Loan:
BofA: 43.47826086957%
Manufacturers: 13.04347826087%
IBJ: 21.73913043478%
Commerzbank: 21.73913043478%
----------------
100.00000000000%
(D) Each Bank's Commitment:
BofA: $50,000,000
Manufacturers: $15,000,000
IBJ: $25,000,000
Commerzbank: $25,000,000
----------------
$115,000,000
(b) BID LOAN FACILITY.
(i) In addition to its agreement to make Committed Loans under
the Line of Credit, each Bank severally agrees that, subject to the
conditions that at the time of the Borrower's submission of the relevant
Competitive Bid Request (X) the Borrower's Rating (as determined for
purposes of the definition of "Applicable Margin") is at least BBB/Baa2 or
the equivalent, and (Y) no Event of Default or event that, with the giving
of notice or the lapse of time, or both, has occurred and is continuing,
the Borrower may, in accordance with this Section 4(b) and the other
relevant provisions of the Loan Documents, from time to time request that
the Banks, during the Availability Period, submit offers to make Bid Loans
to the Borrower; PROVIDED, HOWEVER, that the Banks may, but shall not be
obligated to, submit such offers, and the Borrower may, but shall not be
obligated to, accept any such offers; and PROVIDED FURTHER that (A) at no
time shall the aggregate principal amount of all Advances (whether
Committed Loans or Bid Loans) at any time outstanding exceed the Maximum
Loan Amount; (B) at no time shall the aggregate principal amount of all Bid
Loans exceed the Bid Loan Facility Limit; and (C) at no time may the number
of Bid Loan Rate Periods then outstanding plus the number of Rate Periods
for Committed Loans then outstanding exceed eight. The obligation of a
Bank to fund its Pro Rata Share of Committed Loans shall be unaffected by
its (or its Designated Bid Lender's) making of any Bid Loans,
notwithstanding that the sum of such Bank's Pro Rata Share of the aggregate
principal amount of the outstanding Committed Loans, plus the aggregate
amount of such Bank's (and its Designated Bid Lender's) outstanding Bid
Loans, may exceed such Bank's Commitment.
(ii) On the last day of each Bid Loan Rate Period, the Borrower
shall pay to the Agent, for the respective accounts of the Banks and
Designated Bid Lenders making Bid Loans ending thereon, the full amount of
the principal of, and accrued and unpaid interest on, each Bid Loan ending
thereon. The Borrower's failure to pay such amount in full on such date
shall constitute an Event of Default without notice or right to cure.
(c) CERTAIN GENERAL PROVISIONS.
(i) Each Bank subsequently acquiring an interest in the
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Committed Loans shall become vested with its Pro Rata Share of Committed
Loans upon execution and delivery of the required documents and upon
payment of its Pro Rata Share of the principal balance of the outstanding
Committed Loans and any other fees, costs or expenses due hereunder or
pursuant to another agreement. Upon such payment, the respective interests
of each Bank in the Loan Documents and the other rights and claims with
respect to the Line of Credit shall be of equal priority with one another,
except as otherwise expressly provided.
(ii) A complete set of Loan Documents shall be held by the
Agent.
(iii) No Bank other than a Bank that is also the Agent, and no
Designated Bid Lender, shall have any interest in any (A) property taken as
security for any other loan or financial accommodation made or furnished to
the Borrower by the Agent (in which such Bank or Designated Bid Lender has
not acquired an interest); (B) property now or hereafter in the Agent's
possession or under the Agent's control other than by reason of the Loan
Documents; or (C) deposits which may be or might become security for the
Borrower's Obligations by reason of the general description contained in
any instrument not a Loan Document held by the Agent or by reason of any
right of setoff, counterclaim, banker's lien or otherwise. If, however,
such property shall actually be applied to the payment of amounts owing by
the Borrower in connection with the Advances, then each Bank and Designated
Bid Lender shall be entitled to a pro rata share, if any, of such
application to amounts due in connection with the Advances, based on the
ratio of the outstanding principal amount of all Advances made by such Bank
(whether under the Line of Credit or the Bid Loan Facility) or Designated
Bid Lender to the outstanding principal amount of all Advances.
(iv) All the parties agree that, except as may be otherwise
expressly provided, all of the interest rates for the Advances are those of
and are calculated in accordance with the requirements and any applicable
assessments of the Agent, regardless of which Bank or Designated Bid Lender
is making an Advance or receiving a payment thereon.
(v) If, at any time or for any reason whatsoever, (A) the
aggregate principal amount of all outstanding Committed Loans shall exceed
the Committed Loan Availability, or (B) the aggregate amount of all
outstanding Bid Loans shall exceed the Bid Loan Facility Limit, or (C) the
aggregate amount of all outstanding Advances (whether Committed Loans or
Bid Loans) shall exceed the Maximum Loan Amount, then the Borrower shall
immediately pay to the Banks (for their own account and for the accounts of
their respective Designated Bid Lenders, as applicable), the amount of such
excess, to be applied to repayment of the affected Advances in such order
as the Agent may determine, in its sole discretion.
5. APPOINTMENT AND AUTHORIZATION OF AGENT.
(a) Each Bank hereby irrevocably appoints, designates and authorizes
the Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably incidental
thereto and as further provided in the Co-Lender Agreement described below.
(b) Subject to the limitations set forth in the Loan Documents
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and Co-Lender Agreement, Agent's powers include but are not limited to the
power: (i) to administer, manage and service the Line of Credit and the Bid
Loan Facility; (ii) to enforce the Loan Documents; (iii) to make all decisions
under the Loan Documents in connection with the day-to-day administration of the
Line of Credit and Bid Loan Facility, any inspections authorized by the Loan
Documents, and other routine administration and servicing matters; (iv) to
collect and receive from the Borrower or any third persons all payments of
amounts due under the terms of the Loan Documents and to distribute the amounts
thereof to the Banks, for their own account and for the respective accounts of
their Designated Bid Lenders; (v) to collect and distribute or disburse all
other amounts due under the Loan Documents; (vi) to grant or withhold consents,
approvals or waivers, and make any other determinations in connection with the
Loan Documents; and (vii) to exercise all such powers as are incidental to any
of the foregoing matters. The Agent shall furnish to Banks, for their own use
and for transmittal to their Designated Bid Lenders, copies of material
documents, including confidential ones, received from the Borrower regarding the
Line of Credit or the Bid Loan Facility, the Loan Documents and the transactions
contemplated thereby. The Agent shall have no responsibility with respect to
the authenticity, validity, accuracy or completeness of the information
provided.
(c) Notwithstanding any provision to the contrary contained in any
Loan Document, the Agent shall not have any duties or responsibilities, except
those expressly set forth in the Loan Documents or the Co-Lender Agreement, nor
shall the Agent have any fiduciary relationship with any Bank or Designated Bid
Lender, and no implied covenants, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document against
the Agent.
(d) The Borrower acknowledges that the Banks (and each Designated Bid
Lender at any time party to a Designation Agreement) have executed a Co-Lender
Agreement (as amended from time to time, the "Co-Lender Agreement") to
supplement the Loan Documents with respect to the relationship of the Banks, the
Designated Bid Lenders and the Agent among themselves in connection with the
credit facilities provided under the Loan Documents. The Co-Lender Agreement is
not a Loan Document.
(e) The Agent may, and at the request of the Majority Banks shall,
resign as Agent upon 30 days' notice to the Banks. If the Agent resigns under
this Agreement, the Majority Banks shall appoint from among the Banks a
successor agent. If no successor agent is appointed prior to the effective date
of the resignation of the Agent, the Agent may appoint, after consulting with
the Banks, a successor agent from among the Banks. Upon the acceptance of
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent, and the retiring Agent's appointment, powers
and duties as Agent shall terminate. After any retiring the Agent's resignation
hereunder as Agent, the provisions regarding payment of costs and expenses and
indemnification of the Agent shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Agent under this Agreement. If no
successor agent has accepted appointment as the Agent by the date which is 30
days following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective, and the Banks shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Majority Banks appoint a successor agent.
6. LOAN ACCOUNTS. The Advances made by each Bank or Designated Bid
Lender shall be evidenced by one or more loan accounts or records maintained by
such Bank, Designated Bid Lender (and its Designating Bank) or the Agent, as the
case may be, in the ordinary course of business. The loan accounts or
8
records maintained by the Agent and each Bank or Designated Bid Lender (and its
Designating Bank) shall be conclusive absent manifest error of the amount of the
Advances made by the Banks or Designated Bid Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to Advances made under the Loan
Documents.
7. PROCEDURE FOR BORROWING.
(a) COMMITTED LOANS.
(i) Each Borrowing under the Line of Credit shall be made upon
the Borrower's irrevocable written notice delivered to the Agent in
accordance with the Loan Agreement.
(ii) The Agent will promptly notify each Bank of any Notice of
Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing. The Banks, acting through the Agent, shall disburse the
requested Advance as provided in the Loan Agreement.
(b) BID LOANS.
(i) When the Borrower desires to effect a Borrowing (or
Borrowings) consisting of one or more Bid Loans, but not more often than
twice in any calendar month, the Borrower shall notify the Agent by
telephone, followed promptly by facsimile of a Competitive Bid Request in
the form of Exhibit C (to be received no later than 10:00 a.m., San
Francisco time, (x) in the case of a LIBOR Auction, four Banking Days prior
to the date of the proposed Borrowing(s), or (y) in the case of an Absolute
Rate Auction, two Banking Days prior to the date of the proposed
Borrowing(s)), specifying (among the other information required by Exhibit
C):
(A) the date of such Borrowing(s), which shall be a Banking
Day;
(B) the aggregate amount of such Borrowing(s), which shall
be in an amount (subject to the limitations set forth in other provisions
of the Loan Documents) equal to $10,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(C) whether the requested Borrowing(s) is/are to be made as
either (1) one or more LIBOR Bid Loans or (2) one or more Absolute Rate Bid
Loans; and
(D) the duration of the requested Bid Loan Rate Period
(subject to the limitations that the Borrower may request no more than
three Bid Loan Rate Periods in any single Competitive Bid Request and that
each Bid Loan Rate Period must relate to at least $5,000,000 in principal)
and, if more than one Bid Loan Rate Period is requested, the requested
principal amount of the related Borrowing.
The Borrower's right to request Competitive Bids for LIBOR Bid Loans, and
each Bank's or Designated Bid Lender's obligation to fund any LIBOR Bid Loan
pursuant to any Competitive Bid accepted by the Borrower, shall be subject
in all respects to the provisions of Section 2.2(d) of Exhibit A to the
Note, applied as if each reference therein to the "LIBOR Alternative"
referred as well to LIBOR Bid Loans.
(ii) Upon receipt of a Competitive Bid Request, the Agent
9
shall promptly send a copy thereof to each of the Banks by facsimile,
attaching thereto notice of the date and time by which responses must be
received in order to be considered by the Borrower. The Competitive Bid
Request shall not constitute an offer by the Borrower, but merely an
invitation to the Banks to submit Competitive Bids with respect to the
requested Borrowing(s).
(iii) (A) Each Bank may, in its discretion, submit a Competitive
Bid containing an offer or offers to make Bid Loans in response to any
Competitive Bid Request. Each Competitive Bid must comply with the
provisions of this Section 7(b)(iii) and must be submitted to the Agent
(or, in the case of a Competitive Bid being submitted by the Agent in its
capacity as a Bank, to the Borrower), by facsimile, no later than 6:30 a.m.
(or, in the case of a Competitive Bid by the Agent, 6:15 a.m.), San
Francisco time, (1) in the case of a LIBOR Auction, three Banking Days
prior to the date of the proposed Borrowing(s), or (2) in the case of an
Absolute Rate Auction, on the date of the proposed Borrowing(s). Each
Competitive Bid so submitted (subject only to the provisions of Section
2.2(d) of Exhibit A to the Note, as described above, and to the
satisfaction of all conditions precedent to the requested Advance) shall be
irrevocable, unless the Borrower otherwise agrees in writing.
(B) Each Competitive Bid shall be in substantially the form
of Exhibit D hereto, shall identify the submitting Bank and the date of the
proposed Borrowing(s) specified in the Competitive Bid Request to which the
submitting Bank is responding and shall specify:
(1) the principal amount of each Bid Loan for which
the Competitive Bid is being made (which shall not be limited by the
submitting Bank's Commitment, but which shall be in an amount, no greater
than the amount of the requested Borrowing, equal to $5,000,000 or an
integral multiple of $1,000,000 in excess thereof); and
(2) (a) in the case of a LIBOR Auction, the LIBOR Bid
Margin offered by the submitting Bank, or (b) in the case of an Absolute
Rate Auction, the Absolute Rate offered by the submitting Bank.
A Competitive Bid may include up to three separate offers by the submitting
Bank with respect to each Bid Loan Rate Period specified in the Competitive
Bid Request to which it responds. Any Competitive Bid that (X) does not
include all the information required by this Section 7(b)(iii)(B), (Y)
contains language that qualifies or conditions the submitting Bank's offer
to make the Bid Loan(s) described therein or proposes terms other than (or
in addition to) the terms proposed in the relevant Competitive Bid Request
OTHER THAN to set an aggregate limit on the principal amount of Bid Loans
for which offers being made by the submitting Bank may be accepted, or (Z)
is received by the Agent (or the Borrower, as applicable) after the time
set forth in Section 7(b)(ii)(A) (unless amended to bring it into
compliance prior to the time set forth in Section 7(b)(ii)(A)), shall be
disregarded.
(iv) Promptly upon receipt, but not later than 7:00 a.m. on
the date by which Competitive Bids are required to have been submitted with
respect to a Competitive Bid Request, the Agent shall notify the Borrower
of (A) the terms of each Competitive Bid (other than one that is to be
disregarded as described above) received in response to the Competitive Bid
Request, and (B) (1) the aggregate principal amount of Bid Loans for which
Competitive Bids have been received for each Rate Period requested in the
Competitive Bid Request, and (2) the
10
respective principal amounts and LIBOR Bid Margins or Absolute Rates, as
the case may be, so offered.
(v) No later than 7:30 a.m. on the date by which
Competitive Bids are required to have been submitted with respect to a
Competitive Bid Request, the Borrower shall notify the Agent of its
acceptance or rejection of the offers notified to it as provided in Section
7(b)(iv). The Borrower shall have no obligation to accept any such offer,
and may choose to reject all of them. If the Borrower has failed to timely
notify the Agent of its acceptance or rejection of any one or more offers
by the time specified in the preceding sentence, the Borrower shall be
deemed to have rejected such offer(s). The Borrower may accept any
Competitive Bid (other than one that is to be disregarded as provided
above) in whole or in part, PROVIDED THAT:
(A) the aggregate principal amount of the Competitive
Bids so accepted may not exceed the aggregate amount of the Borrowing(s)
requested in the relevant Competitive Bid Request;
(B) (1) subject to the provisions set forth below with
respect to multiple offers at the same LIBOR Bid Margin or Absolute Rate,
the principal amount of each accepted Competitive Bid must be in an amount
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (2) Competitive Bids must be accepted with respect to an
aggregate principal amount of at least $10,000,000; and
(C) with respect to each Bid Loan Rate Period for
which Competitive Bids were requested, the Borrower may accept offers
solely on the basis of ascending LIBOR Bid Margins or Absolute Rates, as
the case may be (provided that the Borrower may, to the extent necessary to
comply with the preceding paragraph (B) or to accept offers in an aggregate
principal amount equal to the aggregate amount of the Borrowing(s)
requested in the relevant Competitive Bid Request, accept only part of an
offer at a particular LIBOR Bid Margin or Absolute Rate and accept all or
part of one or more offers at a higher LIBOR Bid Margin or Absolute Rate).
If the Borrower chooses to accept one or more offers, the Borrower's notice
to the Agent shall specify the aggregate principal amount of offers with
respect to each requested Bid Loan Rate Period that it chooses to accept.
If two or more Banks offer the same LIBOR Bid Margin or Absolute Rate for
an aggregate principal amount greater than the amount for which such offers
were requested with respect to any requested Bid Loan Rate Period, then,
notwithstanding that in all other cases no Bid Loan may be made in an
amount less than $5,000,000, the Agent shall allocate the principal amount
of the affected Bid Loan among such Banks as nearly as possible (in such
multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts to which their respective
offers related. The Agent's allocation, in the absence of manifest error,
shall be conclusive.
(vi) The Agent shall promptly notify each Bank having
submitted a Competitive Bid whether its offer has been accepted and, if its
offer has been accepted, of the amount of the Bid Loan(s) to be made by it
(or its Designated Bid Lender) on the date of the relevant Borrowing(s).
Each Bid Loan shall bear interest, from and including the date it is made
to but excluding the last day of the Bid Loan Rate Period applicable
thereto, at a rate per annum equal to (A) in the case of an Absolute Rate
Bid Loan, the Absolute Rate specified by the Bank
11
making (or whose Designated Bid Lender makes) such Absolute Rate Bid Loan
in its accepted Competitive Bid, and (B) in the case of a LIBOR Bid Loan,
the sum of (1) the LIBOR Bid Margin specified by the Bank making (or whose
Designated Bid Lender makes) such LIBOR Bid Loan in its accepted
Competitive Bid, plus (2) the LIBOR Rate (determined in the same manner as
the LIBOR Rate is determined under the Note, except based on the principal
amount and Bid Loan Rate Period of such LIBOR Bid Loan).
(vii) Upon the request of any Bank, the Agent shall notify
such Bank, following a Borrowing of one or more Bid Loans, of the ranges of
bids submitted and the highest and lowest bids accepted for each Bid Loan
Rate Period requested by the Borrower and of the aggregate amount of the
Bid Loans made pursuant to such Borrowing. From time to time, the Borrower
and the Banks (for themselves and for their respective Designated Bid
Lenders) shall furnish such information to the Agent as the Agent may
reasonably request relating to the Bid Loans, including the amounts,
interest rates, dates of Borrowing and last days of the applicable Bid Loan
Rate Periods, for the purpose of enabling the Agent to allocate amounts
received from the Borrower to payment of amounts due and owing under the
Loan Documents.
(viii) All notices or other communications required or desired
to be delivered by the Borrower pursuant to this Section 7(b) shall be
given by an individual authorized to do so pursuant to Section 3.9 of
Exhibit A to the Note in a writing delivered to the Agent by the Borrower
pursuant thereto.
(ix) Any Bid Loan that would otherwise be made by a Bank
that is a Designating Bank may from time to time be made by its Designated
Bid Lender, in such Designated Bid Lender's sole discretion. Nothing
herein shall constitute a commitment to make Bid Loans by such Designated
Bid Lender; PROVIDED, HOWEVER, if such Designating Bank's Designated Bid
Lender elects not to, or fails to, make any such Bid Loan, for any reason
whatsoever, such Designating Bank shall make such Bid Loan pursuant to the
terms hereof, it being the obligation of each Designating Bank to make each
Bid Loan with respect to a Competitive Bid submitted by such Designating
Bank and accepted by Borrower, in whole or in part, pursuant hereto, except
to the extent that such Bid Loan is in fact funded by its Designated Bid
Lender.
(c) CERTAIN GENERAL PROVISIONS.
(i) (A) Each Bank shall make the aggregate amount of its
Pro Rata Share of each Committed Loan,
(B) each Bank having a Competitive Bid accepted will
make the aggregate amount of the Bid Loan(s) with respect to which its
Competitive Bid was accepted, and
(C) each Designated Bid Lender electing to fund one or
more Bid Loans that would otherwise have been made by its Designating Bank
with respect to an accepted Competitive Bid (or, if such Designated Bid
Lender fails to do so, its Designating Bank) will make the aggregate amount
of such Bid Loan(s),
available to the Agent for the account of the Borrower at the Agent's
Payment Office by 11:00 a.m. (San Francisco time) on the date of the
relevant Borrowing and in funds immediately available to the Agent. The
proceeds of all such Advances will then be made available to the Borrower
by the Agent by wire transfer in accordance with written
12
instructions provided to the Agent by the Borrower. If any Bid Loan is
funded by a Designated Bid Lender, its Designating Bank shall provide the
Agent with notice to that effect on the date of such Borrowing.
(ii) Unless the Agent receives notice from any Bank at least
one Banking Day prior to the date of a Borrowing that such Bank (or such
Bank's Designated Bid Lender, in the case of a Bid Loan) will not make
available to the Agent when required (A) its Pro Rata Share of the
Committed Loan to be made thereon, or (B) the amount of the Bid Loans to be
made by such Bank (or its Designated Bid Lender) thereon, as the case may
be, the Agent may assume that such Bank (or, if applicable, its Designated
Bid Lender) has made such amount available to the Agent in immediately
available funds on the date of such Borrowing.
(iii) The failure of any Bank or Designated Bid Lender to
make available to the Agent any amount it is required to make so available
in respect of any Borrowing shall not relieve any other Bank or Designated
Bid Lender of any obligation hereunder to make an Advance on the date of
such Borrowing, but, except to the extent expressly provided (A) in Section
7(b)(ix) with respect to the obligation of any Designating Bank to fund Bid
Loans that are not funded by its Designated Bid Lender or (B) in Section
16(e)(ii), no Bank or Designated Bid Lender shall be responsible for the
failure of any other Bank or Designated Bid Lender to make any amount so
available.
8. CONTRACT RATE ELECTIONS WITH RESPECT TO COMMITTED LOANS.
(a) The Borrower may elect interest rates applicable to the Committed
Loans in accordance with the requirements, terms and conditions set forth in the
Note upon irrevocable written notice to the Agent to be received by the Agent on
the appropriate day not later than 9:30 a.m. (San Francisco time).
(b) The Agent will promptly notify each Bank of receipt of an
election of the Contract Rate. If no timely notice is provided by the Borrower,
the Agent will promptly notify each Bank of any automatic conversion to the
Reference-based Rate. All rate elections and conversions with respect to
Committed Loans shall be made ratably according to the respective outstanding
principal amounts of the Committed Loan held by each Bank with respect to which
the notice was given.
9. FEES.
(a) AGENCY FEE. The Borrower shall pay an agency fee to the Agent
for the Agent's own account, as set forth in a separate letter understanding
between the Agent and the Borrower.
(b) AUCTION FEE. Together with the Borrower's submission of each
Competitive Bid Request, the Borrower shall pay to the Agent an auction fee in
the amount of $2,500, which fee shall be fully earned and nonrefundable upon the
Agent's transmittal of the Competitive Bid Request to the Banks, regardless of
whether the request is subsequently cancelled by the Borrower, any Bid Loans are
made by any Bank or Designated Bid Lender in response thereto or any Competitive
Bids are accepted by the Borrower.
(c) OTHER FEES. The Borrower shall pay to the Agent for the account
of each Bank, as provided in separate letter agreements between the Agent and
each Bank, the Commitment Fee and the facility fee as set forth in Section 2.1
of the Loan Agreement and any extension fee payable under Section 22 of the
Note.
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10. PAYMENTS BY THE BORROWER.
(a) All payments to be made by the Borrower shall be made without
set-off, recoupment or counterclaim. Except as otherwise provided, all payments
by the Borrower shall be made to the Agent for the account of the Banks and the
Designated Bid Lenders, as applicable, at the Agent's Payment Office, and shall
be made in U.S. dollars and in immediately available funds, in accordance with
the Loan Documents. The Agent will promptly distribute to each Bank (including,
to the extent applicable, for the account of its Designated Bid Lender, in
accordance with Section 16(e)), in like funds as received: (i) its Pro Rata
Share (or other applicable share as may be agreed by a Bank) of each payment in
respect of the Line of Credit and (ii) its (or, if applicable, its Designated
Bid Lender's) pro rata share of each payment in respect of any one or more Bid
Loans (based on the proportion of the outstanding principal amount of such
Bank's (or Designated Bid Lender's) Bid Loans in respect of which such payment
is made to all the outstanding principal amount of all Bid Loans in respect of
which such payment is made); PROVIDED THAT if any payment is received or
otherwise realized by the Agent at a time when the Availability Period has ended
and all outstanding Advances have become, or have been declared, due and
payable, then the Agent shall distribute to each Bank (including, to the extent
applicable, for the account of its Designated Bid Lender, in accordance with
Section 16(e)) its (or its Designated Bid Lender's) pro rata share thereof,
based on the proportion of the aggregate principal amount of such Bank's (or its
Designated Bid Lender's) outstanding Advances to the aggregate principal amount
of all outstanding Advances. Any payment received by the Agent later than 11:00
a.m. (San Francisco time) shall be deemed to have been received on the following
Banking Day and any applicable interest or fee shall continue to accrue.
(b) To the extent that the Borrower makes a payment to the Agent or
the Banks or Designated Bid Lenders, or the Agent or (notwithstanding any
provision of the Co-Lender Agreement to the contrary) the Banks exercise the
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including by any settlement) to be repaid to a trustee,
receiver, the Borrower or any other party, in connection with any Insolvency
Proceeding or otherwise, then (i) to the extent of such recovery the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
set-off had not occurred; and (ii) each Bank severally agrees to pay to the
Agent upon demand (A) in the case of an amount received in respect of a Bid
Loan, its allocable share of any amount so recovered from or repaid by the
Agent, and (B) in the case of any other amount received under the Loan
Documents, its Pro Rata Share of any amount so recovered from or repaid by the
Agent; and (iii) each Designated Bid Lender agrees to pay such Designated Bid
Lender's allocable share of any amount so recovered from or repaid by the Agent
in respect of any Bid Loan made by such Designated Bid Lender; PROVIDED,
HOWEVER, that the foregoing clause shall not prohibit any Designating Bank from
agreeing with its Designated Bid Lender that, as between such Designating Bank
and Designated Bid Lender, such Designating Bank shall pay to the Agent any
amount that would otherwise be due to the Agent under this Section 10(b), and
such Designated Bid Lender shall not be liable for any payment of any such
amount to the extent that its Designating Bank makes such payment.
(c) Agent shall have the exclusive right to collect on the Loan from
the Borrower or any guarantors, third parties, or otherwise including principal,
interest, fees or any prepayment premiums, whether such amounts are received
directly from the Borrower, any guarantors, or other persons, or are collected
by offset by Agent against the money or other property of the Borrower or any
guarantors deposited at or held by Agent, or other enforcement
14
of the Loan Documents. No Bank or Designated Bid Lender shall independently
initiate any judicial action or equivalent action or other proceeding against
the Borrower with respect to the Loan.
11. PREPAYMENTS.
(a) In the event the Borrower elects to prepay the Committed Loans in
whole or in part in accordance with the Loan Documents, the Agent will promptly
notify each Bank of such notice and of each Bank's Pro Rata Share of such
prepayment.
(b) Notwithstanding any other provision of this Agreement or of any
other Loan Document, the Borrower shall have no right to prepay any Bid Loan
prior to the last day of the applicable Bid Loan Rate Period.
(c) In the event of any prepayment by the Borrower of a Bid Loan
prior to the last day of the Bid Loan Rate Period applicable thereto (by reason
of acceleration or for any other reason), the Borrower shall pay to each Bank
holding an interest therein, or whose Designated Bid Lender holds an interest
therein, a prepayment premium equal to the sum of
(i) $250; and
(ii) the sum of such losses and expenses as such Bank or its
Designated Bid Lender, as applicable, may incur by reason of such
prepayment, including without limitation any losses or expenses
incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after such
prepayment.
The prepayment premium provided for herein shall be due and payable not later
than fifteen (15) days after delivery to the Borrower, by or on behalf of the
affected Bank or Designated Bid Lender, of a demand for payment accompanied by a
calculation, in reasonable detail, of such losses and expenses, which shall be
conclusive in the absence of manifest error.
(d) Each of the waivers and acknowledgments of the Borrower set forth
in Paragraphs 4 and 5 of Exhibit B to the Note shall apply to the Borrower's
covenants set forth in this Section 11 as if set forth herein.
12. USURY. If a court ultimately determines that the Loan (or any
Advance) violates applicable usury law, then (a) the Borrower shall not be
required to pay to or for the account of any Bank or Designated Bid Lender
interest on the Loan (or such Advance) at a rate in excess of the maximum rate
that may be lawfully charged under applicable law; and (b) in the event that any
Bank or Designated Bid Lender shall collect interest or other monies which are
deemed to constitute interest which would increase the effective interest rate
on the Loan (or any Advance) to a rate in excess of that permitted by applicable
law, such excess interest shall, at the option of said Bank or Designated Bid
Lender, be returned to the Borrower or credited against the principal balance of
the Loan (or such Advance) then outstanding; (c) provided, however, that if a
usury law applies to one or more but not all Banks and Designated Bid Lenders,
then the Banks and Designated Bid Lenders not affected by the usury law shall be
entitled to the full amount of interest from the Borrower under the Loan
Documents even though other Banks or Designated Bid Lenders may receive or
retain less due to the usury law.
13. INCREASED COSTS AND REDUCTION OF RETURN. If any Bank shall have
determined that a change in or compliance with any Capital Adequacy Regulation
affects the amount of capital required to be maintained by the Bank, or by any
Person controlling the Bank, and such Bank determines that the amount of such
15
required capital is increased as a consequence of the Line of Credit or other
obligations under the Loan Documents taking into consideration such Bank's or
controlling Person's policies with respect to capital adequacy and desired
return on capital, then, upon demand of such Bank to the Borrower through the
Agent, the Borrower shall pay to the Bank an additional amount sufficient to
compensate the Bank for such increase.
16
14. COSTS AND EXPENSES. The Borrower shall:
(a) pay or reimburse the Agent within five Banking Days after demand
for all costs and expenses (including legal fees) incurred by it in connection
with the preparation, administration and execution of any Loan Document and any
amendment, supplement, waiver or modification and any other documents prepared
in connection herewith or therewith, (whether or not the particular Loan,
transaction or document is consummated), including reasonable legal fees
incurred by BofA (including as Agent) with respect thereto; and
(b) pay or reimburse the Agent and each Bank within five Banking Days
after demand for all costs and expenses (including legal fees) incurred by them
in connection with the enforcement or preservation of any rights or remedies
under any Loan Document with respect to an Event of Default (including any
"workout" or restructuring of the Line of Credit or other obligations under the
Loan Documents, and any Insolvency Proceeding, judicial proceeding or
arbitration).
15. INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify, defend
and hold the Agent-Related Persons and each Bank, and each of their respective
officers, directors, employees and agents (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
actions, judgments, costs and expenses (including legal fees) which may be
incurred by or asserted against any such Person arising out of or relating to
the Line of Credit, the Bid Loan Facility, Advances under the Loan Documents or
the Loan Documents or any document or transaction or action taken or not by any
such Person in connection with any of the foregoing, including any
investigation, arbitration, litigation, Insolvency Proceeding or other
proceeding whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person; nor shall the Borrower have any
obligation to indemnify any Designating Bank in respect of any matter with
respect to which the Borrower is entitled to be indemnified pursuant to Section
16(e) or in respect of any act or omission by such Designating Bank or its
Designated Bid Lender under their Designation Agreement or any other agreement
entered into between them in connection therewith. The agreements in this
Section 15 shall survive payment of all other Obligations.
16. ASSIGNMENTS, PARTICIPATIONS, ETC.
17
(a) A Bank may at any time assign to one or more Eligible Assignees
(each an "Assignee") with the written consent of the Borrower (other than during
the existence of an Event of Default) and of the Agent (at all times), which
consent shall not be unreasonably withheld (provided that no written consent
shall be required for an Eligible Assignee that is an Affiliate of such assignor
Bank) all or part of its Pro Rata Share of the Line of Credit and the other
rights and obligations of such assignor Bank hereunder with respect to the
Committed Loans and the Line of Credit (excluding, however, its interest in any
outstanding Bid Loans), in a minimum amount (with respect to such Bank's
Commitment) of $5,000,000; provided, however, that no such assignment shall be
permitted if the effect thereof is to cause the remaining Commitment of the
assignor Bank to be less than $15,000,000, and no assignment may be made of any
outstanding Committed Loan except in connection with an assignment of a
corresponding proportional share of the assignor Bank's Commitment. However,
such assignment shall be conditioned on, and the Borrower and the Agent may
continue to deal solely and directly with such assignor Bank until, (i) written
notice of such assignment, substantially in the form of the attached Exhibit A
shall have been given to the Borrower and the Agent by such Bank and the
Assignee; (ii) such Bank and its Assignee shall have delivered to the Agent and
the Borrower an Assignment and Assumption Agreement substantially in the form of
the attached Exhibit B ("Assignment and Assumption Agreement") (together with
any Note(s) subject to such assignment); and (iii) the Assignee has paid to the
Agent a processing fee in the amount of $5,000.
(b) From the date that the Agent notifies the assignor Bank that all
conditions and requirements of the assignment have been met, then to the extent
that rights and obligations hereunder have been assigned (i) the Assignee
thereunder shall be a party hereto and shall have the rights and obligations of
a Bank under the Loan Documents and the Co-Lender Agreement, (ii) the assignor
Bank shall relinquish such assigned rights and be released from such assigned
obligations under the Loan Documents, (iii) this Agreement shall be deemed to be
amended to the extent necessary to reflect the addition of the Assignee and the
resulting adjustment of the Pro Rata Shares of the Loan arising therefrom, and
(iv) the Pro Rata Share allocated to an Assignee shall reduce the Pro Rata Share
of the assigning Bank.
(c) A Bank or Designated Bid Lender (the "originating Lender") may
sell to one or more Persons not Affiliates of the Borrower (a "Participant")
participating interests in the Line of Credit or in any Bid Loans made by the
originating Lender; provided that (i) the originating Lender's obligations under
the Loan Documents and the Co-Lender Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance of such
obligations, (iii) the Borrower and the Agent shall continue to deal solely and
directly with the originating Lender (or, in the case of a Designated Bid
Lender, its Designating Bank) in connection with the Advances and Loan
Documents, (iv) (A) no Bank shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment, consent or
waiver with respect to any Loan Document, except (1) in the case of a
participation that includes an interest in the originating Lender's Commitment,
to the extent such amendment, consent or waiver would require unanimous consent
of the Banks under Section 7(a) of the Co-Lender Agreement, or (2) in the case
of a participation that is limited to an interest in one or more Bid Loans, to
the extent such amendment, consent or waiver would take effect while such Bid
Loan(s) remained outstanding and would require the unanimous consent of the
Banks under any of the following clauses of Section 7(a) of the Co-Lender
Agreement: clause (ii), to the extent that the proposed action would affect Bid
Loans or any amount payable with respect to Bid Loans; clause (iii), to the
extent that the proposed action would affect any amount payable in connection
with Bid Loans; clause (iv); clause (v); and clause (vi); and (B) no Designated
Bid Lender shall
18
transfer or grant any participating interest under which the Participant has
rights to approve any amendment, consent or waiver with respect to any Loan
Document greater that the lesser of (1) such rights of approval as may have been
granted to such Designated Bid Lender in connection with its entry into the
relevant Designation Agreement, or (2) as described in Section 7(e)(i) as being
permitted to Designated Bid Lenders, (v) with respect to the sale of
participating interests in the Line of Credit (it being understood that the
limitations of this clause (v) shall not apply with respect to the sale of a
participating interest in all or any portion of a Bid Loan), each participating
interest in a Bank's Commitment shall be in a minimum amount of $5,000,000, and
no such participation shall be permitted if the non-participated interest of the
originating Lender in its Commitment would thereafter be less than $15,000,000.
A Participant shall not have any rights under the Loan Documents or the
Co-Lender Agreement, and all amounts payable by the Borrower hereunder shall be
determined as if the originating Lender had not sold such participation.
(d) Notwithstanding any other provision of this Agreement, any other
Loan Document or the Co-Lender Agreement: (i) a Bank or Designated Bid Lender
may pledge its interest in the Borrower's obligations under the Loan Documents
in favor of any Federal Reserve Bank in accordance with Federal law; and (ii) a
Designated Bid Lender may pledge its interest in the Borrower's obligations
under the Loan Documents in respect of any Bid Loan in favor of any Liquidity
Provider qualifying as such with respect to the Bid Loan so pledged.
(e) (i) Any Bank may at any time, with the prior written consent of
the Borrower and the Agent, which consent shall not be unreasonably
withheld, designate one Designated Bid Lender to fund Bid Loans on behalf
of such Designating Bank subject to the terms of this Section 16(e), and
the provisions of Sections 16(a), (b) and (c) shall not apply to such
designation, EXCEPT THAT no Designating Bank shall enter into any agreement
under which its Designated Bid Lender has rights to approve any amendment,
consent or waiver with respect to any Loan Document, except to the extent
such amendment, consent or waiver would amend any right of Designated Bid
Lenders or would require the unanimous consent of the Banks under any of
the following clauses of Section 7(a) of the Co-Lender Agreement: clause
(ii), to the extent that the proposed action would affect Bid Loans or any
amount payable with respect to Bid Loans; clause (iii), to the extent that
the proposed action would affect any amount payable in connection with Bid
Loans; clause (iv); clause (v), if the proposed action would take effect
while any Bid Loans made by such Designated Bid Lender were outstanding;
and clause (vi). No Bank may designate more than one Designated Bid Lender
at any one time, and, following the termination of a designation with
respect to one Designated Bid Lender, no new Designated Bid Lender may be
designated until all outstanding Bid Loans made by the prior Designated Bid
Lender have been paid in full. The parties to each such designation shall
execute and deliver to the Borrower and the Agent for their acceptance a
Designation Agreement, and, upon the Agent's receipt of (A) an
appropriately completed Designation Agreement (1) executed by a Designating
Bank and a designee representing that it is a Designated Bid Lender and (2)
accepted by the Borrower, and (B) a processing fee in the amount of $2,500,
the Agent shall accept such Designation Agreement and register such
Designated Bid Lender as a Designated Bid Lender, and give prompt notice
thereof to the Borrower, whereupon: from and after the effective date
specified in the Designation Agreement, the Designated Bid Lender shall
become a party to this Agreement and to the Co-Lender Agreement, as a
Designated Bid Lender, with (X) a right to make Bid Loans on behalf of its
Designating Bank pursuant to Section 7(b)(ix) with respect to any
Competitive Bid of such Designating Bank
19
that is accepted in whole or in part by the Borrower, and (Y) the other
rights, and the obligations, provided herein and therein, SUBJECT TO THE
LIMITATION, however, that, notwithstanding the assumption by a Designated
Bid Lender of certain of the obligations of its Designating Bank (but
without limiting the Designating Bank's obligations under the following
paragraph (ii)), no Designated Bid Lender shall be required to make
payments with respect to any of its obligations under this Agreement or any
other Loan Document, or under the Co-Lender Agreement, except to the extent
of excess cash flow of such Designated Bid Lender (I.E., cash that is not
otherwise required to repay obligations of such Designated Bid Lender that
are then due and payable).
(ii) Notwithstanding any other provision of this Agreement, any
other Loan Document or the Co-Lender Agreement: regardless of any
designation of a Designated Bid Lender hereunder, the Designating Bank
making such designation (A) shall be and remain obligated to the Borrower,
the Agent and each of the other Banks and other Designated Bid Lenders for
each and every one of the obligations of the Designating Bank and its
Designated Bid Lender with respect to this Agreement, any other Loan
Document or the Co-Lender Agreement (including, without limitation, any
indemnification obligations under the Co-Lender Agreement and other
obligation to pay any amount otherwise payable to the Borrower by the
Designated Bid Lender); and (B) shall indemnify, defend and hold the Agent,
the Borrower, each Bank and each Designated Bid Lender harmless from and
against any and all losses, costs, expenses (including reasonable
attorneys' fees and the cost of any services of in-house counsel) and
liabilities incurred by any such Person in connection with or arising from
(1) (a) the non-performance by such Designating Bank's Designated Bid
Lender of any obligation assumed by the Designated Bid Lender under its
Designation Agreement, (b) any other act or omission of the Designated Bid
Lender committed in violation of the provisions of any Loan Document or the
Co-Lender Agreement, or (c) the failure of any representation or warranty
made by such Designating Bank's Designated Bid Lender for the benefit of
the Agent, the Borrower, any other Bank or any other Designated Bid Lender
to be true and correct in all material respects, or (2) such Designating
Bank's nonperformance of any obligation owed to its Designated Bid Lender
under the Designation Agreement or any other agreement between such
Designating Bank and its Designated Bid Lender with respect to the
transactions contemplated hereby.
(iii) Notwithstanding any designation hereunder, the Borrower and
the Agent shall continue to deal solely and directly with the Designating
Bank in connection with the Advances (including any Bid Loans made by such
Designating Bank's Designated Bid Lender), the Loan Documents and the
Co-Lender Agreement. Each Designating Bank shall serve as the
administrative agent of its Designated Bid Lender and shall on behalf of
the Designated Bid Lender: (A) receive any and all payments made for the
benefit of the Designated Bid Lender (and Borrower's and Agent's obligation
to make any payment to the Designated Bid Lender shall be satisfied upon
payment of such amount to its Designating Bank for the benefit of such
Designated Bid Lender, without any duty to see to the application thereof
by such Designating Bank), and (B) give and receive all communications and
notices and take all actions under any Loan Document or the Co-Lender
Agreement, including, without limitation, votes, approvals, waivers,
consents and amendments under or relating to this Agreement, the other Loan
Documents and the Co-Lender Agreement; and any notice or other
communication so delivered to a Designating Bank shall be deemed validly
delivered to its Designated Bid Lender, without any duty on the part of the
Borrower or the Agent to verify whether such notice or other communication
is
20
actually delivered by such Designating Bank to its Designated Bid Lender.
The Agent shall have no responsibility for, and shall not incur liability
to any Designated Bid Lender arising out of, the disposition by such
Designated Bid Lender's Designating Bank of any funds or notice or other
communication delivered to such Designating Bank for the account of such
Designated Bid Lender in accordance herewith. Any notice, communication,
vote, approval, waiver, consent or amendment of or with respect to any Loan
Document or the Co-Lender Agreement that is delivered or executed on behalf
of any Designated Bid Lender shall be signed by its Designating Bank as
administrative agent for the Designated Bid Lender (whether or not noted as
such thereon), and shall not be signed by the Designated Bid Lender on its
own behalf. The Borrower, the Agent, the Banks and the other Designated
Bid Lenders may rely thereon without any requirement that the Designated
Bid Lender sign or acknowledge the same. No Designated Bid Lender may
assign or transfer all or any portion of its interest hereunder or under
any other Loan Documents, other than (X) an assignment to the Designating
Bank which originally designated such Designated Bid Lender, or (Y) in
accordance with the provisions of Section 16(c) or (d).
(iv) A Designated Bid Lender shall not have any right to the
payment of any amount under the Loan Documents or the Co-Lender Agreement
OTHER THAN with respect to (i) principal of and interest (including, to the
extent, interest at the Default Rate) on Bid Loans made by such Designated
Bid Lender, (ii) late charges with respect to Bid Loans made by such
Designated Bid Lender that are not paid when due, and (iii) compensatory
amounts payable by the Borrower in respect of Bid Loans made by such
Designated Bid Lender that are paid prior to the last day of the Bid Rate
Interest Period applicable thereto; and all other amounts payable by the
Borrower hereunder, under any other Loan Document or under the Co-Lender
Agreement shall be determined as if such Designated Bid Lender's
Designating Bank had not made such designation.
17. PUBLICITY. Each Bank and Designated Bid Lender may refer to the
credit facilities provided pursuant to the Loan Documents in its own promotional
and advertising materials. The Borrower shall not identify a Bank or Designated
Bid Lender as a lender, except with such Bank's or Designated Bid Lender's prior
written consent, provided through the Agent in each instance.
18. CONDITIONS PRECEDENT. In addition to the conditions precedent set
forth in Section 4 of the Loan Agreement, the obligation of each Bank and
Designated Bid Lender under the Loan Documents to make any Advances on or after
the Effective Date is subject to the further condition that the Agent has
received reimbursement of all costs and expenses incurred by the Agent in
connection with this Agreement, including legal fees and expenses of the Agent's
counsel, and the costs for services of the Agent's in-house staff, such as legal
services. Such costs and expenses are in addition to the amounts payable by the
Borrower under this Section 18.
19. CONDITIONS TO ALL BORROWINGS. The obligation of each Bank and
Designated Bid Lender to make any Advance (including its initial disbursement on
or after the Effective Date) under the Loan Documents is subject to the
satisfaction on the date of the relevant Borrowing of the conditions set forth
in the Loan Documents, and, in the case of a Bid Loan, shall be subject to the
further condition that each of the statements made in the applicable Competitive
Bid Request shall be true and accurate in all material respects as if made on
and as of the date of such Bid Loan.
20. AUTHORIZATION AND ENFORCEABILITY REPRESENTATIONS. Each Bank, each
Designated Bid Lender, the Agent and the Borrower hereby represents to the
21
other parties hereto that all necessary action has been taken to authorize it to
execute and to perform its obligations under the Loan Documents, and that the
Loan Documents are binding and enforceable against it.
21. CONSENT TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO ANY LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA, OR
OF THE UNITED STATES FOR THE NORTHERN OR CENTRAL DISTRICTS OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT (OR ASSIGNMENT AND ASSUMPTION OR
DESIGNATION AGREEMENT, AS THE CASE MAY BE), THE BORROWER, THE AGENT, EACH BANK
AND EACH DESIGNATED BID LENDER CONSENTS, FOR ITSELF AND ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE AGENT, EACH BANK
AND EACH DESIGNATED BID LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING BASED
ON VENUE OR FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN CONNECTION WITH THE
LOAN OR OTHER ADVANCES MADE UNDER THE LOAN DOCUMENTS. THE BORROWER, THE AGENT,
EACH BANK AND EACH DESIGNATED BID LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS WHICH MAY BE MADE BY OTHER MEANS UNDER APPLICABLE
LAW.
22. INCORPORATION. This Agreement shall form a part of each Loan
Document, and all references to a given Loan Document shall mean that document
as hereby modified.
23. NO IMPAIRMENT. As specifically hereby amended, the Loan Documents
shall remain in full force and effect. This Agreement shall not prejudice any
rights or remedies of Banks under the Loan Documents. Banks and Designated Bid
Lenders reserve, without limitation, all rights which they have against any
guarantor or indemnitor.
24. EFFECTIVENESS; ALLOCATION OF CERTAIN PAYMENTS; INTEGRATION.
(a) This Agreement shall become effective on the Effective Date under
the Loan Agreement, PROVIDED THAT IBJ, Commerzbank and Manufacturers shall have
funded to the Agent, in the manner set forth in the Loan Documents, and the
Agent shall have allocated and paid such funds to BofA, in each case in the
amounts specified to the Banks by the Agent, as necessary in order to balance
outstanding advances under the Loan to the Pro Rata Shares of the Banks as set
in Section 2(a) above.
(b) Upon payment by the Borrower, the Agent shall allocate (i) the
unused commitment fee and interest on the Committed Loans, for the period to but
not including the Effective Date, to the Banks in accordance with their
respective Pro Rata Shares in effect under the Loan Documents prior to the
effectiveness of this Agreement, and (ii) interest on the Committed Loans, from
and including the Effective Date, to the Banks in accordance with their Pro Rata
Shares as set forth in this Agreement.
(c) The Loan Documents, including this Agreement: (i) integrate all
the terms and conditions incidental to the Loan Documents; (ii) supersede all
oral negotiations and prior and other writings with respect to their subject
matter; and (iii) are intended by the parties as the final expression of their
agreement with respect to the terms and conditions set forth in those documents
and as the complete and exclusive statement of the terms agreed to by the
parties. If there is any conflict between the terms, conditions and provisions
of this Agreement and those of any other agreement or instrument, including any
of the other Loan Documents, the terms, conditions and provisions of this
Agreement shall prevail. The Co-Lender Agreement addresses matters among the
Banks, the Designated Bid Lenders and the Agent and is intended by the Banks,
the Designated Bid Lenders and the Agent to supplement and be compatible with
and not abrogate the Loan Documents, and the Borrower's rights, obligations and
liabilities shall not be diminished or increased by
22
the Co-Lender Agreement.
25. ELECTRONIC NOTICES. Any agreement of the Agent to receive certain
notices from the Borrower or the Banks (in their own capacities or in their
capacities as administrative agent for any Designated Bid Lender) by telephone
or facsimile is solely for their convenience and at their request. The Agent
shall be entitled to rely on the authority of any Person giving such notice and
the Agent shall not have any liability to the Borrower, any Bank, any Designated
Bid Lender or other Persons on account of any action taken or not taken by the
Agent in reliance upon such telephonic or facsimile notice.
26. NOTICES.
Notices shall be sent to the following addresses:
To the Borrower:
BRE Properties, Inc.
Xxx Xxxxxxxxxx Xxxxxx
Telesis Tower, Suite 2500
Xxx Xxxxxxxxx, XX 00000
Attn: XxXxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To BofA as Bank:
Bank of America National Trust
and Savings Association
Commercial Real Estate Services/
National Accounts 9105
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To BofA as Agent:
Bank of America National Trust
and Savings Association
Commercial Real Estate Services/
National Accounts 9105
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To Manufacturers Bank:
Manufacturers Bank
00000 Xxxxxxx Xxxx.
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
23
To IBJ:
The Industrial Bank of Japan, Limited,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
To Commerzbank:
Commerzbank AG
Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
As provided in Section 16(e), any notice or other communication to a Designated
Bid Lender shall be sent to its Designating Bank.
27. NO BANKRUPTCY PROCEEDINGS AGAINST DESIGNATED BID LENDERS. Each of the
Borrower, the Banks, and the Agent hereby agrees that it will not institute
against any Designated Bid Lender, or join with any other Person in instituting
against any Designated Bid Lender, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, at any time prior to the date that is one year and one day after
payment in full of the latest maturing commercial paper note issued by such
Designated Bid Lender.
28. MISCELLANEOUS. This Agreement shall be governed by the laws of the
State of California, without regard to the choice of law rules of that State.
This Agreement and any attached consents or exhibits requiring signatures may be
executed in counterparts, and all counterparts shall constitute but one and the
same document. If any court of competent jurisdiction determines any provision
of this Agreement or any of the other Loan Documents to be illegal or
unenforceable, that portion shall be deemed severed from the rest which shall
remain in full force and effect. As used herein, the word "include(s)" means
"includes(s), without limitation," and the word "including" means "including,
but not limited to." Schedule I and Exhibits A (form of Notice of
Assignment), B (form of Assignment and Assumption Agreement), C (form of
Competitive Bid Request), D (form of Competitive Bid) and E (form of Designation
Agreement) are attached to this Agreement and are incorporated in this Agreement
by this reference.
24
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT.
BRE PROPERTIES, INC., A MARYLAND CORPORATION
By:
---------------------------------
Xxx X. Xxxxx
Senior Executive Vice President & Chief
Operating Officer
By:
----------------------------------
XxXxx X. Xxxxxxx
Executive Vice President & Chief Financial
Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS A BANK
By:
----------------------------------
Xxxxx Xxxxxx
Vice President
MANUFACTURERS BANK, AS A BANK
By:
---------------------------------
Title:
-------------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED
LOS ANGELES AGENCY, AS A BANK
By:
---------------------------------
Title:
-------------------------------
COMMERZBANK AG,
LOS ANGELES BRANCH, AS A BANK
By:
---------------------------------
Title:
-------------------------------
By:
---------------------------------
Title:
-------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS AGENT
By:
---------------------------------
Xxxxx Xxxxxx
25
Vice President
26
SCHEDULE I
LENDING OFFICES OF BANKS
BOFA:
Bank of America National Trust
and Savings Association
Commercial Real Estate Services/
National Accounts 9105
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
MANUFACTURERS BANK:
Manufacturers Bank
00000 Xxxxxxx Xxxx.
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED:
The Industrial Bank of Japan,
Limited, Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
COMMERZBANK AG:
Commerzbank AG
Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
