FIRST AMENDMENT TO LOAN AGREEMENT (POOL B)
THIS FIRST AMENDMENT TO LOAN AGREEMENT (POOL B) (this "Amendment") is
made this 23rd day of July, 2002, by and between CATELLUS DEVELOPMENT
CORPORATION, a Delaware corporation ("Borrower"), and TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA, a New York corporation ("Lender").
RECITALS:
A. Borrower and Lender executed that certain Loan Agreement
dated March 28, 2002 (the "Loan Agreement"), pursuant to which Lender agreed to
make, and Borrower agreed to accept, a loan in the amount of One Hundred
Sixty-Six Million Eight Hundred Eighty Thousand and No/100 Dollars
($166,880,000.00), comprised of three separate funding disbursements (the
principal, interest and all other sums due and owing under the loan being
hereinafter collectively called the "Loan").
B. Lender has made and advanced the First Disbursement under
the Loan, and is now ready to make and advance the Subsequent Disbursement of
the Loan. In connection with the Subsequent Disbursement, Borrower and Lender
are entering into this Amendment to amend the Loan Agreement upon the terms and
conditions set forth below.
AGREEMENT:
NOW THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Amendment and the other Loan Documents, the parties hereto hereby covenant,
agree, represent and warrant as follows:
1. Section 1.1 of the Loan Agreement is hereby modified by adding the
defined term "Cash Deposit Pledge and Security Agreement" as follows:
"Cash Deposit Pledge and Security Agreement" shall mean that
certain Cash Deposit Pledge and Security Agreement, dated July 23,
2002, between Borrower and Lender."
2. The term "Loan Documents" as defined in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:
"Loan Documents" shall mean, collectively, this Agreement, the
Note, each of the Mortgages, each of the Assignments, if required, the
Letter of Credit Agreement, the Cash Deposit Pledge and Security
Agreement, and all documents now or hereafter executed by Borrower or
held by Lender or Trustee relating to the Loan, including all
amendments thereto but excluding each Environmental Indemnity Agreement
and any indemnities or guaranties delivered in connection with the
Loan.
3. The term "Second Disbursement Closing Date" as defined in Section
1.1 of the Loan Agreement is hereby deleted in its entirety and replaced with
the following:
"Second Disbursement Closing Date" shall mean on or before
July 23, 2002.
4. In order to confirm the Allocated Loan Proceeds, Schedule 1 of the
Loan Agreement is hereby deleted in its entirety and replaced with Schedule 1
attached hereto.
5. The introductory paragraph of each Section 2.1(a) of each of the
Assignments that were executed and delivered as a condition to Lender making and
advancing the First Disbursement is hereby deleted in its entirety and replaced
with the following:
(a) In consideration of the Debt, Borrower irrevocably,
absolutely, presently, unconditionally and not merely as additional
security for the payment and performance of the Obligations, sells,
assigns, sets over and delivers to Lender the following property,
rights, interests and estates now or in the future owned or held by
Borrower (the "Assigned Property"), for Lender's uses and purposes as
set forth in this Assignment, subject to the license granted by Lender
to Borrower in this Assignment to collect and receive the Rents until
the occurrence and during the continuance of an Event of Default:
6. Section 3.2 of the Loan Agreement is hereby modified by adding
Section 3.2(c) as follows:
(c) With respect to that certain Individual Property
identified on Schedule I as the WAMU Partial Release Property (the
"WAMU Partial Release Property"), if a tenant therein, Washington
Mutual Bank, FA, a federal association ("WAMU"), under that certain
Office Lease Multi-tenant Gross Rent (the "WAMU Lease") dated May 24,
2002 between Borrower and WAMU, fails to exercise its option to expand
its premises on or before the last day of the last year of the initial
term of its lease, as described above, Lender shall consent to the
release of that certain approximately 4.434 acre parcel which is the
subject of such option (the "WAMU Expansion Parcel") from the Lien of
the Mortgage for the WAMU Partial Release Property (the "WAMU Partial
Release"), subject to satisfaction of the following to the sole
satisfaction of Lender:
(i) Borrower shall pay all Lender's
costs, including, but not limited to, third party reports, reasonable
attorneys' fees, fees related to appraisers, engineers, architects and
consultants, recording costs, costs of endorsements and/or premiums for
Title Insurance Policies required by Lender, in connection with the
WAMU Partial Release, and a fee of $10,000.00, payable concurrently
with Borrower's request for Lender's consent to the WAMU Partial
Release;
(ii) not less than ninety (90) days
prior to the date of the WAMU Partial Release, Borrower shall have
delivered to Lender a notice setting forth (A) the proposed date of the
WAMU Partial Release; (B) the name of the proposed transferee, if any;
(C) the intended use of the WAMU Expansion Parcel; (D) an estoppel
certificate from WAMU confirming that it has elected not to exercise
its option to expand with respect to the WAMU Expansion Parcel, (E) a
lot line adjustment, subdivision map or other evidence that the
remainder of the WAMU Partial Release Property (the "WAMU Remainder
Partial Release Property") and the WAMU Expansion Parcel are each a
separate legal parcel, and (F) all such other information as reasonably
necessary
for Lender to consider the proposed WAMU Partial Release. If the
operation of the WAMU Expansion Parcel is integrated with other
adjacent parcels (including the WAMU Remainder Partial Release
Property), the notice will be accompanied by a survey of the WAMU
Remainder Partial Release Property and the WAMU Expansion Parcel
together with legal descriptions of both, and a plot plan of the WAMU
Remainder Partial Release Property showing building integration, if
any, with adjoining improvements. If the WAMU Expansion Parcel is to be
transferred to a third party, Borrower shall deliver economic or
financial information relating to any proposed transferee and a copy of
the contract of sale or ground lease, as applicable;
(iii) there shall be no Event of
Default as of either the WAMU Partial Release notice date or the date
of the WAMU Partial Release;
(iv) Borrower shall have delivered
to Lender evidence satisfactory to Lender that Borrower has complied
with any requirements of Property Documents or Leases relating to the
WAMU Partial Release Property (including the WAMU Expansion Parcel),
that the WAMU Partial Release does not violate any of the provisions of
the Property Documents or the Leases relating to the WAMU Partial
Release Property (including the WAMU Expansion Parcel), and, that, to
the extent necessary to comply therewith, the transferee, if any, has
assumed all of Borrower's obligations relating to the WAMU Expansion
Parcel thereunder;
(v) Borrower shall have delivered to
Lender an endorsement to the Title Insurance Policies satisfactory to
Lender that (A) extend the effective date of such policies to the
effective date of the WAMU Partial Release; (B) confirm that there
shall be no change in the priority of the Lien of the Mortgages or in
the amount of coverage; (C) confirm that the title insurers issuing the
Title Insurance Policies consent to the WAMU Partial Release; (D) waive
any defense that the title insurers may have as a result of the WAMU
Partial Release; (E) to the extent of the then current appraised value
of the WAMU Expansion Parcel, waive any right of subrogation; and (F)
confirm that the WAMU Remainder Partial Release Property constitutes a
separate legal parcel and a separate tax lot (subject to the provisions
of item (xi) below);
(vi) not less than ten (10) days
prior to the date of the WAMU Partial Release, Borrower shall have
delivered to Lender any consents to the WAMU Partial Release required
by entities (A) holding Liens affecting the WAMU Partial Release
Property or holding any other interest in the WAMU Partial Release
Property as required by documents granting any lien or (B) that would
otherwise be negatively affected by the WAMU Partial Release, including
parties to any secondary financing, Property Documents or to any
Leases;
(vii) Borrower shall have delivered
to Lender evidence satisfactory to Lender that the WAMU Remainder
Partial Release Property and the WAMU Expansion Parcel each separately
conforms to and is in compliance with Laws and that WAMU Remainder
Partial Release Property is a self-contained property, having direct
on-site connection to all utilities and direct access to one or more
public streets;
(viii) Borrower shall have delivered
to Lender a fully executed amendment satisfactory to Lender to each
reciprocal easement agreement affecting the WAMU Remainder Partial
Release Property that joins the transferee, if any, of the WAMU
Expansion Parcel as a party to each agreement and that provides for any
additional easements, restrictions and payment obligations that Lender
deems reasonably necessary for the continued operation and maintenance
of the WAMU Remainder Partial Release Property;
(ix) Borrower shall have delivered
to Lender evidence satisfactory to Lender that after the WAMU Partial
Release, Borrower will continue to provide the parking areas for the
WAMU Remainder Partial Release Property as required by the Loan
Documents;
(x) Borrower shall have delivered to
Lender copies of fully executed documents evidencing the transfer
and/or ground lease, as applicable, of the WAMU Expansion Parcel as
provided in item (ii) above; and
(xi) Borrower shall have delivered
to Lender any other information, approvals and documents reasonably
required by Lender relating to the WAMU Partial Release, including
without limitation, if the separate tax lot endorsement required in
item (v) above cannot be obtained, (A) evidence reasonably satisfactory
to Lender that separate tax lots for the WAMU Remainder Partial Release
Property and for the WAMU Expansion Parcel will be created by the
taxing authority within a reasonable period of time after the WAMU
Partial Release, and (B) an escrow for Taxes, upon provisions
satisfactory to Lender, for the entire WAMU Remainder Partial Release
Property and the WAMU Expansion Parcel.
7. If WAMU elects to exercise any of those certain purchase options
and/or rights of first offer (collectively, the "WAMU's Options") granted to
WAMU by Borrower pursuant to the terms and conditions of the WAMU Lease,
Borrower must exercise and complete a Release or a Substitution of the entire
WAMU Partial Release Property, which Release or Substitution shall be completed
prior to completion of any of the WAMU's Options, upon the terms and conditions
of Article III of the Loan Agreement. Until all of the WAMU's Options expire,
Borrower shall maintain Release and Substitution rights sufficient to meet its
obligations in this Section 7 of this Amendment.
8. The provisions of the Loan Agreement and this Amendment shall
together constitute and be construed as one document. Any reference to the Loan
Agreement in any other document shall mean the Loan Agreement and this
Amendment, together constituted and construed as one document. Nothing herein
shall be deemed or construed to be an impairment of the lien of the Mortgages.
Except as amended hereby, the Loan Agreement and the Loan Documents remain in
full force and effect.
9. This Amendment shall be construed under and governed by the Laws of
the State of California.
10. Defined terms herein shall have the meaning set forth in the Loan
Agreement unless otherwise defined.
11. Duplicate counterparts of this Amendment may be executed and
together will constitute a single original document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
BORROWER:
CATELLUS DEVELOPMENT CORPORATION,
a Delaware corporation
By: Catellus Commercial Development
Corporation, a Delaware corporation, its agent
BY: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx
Vice President, Finance
[Signatures continue on next page.]
LENDER:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York corporation
BY: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Associate Director
SCHEDULE I
(Individual Properties; First Disbursement Properties, Second Disbursement Properties
and Third Disbursement Properties; Allocated Loan Proceeds; Ford Partial Release
Property (Section 3.2(a)); Xxxxxxx Partial Release Property (Section 3.2(b)); WAMU
Partial Release Property (Section 3.2(c))
Individual Individual City State First Disbursement Allocated Loan
Property No. Property Name Properties/Second Proceeds
Disbursement Properties/Third
Disbursement Properties/Ford
Partial Release
Property/Xxxxxxx Partial
Release Property
------------------ ---------------- ------------------ --------- --------------------------------------- ----------------
B-10 1260 Phoenix Manteca CA Second Disbursement Property / Ford $18,540,000
Drive Partial Release Property
B-11 30059-67 Xxxxx Union City CA Third Disbursement Property $4,040,000
B-12 4520 Xxxxxxxx Denver CO First Disbursement Property $4,680,000
B-13 4730 Xxxxxxxx Denver CO Second Disbursement Property $5,180,000
B-14 4501 Xxxxxxxx Denver CO Third Disbursement Property $11,240,000
B-15 00000 X. 00xx Xxxxxx XX Second Disbursement Property $5,780,000
Xxxxxx
X-00 6225 E. Minooka Minooka IL Second Disbursement Property / $24,170,000
APL Logistics Xxxxxxx Partial Release Property
X-00 000 Xxxxxxxx Xxxxxxxxxx XX Third Disbursement Property $11,270,000
Court
B-18 10320 Xxxxx Woodridge IL First Disbursement Property $10,410,000
Drive
B-19 10441 Xxxxxxx Woodridge IL First Disbursement Property $6,240,000
B-20 000 Xxxxx Xxxxxxxxxxxxx XX Second Disbursement Property $9,620,000
Parkway
B-21 000 X. Xxxxxxx XX First Disbursement Property $9,870,000
Blvd. Grand Prairie
B-22 000 X. Xxxxxxx XX Second Disbursement Property $10,030,000
Blvd. Grand Prairie
B-23 2700 Patriot IL Second Disbursement Property $12,520,000
Blvd. Glenview
B-24 555 Dividend TX Second Disbursement Property / WAMU $8,720,000
Drive Coppell Partial Release Property
B-25 11080 Circle Westminster CO First Disbursement Property $14,570,000
Point Road
