Exhibit 10.26
MODIFICATION AGREEMENT
TO SYNDICATE LOAN
TO
BRE PROPERTIES, INC.
MADE BY VARIOUS
FINANCIAL INSTITUTIONS
WITH
BANK OF AMERICA NT & SA
AS AGENT
MODIFICATION AGREEMENT
TO SYNDICATE LOAN
This Modification Agreement ("Agreement") is made as of April 4,
1996, by BRE PROPERTIES, INC., a Maryland corporation ("Borrower"); BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking
association ("BofA"); and the several financial institutions from time to
time party to this Agreement (collectively, the "Banks"; individually a
"Bank").
FACTUAL BACKGROUND
X. Xxxxx agree to make a loan (the "Loan") to the Borrower in
accordance with an Unsecured Line of Credit Loan Agreement dated April 4,
1996 (the "Loan Agreement"). Capitalized terms used herein without
definition have the meanings given in the Loan Agreement. The Loan is
evidenced by a Note dated April 4, 1996 in the stated principal amount of
$70,000,000. Each of the Banks, including BofA, will have a direct lender
relationship with the Borrower in accordance with the Loan Documents, as
hereby amended. The Banks wish to designate BofA as their Agent in this
syndicated Loan. Because BofA is both an individual Bank in the syndicate as
well as agent for all of the Banks in the syndicate, the parties wish to
modify certain defined terms in the Loan Documents.
B. The Borrower, BofA and the other Banks wish to modify the Loan
Documents 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.
"ADVANCE" means any advance of Loan proceeds 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
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Banks.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"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.
"COMMITMENT" means the amount of the Loan for which each Bank is
obligated.
"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 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 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, the office specified as its
Lending Office on Schedule I or as the Bank may designate to the Borrower
and the Agent.
"LOAN DOCUMENTS" means the Loan Agreement, the Note and any other
documents designated as "Loan Documents" in the Loan Agreement. This
Modification Agreement is a Loan Document.
"MAJORITY BANKS" means, at any time, a Bank or Banks then holding in
excess of 66-2/3% of the then aggregate unpaid principal amount of the Loan
(or, if no principal amount is then outstanding, having in excess of
66-2/3% of the Commitments).
"NOTE" means a promissory note executed by the Borrower in favor of a
Bank or the Agent on behalf of the Banks in connection with this
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Loan.
"NOTICE OF BORROWING" means a notice as described in the Loan
Agreement.
"OBLIGATIONS" means all advances, debts, liabilities, obligations and
covenants arising under any Loan Document owing by the Borrower to any
Bank, the Agent or any Indemnified Person, whether absolute or contingent,
due or to become due, now existing or hereafter arising.
"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 fifth decimal place) at
such time of such Bank's share of the Loan.
"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 "Bank" means the Agent acting as
agent for the Banks, except that the reference to "Bank" in Section 18 of the
Note and Paragraph 5 of Exhibit B to the Note is modified to mean "Banks".
(b) The Loan Agreement is modified so that "Bank" means the Agent
acting as agent for the Banks, except that the reference to "Bank" in
Sections 9.8 and 9.9 of the Loan Agreement is modified to mean "Banks".
4. THE CREDIT.
(a) Subject to the terms and conditions hereof, each Bank agrees
to fund its Pro Rata Share of each Advance of Loan proceeds from time to time
until the maturity date of the Loan. Such Loan proceeds shall be delivered
to the Borrower in accordance with the provisions of the Loan Documents.
(b) The Borrower and each Bank acknowledge that, as of the date of
this Agreement, the Loan and the amount outstanding, and each Bank's Pro Rata
Share of the Loan, are:
(i) The Loan: $70,000,000
(ii) Total Current Outstanding Principal: $ 0
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(iii) Total Accrued and Unpaid Interest: $ 0
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(iv) On the Effective Date of this Agreement,
each Bank's Pro Rata Share of the Loan
shall be:
BofA: 78.57143%
Manufacturers Bank: 21.42857%
(c) Each Bank shall become vested with its Pro Rata Share of the Loan
upon execution and delivery of the required documents and upon payment of
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its Pro Rata Share of the principal balance of the Loan outstanding 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 Loan shall be
of equal priority with one another, except as otherwise expressly provided.
(d) A complete set of Loan Documents shall be held by Agent.
(e) A Bank which is not the Agent shall have no interest in any
(i) property taken as security for any other loan or financial accommodation
made or furnished to the Borrower by Agent (in which the Bank has not
acquired an interest); (ii) property now or hereafter in Agent's possession
or under Agent's control other than by reason of the Loan Documents; or (iii)
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 Loan, then each Bank shall be entitled to its Pro Rata Share, if any, of
such application to the Loan.
(f) All the parties agree that, except as may be otherwise
expressly provided, all of the interest rates for the Loan are those of and
are calculated in accordance with the requirements and any applicable
assessments of the Agent, regardless of which Bank is making an Advance or
receiving a payment thereon.
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 and
Co-Lender Agreement, Agent's powers include but are not limited to the power:
(i) to administer, manage and service the Loan; (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 Loan, 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; (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. Agent shall furnish to Banks
copies of material documents, including confidential ones, received from the
Borrower regarding the Loan, the Loan Documents and the transactions
contemplated thereby. 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,
and no implied covenants, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document
against the Agent.
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(d) The Borrower acknowledges that the Banks have executed a
Co-Lender Agreement to supplement the Loan Documents with respect to the
relationship of the Banks and the Agent among themselves in connection with
the Loan. 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
Agent's resignation hereunder as Agent, the provisions regarding payment of
costs and expenses and indemnification of Agent shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under
this Agreement. If no successor agent has accepted appointment as 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 shall be evidenced
by one or more loan accounts or records maintained by such Bank and Agent in
the ordinary course of business. The loan accounts or records maintained by
the Agent and each Bank shall be conclusive absent manifest error of the
amount of the Loan made by the Banks 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 the Loan.
7. PROCEDURE FOR BORROWING.
(a) Each Borrowing shall be made upon the Borrower's irrevocable
written notice delivered to the Agent in accordance with the Loan Agreement.
(b) 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.
Banks acting through Agent shall disburse the Loan as provided in the Loan
Agreement.
(c) Each Bank will make the amount of its Pro Rata Share of each
borrowing 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 borrowing
date requested by the Borrower in funds immediately available to the Agent.
The proceeds of all such Loans will then be made available to the Borrower by
the Agent by wire transfer in accordance with written instructions provided
to the Agent by the Borrower.
(d) Unless the Agent receives notice from a Bank at least one
Banking Day prior to the date of a borrowing that such Bank will not make
available to the Agent when required the amount of that Bank's Pro Rata Share
of the borrowing, the Agent may assume that each Bank has made such amount
available to the Agent in immediately available funds on the borrowing date.
(e) The failure of any Bank to make any Advance on any borrowing
date shall not relieve any other Bank of any obligation hereunder to make an
Advance on such borrowing date, but no Bank shall be responsible for the
failure of any other Bank to make its Advance on the borrowing date.
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8. CONTRACT RATE ELECTIONS.
(a) The Borrower may elect applicable interest rates 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 Reference-based Rate. All rate elections and conversions shall
be made ratably according to the respective outstanding principal amounts of
the 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) OTHER FEES. The Borrower shall pay to the Agent for the
account of each Bank the commitment fee and the Unused Commitment Fee as set
forth in Section 2.1 of the Loan Agreement and any extension fee payable
under Section 22 of the Note.
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 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 its Pro Rata Share (or other
applicable share as may be agreed by a Bank) of such payment in like funds as
received. 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 the Agent or 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 its Pro Rata Share of any amount so
recovered from or repaid by the Agent.
(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 of the Loan Documents. No Bank shall independently initiate any
judicial action or equivalent action or other proceeding against the Borrower
with respect to the Loan.
11. PREPAYMENTS, TERMINATION OR REDUCTION OF LOAN. In the event the
Borrower elects to prepay the Loan in whole or in part in accordance with the
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Loan Documents, the Agent will promptly notify each Bank of such notice and
of each Bank's Pro Rata Share of such prepayment. Any reduction or
termination of the Loan shall be applied to each Bank according to its Pro
Rata Share. All accrued unused commitment fees up to but not including the
effective date of any reduction or termination of the Loan shall be payable
on the effective date of such reduction or termination.
12. USURY. If a court ultimately determines that the Loan (or an
Advance) violates applicable usury law, then (a) the Borrower shall not be
required to pay to a Bank interest on the Loan (or the 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 shall collect interest or other monies
which are deemed to constitute interest which would increase the effective
interest rate on the Loan (or an Advance) to a rate in excess of that
permitted by applicable law, such excess interest shall, at the option of
said Bank, be returned to the Borrower or credited against the principal
balance of the Loan (or Advance) then outstanding; (c) provided, however,
that if a usury law applies to one or more but not all Banks, then the Banks
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
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 any Person controlling the Bank, and such Bank determines that the
amount of such required capital is increased as a consequence of the Loan or
other obligations under the Loan Documents taking into consideration such
Bank's or such 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.
14. COSTS AND EXPENSES. The Borrower shall 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:
(a) 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) 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 Loan, and any Insolvency Proceeding,
judicial proceeding or arbitration).
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15. INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify,
defend and hold the Agent-Related Persons, each Bank and each of its
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 Loan 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. The agreements in this Section 15 shall survive payment of all other
Obligations.
16. ASSIGNMENTS, PARTICIPATIONS, ETC.
(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
Loan and the other rights and obligations of such assignor Bank hereunder, in
a minimum amount 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. 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 (the "originating Bank") may sell to one or more
Persons not Affiliates of the Borrower (a "Participant") participating
interests in the Loan; provided that (i) the originating Bank's obligations
under the Loan Documents and the Co-Lender Agreement shall remain unchanged,
(ii) the originating Bank 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 Bank in connection with the Loan and
Loan Documents, (iv) 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 to the extent
such amendment, consent or waiver would require unanimous consent of the
Banks, and (v) each participating interest shall be in a minimum amount of
$5,000,000,
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and no such participation shall be permitted if the non-participated interest
of the originating Bank 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 Bank had not sold such participation.
(d) Notwithstanding any other provision, a Bank may pledge its
interest in the Loan in favor of any Federal Reserve Bank in accordance with
Federal law.
17. PUBLICITY. Each Bank may refer to the Loan in its own promotional
and advertising materials. The Borrower shall not identify a Bank as a
lender, except with such Bank'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 under
the Loan Documents is subject to the further condition that the Agent has
received reimbursement of all costs and expenses incurred by Agent in
connection with this Agreement, including legal fees and expenses of Agent's
counsel, and the costs for services of 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 to make
an Advance (including its initial disbursement) is subject to the
satisfaction on the relevant borrowing date of the conditions set forth in
the Loan Documents.
20. AUTHORIZATION AND ENFORCEABILITY REPRESENTATIONS. Each Bank, Agent
and the Borrower hereby represents to the 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, THE BORROWER,
AGENT AND EACH BANK CONSENTS, FOR ITSELF AND ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, AGENT AND EACH
BANK 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. THE
BORROWER, AGENT AND EACH BANK 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 reserve,
without limitation, all rights which they have against any guarantor or
indemnitor.
24. INTEGRATION. The Loan Documents, including this Agreement: (a)
integrate all the terms and conditions incidental to the Loan Documents; (b)
supersede all oral negotiations and prior and other writings with respect to
their subject matter; and (c) 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,
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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 and the Agent and is intended by
the Banks and 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 the Co-Lender Agreement.
25. ELECTRONIC NOTICES. Any agreement of the Agent to receive certain
notices from the Borrower or Banks 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 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: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To BofA as Agent:
Bank of America National Trust
and Savings Association
Agency Management Services #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To Manufacturers Bank:
Manufacturers Bank
Real Estate Industries Division
000 Xx. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax (000) 000-0000
-10-
27. 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 and B are
attached to this Agreement and are incorporated in this Agreement by this
reference.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT.
BRE PROPERTIES, INC.
By:
____________________________
Xxxxx X. XxXxxxxx
President & Chief Executive Officer
By:
____________________________
XxXxx X. Xxxxxxx
Secretary & Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS A BANK
By:
____________________________
Xxxxxx X. Xxxxx
Vice President
MANUFACTURERS BANK, AS A BANK
By:
____________________________
Title:
_________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS AGENT
By:
____________________________
Title:
_________________________
-11-
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: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
MANUFACTURERS BANK:
Manufacturers Bank
Real Estate Industries Division
000 Xx. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
MODIFICATION AGREEMENT
TO SYNDICATE LOAN
TO
BRE PROPERTIES, INC.
MADE BY VARIOUS
FINANCIAL INSTITUTIONS
WITH
BANK OF AMERICA NT & SA
AS AGENT
EXHIBIT A
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______ , 199_
Bank of America National Trust
and Savings Association, as Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management Services #5596
[NAME AND ADDRESS OF BORROWER]
Ladies and Gentlemen:
We refer to the Unsecured Line of Credit Loan Agreement dated ________,
1996 (as amended or modified, the "Loan Agreement") among BRE PROPERTIES,
INC. (the "Borrower"), the Banks referred to therein and Bank of America
National Trust and Savings Association, as agent for the Banks (the "AGENT").
Terms not defined herein have the meanings given in the Loan Documents and
Co-Lender Agreement.
1. We hereby give you notice of and request your consent to the
assignment by _______________ (the "ASSIGNOR") to ___________________ (the
"ASSIGNEE") of part of the right, title and interest of the Assignor in and
to the Loan (including all outstanding Advances made by the Assignor)
pursuant to the Assignment and Assumption Agreement (the "Assignment and
Assumption Agreement") attached hereto. Before giving effect to such
assignment, the Assignor's Pro Rata Share of the Loan was __%, its Commitment
was $_______________ and the amount of its outstanding Advances was $_________.
After giving effect to this Assignment, Assignee's Pro Rata Share of the
Loan is __%, its Commitment is $_____________, and its share of outstanding
Advances is $______________; Assignor's remaining Pro Rata share of the Loan is
__%, its remaining Commitment is $_____________, and its remaining share of
the outstanding Advances is $____________.
2. The Assignee agrees that upon receiving the consent of the Agent
and, if required, the Borrower to such assignment, the Assignee will be bound
by the terms of the Loan Documents and Co-Lender Agreement as fully and to
the same extent as if the Assignee were a Bank originally holding such
interest in the Loan Documents and Co-Lender Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:
_____________________________________________
Address:
_____________________________________________
Attention:
_____________________________________________
Telephone: ( )
_____________________________________________
Facsimile: ( )
_____________________________________________
Telex (Answerback):
_____________________________________________
(b) Payment Instructions:
Account No.:
_____________________________________________
At:
_____________________________________________
_____________________________________________
Reference:
_____________________________________________
Attention:
_____________________________________________
4. You are entitled to rely upon the provisions contained in the
Assignment and Assumption Agreement executed by the Assignor and Assignee.
IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Notice of Assignment and Acceptance as of the date first above mentioned.
Very truly yours,
[ASSIGNOR]
By:
__________________________
Title:
________________________
[ASSIGNEE]
By:
__________________________
Title:
________________________
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By:
________________________________
Its:
_______________________________
[BRE PROPERTIES, INC.
By:
________________________________
Its:
_______________________________]
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN
_________________________________
Assignor
and
_________________________________,
Assignee
_______________________________________________________________________
_______________________________________________________________________
Entered into as of __________, 199_
with respect to a loan to
BRE PROPERTIES, INC.
TABLE OF CONTENTS
SECTION DESCRIPTION PAGE
------- ----------- ----
1. Assignment and Assumption 1
2. Payments 2
3. Reallocation of Payments 2
4. Independent Credit Decision 2
5. Effective Date; Notices; Notes 2
6. Agent 3
7. Withholding Tax 3
8. Representations and Warranties 3
9. Further Assurances 4
10. Indemnity 4
11. Miscellaneous 4
SCHEDULE I
-i-
ASSIGNMENT AND ASSUMPTION AGREEMENT
___________________________________
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
_________________, 199_ is made between ______________________________ (the
"Assignor") and _____________________________ (the "Assignee").
RECITALS
________
WHEREAS, the Assignor is party to an Unsecured Line of Credit Loan
Agreement dated _____________, 1996 among BRE PROPERTIES, INC. (the
"Borrower") and Bank of America Trust and Savings Association, a Modification
Agreement dated ___________, 1996 among Borrower and the lenders named
therein including the Assignor (the "Banks"), and a Co-Lender Agreement dated
____________, 1996 among the Banks. The term "Loan Documents" is
defined in the Loan Agreement and the amendments and modifications thereto.
Terms not defined herein have the meanings given to them in the Loan
Documents and Co-Lender Agreement;
WHEREAS, the Loan Documents provide for a loan (the "Loan") to the
Borrower in an amount not to exceed $70,000,000; and the Assignor's
Commitment as of the date of this Agreement (but before this Assignment) is
$______________;
WHEREAS, [the Assignor has made Advances under the Loan Documents in
the aggregate outstanding principal amount of $____________________ to the
Borrower] [no Advances are outstanding under the Loan Documents]; and
WHEREAS, the Assignor wishes to assign to the Assignee part of the
rights and obligations of the Assignor under the Loan Documents in an amount
equal to $___________ (the "Assigned Amount")* on the terms listed on Schedule I
hereto and subject to the conditions set forth herein, and the Assignee
wishes to accept assignment of such rights and to assume such obligations
from the Assignor on such terms and conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ASSUMPTION.
(a) As of the Effective Date (defined below), the Assignor hereby
sells and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, the Assigned Amount, which includes Assignor's
interest in the Loan and any outstanding Advances and which shall be equal to
_________ percent (__%) (the "Assignee's Pro Rata Share") of the Loan. The
assignment set forth in this Section 1(a) shall be without recourse to or
representation or warranty by the Assignor (except as expressly provided in
this Agreement).
(b) As of the Effective Date, the Assignee shall be a party to the
Loan Documents and Co-Lender Agreement and succeed to all of the rights and
be obligated to perform all of the obligations of a Bank under the Loan
Documents, with an interest in the Loan equal to the Assigned Amount. The
Assignee agrees that it will perform all of the obligations required to be
performed by it as a Bank under the Loan Documents and the Co-Lender
Agreement. The Pro Rata Share of the Loan of the Assignor shall, as of the
_____________________
(*) Assigned Amount shall not be less than $5,000,000, nor amount
retained by Assignor less than $12,500,000.
-1-
Effective Date, be reduced by an amount equal to the Assigned Amount, and the
Assignor shall relinquish its rights and be released from its obligations
under the Loan Documents to the extent such obligations have been assumed by
the Assignee.
(c) After giving effect to this assignment and assumption, on the
Effective Date the Assignee's interest in the Loan will be $______________
with a Pro Rata Share of __%, and the Assignor's remaining interest in the
Loan will be $___________ with a remaining Pro Rata Share of __%.
(d) This Agreement is not a Loan Document.
[2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount equal to $________,
representing the Assignee's Pro Rata Share of the principal amount of the
Loan outstanding on the Effective Date.
(b) The Assignee agrees to pay to the Agent a processing or
transfer fee in the amount of $_____________.
(c) The Assignee agrees to pay [Agent as an additional service fee]
[the Assignor as additional compensation] a fee in an amount equal to __________
percent (__%) of all interest and fees paid by the Borrower to the
Assignee under the Loan Documents. Such fee shall be payable quarterly in
arrears on the last business day of _______________, commencing on ___________.]
3. REALLOCATION OF PAYMENTS.
Any interest, fees and other payments accrued up to but excluding the
Effective Date with respect to the Loan shall be for the account of the
Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Amount shall be for the account of
the Assignee. Each of the Assignor and the Assignee agree that it will hold in
trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding sentence
and will promptly pay to the other party such amounts. [The Assignor and the
Assignee's obligations to make the payments referred to in this Section 3 are
non-assignable.]
4. INDEPENDENT CREDIT DECISION.
The Assignee acknowledges that it has received a copy of the Loan
Documents, the Co-Lender Agreement and such other documents and information
as Assignee has deemed appropriate and requested in order to make its own
credit and legal analysis and decision to enter into this Agreement, and will
continue to make its own credit and legal decisions in taking or not taking
action under the Loan Documents independently based on such documents and
information as Assignee shall deem appropriate at the time and without
reliance upon the Assignor, the Agent or any other Bank.
5. EFFECTIVE DATE; NOTICES; NOTES.
(a) The effective date (the "Effective Date") for this Agreement
shall be the date that the following conditions precedent have been satisfied:
(i) this Agreement shall be executed and delivered by the
Assignor and the Assignee to the Agent;
(ii) the requirements for an effective assignment by a Bank set
forth in the Loan Documents and Co-Lender Agreement
-2-
shall be satisfied with respect to the Assigned Amount including
any required consents;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Agreement; and
(iv) the processing or transfer fee referenced above shall have
been paid to the Agent.
(b) Promptly following the execution of this Agreement, the
Assignor shall deliver to the Agent [and Borrower] any notices, agreements or
other documents as may be required under the Loan Documents.
6. AGENT.
(a) The Assignee hereby appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers as are
delegated to the Agent by the Banks pursuant to the terms of the Loan
Documents and Co-Lender Agreement.
(b) If Assignor is the Agent, the Assignee does not assume under
this Agreement any duties or obligations held by the Assignor in its capacity
as Agent under the Loan Documents or Co-Lender Agreement.
7. WITHHOLDING TAX.
If the Assignee is organized under the laws of any jurisdiction
other than the United States or any state or other political subdivision
thereof, it agrees that it will furnish the Agent and the Borrower,
concurrently with the execution of this Agreement, an appropriate U.S.
Internal Revenue Service form regarding exemption from or reduced rate of
U.S. federal withholding tax on interest payments under the Loan Documents,
unless delivery of such form is not authorized by law.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any lien, security interest or other
adverse claim; (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to execute
and deliver this Agreement and any other documents required or permitted to
be executed or delivered by it in connection with this Agreement and to
fulfill its obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, and performance of this
Agreement, and apart from any requirements in the Loan Documents or Co-Lender
Agreement, no further action by, or notice to or filing with any Person is
required of it for such execution, delivery or performance; and (iv) this
Agreement has been fully executed and delivered by it and constitutes the
legal, valid and binding obligation of the Assignor, enforceable against the
Assignor in accordance with the terms hereof, except as to enforcement,
bankruptcy, insolvency, moratorium, and other laws of general application
relating to creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in connection with the Loan Documents or Co-Lender
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents, Co-Lender Agreement or any other
instrument or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no responsibility
with respect to, the solvency, financial condition or statements of the
-3-
Borrower or the performance or observance by the Borrower of any of its
respective obligations under the Loan Documents or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and has full power and authority to take, and has
taken, all action necessary to execute and deliver this Agreement and any
other documents required or permitted to be executed or delivered by it in
connection with this Agreement, and to fulfill its obligations hereunder;
(ii) no notices to, or consents, authorizations or approvals of, any Person
are required (other than any already given or obtained) for its due
execution, delivery and performance of this Agreement, and apart from any
requirements in the Loan Documents or Co-Lender Agreement, no further action
by or notice to or filing with any Person is required of it for such
execution, delivery or performance; (iii) this Agreement has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligations of the Assignee, enforceable against the Assignee in accordance
with the terms hereof, except as to enforcement, bankruptcy, insolvency,
moratorium, and other laws of general application relating to creditors'
rights and to general equitable principles; and (iv) it is eligible under the
Loan Documents to be an assignee of the Loan.
9. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agrees to execute and
deliver such other instruments and take such other action as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, including the delivery of any notices or other documents to the
Borrower, the Agent which may be required in connection with this assignment
and assumption.
10. INDEMNITY.
The Assignee agrees to indemnify and hold harmless the Assignor
against any and all losses, costs, expenses (including reasonable attorneys'
fees and the cost of any services of in-house legal counsel) and liabilities
incurred by the Assignor in connection with or arising from the
non-performance by the Assignee of any obligation assumed by the Assignee
under this Agreement.
11. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this Agreement
shall be in writing and signed by the parties hereto. No failure or delay by
either party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Agreement shall be without prejudice with respect to any
other or further breach hereof.
(b) All payments made hereunder shall be without any set-off or
counterclaim.
(c) All communications among the parties or notices in connection
herewith shall be in accordance with the Loan Documents and Co-Lender
Agreement using for the Assignor and the Assignee their respective addresses
set forth on the signature pages hereof. The Assignee specifies as its
Lending Office the office set forth beneath its name on the signature pages
hereof.
(d) The Assignor and the Assignee each shall pay its own costs and
expenses incurred in connection with the negotiation, preparation and execution
of this Agreement.
-4-
(e) This Agreement shall be binding upon and inure to the benefit
of the Assignor and the Assignee and their respective successors and assigns,
subject however to the provisions of the Loan Documents and the Co-Lender
Agreement.
(f) This Agreement may be executed in counterparts all of which
taken together shall be deemed to constitute one and the same instrument.
(g) This Agreement shall be governed by the laws of the State of
California.
(h) The provisions of the Loan Documents regarding arbitration
shall apply to any controversies or claims between Assignor and Assignee. The
Assignor and the Assignee each irrevocably submits to the non-exclusive
jurisdiction of any California State or Federal court sitting in the cities
of San Francisco or Los Angeles over any suit, action or proceeding arising
out of this Agreement and irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such California
State or Federal court. Each party to this Agreement hereby irrevocably
waives any defense of venue or inconvenient forum to the maintenance of such
action or proceeding.
(i) This Agreement integrates all the terms and conditions hereof,
constitutes the entire agreement and understanding between the parties hereto
and supersedes any and all prior agreements and understandings related to the
subject matter hereof. In the event of any conflict between the terms and
conditions of this Agreement and any other document this Agreement shall
prevail. In the event of any inconsistency between the provisions of this
Agreement and Schedule I hereto, this Agreement shall control. Headings are
for reference only and are to be ignored in interpreting this Agreement. The
illegality or unenforceability of any provision of this Agreement shall not
impair the legality or enforceability of the remaining provisions of this
Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Agreement as of the date first above written.
[NAME]
__________________________________
(Assignor)
By:
______________________________
Title:
___________________________
[NAME]
__________________________________
(Assignee)
By:
______________________________
Title:
___________________________
Assignee's
Lending Office:
__________________________________
__________________________________
__________________________________
__________________________________
-5-
SCHEDULE I
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
1. Borrower: BRE PROPERTIES, INC.
2. Date of Loan Agreement: ___________, 1996
3. Assignor:
_______________________________________________
4. Assignee:
_______________________________________________
5. Date of Assignment and Assumption Agreement:
6. Effective Date:
7. Assignee's Pro Rata Share: %
__________
8. Assigned Amount: $
__________
9. Fees: Payment by Borrower [Part of fee payable by
to Assignee Assignee to Assignor]
___________________ _______________________
(i) Fee $ $ [or %]
_________________ ______ _______________________
(ii) Fee $ $ [or %]
_________________ ______ _______________________
10. Fees: Payment by Borrower [Part of Interest
to Assignee Payable By Assignee to
___________________ Assignor
________________________
(i) Reference based-
Rate Loan $ $ [or %]
______ _______________________
(ii) LIBOR Alternative $ $ [or %]
______ _______________________
11. Payment Instructions:
Assignee:
__________________________
__________________________
Assignor:
__________________________
__________________________
12. All written and telephone notices to Assignee in connection with the Loan
be made shall as follows:
__________________________
__________________________
__________________________
Attn:
__________________________
Tele:
__________________________
Fax:
__________________________
13. Other Information:
