EXHIBIT 10.2
AMENDMENT NO. 3 TO
TERM LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO TERM LOAN AGREEMENT (the "Amendment"), dated
February 14, 2005, is entered into by and among ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership ("Borrower"), XXXXX FARGO BANK,
NATIONAL ASSOCIATION ("Administrative Agent"), in its capacity as Administrative
Agent, Sole Lead Arranger and as a Lender (Xxxxx Fargo Bank, National
Association, is sometimes herein also referred to as "Xxxxx Fargo") and WACHOVIA
BANK, N.A., as Lenders.
R E C I T A L S
A. Pursuant to the terms of a Term Loan Agreement, dated as of September 19,
2002 between Borrower and Lenders, as amended by an Amendment No. 1 to
Term Loan Agreement dated June 19, 2003 and as further amended by an
Amendment No. 2 to Term Loan Agreement dated June 30, 2004 (as amended,
the "Loan Agreement"), Lenders loaned to Borrower the principal amount of
FIFTY MILLION DOLLARS ($50,000,000) (the "Loan"). The Loan is evidenced by
certain promissory notes executed by Borrower in favor of Lenders, which
promissory notes aggregate to the principal amount of the Loan
(collectively, the "Notes"), and is further evidenced by the documents
described in the Loan Agreement as the "Loan Documents". All capitalized
and herein undefined terms shall have the meanings as set forth in the
Loan Agreement.
B. By letter dated July 31, 2003 from Borrower to Administrative Agent,
Borrower exercised its option pursuant to Section 2.1(e) of the Loan
Agreement to extend the Maturity Date to June 13, 2006.
C. By this Amendment, Borrower and Lenders intend to extend the term of the
Loan to February 14, 2012, and to modify and amend certain terms and
provisions of the Loan Documents.
NOW, THEREFORE, Borrower, Administrative Agent and Lenders agree as
follows:
1. CONDITIONS PRECEDENT. The following are conditions precedent to
Lenders' obligations under this Amendment:
1.1 Reimbursement to Administrative Agent by Borrower of
Administrative Agent's costs and expenses incurred in connection with this
Amendment and the transactions contemplated hereby and payment of all other
amounts due to Administrative Agent in connection with this Amendment,
including, without limitation, reasonable attorneys' fees and documentation
costs and charges, whether such services are furnished by Administrative Agent's
employees or agents or by independent contractors;
1.2 The representations and warranties contained in this Amendment
are true and correct;
1.3 All payments due and owing to Lenders under the Loan Documents
have been paid current as of the effective date of this Amendment; and
1.4 In addition to those amounts due and owing by Borrower
pursuant to Section 1.1 and Section 1.3 of this Amendment, Borrower shall have
paid to Administrative Agent an amount equal to $100,000, for the pro rata
benefit of each Lender in connection with Lenders' approval of this Amendment.
2. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants that no Event of Default or Unmatured Event of Default exists under any
of the Loan Documents (as modified by this Amendment) and that all
representations and warranties herein and in the other Loan Documents are true
and correct, which representations and warranties shall survive execution of
this Amendment.
3. MODIFICATION OF LOAN DOCUMENTS. The Loan Documents are hereby
supplemented and modified to incorporate the following, which shall supersede
and prevail over any conflicting provisions of the Loan Documents:
3.1 Schedule 1.1. Schedule 1.1 of the Loan Agreement is hereby
deleted in its entirety and replaced with the Schedule set forth as Exhibit B
attached hereto and made a part hereof.
3.2 Applicable Fixed Rate Margin. The definition of "Applicable
Fixed Rate Margin" set forth in the Loan Agreement is hereby deleted in its
entirety and replaced by the following:
"Applicable Fixed Rate Margin" means (i) prior to June 13, 2006, one
and one-quarter percent (1.25%), and (ii) from and after June 13,
2006, one and three-tenths percent (1.30%).
3.3 Term. Section 2.1(d) of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
(d) Term. The outstanding balance of the Loan shall be payable in
full on the earliest to occur of, (i) February 14, 2012, (ii)
the acceleration of the Loan pursuant to Section 9.2(a), or
(iii) Borrower's written notice to Administrative Agent
(pursuant and subject to Section 2.6(a)) of Borrower's
election to prepay all accrued Obligations and terminate the
Loan (said earlier date referred to herein as the "Maturity
Date").
3.4 Extension of Maturity Date. Section 2.1(e) is hereby deleted
in its entirety, it being the intention of Borrower and the Lenders that there
not be any further options to extend the term of the Loan.
3.5 Voluntary Prepayments. Section 2.6(a) is hereby deleted in its
entirety and replaced with the following:
(a) Voluntary Prepayments. Borrower may, upon not less than three
(3) Business Days prior written notice to Administrative Agent
not later than 11:00 A.M. (San Francisco time) on the
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date given, at any time and from time to time, prepay the
Loan, in whole or in part, upon the terms and conditions set
forth herein. In connection with the prepayment of all or any
portion of the Loan, whether such payment is made voluntarily
by Borrower or as the result of an acceleration of the Loan by
Lenders following a Event of Default, Borrower shall pay to
Lenders, in addition to any fees and costs which may be
incurred by Lenders in connection with the prepayment of the
Loan, including any Fixed Rate Price Adjustment, a prepayment
premium as set forth on Schedule 2.6 attached hereto. Any
notice of prepayment given to Administrative Agent under this
Section 2.6(a) shall specify the date of prepayment and the
aggregate principal amount of the prepayment. In the event of
a prepayment of any Fixed Rate Portion, Borrower shall pay any
Fixed Rate Price Adjustment payable in respect thereof in
accordance with Section 2.4(h). Administrative Agent shall
provide to each Lender a conforming copy of such notice on the
same Business Day such notice is received.
BY INITIALING THIS PROVISION WHERE INDICATED BELOW, BORROWER
CONFIRMS THAT LENDERS' AGREEMENT TO MAKE THE LOAN AT THE INTEREST
RATES AND ON THE OTHER TERMS SET FORTH HEREIN AND IN THE OTHER LOAN
DOCUMENTS CONSTITUTES ADEQUATE AND VALUABLE CONSIDERATION, GIVEN
INDIVIDUAL WEIGHT BY BORROWER, FOR THIS AGREEMENT, AND BORROWER
HEREBY WAIVES ANY DEFENSE IT MAY HAVE AT LAW OR IN EQUITY THAT ANY
PREPAYMENT PREMIUM PROVIDED FOR HEREIN IS A PENALTY, BORROWER
EXPRESSLY ACKNOWLEDGING THAT LENDERS HAVE MADE THE FINANCIAL
ACCOMMODATIONS CONTEMPLATED BY THIS AGREEMENT IN RELIANCE ON THE
AGREEMENTS AND WAIVER OF BORROWER AND THAT LENDERS WOULD NOT HAVE
DONE SO WITHOUT SUCH AGREEMENTS AND WAIVERS.
Borrower Initials: /s/ XXXXXXX X. XXXXX
--------------------
3.6 Schedule 2.6. Schedule 2.6 of the Loan Agreement is hereby
deleted in its entirety and replaced with the Schedule set forth as Exhibit A
attached hereto and made a part hereof.
4. EFFECTIVENESS OF THIS AMENDMENT. The Amendment and all of the
provisions hereof shall become effective upon the satisfaction of all of the
conditions precedent set forth in Section 1 above and the execution of the
Amendment by all parties hereto.
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5. FORMATION AND ORGANIZATIONAL DOCUMENTS. Borrower has previously
delivered to Administrative Agent all of the relevant formation and
organizational documents of Borrower and Guarantor, and all such formation
documents remain in full force and effect and have not been amended or modified
since they were delivered to Administrative Agent. Borrower hereby certifies
that: (i) the above documents are all of the relevant formation and
organizational documents of Borrower and Guarantor; (ii) they remain in full
force and effect; and (iii) they have not been amended or modified since they
were previously delivered to Administrative Agent.
6. NON-IMPAIRMENT. Except as expressly provided herein, nothing in this
Amendment shall alter or affect any provision, condition, or covenant contained
in the Notes or other Loan Documents or affect or impair any rights, powers, or
remedies of Lenders, it being the intent of the parties hereto that the
provisions of the Notes and other Loan Documents shall continue in full force
and effect except as expressly modified hereby. Nothing contained herein shall
serve to waive any Lenders' rights or remedies as a result of Borrower's
non-compliance with any provision of the Loan Agreement or the Loan Documents
either before or after the date hereof.
7. MISCELLANEOUS. This Amendment and the other Loan Documents shall be
governed by and interpreted in accordance with the laws of the State of
California, except if preempted by federal law. Time is of the essence of each
term of the Loan Documents, including this Amendment. If any provision of this
Amendment or any of the other Loan Documents shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that portion
shall be deemed severed from this Amendment and the remaining parts shall remain
in full force as though the invalid, illegal, or unenforceable portion had never
been a part thereof.
8. INTEGRATION; INTERPRETATION. The Loan Documents, including this
Amendment, contain or expressly incorporate by reference the entire agreement of
the parties with respect to the matters contemplated therein and supersede all
prior negotiations, written or oral. The Loan Documents shall not be modified
except by written instrument executed by all parties. Any reference to the Loan
Documents includes any amendments, renewals or extensions now or hereafter
approved by Administrative Agent and Lenders in writing.
9. EXECUTION IN COUNTERPARTS. To facilitate execution, this document
may be executed in as many counterparts as may be convenient or required. It
shall not be necessary that the signature of, or on behalf of, each party, or
that the signature of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single document.
It shall not be necessary in making proof of this document to produce or account
for more than a single counterpart containing the respective signatures of, or
on behalf of, each of the parties hereto. Any signature page to any counterpart
may be detached from such counterpart without impairing the legal effect of the
signatures thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature pages.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, Borrower, Administrative Agent and Lenders have caused
this Amendment to be duly executed as of the date first above written.
BORROWER: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC.,
a Maryland corporation,
Its sole general partner
By: /s/ XXXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Its: Executive Vice President and Chief
Financial Officer
--------------------------------------
ADMINISTRATIVE AGENT XXXXX FARGO BANK,
AND LENDER: NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXXXXX
------------------------------------------------
Name: Xxxx X. Xxxxxxxx
----------------------------------------------
Its: Vice President
-----------------------------------------------
LENDER: WACHOVIA BANK, N.A.
By: /s/ XXXXX XXXXXXXX
------------------------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------------------
Its: Vice President
-----------------------------------------------
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GUARANTOR'S CONSENT
The undersigned ("Guarantor") consents to the foregoing AMENDMENT NO. 3 TO
TERM LOAN AGREEMENT and the transactions contemplated thereby and reaffirms its
obligations under the Repayment Guaranty ("Guaranty") dated as of September 19,
2002, and its waivers, as set forth in the Guaranty, of each and every one of
the possible defenses to such obligations. Guarantor further reaffirms that its
obligations under the Guaranty are separate and distinct from Borrower's
obligations.
Dated as of:February 14,2005
ARDEN REALTY, INC., a Maryland corporation
By /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Its: Executive Vice President and Chief
Financial Officer
--------------------------------------
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EXHIBIT A
SCHEDULE 2.6
PREPAYMENT PREMIUMS
DATE OF PARTIAL OR WHOLE PREPAYMENT PREPAYMENT PREMIUM
----------------------------------- ------------------
February 14, 2005 to February 14, 2006 0.375% of the aggregate principal amount of the prepayment
February 15, 2006 to February 14, 2007 0.25% of the aggregate principal amount of the prepayment
February 15, 2007 to February 14, 2008 0.15% of the aggregate principal amount of the prepayment
February 15, 2008 to February 14, 2009 0.10% of the aggregate principal amount of the prepayment
February 15, 2009 to February 14, 2012 None
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EXHIBIT B
SCHEDULE 1.1
PRO RATA SHARES
LENDER PRO RATA SHARE AMOUNT
------ -------------- ------------
Xxxxx Fargo Bank, National Association 90% $45,000,000
Wachovia Bank, National Association 10% 5,000,000
ALL LENDERS 100% $50,000,000
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