Exhibit 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "First
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Amendment") is entered into as of the 3rd day of June, 1998 by and between Sanwa
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Bank California, a California banking corporation (the "Bank"), and BRE
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Properties, Inc., a Maryland corporation (the "Borrower").
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RECITALS
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A. Pursuant to an Amended and Restated Credit Agreement dated as of
December 31, 1997 (as amended, modified, or waived, the "Credit Agreement"), the
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Bank agreed to extend credit to the Borrower on the terms and conditions
contained therein.
B. Within the Credit Limit (as such term and all other capitalized terms
used in this First Amendment, but not otherwise defined, are defined in the
Credit Agreement) and in addition to LIBOR Loans and Reference Rate Loans, the
Borrower has asked the Bank to make Loans to the Borrower on which the interest
is calculated for a period of up to thirty (30) days at a fixed rate quoted from
time to time by the Bank to the Borrower and accepted by the Borrower.
C. The Bank has agreed to make such Loans available to the Borrower on the
terms and conditions contained in this First Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree that the
Credit Agreement shall be amended as follows:
1. AMENDMENTS.
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1.1 Amendments to Definitions. The following definitions in Section 1.1
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of the Credit Agreement are amended to read as follows:
"'Interest Period' shall mean:
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"(a) with respect to any LIBOR Loan, the period commencing on
the date advanced and ending one, two, three, six or twelve months
thereafter, as designated in the relevant Loan Request; provided,
however, that (1) any Interest Period which would otherwise end on a day
which is not a LIBOR Business Day shall be extended to the next
succeeding LIBOR Business Day unless by such
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extension it would fall in another calendar month, in which case such
Interest Period shall end on the immediately preceding LIBOR Business
Day, (2) any Interest Period applicable to a LIBOR Loan which begins on a
day for which there is no numerically corresponding day in the calendar
month during which such Interest Period is to end shall, subject to the
provisions of clause (1) hereof, end on the last day of such calendar
month, and (3) no such Interest Period shall extend beyond the relevant
Expiration Date; and
"(b) with respect to any Bid Rate Loan, the period commencing on
the date advanced and ending on the number of days thereafter (but not
more than thirty (30) days thereafter) specified in the Borrower's Loan
Request for such Bid Rate Loan."
"'Loan' shall mean a Revolving Loan or Bid Rate Loan."
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"'Loan Request' shall mean a written request for a Loan in form and
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substance satisfactory to the Bank. In the case of a request for a Bid
Rate Loan, a Loan Request shall include a request for the Bank to submit
an offer to make such Bid Rate Loan for a specified Interest Period at a
fixed interest rate per annum to be specified by the Bank."
1.2 New Definitions. The following new definitions are added to Section
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1.1 of the Credit Agreement in correct alphabetical order:
"'Bid Rate Loans' shall have the meaning set forth in Section 2.1(b)
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below."
"'Revolving Loans' shall have the meaning set forth in Section 2.1(a)
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below."
1.3 Amendments to Credit Facilities and Miscellaneous Provisions. Articles
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2 and 3 of the Credit Agreement are amended to read as follows:
"2. CREDIT FACILITIES.
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"2.1 Credit Limits.
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"(a) Revolving Loans. On the terms and subject to the
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conditions set forth herein, the Bank agrees that it shall, from time to
time, until the Expiration Date (as such term and capitalized terms not
otherwise defined herein are defined in Section 1 above) make revolving
loans (each a 'Revolving Loan' and, collectively, the 'Revolving Loans')
to the Borrower in an aggregate amount with all its other outstanding
Loans not to exceed the Credit Limit minus the face amount of Outstanding
Letters of Credit. Revolving Loans may be repaid and reborrowed in
accordance with this Agreement.
"(b) Bid Rate Loans. On the terms and subject to the
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conditions set forth herein, the Bank agrees that it may, from time to
time in its discretion,
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until the Expiration Date make bid rate loans (each a 'Bid Rate Loan'
and, collectively, the 'Bid Rate Loans') to the Borrower in an aggregate
amount not to exceed at any one time the lesser of (i) $15,000,000 or
(ii) the Credit Limit minus outstanding Revolving Loans and Outstanding
Letters of Credit. Bid Rate Loans may be repaid and reborrowed in
accordance with this Agreement.
"(c) Letters of Credit. On the terms and subject to the
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conditions set forth herein, the Bank agrees to issue for the account of
the Borrower from time to time from the date hereof to and including the
30th day immediately preceding the Expiration Date, its standby Letters
of Credit (a 'Letter of Credit' and collectively the 'Letters of Credit')
in an aggregate face amount with the face amount of other Outstanding
Letters of Credit not to exceed at any one time the lesser of (i) the L/C
Sublimit or (ii) the Credit Limit minus Loans outstanding.
"2.2 Maintenance of Loans. Revolving Loans shall be maintained, at the
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election of the Borrower made from time to time as permitted herein, as
Reference Rate Loans and/or LIBOR Loans or any combination thereof.
"2.3 Calculation of Interest. The Borrower shall pay interest on Loans
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outstanding hereunder from the date disbursed to but not including the
date of payment at a rate per annum equal to, at the option of and as
selected by the Borrower from time to time (subject to the provisions of
Sections 2.6, 2.7 and 2.8 below): (1) with respect to each Revolving
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Loan which is a LIBOR Loan, at the Applicable LIBOR Rate for the
applicable Interest Period, (2) with respect to each Revolving Loan which
is a Reference Rate Loan, at a fluctuating rate per annum equal to the
Reference Rate during the applicable calculation period, and (3) with
respect to each Bid Rate Loan, at the rate quoted to the Borrower by the
Bank in the Bank's sole discretion in accordance with Section 2.6(c)
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below.
"2.4 Payment of Interest.
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"(a) Interest accruing on Reference Rate Loans outstanding
hereunder shall be payable monthly, in arrears, for each month on or
before the tenth Business Day of the next succeeding month and a final
payment shall be payable on the Expiration Date in the amount of interest
then accrued but unpaid.
"(b) Interest accruing on LIBOR Loans outstanding hereunder
shall be payable in arrears: (1) in the case of LIBOR Loans with Interest
Periods ending from not more than three (3) months from the date
advanced, at the end of the applicable Interest Period therefor; and (2)
in the case of LIBOR Loans with Interest Periods ending later than three
(3) months from the date advanced, at the end of each three (3) month
period from the date advanced, and then at the end of the applicable
Interest Period therefor.
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"(c) Interest accruing on Bid Rate Loans outstanding hereunder
shall be payable in arrears at the end of the applicable Interest Period
therefor.
"(d) The Borrower hereby irrevocably authorizes and directs the
Bank to collect interest when due by debiting the amount of interest
payable from any collected funds then on deposit in such account
maintained by the Borrower with the Bank as the Borrower shall designate,
but no failure by the Bank to so debit such account and no insufficiency
in the amount on deposit in such account shall excuse the Borrower from
making any payment in full when due. In accordance with its usual
procedures, the Bank will notify the Borrower of the date and approximate
amount of any such debit prior to the date thereof.
"2.5 Repayment of Principal. Unless converted on the last day
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of an Interest Period in accordance with Section 2.6 below, Eurodollar
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Loans and Bid Rate Loans shall be repaid on the last day of the relevant
Interest Period. Subject to the prepayment requirements of this
Agreement, the Borrower shall pay the principal amount of all Loans
remaining outstanding on the Expiration Date. The Borrower hereby
irrevocably authorizes and directs the Bank to collect principal on the
Loans when due by debiting the amount of principal payable from any
collected funds then on deposit in such account maintained by the
Borrower with the Bank as the Borrower shall designate, but no failure by
the Bank to so debit such account and no insufficiency in the amount on
deposit in such account shall excuse the Borrower from making any payment
in full when due.
"2.6 Election of Type of Loan; Conversion Options.
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"(a) The Borrower may elect from time to time to have Revolving
Loans funded (i) as Reference Rate Loans by giving the Bank prior
irrevocable notice no later than 10:00 a.m. (Los Angeles time) on the
proposed date of borrowing of such election, and (ii) as LIBOR Loans by
giving the Bank at least three LIBOR Business Days' prior irrevocable
notice of such election. The Borrower may elect from time to time to (i)
convert Loans outstanding as LIBOR Loans or Bid Rate Loans to Reference
Rate Loans by giving the Bank at least one Business Day's prior
irrevocable notice of such election, and (ii) convert Loans outstanding
as Reference Rate Loans or Bid Rate Loans to LIBOR Loans by giving the
Bank at least three Business Days' prior irrevocable notice of such
election. Any such conversion of LIBOR Loans may only be made on the last
day of the applicable Interest Period. All such elections shall be
evidenced by the delivery by the Borrower to the Bank within the required
time frame of a duly executed Loan Request. No Reference Rate Loan or Bid
Rate Loans shall be converted into a LIBOR Loan if an Event Of Default or
Potential Default has occurred and is continuing on the day occurring
three LIBOR Business Days prior to the date
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of the conversion requested by the Borrower. All or any part of
outstanding Loans may be converted as provided in this Section 2.6(a),
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provided that partial conversions shall be in a principal amount of
$500,000 or whole multiples of $100,000 in excess thereof, and in the
case of conversions into LIBOR Loans, after giving effect thereto the
aggregate of the then number of respective LIBOR Loans having a different
Interest Period does not exceed five.
"(b) Any LIBOR Loan may be continued as such upon the
expiration of the Interest Period with respect thereto by giving the Bank
at least three LIBOR Business Days' prior irrevocable notice of such
election as set forth on a duly executed Loan Request; provided, however,
that no LIBOR Loan may be continued as such when any Event Of Default or
Potential Default has occurred and is continuing, but shall be
automatically converted to a Reference Rate Loan on the last day of the
then current Interest Period applicable thereto. If the Borrower shall
fail to give notice as provided above, the Borrower shall be deemed to
have elected to convert the affected LIBOR Loan to a Reference Rate Loan
on the last day of the relevant Interest Period.
"(c) The Borrower may request a Bid Rate Loan by transmitting
to the Bank by telephone (promptly confirmed in writing by telecopy) a
Loan Request to be received no later than 9:00 a.m. (Los Angeles time)
one Business Day prior to the date (which shall be a Business Day) when
such Bid Rate Loan is requested to be made (the 'Bid Rate Loan Funding
Date'). Upon receipt of such a Loan Request for a Bid Rate Loan, the Bank
may, in its sole discretion, but shall not be obligated to, submit to the
Borrower no later than 7:30 a.m. (Los Angeles time) on the relevant Bid
Rate Loan Funding Date by telephone (confirmed in writing by telecopy) an
offer to make a Bid Rate Loan for the requested Interest Period in a
principal amount equal to all or any portion of the Bid Rate Loan
requested at the fixed rate of interest per annum specified in such
offer. No later than 7:45 a.m. (Los Angeles time) on the Bid Rate Loan
Funding Date, the Borrower shall irrevocably notify the Bank by telephone
(promptly confirmed in writing by telecopy) if the Borrower accepts or
rejects such offer. Any offer not so accepted shall be deemed to be
rejected.
"2.7 Inability to Determine Rate. In the event that the Bank shall have
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determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank market
adequate and reasonable means do not exist for ascertaining the LIBOR
Rate for any Interest Period, the Bank shall forthwith give notice to the
Borrower. If such notice is given: (1) no Loan may be funded as a LIBOR
Loan, (2) any Loan that was to have been or would be converted to a LIBOR
Loan shall, subject to the provisions hereof, be continued as a Reference
Rate Loan, and (3) any outstanding LIBOR Loan shall be converted, on the
last day of the then current Interest Period with respect thereto, to a
Reference Rate Loan.
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"2.8 Illegality. Notwithstanding any other provisions herein, if any
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law, regulation, treaty or directive or any change therein or in the
interpretation or application thereof, shall make it unlawful for Bank to
make or maintain LIBOR Loans as contemplated by this Agreement: (1) the
commitment of the Bank hereunder to make or to continue LIBOR Loans or to
convert Reference Rate Loans or Bid Rate Loans to LIBOR Loans shall
forthwith be canceled and (2) Loans then outstanding as LIBOR Loans, if
any, shall be converted automatically to Reference Rate Loans at the end
of their respective Interest Periods or within such earlier period as
required by law. In the event of a conversion of any such Loan prior to
the end of its applicable Interest Period the Borrower hereby agrees
promptly to pay the Bank, upon demand in writing setting forth in
reasonable detail the calculation of the amount so demanded, the amounts
required pursuant to Section 2.11 below, it being agreed and understood
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that such conversion shall constitute a prepayment for all purposes
hereof. The provisions hereof shall survive the termination of this
Agreement and payment of the outstanding Loans and all other amounts
payable hereunder.
"2.9 Requirements Of Law; Increased Costs. In the event that any
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applicable law, order, regulation, treaty or directive issued by any
central bank or other Governmental Authority, agency or instrumentality
or in the governmental or judicial interpretation or application thereof,
or compliance by Bank with any request or directive (whether or not
having the force of law) issued by any central bank or other Governmental
Authority, agency or instrumentality:
"(1) Does or shall subject the Bank to any tax of any kind
whatsoever with respect to this Agreement or any Loans made or Letters Of
Credit issued hereunder, or change the basis of taxation of payments to
the Bank of principal, fee, interest or any other amount payable
hereunder (except for change in the rate of tax on the overall net income
of the Bank);
"(2) Does or shall impose, modify or hold applicable any
reserve, capital requirement, special deposit, compulsory loan or similar
requirements against assets held by, or deposits or other liabilities in
or for the account of, advances or Loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Bank which are
not otherwise included in the determination of interest payable on the
Obligations; or
"(3) Does or shall impose on the Bank any other condition;
"and the result of any of the foregoing is to increase the cost to the
Bank of making, renewing or maintaining any Loan or Letter of Credit or
to reduce any amount receivable in respect thereof or the rate of return
on the capital of the Bank or any corporation controlling the Bank, then,
in any such case, the Borrower shall promptly pay to the Bank, upon its
written demand made to the Borrower, any additional amounts necessary to
compensate the Bank for
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such additional cost or reduced amounts receivable or rate of return as
determined by the Bank with respect to this Agreement or Loans made or
Letters Of Credit issued hereunder. If the Bank becomes entitled to claim
any additional amounts pursuant to this Section 2.9, it shall promptly
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notify the Borrower of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to
the foregoing sentence containing the calculation thereof in reasonable
detail submitted by the Bank to the Borrower shall be conclusive in the
absence of manifest error. The provisions hereof shall survive the
termination of this Agreement and payment of the outstanding Loans and
all other amounts payable hereunder.
"2.10 Funding. The Bank shall be entitled to fund all or any portion of
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its Loans in any manner it may determine in its sole discretion,
including, without limitation, in the Grand Cayman inter-bank market, the
London inter-bank market and within the United States, but all
calculations and transactions hereunder shall be conducted as though the
Bank actually funds all LIBOR Loans through funding dollar deposits in
the amount of the relevant Loan in maturities corresponding to the
applicable Interest Period in a manner consistent with the method based
on which the LIBOR Rate was calculated by the Bank.
"2.11 Prepayment Premium. In addition to all other payment obligations
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hereunder, in the event: (1) any Loan which is outstanding as a LIBOR
Loan or Bid Rate Loan is prepaid prior to the last day of the applicable
Interest Period, whether following a voluntary prepayment, a mandatory
prepayment or otherwise, or (2) the Borrower shall fail to continue or to
make a conversion to a LIBOR Loan after the Borrower has given notice
thereof as provided in Section 2.6 above, or (3) the Borrower shall fail
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to borrow a LIBOR Loan or Bid Rate Loan which has been irrevocably
requested, then promptly on written demand (which shall be deemed to be
accurate in the absence of manifest error) the Borrower shall pay to the
Bank, an additional premium sum compensating the Bank for losses, costs
and expenses incurred by the Bank in connection with such prepayment,
including, without limitation, those incurred in connection with
redeployment of funds.
"3. MISCELLANEOUS PROVISIONS.
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"3.1 Use of Proceeds. Loans and Letters of Credit will be used by the
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Borrower in connection with the acquisition and development of
Properties, for working capital, and payment of distributions.
"3.2 Request For Loans and Letters Of Credit; Making of Loans and
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Issuance of Letters Of Credit.
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"(a) The Revolving Loans. If the Borrower desires to borrow
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Revolving Loans hereunder, the Borrower shall deliver a Loan Request to
the Bank, which shall be delivered telephonically no later than 10:00
a.m. (Los
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Angeles time) and immediately confirmed by facsimile transmission, on the
day notice of borrowing is required to be given for the type of Revolving
Loan being requested pursuant to Section 2.6 above. Each Revolving Loan
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that is a Reference Rate Loan shall be in a minimum amount not less than
$100,000 and in increments of $50,000 in excess thereof. Each Revolving
Loan that is a LIBOR Loan shall be in a minimum amount not less than
$500,000 and in increments of $100,000 in excess thereof.
"(b) The Bid Rate Loans. If the Borrower desires to borrow
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Bid Rate Loans hereunder, the Borrower shall deliver a Loan Request and
acceptance of an offer by the Bank pursuant to Section 2.6 above. Each
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Bid Rate Loan requested by the Borrower shall be in a minimum amount not
less than $500,000 and in increments of $100,000 in excess thereof.
"(c) Letters Of Credit. If the Borrower desires to request a
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Letter Of Credit hereunder, the Borrower shall deliver a Letter Of Credit
Request (which shall be completed in form and substance satisfactory to
the Bank) to the Bank which shall be delivered by telefacsimile
transmission at least three (3) Business Days prior to the requested date
of issuance. Each such Letter Of Credit Request shall be accompanied by
all other documents, instruments, and agreements as the Bank may
reasonably request in connection with such request (the 'L/C Documents').
"3.3 Evidence of Repayment Obligations.
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"(a) The Loans. The obligation of the Borrower to repay the
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Loans shall be evidenced by the book, records and accounts of the Bank.
Upon any advance, conversion or prepayment as provided in this Agreement
with respect to any Loan, the Bank is hereby authorized to record the
date and amount of each such advance and conversion, or the date and
amount of each such payment or prepayment of principal of the Loan, the
applicable Interest Period and interest rate with respect thereto, by any
method the Bank may elect consistent with its customary practices and any
such recordation shall constitute prima facie evidence of the accuracy of
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the information so recorded absent manifest error. The failure of the
Bank to make any such notation shall not affect in any manner or to any
extent the Borrower's Obligations hereunder.
"(b) Letters Of Credit. Each Drawing under a Letter Of Credit
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shall be payable in full by the Borrower on the date thereof, without
demand or notice of any kind. If the Borrower desires to repay a Drawing
from the proceeds of a Loan, the Borrower may request a Loan in
accordance with the other terms and conditions of this Agreement and, if
disbursed on the date of such Drawing, such Reference Rate Loan shall be
applied in payment of such reimbursement obligation by the Borrower. The
obligation of the Borrower to reimburse the Bank for Drawings shall be
absolute, irrevocable and unconditional under any and all circumstances
whatsoever and irrespective of
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any set-off, counterclaim or defense to payment which the Borrower may
have or have had against the Bank (except such as may arise out of the
Bank's gross negligence or willful misconduct hereunder) or any other
Person, including, without limitation, any set-off, counterclaim or
defense based upon or arising out of:
"(i) Any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
"(ii) Any amendment or waiver of or any consent to departure
from the terms of any Letter Of Credit;
"(iii) The existence of any claim, set-off, defense or other
right which the Borrower or any other Person may have at any time against
any beneficiary or any transferee of any Letter Of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting); or
"(iv) Any allegation that any demand, statement or any other
document presented under any Letter Of Credit is forged, fraudulent,
invalid or insufficient in any respect, or any statement therein being
untrue or inaccurate in any respect whatsoever or any variations in
punctuation, capitalization, spelling or format of the drafts or any
statements presented in connection with any Drawing.
"3.4 Nature and Place of Payments. All payments made on account of the
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Obligations shall be made by the Borrower, without setoff or
counterclaim, in lawful money of the United States of America in
immediately available funds, free and clear of and without deduction for
any taxes, fees or other charges of any nature whatsoever imposed by any
taxing authority and must be received by the Bank by 1:00 p.m. (Los
Angeles time) on the day of payment, it being expressly agreed and
understood that if a payment is received after 1:00 p.m. (Los Angeles
time) by the Bank, such payment will be considered to have been made by
the Borrower on the next succeeding Business Day and interest thereon
shall be payable by the Borrower at the Reference Rate during such
extension. If any payment required to be made by the Borrower hereunder
becomes due and payable on a day other than a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and
interest thereon shall be payable at the then applicable rate during such
extension.
"3.5 Default Interest. After the occurrence of and during the
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continuance of an Event Of Default, the Bank, in its sole discretion, may
determine that all Obligations shall bear interest from the date due
until paid in full at a per annum rate equal to the Default Rate.
"3.6 Computations. All computations of interest and fees payable
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hereunder shall be based upon a year of 360 days for the actual number of
days elapsed.
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"3.7 Prepayments.
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"(a) The Borrower may prepay Reference Rate Loans hereunder in
whole or in part at any time. LIBOR Loans and Bid Rate Loans may only be
paid at the end of their respective Interest Periods.
"(b) The Borrower shall pay in connection with any prepayment
hereunder, whether voluntary or mandatory, all interest accrued but
unpaid on Loans to which such prepayment is applied, and all prepayment
premiums, if any, on LIBOR Loans and Bid Rate Loans to which such
prepayment is applied, concurrently with payment to the Bank of any
principal amounts.
"(c) Subject to the other terms and conditions of this
Agreement, the Borrower may, from time to time upon five (5) Business
Days' prior written notice to the Bank, reduce the Credit Limit, in
increments of not less than $1,000,000, to an amount not less than the
aggregate Loans outstanding and Outstanding Letters Of Credit.
"3.8 Fees.
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"(a) Unused Credit. The Borrower shall pay to the Bank an
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unused credit fee on the average daily amount by which the Credit Limit
exceeds the sum of outstanding Loans and Letter of Credit Obligations,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter, based upon the daily utilization for such quarter,
equal to .125% per annum. Such fee shall accrued from the date of the
Second Amendment to this Agreement and shall be due and payable quarterly
in arrears on the last Business Day of each calendar quarter, commencing
on September 30, 1997 with the final payment to be made on the Maturity
Date.
"(b) Letter Of Credit Fees. The Borrower shall pay to the
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Bank (i) on the date of issuance of each Letter of Credit a non-
refundable letter of credit commission computed at the per annum rate of
1.5% on the face amount of such standby Letters Of Credit and (ii) on
demand, such other fees as may be required by the Bank in accordance with
its standard fee structure for such Letters of Credit.
"(c) Other Fees. The Borrower shall pay such other fees as it
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shall from time to time agree upon in connection with this Agreement
pursuant to letter agreements entered into with reference to this
paragraph."
2. CONDITIONS TO EFFECTIVENESS OF FIRST AMENDMENT. As conditions precedent to
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the effectiveness of this First Amendment:
2.1 Delivery of Documents. The Borrower shall have delivered to the Bank,
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in form and substance satisfactory to the Bank and its counsel, each of the
following:
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(a) First Amendment Documents. This First Amendment and any other
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documents, instruments, and agreements required or necessary to
consummate the transactions contemplated under this First Amendment (the
"First Amendment Documents"), all duly executed.
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(b) Evidence of Authority. Certified resolutions of the Board of
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Directors of the Borrower approving the execution, delivery and
performance of each of the First Amendment Documents.
(c) Incumbency. A certificate of the Secretary or an Assistant
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Secretary of the Borrower and each Material Subsidiary certifying the
names and true signatures of the officers of the Borrower authorized to
sign the First Amendment Documents and, on an ongoing basis, to act under
and to perform the First Amendment Documents.
(d) Miscellaneous Documents. Such other documents as the Bank may
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reasonably require with respect to the transactions described in this
First Amendment.
2.2 Other Actions. All acts and conditions (including, without
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limitation, the obtaining of necessary regulatory approvals and the making of
any required filings, recordings or registrations) required to be done and
performed and to have happened precedent to the execution, delivery and
performance of the First Amendment Documents and to constitute the same legal,
valid and binding obligations, enforceable in accordance with their respective
terms, shall have been done and performed and shall have happened in due and
strict compliance with all applicable laws.
2.3 Payment of Fees. The Bank shall have received payment in full of all
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its expenses and fees (including attorneys' fees and the allocated cost of
inside counsel) incurred in connection with the preparation and negotiation of
the First Amendment and the other First Amendment Documents.
2.4 Documentation Satisfactory. All documentation, including, without
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limitation, documentation for corporate and legal proceedings in connection with
the transactions contemplated by the First Amendment Documents shall be in form
and substance satisfactory to the Bank and its counsel.
2.5 Representations and Warranties. The representations and warranties
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set forth in Section 5 of the Credit Agreement and Section 3 of this First
Amendment and in any other document, instrument, agreement or certificate
delivered to the Bank hereunder shall be true and correct in all material
respects.
2.6 Event of Default. No event shall have occurred and be continuing
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which constitutes, or with the lapse of time or giving of notice or both, would
constitute an Event of Default.
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3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby makes the following
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representations and warranties to the Bank, which representations and warranties
shall be continuing:
3.1 Status. The Borrower (a) is duly organized, validly existing and in
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good standing under the laws of the jurisdiction of its creation, and is in good
standing under the laws of each jurisdiction where it is organized; (b) has the
power and authority and all governmental licenses, authorizations, consents and
approvals to own its assets, carry on its business and to execute, deliver, and
perform its obligations under the First Amendment Documents and the Loan
Documents, as amended thereby; (c) is duly qualified as a foreign Person,
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification; and (d) is in compliance with all applicable laws
and regulations; except, in each case referred to in clauses (b), (c), or (d),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
3.2 Authority. The execution, delivery and performance by the Borrower of
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the First Amendment Documents have been duly authorized and do not and will
not: (i) violate, in any material respect, any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
presently in effect having application to the Borrower or any of its
Subsidiaries; (ii) result in a breach of or constitute a default under any
material indenture or loan or credit agreement or other material agreement,
lease or instrument to which the Borrower or any of its Subsidiaries is a party
or by which it or its properties may be bound or affected; or (iii) require any
consent or approval of its stockholders or members or violate any provision of
its articles of incorporation or by-laws or other organizational documents.
3.3 Governmental Authorization. No approval, consent, exemption,
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authorization, or other action by, or notice to, or filing with, any
governmental authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Borrower or
any Material Subsidiary of this First Amendment or any other First Amendment
Document.
3.4 Legal Effect. Each First Amendment Document has been duly executed
------------
and delivered on behalf of the Borrower and constitutes, and any instrument,
document or agreement required hereunder when delivered hereunder will
constitute, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms subject to
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
creditors rights generally and by general equitable principles.
4. MISCELLANEOUS PROVISIONS
------------------------
4.1 Conflicting Provisions. To the extent that any of the terms or
----------------------
provisions contained in this First Amendment are inconsistent with those
contained in any other document, instrument or agreement executed pursuant
hereto, the terms and provisions contained herein shall control. Otherwise,
such provisions shall be considered cumulative.
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4.2 Binding Effect; Assignment. This First Amendment shall be binding
--------------------------
upon and inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the Bank's prior
written consent. The Bank may sell, assign or grant participations in all or
any portion of its rights and benefits hereunder. The Borrower agrees that, in
connection with any such sale, grant or assignment, the Bank may deliver to the
prospective buyer, participant or assignee financial statements and other
relevant information relating to the Borrower.
4.3 Jurisdiction. THIS FIRST AMENDMENT AND ANY DOCUMENTS, INSTRUMENTS OR
------------
AGREEMENTS MENTIONED OR REFERRED TO HEREIN SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES, TO THE JURISDICTION OF WHOSE COURTS THE PARTIES HEREBY SUBMIT.
4.4 Counterparts. This First Amendment may be executed in one or more
------------
counterparts and each set of counterparts signed by all the parties shall
constitute one original.
4.5 Severability. If any provision of this First Amendment shall be
------------
unenforceable for any reason, then the remaining provisions of this First
Amendment shall be enforced without regard to such provision.
4.6 Headings. The headings set forth herein are solely for the purpose of
--------
identification and have no legal significance.
4.7 Entire Agreement. This First Amendment and any other First Amendment
----------------
Documents shall constitute the entire and complete understanding of the parties
with respect to the transactions contemplated hereunder. All previous
conversations, memoranda and writings between the parties or pertaining to the
transactions contemplated hereunder that are not incorporated or referenced in
this First Amendment or any other First Amendment Documents are superseded
hereby
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA BRE PROPERTIES, INC.
By: /s/ Xxxxx X. XxXxxxxx By: Xxxxx X. XxXxxxxx
--------------------- Title: President
Title: President
-----------
By: /s/ XxXxx X. Xxxxxxx By: XxXxx Xxxxxxx
-------------------- Title: Executive Vice President and
Title: EVP and Secretary Secretary
--------------------
REAFFIRMATION BY GUARANTOR
The undersigned Guarantor hereby acknowledges receipt of the foregoing First
Amendment and reaffirms that its Guaranty remains in full force and effect with
respect to Obligations of the Borrower under the Credit Agreement as amended
thereby.
BRE PROPERTY INVESTORS LLC
By: : /s/ XxXxx X. Xxxxxxx
--------------------
Title: EVP and Secretary
-----------------
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