AMENDED AND RESTATED
UNSECURED LINE OF CREDIT LOAN AGREEMENT
By and Between
BRE PROPERTIES, INC.,
as Borrower,
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Lender
Dated as of July 8, 1997
TABLE OF CONTENTS
PAGE
----
CERTAIN DEFINITIONS......................................................... 1
1. LINE OF CREDIT AMOUNT AND TERMS......................................... 7
1.1 LINE OF CREDIT AMOUNT.............................................. 7
1.2 AVAILABILITY PERIOD................................................ 7
1.3 INTEREST RATE...................................................... 8
1.4 LOAN DOCUMENTS..................................................... 8
2. FEES, EXPENSES.......................................................... 9
2.1 FEES............................................................... 9
2.2 EXPENSES AND COSTS................................................. 9
3. DISBURSEMENTS, PAYMENTS AND COSTS....................................... 9
3.1 REQUESTS FOR CREDIT................................................ 9
3.2 DISBURSEMENT AND PAYMENT RECORD.................................... 10
3.3 AUTHORIZATION...................................................... 10
3.4 BANKING DAYS....................................................... 10
4. CONDITIONS.............................................................. 10
4.1 AUTHORIZATIONS..................................................... 10
4.2 GOVERNING DOCUMENTS; GOOD STANDING CERTIFICATES.................... 10
4.3 LOAN DOCUMENTS..................................................... 11
4.4 PAYMENT OF FEES.................................................... 11
4.5 OTHER ITEMS........................................................ 11
5. REPRESENTATIONS AND WARRANTIES.......................................... 11
5.1 ORGANIZATION OF THE BORROWER; GOOD STANDING........................ 11
5.2 AUTHORIZATION; ENFORCEABLE AGREEMENT............................... 11
5.3 FINANCIAL INFORMATION.............................................. 12
5.4 LAWSUITS........................................................... 12
5.5 TITLE TO ASSETS.................................................... 12
5.6 PERMITS, FRANCHISES................................................ 13
5.7 INCOME TAX RETURNS................................................. 13
5.8 ERISA PLANS........................................................ 13
5.9 OTHER OBLIGATIONS.................................................. 13
5.10 EVENT OF DEFAULT................................................... 13
5.11 STATUS AS A REIT................................................... 14
6. COVENANTS............................................................... 14
6.1 USE OF PROCEEDS.................................................... 14
6.2 FINANCIAL INFORMATION.............................................. 14
6.3 OTHER INFORMATION.................................................. 15
6.4 FINANCIAL COVENANTS................................................ 16
6.5 TAXES AND OTHER LIABILITIES........................................ 18
6.6 NOTICES TO THE BANK................................................ 18
6.7 AUDITS; BOOKS AND RECORDS.......................................... 19
6.8 COMPLIANCE WITH LAWS............................................... 19
6.9 PRESERVATION OF RIGHTS............................................. 19
6.10 MAINTENANCE OF PROPERTIES.......................................... 19
i
TABLE OF CONTENTS
(continued)
PAGE
----
6.11 INSURANCE.......................................................... 19
6.12 ERISA PLANS........................................................ 20
6.13 ADDITIONAL NEGATIVE COVENANTS...................................... 20
6.14 CONTINUED STATUS AS A REIT; PROHIBITED
TRANSACTIONS....................................................... 21
6.15 NYSE LISTED COMPANY................................................ 21
6.16 CONDUCT OF BUSINESS................................................ 21
6.17 COOPERATION........................................................ 21
7. COLLATERAL.............................................................. 21
8. DEFAULT................................................................. 21
8.1 FAILURE TO PAY..................................................... 21
8.2 FALSE INFORMATION.................................................. 22
8.3 BANKRUPTCY......................................................... 22
8.4 RECEIVERS.......................................................... 22
8.5 LAWSUITS........................................................... 22
8.6 JUDGMENTS.......................................................... 22
8.7 ERISA PLANS........................................................ 22
8.8 GOVERNMENT ACTION.................................................. 23
8.9 MATERIAL ADVERSE CHANGE............................................ 23
8.10 OTHER BREACH UNDER THIS AGREEMENT OR OTHER LOAN
DOCUMENTS.......................................................... 23
8.11 CROSS-DEFAULT...................................................... 23
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS................................. 23
9.1 REMEDIES........................................................... 23
9.2 CALIFORNIA LAW..................................................... 23
9.3 ARBITRATION........................................................ 24
9.4 PRESENTMENT, DEMANDS AND NOTICE.................................... 24
9.5 INDEMNIFICATION.................................................... 24
9.6 ATTORNEYS' FEES.................................................... 25
9.7 NOTICES............................................................ 25
9.8 SUCCESSORS AND ASSIGNS............................................. 25
9.9 NO THIRD PARTIES BENEFITED......................................... 25
9.10 AMENDMENT AND RESTATEMENT; INTEGRATION; RELATION
TO ANY LOAN COMMITMENT; HEADINGS................................... 26
9.11 INTERPRETATION..................................................... 26
9.12 SEVERABILITY; WAIVERS; AMENDMENTS.................................. 27
9.13 COUNTERPARTS....................................................... 27
EXHIBIT A
BORROWING NOTICE
Schedule 1 to Borrowing Notice (Requested Advance)
ii
AMENDED AND RESTATED
UNSECURED
LINE OF CREDIT LOAN AGREEMENT
This Amended and Restated Unsecured Line of Credit Loan Agreement (the
"Agreement"), dated as of July 8, 1997 is between BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (the "Bank") and BRE PROPERTIES, INC., a Maryland
corporation (the "Borrower").
A. The Bank, Manufacturers Bank ("Manufacturers"), The Industrial Bank of
Japan, Limited, Los Angeles Agency ("IBJ"), and Commerzbank AG, Los Angeles
Branch ("Commerzbank") have agreed to make advances (the "Line of Credit") to
the Borrower in accordance with an Unsecured Line of Credit Loan Agreement
between the Borrower and the Bank dated April 4, 1996, as amended by the
Modification Agreement to Syndicate Loan, dated as of April 4, 1996 (the "First
Modification"), by the Second Modification Agreement, dated as of October 22,
1996 ("Second Modification"), and by a letter agreement dated February 7, 1997
(as so amended, the "Loan Agreement"). Advances under the Line of Credit are
currently evidenced by an Amended and Restated Promissory Note dated as of April
4, 1996 in the stated principal amount of $120,000,000 (the "Prior Note"). The
Line of Credit is a revolving and unsecured line of credit.
B. Borrower, the Bank, Manufacturers, IBJ and Commerzbank desire to amend
the Loan Documents, among other things, to decrease the Commitment from
$120,000,000 to $115,000,000, to extend the Maturity Date of the Line of Credit,
to change the Applicable Margin and fees applicable to the Line of Credit, to
provide for the availability of advances on a bid basis, and to make certain
related modifications to the Loan Documents.
C. In connection with the foregoing modifications to the terms of the
Line of Credit, the Borrower and the Bank, with the consent of Manufacturers,
IBJ and Commerzbank, wish to amend and restate the Loan Agreement, all as set
forth herein.
NOW, THEREFORE, the Loan Agreement is hereby amended and restated to read
in its entirety as follows:
CERTAIN DEFINITIONS
The following terms used in this Agreement shall have the following
meanings (such meanings to be applicable, except to the extent otherwise
indicated in a definition of a particular term, both to the singular and the
plural forms of the terms defined; other terms are defined elsewhere in the
Agreement):
"ACCOMMODATION OBLIGATIONS", as applied to any Person, means any
Indebtedness or other Contractual Obligation or liability, contingent or
otherwise, of another Person in respect of which that Person is liable,
including, without limitation, any such indebtedness, obligation or liability
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including in respect of any partnership in which
that Person is a general partner, Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase or otherwise
acquire such indebtedness, obligation or liability or any security therefor, or
to provide funds for the payment or discharge thereof (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, or other financial condition, or to
make payment other than for value received.
"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.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as of any date of
determination, (i) if no Rating is then in effect, 0.20%; OR (ii) effective on
the first day of the fiscal quarter following the Borrower's obtaining a Rating
(or a change in the then-effective Rating) and giving written notice thereof to
the Bank, the Applicable Facility Fee Percentage set forth below in the
definition of "Applicable Margin" opposite the then Rating (as determined in
accordance with the definition of "Applicable Margin") of the Borrower. As of
the date of this Agreement, the Borrower has obtained Ratings of (x) BBB from
Standard & Poor's, (y) Baa2 from Moody's Investor's Service, and (z) BBB+ from
Duff & Xxxxxx, Inc., and the Applicable Facility Fee Percentage for the current
calendar quarter is 0.15%.
"APPLICABLE MARGIN" means, as of any date of determination, (i) if no
Rating is then in effect, 1.40%; OR (ii) effective on the first day of the
fiscal quarter following the Borrower's obtaining a Rating (or a change in the
then-effective Rating) and giving written notice thereof to the Bank, the
Applicable Margin set forth below opposite the then Rating (as hereinbelow
determined) of the Borrower:
2
Applicable
Rating Facility Fee
(S&P/Moody's) Applicable Margin Percentage
----------------- ------------------- -----------------
A-/A3 or better 0.70% 0.10%
BBB+/Baal 0.80% 0.15%
BBB/Baa2 0.95% 0.15%
BBB-/Baa3 1.10% 0.20%
below BBB-/Baa3 1.40% 0.20%
PROVIDED, HOWEVER, that: (1) until the (a) first anniversary of the date of
this Agreement, (b) the date on which any change in, or reaffirmation of, any
Rating in effect as of the date of this Agreement takes effect, or (c) the date
on which any additional Rating (I.E., other than those noted in the definition
of Applicable Facility Fee Percentage as having already been obtained by the
Borrower) is issued, whichever first occurs (the "GRID APPLICATION DATE"), the
"Applicable Margin" shall be 0.80%; and (2) on and as of the Grid Application
Date and until a new Applicable Margin takes effect as provided above, the
"Applicable Margin" shall be the Applicable Margin set forth above opposite the
Rating in effect (or taking effect, as the case may be) on the Grid Application
Date. As used herein, the term "Rating" shall mean the rating of the Borrower's
senior long-term unsecured debt obligations, as determined by one or more Rating
Agencies. If two Ratings are obtained by the Borrower, then the lower Rating
shall control for purposes of determining the Applicable Margin; provided,
however, that if the difference between the two Ratings is greater than two
levels, then the Bank shall reasonably determine the average of such Ratings,
which shall control (and, if such average is greater than one of the rating
levels specified in the foregoing table but less than the next higher rating
level, the lower of the two rating levels shall be deemed the average of the two
Ratings for purposes of determining the Applicable Margin). If three or more
Ratings are obtained by the Borrower, then all but the two highest Ratings shall
be disregarded, and the Applicable Margin shall be determined in accordance with
the preceding sentence as if such two highest Ratings were the only two Ratings
obtained. If the Borrower shall obtain a Rating from a Rating Agency other than
Standard & Poor's Corporation or Moody's Investor's Service, Inc., then the Bank
shall reasonably determine the rating-level equivalents of such other Rating
Agency for purposes of determining the Applicable Margin in accordance with the
matrix above.
"CONTRACTUAL OBLIGATION," as applied to any Person, means any
provision of any securities issued by that Person or any indenture, mortgage,
deed of trust, lease, contract, undertaking, document or instrument to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CPA" means Ernst & Young, LLP, any other "big six"
3
accounting firm or another firm of certified public accountants of national
standing selected by the Borrower and acceptable to the Bank.
"CURRENT VALUE METHOD" means, with respect to each Real Property as of
any date: (i) if such Real Property has not been operated under the Borrower's
(or a controlled Affiliate of the Borrower's) ownership for at least three (3)
months, on a cost basis, as reflected in the Borrower's books in accordance with
GAAP; and (ii) in any other case, capitalization of the Net Operating Income for
such Real Property for the four (4) most recent calendar quarters (or, if the
Borrower has owned a Real Property for less than such time period, then the
annualized Net Operating Income for such Real Property based on the period of
ownership by the Borrower), as certified by the Borrower to the Bank, at an
annual rate equal to (A) 9.5% for each Real Property improved with an apartment
project, (B) 10.0% for each Real Property improved with a shopping center or
similar retail project, and (C) 10.5% for each Real Property improved with an
industrial or other commercial project and for each Real Property (including
apartment and retail projects) which is subject to a land lease by the Borrower.
(All references in this Agreement to "apartment project" shall be understood to
mean multi-family residential properties held for rental.)
"DEBT SERVICE" means, for the most recent three (3) month period,
Interest Expense for such period PLUS scheduled principal amortization (I.E.,
excluding any balloon payment due at maturity) for such period on all of the
Borrower's Indebtedness.
"EBITDA" means, for the most recent three (3) month period, the sum of
(i) the Borrower's net income as determined in accordance with GAAP, (ii)
depreciation and amortization expense and other non-cash items deducted on the
Borrower's financial statements in determining such net income, (iii) interest
expense (as it appears on the Borrower's income statement in accordance with
GAAP), and (iv) taxes imposed by any jurisdiction upon the Borrower's net
income, absent the effect of extraordinary items or asset sales or write-ups or
forgiveness of Indebtedness.
"EFFECTIVE DATE" means the date on which all conditions precedent set
forth in Section 4 are satisfied or waived by the Bank.
"FUNDS FROM OPERATIONS" means, for any period, the Borrower's net
income (computed in accordance with GAAP), excluding gains (or losses) from debt
restructuring and sales of property, plus depreciation and amortization, and
after adjustments for unconsolidated partnerships and joint ventures.
(Adjustments for unconsolidated partnerships and joint ventures shall be
calculated to reflect funds from operations on the same basis.)
4
"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.
"GROSS OFFERING PROCEEDS" means all cash proceeds received by the
Borrower as a result of the sale of common, preferred or other classes of stock
in the Borrower (if and only to the extent reflected in stockholders' equity on
the consolidated balance sheet of the Borrower prepared in accordance with
GAAP), WITHOUT DEDUCTION for any costs and discounts of issuance paid by the
Borrower.
"INDEBTEDNESS", as applied to any Person (and without duplication),
means (i) all indebtedness, obligations or other liabilities for borrowed money,
(ii) all indebtedness, obligations or other liabilities evidenced by notes,
bonds, debentures or other similar instruments, (iii) all reimbursement
obligations and other liabilities with respect to letters of credit, banker's
acceptances, surety bonds or similar instruments issued for such Person's
account, (iv) all obligations to pay the deferred purchase price of property or
services, (v) all obligations in respect of capital leases, (vi) all
Accommodation Obligations, and (vii) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any asset of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by, or are a personal liability of, such Person (including, without limitation,
the principal amount of any assessment or similar indebtedness encumbering any
asset).
"INTEREST EXPENSE" means, for any period, total interest expense of
the Borrower, whether paid, accrued or capitalized (including the interest
component of capital leases).
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including without limitation any conditional sale or other
title retention agreement, the interest of a lessor under a capital lease, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement or document having similar
effect (other than a financing statement filed by a "true" lessor pursuant to
Section 9408 of the Uniform Commercial Code) naming the owner of the asset to
which such Lien relates as debtor, under the Uniform Commercial Code or other
comparable law of any jurisdiction.
"LINE OF CREDIT" means the line of credit described in
5
Section 1.1.
"MATERIAL ADVERSE EFFECT" means, with respect to a Person, a material
adverse effect upon the condition (financial or otherwise), operations,
performance or properties of such Person. The phrase "has a Material Adverse
Effect" or "will result in a Material Adverse Effect" or words substantially
similar thereto shall in all cases be intended to mean "has resulted, or will or
could reasonably be anticipated to result, in a Material Adverse Effect", and
the phrase "has no (or does not have a) Material Adverse Effect" or "will not
result in a Material Adverse Effect" or words substantially similar thereto
shall in all cases be intended to mean "does not or will not or could not
reasonably be anticipated to result in a Material Adverse Effect".
"NET OPERATING INCOME" means, at any time with respect to each Real
Property, the cash-basis net operating income of such Real Property determined
on a basis consistent with the operating statements provided by the Borrower to
the Bank prior to the Effective Date.
"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.
"PRUDENTIAL INDEBTEDNESS" means the unsecured Indebtedness of the
Borrower to The Prudential Life Insurance Company of America in the original
principal amount of $73,000,000.
"RATING AGENCY" means each of Standard & Poor's Corporation, Moody's
Investor's Service, Inc., Duff and Xxxxxx and Fitch Investors or such other
nationally recognized rating service or services as may be mutually agreed upon
by the Borrower and the Bank.
"REAL PROPERTY" means all improved, income-producing real property
owned in fee entirely by the Borrower or a consolidated, controlled Affiliate of
the Borrower.
"SECURED INDEBTEDNESS" means all the Borrower Indebtedness that is
secured by a Lien on any real property asset of the Borrower.
"TANGIBLE NET WORTH" means, at any time, shareholders' equity, as
shown on the Borrower's financial statements prepared in accordance with GAAP,
MINUS intangible assets.
"TOTAL ASSETS" means, at any time, the book value (net
6
of any applicable reserves) of all tangible assets of the Borrower as shown on
its most recent quarterly financial statements prepared in accordance with GAAP.
"TOTAL LIABILITIES" means (i) all Indebtedness of the Borrower,
whether or not such Indebtedness would be included as a liability on the balance
sheet of the Borrower in accordance with GAAP, PLUS (ii) all other liabilities
of every nature and kind of the Borrower that would be included as liabilities
on the balance sheet of the Borrower in accordance with GAAP.
"TOTAL REAL PROPERTY MARKET VALUE" means, at any time, the aggregate
value of all Real Properties as determined using the Current Value Method.
"UNENCUMBERED REAL PROPERTY" means all Real Property as to which
neither such real property, nor any interest in the Person owning such real
property, is subject to any Lien (other than Liens in respect of nondelinquent
real estate taxes or assessments) or to any agreement (other than this Agreement
or any other Loan Document) that prohibits the creation of any Lien thereon as
security for Indebtedness of the Person owning such real property.
"UNSECURED INDEBTEDNESS" means Indebtedness of the Borrower not
secured by a Lien.
1. LINE OF CREDIT AMOUNT AND TERMS
1.1 LINE OF CREDIT AMOUNT.
(a) During the Availability Period described below, the Bank will
provide a line of credit (also referred to as the "Loan") to the Borrower. The
amount of the Line of Credit is One Hundred Fifteen Million Dollars
($115,000,000) (the "Commitment" or the "Maximum Loan Amount").
(b) This is a revolving line of credit. During the Availability
Period, the Borrower may from time to time repay principal amounts (subject to
the provisions of Exhibit B to the Note referred to below) and reborrow such
principal, subject to compliance with the terms and conditions of the Loan
Documents referenced in Section 1.4 below.
(c) Each advance under the Line of Credit must be for at least Five
Hundred Thousand Dollars ($500,000), or for the amount of the remaining
available Line of Credit if less.
(d) The Borrower agrees not to permit the aggregate principal amount
of all advances under the Loan Documents outstanding at any time to exceed the
Commitment.
1.2 AVAILABILITY PERIOD.
7
The Line of Credit is available (the "Availability Period") between
the date of this Agreement and the Maturity Date (as defined in the Note),
subject to the provisions of Section 3.1 below. If there is an Event of
Default, then, in addition to the Bank's other remedies, the Bank may terminate
the Availability Period and may require the Borrower to repay any amounts
outstanding under the Line of Credit, or any other credit facilities provided by
the Bank pursuant to the Loan Documents, immediately.
1.3 INTEREST RATE.
Borrower is executing an amended and restated promissory note (the
"Note") in the amount of the Commitment evidencing advances made under the Loan
Documents and payable to the Bank. The Note sets forth certain provisions
regarding the interest rate and certain other terms and conditions applicable to
the credit facilities provided pursuant to the Loan Documents. Promptly
following the Effective Date, the Bank shall xxxx the Prior Note "superseded"
and return it to the Borrower. Until the Effective Date, interest shall
continue to accrue on outstanding advances at the rate or rates provided in the
Prior Note; such interest shall be due and payable on the first date on which
interest is due under the Note. All principal outstanding under the Prior Note
as of the Effective Date shall for all purposes be deemed outstanding under the
Note, and all of Borrower's obligations under the Prior Note shall for all
purposes be incorporated into the Note.
1.4 LOAN DOCUMENTS.
The "Loan Documents" are the documents indicated below, each dated as
of the date of this Agreement unless indicated otherwise. A capitalized term
used in this Agreement but not defined herein has the meaning given to such term
in the other Loan Documents.
(a) This Agreement;
(b) The Note;
(c) The Amended and Restated Modification Agreement to Syndicate Loan
entered into concurrently herewith;
(d) The supplemental commitment fee, agency fee and deposit letter
executed by the Borrower in favor of the Bank (the "Supplemental Letter"); and
(e) Corporate Resolution to borrow, certified by the Corporate
Secretary of the corporation. The Corporate Resolution shall also contain a
Certificate of Incumbency for the authorized signing officers, containing their
specimen signatures and certified by the Corporate Secretary.
8
2. FEES, EXPENSES
2.1 FEES.
(a) COMMITMENT FEE. The Borrower agrees to pay, in advance, a
commitment fee in the amount provided for in the Supplemental Letter. This fee
is due on the Effective Date.
(b) FACILITY FEE. The Borrower agrees to pay, in quarterly
installments, in arrears, a facility fee in an amount equal to one quarter of
the Applicable Facility Fee Percentage of the Commitment as of the first day of
each calendar quarter during the term hereof and as of the last day of the
Availability Period (prorated for partial quarters on the basis of a year of 360
days for the actual number of days elapsed). This fee shall be due and payable
not later than fifteen (15) days following the rendering of an invoice therefor
by the Bank.
2.2 EXPENSES AND COSTS.
(a) Borrower shall pay all costs and expenses incurred by the Bank in
connection with the making, disbursement and administration of the Line of
Credit and other credit facilities, if any, made available pursuant to the Loan
Documents, and in the exercise of any of the Bank's rights or remedies under the
Loan Documents. Such costs and expenses include legal fees and expenses of the
Bank's counsel and any other reasonable fees and costs for services, regardless
of whether such services are furnished by the Bank's employees or by independent
contractors. The Borrower acknowledges that the other fees payable to the Bank
do not include amounts payable by the Borrower under this Section 2.2.
(b) The Borrower agrees to indemnify the Bank from and hold it
harmless against any transfer or documentary taxes, assessments or charges
imposed by any governmental authority by reason of the execution, delivery and
performance of the Loan Documents. The Borrower's obligations under this
Section 2.2 shall survive payment of the advances made pursuant to the Loan
Documents and assignment of any rights hereunder.
3. DISBURSEMENTS, PAYMENTS AND COSTS
3.1 REQUESTS FOR CREDIT.
(a) Each request for an extension of credit shall be made in writing
in a manner acceptable to the Bank.
9
(b) BORROWING NOTICE. Except as otherwise provided in the Loan
Documents, each draw request shall be made upon the irrevocable written notice
of the Borrower (including notice via facsimile confirmed by a mailed copy)
pursuant to a Borrowing Notice in the form attached hereto as EXHIBIT A. Each
Borrowing Notice shall be submitted to and received by the Bank prior to 9:00
a.m. (California time) at least two (2) Banking Days prior to the specified
borrowing date. The truth and accuracy of each statement made in the Borrowing
Notice shall be a condition precedent to the advance requested thereunder.
3.2 DISBURSEMENT AND PAYMENT RECORD.
Each disbursement by the Bank and each payment by the Borrower will be
evidenced by records kept by the Bank.
3.3 AUTHORIZATION.
(a) The Bank may honor facsimile instructions for advances or
repayments (or for the designation of any optional interest rates that may be
permitted by the Note) given by any one of the individuals authorized to sign
loan documents on behalf of the Borrower, or any other individual designated by
any one of such authorized signers.
(b) Advances will be deposited in the Borrower's account number
00333 02 305 at the Bank, or such other of the Borrower's accounts with the Bank
as designated in writing by the Borrower.
(c) The Borrower indemnifies and releases the Bank (including its
officers, employees, and agents) from all liability, loss, and costs in
connection with any act resulting from any instructions the Bank reasonably
believes are made by any individual authorized by the Borrower to give such
instructions. This indemnity and release shall survive this Agreement's
termination.
3.4 BANKING DAYS.
A Banking Day is defined in the Note. All payments and disbursements
which would be due on a day which is not a Banking Day will be due on the next
Banking Day. All payments received on a day which is not a Banking Day will be
applied to amounts due under the Loan Documents on the next Banking Day.
4. CONDITIONS
The Bank must receive the following items, in form and content acceptable
to the Bank, before it is required to extend any credit to the Borrower under
this Agreement or any other Loan Document:
4.1 AUTHORIZATIONS.
10
Evidence that the execution, delivery and performance by the Borrower
of the Loan Documents have been duly authorized.
4.2 GOVERNING DOCUMENTS; GOOD STANDING CERTIFICATES.
A copy of the Borrower's articles of incorporation and bylaws,
together with a certificate of good standing for the Borrower from the state
where formed and, at the Bank's request, from any other state in which the
Borrower is required to qualify to conduct its business.
4.3 LOAN DOCUMENTS.
Duly executed Loan Documents.
4.4 PAYMENT OF FEES.
Payment of all accrued and unpaid fees and expenses due the Bank as
provided for by the Loan Documents and all other accrued and unpaid fees and
expenses provided for under the Loan Documents as heretofore in effect (other
than the Unused Commitment Fee provided for under the Loan Agreement for the
period ending on the Effective Date, which will payable in accordance with
Section 9.10).
4.5 OTHER ITEMS.
Any other documents and other items the Bank may reasonably require as
conditions precedent to this Agreement or any advance.
5. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is repaid in
full, the Borrower makes the following representations and warranties. Each
request for an extension of credit constitutes a restatement of each such
representation and warranty.
5.1 ORGANIZATION OF THE BORROWER; GOOD STANDING.
The Borrower is duly formed and existing under the laws of the state
where organized. In each state in which the Borrower does business, it is
properly licensed, in good standing, and, where required, in compliance with any
fictitious name statute.
5.2 AUTHORIZATION; ENFORCEABLE AGREEMENT.
This Agreement and the other Loan Documents are within the Borrower's
powers, have been duly authorized and do not conflict with any of its
organizational documents. The Loan Documents do not conflict with any law,
agreement or obligation
11
by which the Borrower is bound. This Agreement is a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms, and any instrument or document required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable.
5.3 FINANCIAL INFORMATION.
(a) All financial statements and data submitted in writing by the
Borrower to the Bank pursuant to the Loan Agreement are true and correct, and
all such financial statements present fairly the financial condition of the
Borrower as at the date thereof and the results of the operations of the
Borrower for the period(s) covered thereby, and have been prepared in accordance
with generally accepted accounting principles on a basis consistently applied.
The Borrower has no knowledge of any liabilities, contingent or otherwise, not
reflected in said financial statements, and the Borrower has not entered into
any material commitments or material contracts which are not reflected in said
balance sheet which may have a Material Adverse Effect on the Borrower. Since
said date there have been no changes in the assets or liabilities or financial
condition of the Borrower other than changes in the ordinary course of business,
and no such changes have been materially adverse changes.
(b) All financial and other information that has been or will be
supplied to the Bank, including the financial statements of the Borrower:
(i) is sufficiently complete to give the Bank accurate knowledge
of the subject's financial condition;
(ii) is in form and content as required by the Bank;
(iii) is in compliance with any government regulations that
apply; and
(iv) does not fail to state any material facts necessary to make
the information contained therein not misleading.
All such information (other than Funds From Operations) was and will be prepared
in accordance with GAAP, unless otherwise noted.
5.4 LAWSUITS.
There is no lawsuit, arbitration, claim or other dispute pending or
threatened against the Borrower which, if lost, would impair the Borrower's
financial condition or ability to repay advances made, and other amounts due,
under the Loan Documents, except as has been previously disclosed in writing to
the Bank.
12
5.5 TITLE TO ASSETS.
The Borrower has good and clear title to its assets, and the same are
not subject to any Liens other than those disclosed to the Bank in writing.
5.6 PERMITS, FRANCHISES.
The Borrower possesses all permits, franchises, contracts and licenses
required and all trademark rights, trade name rights, and fictitious name rights
necessary to enable it to conduct the business in which it is now engaged.
5.7 INCOME TAX RETURNS.
Borrower has filed all tax returns and reports required to be filed
and has paid all applicable federal, state and local franchise, income and
property taxes which are due and payable. The Borrower has no knowledge of any
pending assessments or adjustments of its income taxes or property taxes for any
year, except as have been disclosed in writing to the Bank. The Borrower is not
a "foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended (the "Code").
5.8 ERISA PLANS.
(a) As used herein, (i) "ERISA" means the Employee Retirement Income
Act of 1974, as amended; (ii) "PBGC" means the Pension Benefit Guaranty
Corporation established pursuant to ERISA; and (iii) "Plan" means any employee
pension benefit plan maintained or contributed to by the Borrower and insured by
the PBGC.
(b) The Borrower has fulfilled its obligations, if any, under the
minimum funding standards of ERISA and the Code with respect to each Plan and is
in compliance in all material respects with the presently applicable provisions
of ERISA and the Code, and has not incurred any liability with respect to any
Plan under Title IV of ERISA.
(c) No reportable event has occurred under Section 4043(b) of ERISA
for which the PBGC requires 30 day notice. No action by the Borrower to
terminate or withdraw from any Plan has been taken and no notice of intent to
terminate a Plan has been filed under Section 4041 of ERISA. No proceeding has
been commenced with respect to a Plan under Section 4042 of ERISA, and no event
has occurred or condition exists which might constitute grounds for the
commencement of such a proceeding.
13
5.9 OTHER OBLIGATIONS.
The Borrower is not in default on any Indebtedness or Contractual
Obligation of the Borrower except as has been previously disclosed in writing to
the Bank.
5.10 EVENT OF DEFAULT.
There is no event which is, or with notice or lapse of time or both
would be, an Event of Default hereunder.
5.11 STATUS AS A REIT.
The Borrower (i) is a real estate investment trust as defined in
Section 856 of the Code (or any successor provision thereto), (ii) has not
revoked its election to be a real estate investment trust, (iii) has not engaged
in any "prohibited transactions" as defined in Section 856(b)(6)(iii) of the
Code (or any successor provision thereto), and (iv) for its current "tax year"
(as defined in the Code) is and for all prior tax years subsequent to its
election to be a real estate investment trust has been entitled to a dividends
paid deduction which meets the requirements of Section 857 of the Code.
6. COVENANTS
The Borrower agrees, so long as credit is available under this
Agreement or any other Loan Document and until the Bank is repaid in full:
6.1 USE OF PROCEEDS.
Borrower shall use the proceeds of the advances under the Loan
Documents only for (a) the funding of costs directly related to the acquisition
of apartment projects, or (b) up to a maximum of Fifteen Million Dollars
($15,000,000) at any one time outstanding, general working capital purposes of
the Borrower. In complying with the provisions of the foregoing clause (a), the
Borrower shall not be required to apply advances under the Loan Documents in
direct payment of acquisition costs, but shall be permitted to request and
obtain such advances by way of reimbursement of acquisition costs previously
incurred and funded out of the Borrower's cash reserves.
6.2 FINANCIAL INFORMATION.
The Borrower shall provide the following financial information and
statements and such additional information as requested by the Bank from time to
time:
(a) As soon as available but not later than ninety (90) days after
the Borrower's fiscal year end, the Borrower's annual financial statements
including balance sheet, income statement, statement of cash flows and statement
of shareholders'
14
equity. These financial statements must be audited (with an unqualified
opinion) by the Borrower's CPA and certified by the Borrower's Chief Financial
Officer (or other officer acceptable to the Bank).
(b) As soon as available but not later than sixty (60) days after
each fiscal quarter end, the Borrower's Form 10-Q Quarterly Report, including
balance sheet, income statement, statement of cash flows and statement of
shareholders' equity. These financial statements must be certified by the
Borrower's Chief Financial Officer (or other officer acceptable to the Bank).
(c) As soon as available but not later than ninety (90) days after
the Borrower's fiscal year end, the Borrower's annual two-year financial
projection, including balance sheet and income statement, in a format and with
such detail as the Bank may require. These projections must be certified by the
Borrower's Chief Financial Officer (or other officer acceptable to the Bank).
(d) Copies of the Borrower's Form 10-K Annual Report, Form 8-K
Current Report and all other filings within fifteen (15) days after the date of
filing with the Securities and Exchange Commission, and copies of all press
releases made by the Borrower.
(e) As soon as available but not later than sixty (60) days after
each fiscal quarter end, the Borrower's quarterly internal management reports
(including (i) a schedule of all Debt Service for the prior quarter, (ii) a
schedule of Net Operating Income for each Real Property for the preceding four
(4) fiscal quarters, (iii) a schedule listing all Indebtedness secured by a Lien
on any real property assets of the Borrower, and (iv) a statement of the number
of apartment units (by project and location) under development (as defined in
Section 6.4(g)) at fiscal quarter-end. These reports must be certified by the
Borrower's Chief Financial Officer (or other officer acceptable to the Bank).
(f) At the time of the delivery of the financial statements provided
for in Sections 6.2(a) and (b), a certificate executed by the Chief Financial
Officer of the Borrower certifying compliance with all financial covenants
herein, including appropriate supporting schedules, and certifying that to the
best of the such officer's knowledge, no Event of Default has occurred and is
continuing or would result after notice or passage of time or both or, if any
Event of Default has occurred and is continuing or would result after notice or
passage of time or both, specifying the nature and extent thereof.
Notwithstanding anything to the contrary contained herein and without limiting
the Bank's other rights and remedies, if any certificate required under this
Section 6.2 is not provided on or before the due date therefor, the Borrower
shall be prohibited
15
from any further borrowing under the Line of Credit until such certificate is
provided.
6.3 OTHER INFORMATION.
The Borrower shall provide the Bank:
(a) Promptly upon, and in any event within forty-eight (48) hours
after the Borrower first has actual knowledge of (i) its failing to continue to
qualify as a real estate investment trust as defined in Section 856 of the Code
(or any successor provision thereof), (ii) any act by the Borrower causing its
election to be taxed as a real estate investment trust to be terminated, (iii)
any act causing the Borrower to be subject to the taxes imposed by Section
857(b)(6) of the Code (or any successor provision thereto), or (iv) the Borrower
failing to be entitled to a dividends paid deduction which meets the
requirements of Section 857 of the Code, a notice of any such occurrence or
circumstance.
(b) Such additional financial and other information as the Bank may
reasonably request from time to time.
6.4 FINANCIAL COVENANTS.
(a) MINIMUM NET WORTH. The Borrower will maintain a Tangible Net
Worth of not less than (i) Four Hundred Eighty-Two Million Two Hundred
Fifty-Nine Thousand Dollars ($482,259,000), plus (ii) eighty-five percent (85%)
of Gross Offering Proceeds received by the Borrower after the Effective Date.
(b) TOTAL LIABILITIES TO TOTAL ASSETS. The ratio of the Borrower's
Total Liabilities to the sum of (i) Total Real Property Market Value PLUS (ii)
Total Assets (excluding Real Property) shall not exceed 0.50:1.
(c) SECURED INDEBTEDNESS TO TOTAL ASSETS. The ratio of Secured
Indebtedness to the sum of (i) Total Real Property Market Value PLUS (ii) Total
Assets (excluding Real Property) shall not exceed shall not exceed 0.30:1.
(d) UNENCUMBERED REAL PROPERTY TO UNSECURED INDEBTEDNESS;
UNENCUMBERED REAL PROPERTY NOI TO UNSECURED INTEREST EXPENSE.
(i) The ratio of (A) Total Real Property Market Value of all
Unencumbered Real Property to (B) total commitments (disbursed and undisbursed)
under Unsecured Indebtedness shall not be less than 1.75:1.
(ii) The ratio of (A) the aggregate NOI of all Unencumbered Real
Property to (B) Interest Expense under Unsecured Indebtedness for the period
being tested shall not be less than 1.75:1.
16
(e) EBITDA TO DEBT SERVICE. The ratio of EBITDA to Debt Service
shall not be less than 1.80:1.
(f) DISTRIBUTIONS.
(i) Subject to subparagraph (ii) below, aggregate distributions
to shareholders of the Borrower shall not exceed the following, as reported
in accordance with GAAP (other than Funds From Operations):
(A) as of the end of any fiscal year, distributions shall
not exceed ninety-five percent (95%) of the Borrower's Funds From
Operations for such period; AND
(B) at the end of the first, second and third fiscal
quarters, distributions shall not exceed, more than once during any
fiscal year, one hundred percent (100%), but in no event in excess
of one hundred fifteen percent (115%), of the Borrower's Funds From
Operations for such period (calculated on a year-to-date basis).
For purposes of this Section 6.4(f), the term "distributions" shall mean
and include all dividends and other distributions to, and the repurchase of
shares from, the holder of any equity interests in the Borrower.
(ii) No distributions shall be made during the continuance of any
Event of Default arising out of the Borrower's failure to pay any monetary
obligation when due under any Loan Document (a "Monetary Default").
Aggregate distributions during the continuance of any Event of Default
other than a Monetary Default shall not exceed the lesser of (A) the
aggregate amount permitted to be made during the continuance thereof under
subparagraph (i) above, or (B) the minimum amount that the Borrower must
distribute to its shareholders in order to maintain compliance with Section
6.14 below.
(g) DEVELOPMENT. At no time shall the Borrower have under development
apartment units totaling in excess of twenty percent (20%) of the total number
of apartment units (excluding such units under development) then owned by the
Borrower. For purposes of the foregoing covenant, "development" shall mean all
units under construction, at or beyond the foundation stage, within a particular
apartment project, until the construction of all units (or discreet phase(s)
thereof, if applicable) shall have been completed, certificates of occupancy
shall have been issued with respect to such units, and such units shall be
available for immediate lease and occupancy in the normal course of business.
17
(h) MAXIMUM UNSECURED LINES OF CREDIT. The Borrower shall not permit
total commitments (disbursed and undisbursed) with respect to Unsecured
Indebtedness under lines of credit to exceed One Hundred Fifty Million Dollars
($150,000,000), plus the total commitments (disbursed and undisbursed) made
available to the Borrower under any and all other lines of credit from time to
time provided to the Borrower by (i) the Bank or (ii) a group of lenders,
consisting of the Bank and one or more other lenders, for whom the Bank serves
as agent at the time such line of credit is first made available. Further, the
Borrower shall not enter into any commitment for Unsecured Indebtedness under
lines of credit other than under (x) this Agreement, (y) any other lines of
credit from time to time provided to the Borrower by the Bank or by a group of
lenders, consisting of the Bank and one or more other lenders, for whom the Bank
serves as agent at the time such line of credit is first made available, and (z)
the existing line of credit established by Sanwa Bank in favor of the Borrower
in the maximum principal amount of Thirty-Five Million Dollars ($35,000,000).
(i) UNSECURED INDEBTEDNESS. The Borrower shall not incur any
Unsecured Indebtedness other than (i) Indebtedness under revolving lines of
credit to the extent permitted under Section 6.4(h) above, and (ii)
non-revolving, non-amortizing Indebtedness with a maturity or call date not
earlier than five (5) years after the Maturity Date under the Note in effect at
the time such Indebtedness is incurred; provided, however, that the foregoing
amortization restriction shall not apply to amortization required, as of the
date of this Agreement, under the Prudential Indebtedness.
(j) CALCULATION. Each of the foregoing ratios and financial
requirements shall be calculated as of the last day of each fiscal quarter, but
shall be satisfied at all times.
6.5 TAXES AND OTHER LIABILITIES.
The Borrower shall pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any Material Adverse Effect on the
Borrower or the loss of any right of redemption from any sale thereunder; and
(b) The Borrower shall have set aside on its books reserves
(segregated to the extent required by generally accepted accounting principles)
adequate with respect thereto.
6.6 NOTICES TO THE BANK.
18
The Borrower shall promptly notify the Bank in writing of:
(a) any Event of Default hereunder or any event which would become an
Event of Default hereunder upon the giving of notice, the lapse of time, or
both;
(b) any single lawsuit or arbitration claiming over Two Hundred Fifty
Thousand Dollars ($250,000), and lawsuits or arbitrations collectively claiming
over One Million Dollars ($1,000,000), against the Borrower, provided that the
foregoing shall not apply to the litigation disclosed in the Form S-4 referred
to in Section 5.3(a) above;
(c) any significant dispute between the Borrower and any government
authority;
(d) Borrower's receipt of any notice relating to (i) any change in or
reaffirmation of, or proposed change in or reaffirmation of, the rating of
Borrower's senior long-term unsecured debt obligations by any Rating Agency, or
(ii) the issuance of any Rating by a Rating Agency as to which no Rating is then
in effect; and
(e) any event, circumstance or condition which may have a Material
Adverse Effect on the Borrower.
6.7 AUDITS; BOOKS AND RECORDS.
The Borrower shall maintain adequate books and records and allow the
Bank and its agents to inspect the Borrower's properties and examine, audit and
make copies of books and records at any reasonable time. If any of the
Borrower's properties, books or records are in the possession of a third party,
the Borrower hereby authorizes that third party to permit the Bank or its agents
to have access to perform inspections or audits and to respond to the Bank's
requests for information concerning such properties, books and records.
6.8 COMPLIANCE WITH LAWS.
The Borrower shall comply with the laws (including any fictitious name
statute), regulations, and orders of any government body with authority over the
Borrower's business.
6.9 PRESERVATION OF RIGHTS.
The Borrower shall maintain and preserve all rights, privileges, and
franchises the Borrower now has.
19
6.10 MAINTENANCE OF PROPERTIES.
The Borrower shall make repairs, renewals, or replacements to keep the
Borrower's properties in good working condition.
6.11 INSURANCE.
The Borrower shall maintain insurance in such amounts and covering
such risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower and
each of its Affiliates operate and maintain such other insurance and coverages
as may be reasonably required by the Bank. All such insurance shall be in form
and amount and with companies satisfactory to the Bank. Upon the Bank's
request, the Borrower shall furnish the Bank with a copy of the policy or binder
of all such insurance and continuing evidence that such insurance remains in
force at applicable renewal dates.
6.12 ERISA PLANS.
The Borrower shall give prompt written notice to the Bank of the
occurrence of any reportable event under Section 4043(b) of ERISA for which the
PBGC requires 30 day notice; any action by the Borrower to terminate or
withdraw from a Plan or the filing of any notice of intent to terminate under
Section 4041 of ERISA; any notice of noncompliance made with respect to a Plan
under Section 4041(b) of ERISA; or the commencement of any proceeding with
respect to a Plan under Section 4042 of ERISA.
6.13 ADDITIONAL NEGATIVE COVENANTS.
The Borrower shall not, without the Bank's written consent:
(a) Merge or dissolve into, or consolidate with, any Person, except
mergers and consolidations (i) which result in the Borrower being the surviving
entity, (ii) which do not have a Material Adverse Effect on the Borrower, and
(iii) which do not result in the Borrower, following the consummation of such
merger or consolidation, being in default under any term or condition of this
Agreement. The Borrower shall not sell, lease, transfer, encumber or otherwise
dispose of all or any substantial part of its properties or assets, whether in a
single transaction or series of transactions, if such sale, lease, transfer,
encumbrance or other disposition would cause a Material Adverse Effect on the
Borrower;
(b) Except for any such amendment that is required under any
requirement of law imposed by any governmental authority or in order to maintain
compliance with Section 6.14, amend its articles of incorporation or by-laws
except (i) upon at
20
least ten (10) Banking Days' prior written notice to the Bank, AND (ii) if the
Bank notifies the Borrower within such 10-day period that such amendment is, in
Bank's reasonable judgment, a material amendment, with the prior written consent
of the Bank;
(c) suspend its business activity for more than two days; or
(d) use any proceeds of any advance under the Loan Documents,
directly or indirectly, to purchase or carry, or reduce or retire any loan
incurred to purchase or carry any "Margin Stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock.
6.14 CONTINUED STATUS AS A REIT; PROHIBITED TRANSACTIONS.
The Borrower (i) will continue to be a real estate investment trust as
defined in Section 856 of the Code (or any successor provision thereto), (ii)
will not revoke its election to be a real estate investment trust, (iii) will
not engage in any "prohibited transactions" as defined in Section 856(b)(6)(iii)
of the Code (or any successor provision thereto), and (iv) will continue to be
entitled to a dividend paid deduction meeting the requirements of Section 857 of
the Code.
6.15 NYSE LISTED COMPANY.
The common stock of the Borrower shall at all times be listed for
trading and be traded on the New York Stock Exchange.
6.16 CONDUCT OF BUSINESS.
The Borrower shall engage primarily in the business of direct
ownership, operation and acquisition or development for its own account of
apartment projects located in the Western United States (which shall be
understood to mean Colorado and States westward); provided, however, that the
foregoing shall not restrict either the Borrower's continued ownership and
operation of assets owned as of the Effective Date or other business activities
of the Borrower reasonably incidental to business activities otherwise permitted
under this Section 6.16.
6.17 COOPERATION.
The Borrower shall take any action reasonably requested by the Bank to
carry out the intent of the Loan Documents.
7. COLLATERAL
This Line of Credit is unsecured.
8. DEFAULT
21
If any of the following events occurs (an "Event of Default"), the Bank may
declare the Borrower in default, stop making any additional credit available to
the Borrower, and require the Borrower to repay its entire debt immediately and
without prior notice. However, if a bankruptcy petition is filed with respect
to the Borrower, the entire debt outstanding under the Loan Documents shall
automatically be due immediately.
8.1 FAILURE TO PAY.
The Borrower fails to make any payment due under the Loan Documents
(i) within fifteen (15) days after the date when due, or (ii) within such other
period, or no period, as may expressly be provided in any other Loan Document to
constitute an Event of Default.
8.2 FALSE INFORMATION.
The Borrower has given the Bank false or misleading information or
representations.
8.3 BANKRUPTCY.
The Borrower files a bankruptcy petition or makes a general assignment
for the benefit of creditors, or a bankruptcy petition is filed against the
Borrower. The default will be deemed cured if any bankruptcy petition filed
against the Borrower is dismissed within a period of forty-five (45) days after
the filing; provided, however, that the Bank will not be obligated to extend any
additional credit to the Borrower during that period.
8.4 RECEIVERS.
A receiver or similar official is appointed for the Borrower's
business, or the business is terminated.
8.5 LAWSUITS.
Any lawsuit(s) or arbitration(s) are initiated against the Borrower
involving claims exceeding in the aggregate Fifty Million Dollars ($50,000,000)
or more at any one time in excess of any insurance coverage.
8.6 JUDGMENTS.
Any judgment or arbitration award is entered against the Borrower, or
the Borrower enters into any settlement agreement with respect to any
litigation, claim or arbitration, in an aggregate amount of Ten Million Dollars
($10,000,000) or more in excess of any insurance coverage.
8.7 ERISA PLANS.
22
The occurrence of any of the following event(s) with respect to the
Borrower, provided such event(s) could reasonably be expected, in the judgment
of the Bank, to subject the Borrower to any tax, penalty or liability (or any
combination of the foregoing) which in the aggregate could have a Material
Adverse Effect on the Borrower with respect to a Plan:
(a) A reportable event occurs with respect to a Plan which in the
reasonable judgment of the Bank may result in the termination of such Plan for
purposes of ERISA.
(b) Any Plan termination (or commencement of proceedings to terminate
a Plan) or the Borrower's full or partial withdrawal from a Plan.
8.8 GOVERNMENT ACTION.
Any government authority takes action that the Bank believes could
have a Material Adverse Effect on the Borrower.
8.9 MATERIAL ADVERSE CHANGE.
Any event, circumstance or condition shall occur which the Bank
believes could have a Material Adverse Effect on the Borrower.
8.10 OTHER BREACH UNDER THIS AGREEMENT OR OTHER LOAN DOCUMENTS.
The Borrower fails to meet the conditions of or fails to perform any
obligation under any term of this Agreement or any other Loan Document not
specifically referred to in this Article 8. If, in the Bank's opinion, the
breach is capable of being remedied, the breach will not be considered an Event
of Default under this Agreement for a period of thirty (30) days after the date
on which the Bank gives written notice of the breach to the Borrower; provided,
however, that the Bank will not be obligated to extend any additional credit to
the Borrower during that period.
8.11 CROSS-DEFAULT.
Any default occurs under any agreement in connection with any credit
the Borrower or any of the Borrower's related entities or Affiliates has
obtained from the Bank or any other creditor, or which the Borrower or any of
the Borrower's related entities or Affiliates has guaranteed, if the default
consists of a failure to make a payment when due or gives the creditor the right
to accelerate the obligation.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 REMEDIES.
23
If an Event of Default occurs under the Loan Documents, the Bank may
exercise any right or remedy which it has under any of the Loan Documents or
which is otherwise available at law or in equity. All of Bank's rights and
remedies shall be cumulative. At Bank's option, exercisable in its sole
discretion, all of the Borrower's obligations under the Loan Documents will
become immediately due and payable without notice of default, presentment or
demand for payment, protest or notice of nonpayment or dishonor, or other
notices or demands of any kind.
9.2 CALIFORNIA LAW.
This Agreement is governed by California law but without regard to the
choice of law rules of California.
9.3 ARBITRATION.
(a) MANDATORY ARBITRATION. Except as provided below, any controversy
or claim between or among the parties, including those arising out of or
relating to this Agreement or the other Loan Documents and any claim based on or
arising from an alleged tort, shall at the request of any party be determined by
arbitration. The arbitration shall be conducted in accordance with the United
States Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Agreement, and under the Commercial Rules of the American
Arbitration Association ("AAA"). The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver of
the right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if any other party contests such action for judicial
relief.
(b) PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE. No provision of
this Agreement shall limit the right of any party to this Agreement to exercise
self-help remedies such as setoff, or obtaining provisional or ancillary
remedies from a court of competent jurisdiction before, after, or during the
pendency of any arbitration or other proceeding. The exercise of a remedy does
not waive the right of either party to resort to arbitration.
9.4 PRESENTMENT, DEMANDS AND NOTICE.
The Bank shall be under no duty or obligation to make or give any
presentment, demands for performances, notices of nonperformance, protests,
notices of protest or notices of dishonor in connection with any obligation or
indebtedness under
24
the Loan Documents.
9.5 INDEMNIFICATION.
The Borrower shall indemnify, save, and hold harmless the Bank and its
directors, officers, agents and employees (collectively the "Indemnitees") from
and against:
(a) Any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, charges, expenses or disbursements
(including attorneys' fees) of any kind with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and the other Loan
Documents, and the transactions contemplated hereby, and with respect to any
investigation, litigation or proceeding related to this Agreement, the other
Loan Documents, advances made pursuant to the Loan Documents or the use of the
proceeds thereof, whether or not any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities arising from the gross negligence or willful misconduct
of such Indemnitee.
(b) Any and all writs, subpoenas, claims, demands, actions, or causes
of action that are served on or asserted against any Indemnitee (if directly or
indirectly related to a writ, subpoena, claim, demand, action, or cause of
action against the Borrower or any Affiliate of the Borrower); and any and all
liabilities, losses, costs, or expenses (including attorneys' fees) that any
Indemnitee suffers or incurs as a result of any of said matters.
The obligations of the Borrower under this Section 9.5 shall survive
payment of the advances made pursuant to the Loan Documents and assignment of
any rights hereunder.
9.6 ATTORNEYS' FEES.
In the event of a lawsuit or arbitration proceeding, including any
tort proceeding, between or among the parties hereto, the prevailing party is
entitled to recover costs and reasonable attorneys' fees (including any
allocated costs of in-house counsel) incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator.
9.7 NOTICES.
All notices required under this Agreement shall be personally
delivered, sent by facsimile or sent by first class mail, postage prepaid, to
the addresses on the signature page of this Agreement, or to such other
addresses as the Bank and the Borrower may specify from time to time in writing.
9.8 SUCCESSORS AND ASSIGNS.
25
This Agreement is binding on the Borrower's and the Bank's successors
and assignees. The Borrower agrees that it may not assign this Agreement or the
other Loan Documents without the Bank's prior consent. The Bank may sell
participations in or assign this Loan, and may provide financial information
about the Borrower to actual or potential participants or assignees, without
notice to or consent of the Borrower. Concurrent with any assignment or
participation by the Bank, the Borrower will, at the Bank's request, deliver an
opinion of counsel in form and substance reasonably satisfactory to the Bank.
9.9 NO THIRD PARTIES BENEFITED.
This Agreement is made and entered into for the sole protection and
benefit of the Bank and the Borrower and their successors and assigns. No trust
fund is created by this Agreement and no other persons or entities shall have
any right of action under this Agreement or any right to the proceeds of
advances made pursuant to the Loan Documents.
9.10 AMENDMENT AND RESTATEMENT; INTEGRATION; RELATION TO ANY LOAN
COMMITMENT; HEADINGS.
(a) This Agreement fully amends and restates the Loan Agreement, and
all of the Borrower's obligations under the Loan Agreement shall for all
purposes be incorporated into this Agreement. The Unused Commitment Fee under
the Loan Agreement as heretofore in effect, for the period ending on the
Effective Date, shall be due and payable not later than fifteen (15) days
following the rendering of an invoice therefor by the Bank
(b) The Loan Documents (i) integrate all the terms and conditions in
or incidental to this Agreement, (ii) supersede all oral negotiations and prior
writings with respect to their subject matter, including any loan commitment to
the Borrower, and (iii) are intended by the parties as the final expression of
the 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. No representation, understanding, promise or condition shall be
enforceable against any party unless it is contained in the Loan Documents.
(c) If there is any conflict between the terms, conditions and
provisions of this Agreement and those of any other agreement or instrument,
including any other Loan Document, the terms, conditions and provisions of this
Agreement shall prevail.
(d) Headings and captions are for reference only and shall not affect
the interpretation or meaning of any provisions of this Agreement.
(e) The exhibit(s) to this Agreement are hereby
26
incorporated in this Agreement.
9.11 INTERPRETATION.
(a) Time is of the essence in the performance of this Agreement by
the Borrower.
(b) The word "include(s)" means "include(s), without limitation," and
the word "including" means "including but not limited to." No listing of
specific instances, items or matters in any way limits the scope or generality
of any language of this Agreement.
(c) Any accounting terms used in this Agreement which are not
specifically defined shall have the meanings customarily given them in
accordance with GAAP. All references herein to the Borrower or any other
Person, in connection with any financial or related covenant, representation or
calculation, shall be understood to mean and refer to the Borrower and such
other Person on a consolidated basis in accordance with GAAP, unless otherwise
specifically provided and subject in all events to any adjustments herein set
forth.
(d) Any time the phrase "to the best of the Borrower's knowledge" or
a phrase similar thereto is used herein, it means: "to the actual knowledge of
the then officers of the Borrower, after reasonable inquiry of those agents,
employees or contractors of the Borrower who could reasonably be anticipated to
have knowledge with respect to the subject matter or circumstances in question
and after review of those documents or instruments which could reasonably be
anticipated to be relevant to the subject matter or circumstances in question."
(e) In each case where the consent or approval of the Bank is
required, or Bank's non-obligatory action is requested by the Borrower, such
consent, approval or action shall be in the sole and absolute discretion of the
Bank, unless otherwise specifically indicated.
(f) Any time the word "or" is used herein, unless the context
otherwise clearly requires, it has the inclusive meaning represented by the
phrase "and/or". The words "hereof", "herein", "hereby", "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement. Article, section, subsection, clause, exhibit and
schedule references are to this Agreement unless otherwise specified. Any
reference in this Agreement to this Agreement or to any other Loan Document
includes any and all amendments, modifications, supplements, renewals or
restatements thereto or thereof, as applicable.
9.12 SEVERABILITY; WAIVERS; AMENDMENTS.
This Agreement may not be modified or amended except by
27
a written agreement signed by the parties. Any consent or waiver under this
Agreement must be in writing. If any part of this Agreement is not enforceable,
the rest of the Agreement may be enforced. If the Bank waives a default, it may
enforce a later default. No waiver shall be construed as a continuing waiver.
No waiver shall be implied from Bank's delay in exercising or failure to
exercise any right or remedy against the Borrower. Consent by the Bank to any
act or omission by the Borrower shall not be construed as a consent to any other
or subsequent act or omission or as a waiver of the requirement for Bank's
consent to be obtained in any future or other instance. The Bank retains all of
its rights and remedies, even if it makes an advance after a default.
9.13 COUNTERPARTS.
This Agreement may be executed in counterparts each of which, when
executed, shall be deemed an original, and all such counterparts shall
constitute one and the same agreement.
This Agreement is executed as of the date stated at the top of the first page.
Bank: Borrower:
BANK OF AMERICA NATIONAL BRE PROPERTIES, INC., a
TRUST AND SAVINGS ASSOCIATION Maryland corporation
By By
--------------------------- ----------------------------
Xxxxx Xxxxxx Xxx X. Xxxxx
Vice President Senior Executive Vice President and
Chief Operating Officer
By
----------------------------
XxXxx X. Xxxxxxx
Executive Vice President and Chief
Financial Officer
Address where notices to Address where notices to
the Bank are to be sent: the Borrower are to be sent:
Bank of America National Trust BRE Properties, Inc.
and Savings Association Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx Xxxxxx Telesis Tower, Suite 2500
Services/National Xxx Xxxxxxxxx, XX 00000
Accounts 9105 Attn: XxXxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxxxx Phone: (000) 000-0000
11th Floor Fax: (000) 000-0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Phone: (000) 000-0000
28
Fax: (000) 000-0000
29
EXHIBIT A
BORROWING NOTICE
___________________, 199__
Bank of America National Trust
and Savings Association
Commercial Real Estate
Services Group 9105
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Re: Amended and Restated Unsecured Line of Credit Loan Agreement dated as of
July 8, 1997 (the "Agreement") between BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION ("Bank") and BRE PROPERTIES, INC. ("Borrower")
Dear ________________:
Reference is made to the Agreement. Capitalized terms used in this
Borrowing Notice without definition have the meanings specified in the
Agreement.
Pursuant to the Agreement, notice is hereby given that the Borrower
desires that the Bank make the advance described in attached SCHEDULE 1 (the
"Advance"). The Borrower and the undersigned Officer of the Borrower hereby
certify that:
(1) COMMITMENT. The outstanding amount of the Line of Credit,
together with any other amounts required by the Loan Documents to be charged
against the availability of advances under the Line of Credit, shall not, after
giving effect to the making of the Advance, exceed the Commitment;
(2) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of the Borrower contained in the Agreement and the other Loan
Documents are true and correct as of the date hereof and shall be true and
correct on the date of the Advance, both before and after giving effect to the
Advance; provided, however, that the representations and warranties of the
Borrower set forth in the Agreement regarding financial statements shall be
deemed to be made with respect to the financial statements most recently
delivered to the Bank pursuant to the Agreement;
(3) NO EVENT OF DEFAULT. No Event of Default exists as of the date
hereof or will result from the making of the Advance or would result after
notice or passage of time or both;
1
(4) USE OF PROCEEDS. The proceeds of the Advance will be used only
as permitted by the Agreement; and
(5) NO MATERIAL ADVERSE EFFECT. No event, circumstance or condition,
which could have a Material Adverse Effect on the Borrower, has occurred since
the date of the Agreement.
Enclosed are the documents and information, if any, requested by the
Bank with respect to use of proceeds as a condition to this Advance.
BRE PROPERTIES, INC., a Maryland corporation
By:
--------------------------------
Its:
--------------------------------
2
SCHEDULE 1
to Borrowing Notice
REQUESTED ADVANCE
1. AMOUNT OF REQUESTED ADVANCE: $
(must be $500,000 or more) ---------------
2. PURPOSE OF ADVANCE 1/:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
3. EFFECTIVE DATE OF REQUESTED ADVANCE:
--------,-----
--------------------------
1/ See Section 6.1; specify acquisition costs for designated apartment
project or general working capital purposes.
