EXHIBIT 10.38
MODIFICATION AGREEMENT
TO SYNDICATE LOAN
TO
BRE PROPERTIES, INC.
MADE BY VARIOUS
FINANCIAL INSTITUTIONS
WITH
BANK OF AMERICA NT & SA
AS AGENT
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TABLE OF CONTENTS
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PAGE
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Agreement.................................................................................................... 1
1. Recitals...................................................................................... 1
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2. Definitions................................................................................... 1
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3. Modification of Loan Documents................................................................ 6
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4. The Credit Facilities......................................................................... 8
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5. Appointment and Authorization of Agent........................................................ 11
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6. Loan Accounts................................................................................. 12
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7. Procedure for Borrowing....................................................................... 13
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8. Contract Rate Elections With Respect to Committed Loans....................................... 19
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9. Fees.......................................................................................... 19
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10. Payments by the Borrower...................................................................... 19
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11. Prepayments................................................................................... 21
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12. Usury......................................................................................... 22
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13. Increased Costs and Reduction of Return....................................................... 22
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14. Costs and Expenses............................................................................ 22
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15. Indemnification by the Borrower............................................................... 23
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16. Assignments, Participations, etc.............................................................. 23
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17. Publicity..................................................................................... 28
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18. Conditions Precedent.......................................................................... 28
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19. Conditions to All Borrowings.................................................................. 29
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20. Authorization and Enforceability Representations.............................................. 29
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21. CONSENT TO JURISDICTION....................................................................... 29
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22. Incorporation................................................................................. 29
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23. No Impairment................................................................................. 29
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24. Integration................................................................................... 30
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25. Electronic Notices............................................................................ 30
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26. Notices....................................................................................... 30
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27. No Bankruptcy Proceedings Against Designated Bid Lenders...................................... 33
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28. Certain Acknowledgments by Borrower........................................................... 33
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29. Miscellaneous................................................................................. 34
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MODIFICATION AGREEMENT
TO SYNDICATE LOAN
This Modification Agreement ("Agreement") is made as of January 20, 1998,
by BRE PROPERTIES, INC., a Maryland corporation (the "Borrower"); BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association
("BofA"); the several financial institutions from time to time party to this
Agreement (collectively, the "Banks", and individually a "Bank"); and such
entities as may from time to time hereafter become Designated Bid Lenders (as
defined below) in accordance with the provisions hereof.
Factual Background
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A. BofA has agreed to make a loan (the "Loan") to the Borrower in
accordance with an Unsecured Line of Credit Loan Agreement dated November 17,
1997 (the "Loan Agreement"). Capitalized terms used herein without definition
have the meanings given to them in the Loan Agreement or in the Note, as
applicable. The Loan is currently evidenced by a Promissory Note dated as of
November 17, 1997 in the stated principal amount of $265,000,000.
B. In connection with the acquisition, by the Banks other than BofA, of
their respective interests in the Loan, the Borrower, BofA and the Banks now
desire to amend the Loan Documents. Each Bank, including BofA, will have a
direct lender relationship with Borrower in accordance with the Loan Documents,
as hereby amended. Banks wish to designate BofA as their Agent in this
syndicated Loan. Because BofA is both an individual Bank in the syndicate as
well as Agent for all Banks in the syndicate, the parties wish to modify certain
defined terms in the Loan Documents.
Agreement
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Therefore, the Borrower and Banks agree as follows:
1. Recitals. The recitals set forth above in the Factual Background are
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correct.
2. Definitions. As used herein, the following words have the meanings
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indicated.
"Absolute Rate" means, in connection with any Absolute Rate Auction,
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the rate of interest per annum (expressed in multiples of 1/1000th of one
basis point) offered for any Bid Loan to be made pursuant thereto.
"Absolute Rate Auction" means a solicitation of Competitive Bids
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setting forth Absolute Rates pursuant to Section 7(b).
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at an
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Absolute Rate.
"Advance" means any advance of proceeds, whether of a Committed Loan
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or a Bid Loan, made pursuant to the terms of the Loan Documents.
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"Affiliate" means, as to any Person, any other Person, which, directly
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or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, by contract or otherwise.
"Agent" means BofA in its capacity as agent for the Banks hereunder,
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and any successor agent.
"Agent-Related Persons" means BofA and any successor agent hereunder,
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together with their respective Affiliates and the officers, directors,
employees and agents of such Persons.
"Agent's Payment Office" means the address for payments set forth
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herein for the Agent, or such other address as the Agent may specify.
"Bank" has the meaning specified in the introductory sentence of this
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Agreement; BofA in its capacity as a lender hereunder is one of the Banks.
"Bid Loan" means an Advance by a Bank or its Designated Bid Lender
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pursuant to the Bid Loan Facility, and may be either an Absolute Rate Bid
Loan or a LIBOR Bid Loan.
"Bid Loan Facility" means the credit facility for the requesting and
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making of Bid Loans described in Section 7(b).
"Bid Loan Rate Period" means (i) with respect to a LIBOR Bid Loan, the
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period, commencing on the date of such LIBOR Bid Loan and ending on a date
(determined by the Agent in accordance with the practices of the London
U.S. dollar inter-bank market) that is one, two, three or six months later,
but not extending beyond the Maturity Date; and (ii) with respect to an
Absolute Rate Bid Loan, commencing on the date of such Absolute Rate Bid
Loan and ending on a Banking Day that is at least 14, but no more than 180
days, later (but not extending beyond the Maturity Date), as specified by
the Borrower in the relevant Competitive Bid Request.
"Bid Loan Facility Limit" means, at any time, an amount equal to fifty
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percent (50%) of the Maximum Loan Amount.
"BofA" means Bank of America National Trust and Savings Association, a
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national banking association.
"Borrowing" means a borrowing hereunder consisting of Advances of the
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same type (i.e., Committed Loans, Absolute Rate Bid Loans, or LIBOR Bid
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Loans) made to the Borrower on the same day and (except in the case of
Committed Loans accruing interest at the Reference-based Rate) having the
same Rate Period or Bid Loan Rate Period, as the case may be.
"Commerzbank" means Commerzbank Aktiengesellschaft, Los Angeles
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Branch.
"Capital Adequacy Regulation" means any guideline or directive of any
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central bank or other Governmental Authority, or any other law, rule or
regulation regarding capital adequacy of
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a Bank or of any corporation controlling a Bank.
"Committed Loan" means an Advance made by the Banks pursuant to the
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Line of Credit described in Section 1.1 of the Loan Agreement.
"Committed Loan Availability" means, at any time, the Maximum Loan
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Amount less the aggregate principal amount of all Bid Loans then
outstanding.
"Commitment" means the amount of the Line of Credit for which each
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Bank is obligated.
"Competitive Bid" means an offer by a Bank to make a Bid Loan in
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response to a Competitive Bid Request.
"Competitive Bid Request" means a notice, in substantially the form of
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Exhibit C, requesting that the Banks submit bids for a Bid Loan.
"Designated Bid Lender" means a special purpose corporation, organized
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under the laws of the United States or any subdivision thereof, that is
engaged in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business and that (i) shall have become a party
to this Agreement and the Co-Lender Agreement pursuant to Section 16(e),
and (ii) is not otherwise a Bank. References herein to a Bank's Designated
Bid Lender or a Designating Bank's Designated Bid Lender mean the
Designated Bid Lender party to a Designation Agreement with such Bank or
Designating Bank.
"Designating Bank" means a Bank that has entered into a Designation
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Agreement with a Designated Bid Lender pursuant to Section 16(e).
"Designation Agreement" means a designation agreement, in
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substantially the form of Exhibit E, entered into by a Bank and a
Designated Bid Lender and accepted by the Borrower and the Agent.
"Dresdner" means Dresdner Bank AG.
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"Effective Date" means the date on which this Agreement has been
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executed and delivered by each of the parties hereto and the conditions
precedent to effectiveness set forth in Section 18 have been satisfied.
"Eligible Assignee" means (i) a commercial bank or investment bank
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organized under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $100,000,000; (ii) a
Person that is primarily engaged in the business of commercial banking and
is an Affiliate of a Bank; and (iii) any other Person approved by Majority
Banks and the Agent.
"Federal Funds Rate" means, for any day, the rate published by the
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Federal Reserve Bank of New York for the preceding Banking Day as "Federal
Funds (Effective)"; (or, if not published, the arithmetic mean of the rates
for overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day quoted by three brokers of Federal Funds in New York City
as determined by the Agent).
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"IBJ" means The Industrial Bank of Japan, Limited.
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"Indemnified Liabilities" has the meaning given in Section 15 entitled
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"Indemnification by the Borrower".
"Indemnified Person" has the meaning given in Section 15 entitled
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"Indemnification by the Borrower".
"GAAP" means generally accepted accounting principles set forth in the
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opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable to
the circumstances as of the date of determination.
"Governmental Authority" means any government, state or other
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political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any entity owned or controlled through
capital ownership or otherwise by any of the foregoing.
"Keybank" means Keybank National Association.
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"Lending Office" means, as to any Bank or Designated Bid Lender, the
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office specified as its Lending Office on Schedule I or as such Person may
designate to the Borrower and the Agent.
"LIBOR Auction" means a solicitation of Competitive Bids setting forth
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LIBOR Bid Margins pursuant to Section 7(b).
"LIBOR Bid Loan" means a Bid Loan that bears interest at the relevant
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LIBOR Bid Margin above (or below, as the case may be) the LIBOR Rate
(determined as described in the definition of "LIBOR Bid Margin").
"LIBOR Bid Margin" means, in connection with any LIBOR Auction, a
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margin (expressed in multiples of 1/1000th of one basis point) above or
below the LIBOR Rate (determined, with respect to any LIBOR Bid Loan, in
the same manner as the LIBOR Rate is determined under the Note, except
based on the principal amount and Bid Loan Rate Period of the relevant
LIBOR Bid Loan) offered for any Bid Loan to be made pursuant thereto.
"Liquidity Provider" means, for any Designated Bid Lender and at any
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time, on a collective basis, the financial institutions that at such date
are providing liquidity or credit support facilities to or for the account
of such Designated Bid Lender to fund such Designated Bid Lender's
obligations hereunder or to support the securities, if any, issued by such
Designated Bid Lender to fund such obligations.
"Loan Documents" means the Loan Agreement, the Note and any other
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documents designated as "Loan Documents" in the Loan Agreement. This
Agreement is a Loan Document.
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"Majority Banks" means, at any time, a Bank or Banks then having in
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excess of 66 2/3% of the Commitments (or, if the Commitments have been
terminated pursuant to the Loan Documents, holding in excess of 66 2/3% of
the then aggregate unpaid principal amount of the Advances, determined as
if each Designating Bank held (in addition to outstanding Committed Loans
and Bid Loans made for its own account) all outstanding Bid Loans made by
its Designated Bid Lender).
"Manufacturers" means Manufacturers Bank.
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"NationsBank" means NationsBank of Texas, N.A.
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"Note" means the Promissory Note executed by the Borrower in favor of
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the Agent pursuant to the Loan Agreement referred to above.
"Obligations" means all advances, debts, liabilities, obligations and
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covenants arising under any Loan Document owing by the Borrower to any Bank
or Designated Bid Lender, the Agent or any Indemnified Person, whether
absolute or contingent, due or to become due, now existing or hereafter
arising.
"Person" means any natural person, employee, corporation, limited
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partnership, general partnership, joint stock company, limited liability
company, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, or any other non-governmental entity, or any Governmental
Authority.
"Pro Rata Share" means, as to any Bank at any time, the percentage
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equivalent (expressed as a decimal rounded to the twelfth decimal place) at
such time of such Bank's share of the Maximum Loan Amount.
"Sumitomo" means The Sumitomo Bank of California.
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"Subsidiary" of a Person means any other Person of which 50% or more
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of the voting stock, membership interests or other equity interests is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof.
3. Modification of Loan Documents. The Loan Documents are hereby amended
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as follows, subject to the terms and conditions hereof:
(a) The Note is modified so that:
(i) "Bank" means the Agent acting as agent for the Banks, except
that each reference to "Bank" in Sections 6, 7 and 18 of the Note and in
Paragraph 5 of Exhibit B to the Note is modified to mean "Banks and
Designated Bid Lenders", or "each Bank or Designated Bid Lender", as the
context requires;
(ii) "Banking Day" means, with respect to any LIBOR Bid Loan, the
same as "Banking Day" with respect to the LIBOR Alternative;
(iii) "Rate Period" means, in any context relating to a Bid Loan,
the applicable Bid Loan Rate Period; and
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The Note shall evidence all Advances, and, except to the extent
inconsistent with the express provisions of this Agreement, the terms of
the Note (including, without limitation, the provisions relating to the
Default Rate) shall apply to Bid Loans in addition to Committed Loans.
(b) The Loan Agreement is modified so that "Bank" means the Agent
acting as agent for the Banks, except that (i) in Sections 1.4(d) and 6.4(h),
the reference to "Bank" is modified to mean "BofA", (ii) each reference to
"Bank" in Section 5 (all subsections) and Section 9.8 of the Loan Agreement is
modified to mean "Banks" or "each Bank", as the context requires, (iii) the
reference to "Bank" in Section 9.9 of the Loan Agreement is modified to mean
"Banks and Designated Bid Lenders", and (iv) in the definition of "Applicable
Capitalization Rate", the reference to "Bank" is modified to mean "Majority
Banks".
(c) The definition of "Guaranty" set forth in the Loan Agreement is
amended and restated to read in its entirety as follows:
"Guaranty" means a guaranty of the Borrower's obligations under the
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Loan Documents, executed by one or more Material Borrower Entities or other
Borrower Entities, in substantially the form of Exhibit B.
(d) "Bank", as used in any Guaranty, whenever executed and delivered,
means (or shall mean, as the case may be) the Agent acting as agent for the
Banks, except that (i) in Section 3 of each Guaranty, each reference to "Bank"
means (or shall mean) "Agent or the Banks", (ii) in Sections 4, 5, 8, 9 and
14(c) of each Guaranty, each reference to "Bank" means (or shall mean) "Agent or
any Bank", and (iii) in Section 19, each reference to "Bank", except for the
second incidence of "Bank" in the first sentence, means (or shall mean) "Agent
and each Bank". Each Guarantor reconfirming its Guaranty as required herein,
and each Guarantor executing and delivering a Guaranty after the date hereof, by
its execution and delivery of such reconfirmation or Guaranty, as the case may
be, agrees to the foregoing modifications to such Guaranty, and a statement to
that effect shall be added to the form of Guaranty for use after the date
hereof.
4. The Credit Facilities.
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(a) Line of Credit.
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(i) Subject to the terms and conditions hereof, each Bank
severally agrees to fund its Pro Rata Share of each Committed Loan under
the Line of Credit from time to time during the Availability Period;
provided, however, that at no time shall the aggregate principal amount of
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all Committed Loans then outstanding exceed the Committed Loan
Availability. The proceeds of each such Advance shall be delivered to the
Borrower in accordance with the provisions of the Loan Documents.
(ii) Each Bank becoming party hereto as of the Effective Date shall
acquire its Pro Rata Share of the Loan on the Effective Date pursuant to an
assignment and assumption agreement similar in form to the Assignment and
Assumption, and shall pay to the Agent, for the account of BofA, its Pro
Rata Share of the outstanding principal of the Loan as of the Effective
Date. The Borrower and each Bank acknowledge that, as of the Effective
Date, the Loan, the principal amount outstanding thereunder, and each
Bank's Pro Rata Share and Commitment (by dollar amount) are:
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(A) The Loan: $265,000,000
(B) Total Current Outstanding Principal
(as of the date of this
Agreement): $157,000,000
(C) Each Bank's Pro Rata Share of the Loan:
BofA: 18.867924528302%
Commerzbank: 18.867924528302%
IBJ: 13.207547169811%
NationsBank: 13.207547169811%
Keybank: 13.207547169811%
Dresdner: 13.207547169811%
Manufacturers: 3.773584905661%
Sumitomo: 5.660377358491%
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100.000000000000%
(D) Each Bank's Commitment:
BofA: $50,000,000
Commerzbank: $50,000,000
IBJ: $35,000,000
NationsBank: $35,000,000
Keybank: $35,000,000
Dresdner: $35,000,000
Manufacturers: $10,000,000
Sumitomo: $15,000,000
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$265,000,000
(b) Bid Loan Facility.
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(i) In addition to its agreement to make Committed Loans under
the Line of Credit, each Bank severally agrees that, subject to the
conditions that at the time of the Borrower's submission of the relevant
Competitive Bid Request (X) the Borrower's Rating (as determined for
purposes of the definition of "Applicable Margin") is at least BBB/Baa2 or
the equivalent, and (Y) no Event of Default or event that, with the giving
of notice or the lapse of time, or both, has occurred and is continuing,
the Borrower may, in accordance with this Section 4(b) and the other
relevant provisions of the Loan Documents, from time to time request that
the Banks, during the Availability Period, submit offers to make Bid Loans
to the Borrower; provided, however, that the Banks may, but shall not be
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obligated to, submit such offers, and the Borrower may, but shall not be
obligated to, accept any such offers; and provided further that (A) at no
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time shall the aggregate principal amount of all Advances (whether
Committed Loans or Bid Loans) at any time outstanding exceed the Maximum
Loan Amount; (B) at no time shall the aggregate principal amount of all Bid
Loans exceed the Bid Loan Facility Limit; and (C) at no time may the number
of Bid Loan Rate Periods then outstanding plus the number of Rate Periods
for Committed Loans then outstanding exceed eight. The obligation of a
Bank to fund its Pro Rata Share of Committed Loans shall be unaffected by
its (or its Designated Bid Lender's)
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making of any Bid Loans, notwithstanding that the sum of such Bank's Pro
Rata Share of the aggregate principal amount of the outstanding Committed
Loans, plus the aggregate amount of such Bank's (and its Designated Bid
Lender's) outstanding Bid Loans, may exceed such Bank's Commitment.
(ii) On the last day of each Bid Loan Rate Period, the Borrower
shall pay to the Agent, for the respective accounts of the Banks and
Designated Bid Lenders making Bid Loans ending thereon, the full amount of
the principal of, and accrued and unpaid interest on, each Bid Loan ending
thereon. The Borrower's failure to pay such amount in full on such date
shall constitute an Event of Default without notice or right to cure.
(c) Certain General Provisions.
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(i) Each Bank acquiring an interest in the Committed Loans shall
become vested with its Pro Rata Share of Committed Loans upon execution and
delivery of the required documents and upon payment of its Pro Rata Share
of the principal balance of the outstanding Committed Loans and any other
fees, costs or expenses due hereunder or pursuant to another agreement.
Upon such payment, the respective interests of each Bank in the Loan
Documents and the other rights and claims with respect to the Line of
Credit shall be of equal priority with one another, except as otherwise
expressly provided.
(ii) A complete set of Loan Documents shall be held by the Agent.
(iii) No Bank other than a Bank that is also the Agent, and no
Designated Bid Lender, shall have any interest in any (A) property taken as
security for any other loan or financial accommodation made or furnished to
the Borrower by the Agent (in which such Bank or Designated Bid Lender has
not acquired an interest); (B) property now or hereafter in the Agent's
possession or under the Agent's control other than by reason of the Loan
Documents; or (C) deposits which may be or might become security for the
Borrower's Obligations by reason of the general description contained in
any instrument not a Loan Document held by the Agent or by reason of any
right of setoff, counterclaim, banker's lien or otherwise. If, however,
such property shall actually be applied to the payment of amounts owing by
the Borrower in connection with the Advances, then each Bank and Designated
Bid Lender shall be entitled to a pro rata share, if any, of such
application to amounts due in connection with the Advances, based on the
ratio of the outstanding principal amount of all Advances made by such Bank
(whether under the Line of Credit or the Bid Loan Facility) or Designated
Bid Lender to the outstanding principal amount of all Advances.
(iv) All the parties agree that, except as may be otherwise
expressly provided, all of the interest rates for the Advances are those of
and are calculated in accordance with the requirements and any applicable
assessments of the Agent, regardless of which Bank or Designated Bid Lender
is making an Advance or receiving a payment thereon.
(v) If, at any time or for any reason whatsoever, (A) the aggregate
principal amount of all outstanding Committed Loans shall exceed the
Committed Loan Availability, or (B) the aggregate amount of all outstanding
Bid Loans shall exceed the Bid Loan Facility Limit, or (C) the aggregate
amount of all outstanding Advances (whether Committed Loans or Bid Loans)
shall exceed the Maximum Loan Amount, then the Borrower shall immediately
pay to the Banks (for their own account and for the accounts of their
respective Designated Bid Lenders, as
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applicable), the amount of such excess, to be applied to repayment of the
affected Advances in such order as the Agent may determine, in its sole
discretion.
5. Appointment and Authorization of Agent.
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(a) Each Bank hereby irrevocably appoints, designates and authorizes
the Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably incidental
thereto and as further provided in the Co-Lender Agreement described below.
(b) Subject to the limitations set forth in the Loan Documents and Co-
Lender Agreement, Agent's powers include but are not limited to the power: (i)
to administer, manage and service the Line of Credit and the Bid Loan Facility;
(ii) to enforce the Loan Documents; (iii) to make all decisions under the Loan
Documents in connection with the day-to-day administration of the Line of Credit
and Bid Loan Facility, any inspections authorized by the Loan Documents, and
other routine administration and servicing matters; (iv) to collect and receive
from the Borrower or any third persons all payments of amounts due under the
terms of the Loan Documents and to distribute the amounts thereof to the Banks,
for their own account and for the respective accounts of their Designated Bid
Lenders; (v) to collect and distribute or disburse all other amounts due under
the Loan Documents; (vi) to grant or withhold consents, approvals or waivers,
and make any other determinations in connection with the Loan Documents; and
(vii) to exercise all such powers as are incidental to any of the foregoing
matters. The Agent shall furnish to Banks, for their own use and for
transmittal to their Designated Bid Lenders, copies of material documents,
including confidential ones, received from the Borrower regarding the Line of
Credit or the Bid Loan Facility, the Loan Documents and the transactions
contemplated thereby. The Agent shall have no responsibility with respect to
the authenticity, validity, accuracy or completeness of the information
provided.
(c) Notwithstanding any provision to the contrary contained in any
Loan Document, the Agent shall not have any duties or responsibilities, except
those expressly set forth in the Loan Documents or the Co-Lender Agreement, nor
shall the Agent have any fiduciary relationship with any Bank or Designated Bid
Lender, and no implied covenants, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document against
the Agent.
(d) The Borrower acknowledges that the Banks (and each Designated Bid
Lender at any time party to a Designation Agreement) have executed a Co-Lender
Agreement (as amended from time to time, the "Co-Lender Agreement") to
supplement the Loan Documents with respect to the relationship of the Banks, the
Designated Bid Lenders and the Agent among themselves in connection with the
credit facilities provided under the Loan Documents. The Co-Lender Agreement is
not a Loan Document.
(e) The Agent may, and at the request of the Majority Banks shall,
resign as Agent upon 30 days' notice to the Banks. If the Agent resigns under
this Agreement, the Majority Banks shall appoint from among the Banks a
successor agent. If no successor agent is appointed prior to the effective date
of the resignation of the Agent, the Agent may appoint, after consulting with
the Banks, a successor agent from among the Banks. Upon the acceptance of
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term "Agent"
shall mean such successor agent, and the retiring Agent's appointment, powers
and duties as Agent shall terminate. After any retiring the Agent's resignation
hereunder as Agent, the provisions
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regarding payment of costs and expenses and indemnification of the Agent shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Agent under this Agreement. If no successor agent has accepted
appointment as the Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective, and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Majority Banks
appoint a successor agent.
6. Loan Accounts. The Advances made by each Bank or Designated Bid
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Lender shall be evidenced by one or more loan accounts or records maintained by
such Bank, Designated Bid Lender (and its Designating Bank) or the Agent, as the
case may be, in the ordinary course of business. The loan accounts or records
maintained by the Agent and each Bank or Designated Bid Lender (and its
Designating Bank) shall be conclusive absent manifest error of the amount of the
Advances made by the Banks or Designated Bid Lenders to the Borrower and the
interest and payments thereon. Any failure so to record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to Advances made under the Loan
Documents.
7. Procedure for Borrowing.
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(a) Committed Loans.
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(i) Each Borrowing under the Line of Credit shall be made upon
the Borrower's irrevocable written notice delivered to the Agent in
accordance with the Loan Agreement.
(ii) The Agent will promptly notify each Bank of (A) any election
of a LIBOR Alternative Rate by the Borrower pursuant to the provisions of
Exhibit A to the Note and of the amount of such Bank's Pro Rata Share of
the principal of the Loan with respect to which such election has been
made, and (B) any Notice of Borrowing and of the amount of such Bank's Pro
Rata Share of that Borrowing. With respect to a Notice of Borrowing, the
Banks, acting through the Agent, shall disburse the requested Advance as
provided in the Loan Agreement.
(b) Bid Loans.
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(i) When the Borrower desires to effect a Borrowing (or
Borrowings) consisting of one or more Bid Loans, but not more often than
twice in any calendar month, the Borrower shall notify the Agent by
telephone, followed promptly by facsimile of a Competitive Bid Request in
the form of Exhibit C (to be received no later than 10:00 a.m., San
Francisco time, (x) in the case of a LIBOR Auction, four Banking Days prior
to the date of the proposed Borrowing(s), or (y) in the case of an Absolute
Rate Auction, two Banking Days prior to the date of the proposed
Borrowing(s)), specifying (among the other information required by Exhibit
C):
(A) the date of such Borrowing(s), which shall be a Banking Day;
(B) the aggregate amount of such Borrowing(s), which shall be in
an amount (subject to the limitations set forth in other provisions of the
Loan Documents) equal to $10,000,000 or an integral multiple of $1,000,000
in excess thereof;
(C) whether the requested Borrowing(s) is/are to be made as
either
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(1) one or more LIBOR Bid Loans or (2) one or more Absolute Rate Bid
Loans; and
(D) the duration of the requested Bid Loan Rate Period (subject
to the limitations that the Borrower may request no more than three Bid
Loan Rate Periods in any single Competitive Bid Request and that each Bid
Loan Rate Period must relate to at least $5,000,000 in principal) and, if
more than one Bid Loan Rate Period is requested, the requested principal
amount of the related Borrowing.
The Borrower's right to request Competitive Bids for LIBOR Bid Loans, and
each Bank's or Designated Bid Lender's obligation to fund any LIBOR Bid
Loan pursuant to any Competitive Bid accepted by the Borrower, shall be
subject in all respects to the provisions of Section 2.2(d) of Exhibit A to
the Note, applied as if each reference therein to the "LIBOR Alternative"
referred as well to LIBOR Bid Loans.
(ii) Upon receipt of a Competitive Bid Request, the Agent shall
promptly send a copy thereof to each of the Banks by facsimile, attaching
thereto notice of the date and time by which responses must be received in
order to be considered by the Borrower. The Competitive Bid Request shall
not constitute an offer by the Borrower, but merely an invitation to the
Banks to submit Competitive Bids with respect to the requested
Borrowing(s).
(iii) (A) Each Bank may, in its discretion, submit a Competitive
Bid containing an offer or offers to make Bid Loans in response to any
Competitive Bid Request. Each Competitive Bid must comply with the
provisions of this Section 7(b)(iii) and must be submitted to the Agent
(or, in the case of a Competitive Bid being submitted by the Agent in its
capacity as a Bank, to the Borrower), by facsimile, no later than 6:30 a.m.
(or, in the case of a Competitive Bid by the Agent, 6:15 a.m.), San
Francisco time, (1) in the case of a LIBOR Auction, three Banking Days
prior to the date of the proposed Borrowing(s), or (2) in the case of an
Absolute Rate Auction, on the date of the proposed Borrowing(s). Each
Competitive Bid so submitted (subject only to the provisions of Section
2.2(d) of Exhibit A to the Note, as described above, and to the
satisfaction of all conditions precedent to the requested Advance) shall be
irrevocable, unless the Borrower otherwise agrees in writing.
(B) Each Competitive Bid shall be in substantially the form of
Exhibit D hereto, shall identify the submitting Bank and the date of the
proposed Borrowing(s) specified in the Competitive Bid Request to which the
submitting Bank is responding and shall specify:
(1) the principal amount of each Bid Loan for which the
Competitive Bid is being made (which shall not be limited by the submitting
Bank's Commitment, but which shall be in an amount, no greater than the
amount of the requested Borrowing, equal to $5,000,000 or an integral
multiple of $1,000,000 in excess thereof); and
(2) (a) in the case of a LIBOR Auction, the LIBOR Bid Margin
offered by the submitting Bank, or (b) in the case of an Absolute Rate
Auction, the Absolute Rate offered by the submitting Bank.
A Competitive Bid may include up to three separate offers by the submitting
Bank with respect to each Bid Loan Rate Period specified in the Competitive
Bid Request to which it responds. Any Competitive Bid that (X) does not
include all the information required by this Section
138
7(b)(iii)(B), (Y) contains language that qualifies or conditions the
submitting Bank's offer to make the Bid Loan(s) described therein or
proposes terms other than (or in addition to) the terms proposed in the
relevant Competitive Bid Request other than to set an aggregate limit on
the principal amount of Bid Loans for which offers being made by the
submitting Bank may be accepted, or (Z) is received by the Agent (or the
Borrower, as applicable) after the time set forth in Section 7(b)(ii)(A)
(unless amended to bring it into compliance prior to the time set forth in
Section 7(b)(ii)(A)), shall be disregarded.
(iv) Promptly upon receipt, but not later than 7:00 a.m. on the
date by which Competitive Bids are required to have been submitted with
respect to a Competitive Bid Request, the Agent shall notify the Borrower
of (A) the terms of each Competitive Bid (other than one that is to be
disregarded as described above) received in response to the Competitive Bid
Request, and (B) (1) the aggregate principal amount of Bid Loans for which
Competitive Bids have been received for each Rate Period requested in the
Competitive Bid Request, and (2) the respective principal amounts and LIBOR
Bid Margins or Absolute Rates, as the case may be, so offered.
(v) No later than 7:30 a.m. on the date by which Competitive Bids
are required to have been submitted with respect to a Competitive Bid
Request, the Borrower shall notify the Agent of its acceptance or rejection
of the offers notified to it as provided in Section 7(b)(iv). The Borrower
shall have no obligation to accept any such offer, and may choose to reject
all of them. If the Borrower has failed to timely notify the Agent of its
acceptance or rejection of any one or more offers by the time specified in
the preceding sentence, the Borrower shall be deemed to have rejected such
offer(s). The Borrower may accept any Competitive Bid (other than one that
is to be disregarded as provided above) in whole or in part, provided that:
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(A) the aggregate principal amount of the Competitive Bids so
accepted may not exceed the aggregate amount of the Borrowing(s) requested
in the relevant Competitive Bid Request;
(B) (1) subject to the provisions set forth below with
respect to multiple offers at the same LIBOR Bid Margin or Absolute Rate,
the principal amount of each accepted Competitive Bid must be in an amount
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (2) Competitive Bids must be accepted with respect to an
aggregate principal amount of at least $10,000,000; and
(C) with respect to each Bid Loan Rate Period for which
Competitive Bids were requested, the Borrower may accept offers solely on
the basis of ascending LIBOR Bid Margins or Absolute Rates, as the case may
be (provided that the Borrower may, to the extent necessary to comply with
the preceding paragraph (B) or to accept offers in an aggregate principal
amount equal to the aggregate amount of the Borrowing(s) requested in the
relevant Competitive Bid Request, accept only part of an offer at a
particular LIBOR Bid Margin or Absolute Rate and accept all or part of one
or more offers at a higher LIBOR Bid Margin or Absolute Rate).
If the Borrower chooses to accept one or more offers, the Borrower's notice
to the Agent shall specify the aggregate principal amount of offers with
respect to each requested Bid Loan Rate Period that it chooses to accept.
If two or more Banks offer the same LIBOR Bid Margin or Absolute Rate for
an aggregate principal amount greater than the amount for which such offers
139
were requested with respect to any requested Bid Loan Rate Period, then,
notwithstanding that in all other cases no Bid Loan may be made in an
amount less than $5,000,000, the Agent shall allocate the principal amount
of the affected Bid Loan among such Banks as nearly as possible (in such
multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts to which their respective
offers related. The Agent's allocation, in the absence of manifest error,
shall be conclusive.
(vi) The Agent shall promptly notify each Bank having submitted a
Competitive Bid whether its offer has been accepted and, if its offer has
been accepted, of the amount of the Bid Loan(s) to be made by it (or its
Designated Bid Lender) on the date of the relevant Borrowing(s). Each Bid
Loan shall bear interest, from and including the date it is made to but
excluding the last day of the Bid Loan Rate Period applicable thereto, at a
rate per annum equal to (A) in the case of an Absolute Rate Bid Loan, the
Absolute Rate specified by the Bank making (or whose Designated Bid Lender
makes) such Absolute Rate Bid Loan in its accepted Competitive Bid, and (B)
in the case of a LIBOR Bid Loan, the sum of (1) the LIBOR Bid Margin
specified by the Bank making (or whose Designated Bid Lender makes) such
LIBOR Bid Loan in its accepted Competitive Bid, plus (2) the LIBOR Rate
(determined in the same manner as the LIBOR Rate is determined under the
Note, except based on the principal amount and Bid Loan Rate Period of such
LIBOR Bid Loan).
(vii) Upon the request of any Bank, the Agent shall notify such
Bank, following a Borrowing of one or more Bid Loans, of the ranges of bids
submitted and the highest and lowest bids accepted for each Bid Loan Rate
Period requested by the Borrower and of the aggregate amount of the Bid
Loans made pursuant to such Borrowing. From time to time, the Borrower and
the Banks (for themselves and for their respective Designated Bid Lenders)
shall furnish such information to the Agent as the Agent may reasonably
request relating to the Bid Loans, including the amounts, interest rates,
dates of Borrowing and last days of the applicable Bid Loan Rate Periods,
for the purpose of enabling the Agent to allocate amounts received from the
Borrower to payment of amounts due and owing under the Loan Documents.
(viii) All notices or other communications required or desired
to be delivered by the Borrower pursuant to this Section 7(b) shall be
given by an individual authorized to do so pursuant to Section 3.9 of
Exhibit A to the Note in a writing delivered to the Agent by the Borrower
pursuant thereto.
(ix) Any Bid Loan that would otherwise be made by a Bank that is
a Designating Bank may from time to time be made by its Designated Bid
Lender, in such Designated Bid Lender's sole discretion. Nothing herein
shall constitute a commitment to make Bid Loans by such Designated Bid
Lender; provided, however, if such Designating Bank's Designated Bid Lender
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elects not to, or fails to, make any such Bid Loan, for any reason
whatsoever, such Designating Bank shall make such Bid Loan pursuant to the
terms hereof, it being the obligation of each Designating Bank to make each
Bid Loan with respect to a Competitive Bid submitted by such Designating
Bank and accepted by Borrower, in whole or in part, pursuant hereto, except
to the extent that such Bid Loan is in fact funded by its Designated Bid
Lender.
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(c) Certain General Provisions.
--------------------------
(i) (A) Each Bank shall make the aggregate amount of its Pro
Rata Share of each Committed Loan,
(B) each Bank having a Competitive Bid accepted will
make the aggregate amount of the Bid Loan(s) with respect to which its
Competitive Bid was accepted, and
(C) each Designated Bid Lender electing to fund one or
more Bid Loans that would otherwise have been made by its Designating Bank
with respect to an accepted Competitive Bid (or, if such Designated Bid
Lender fails to do so, its Designating Bank) will make the aggregate amount
of such Bid Loan(s),
available to the Agent for the account of the Borrower at the Agent's
Payment Office by 11:00 a.m. (San Francisco time) on the date of the
relevant Borrowing and in funds immediately available to the Agent. The
proceeds of all such Advances will then be made available to the Borrower
by the Agent by wire transfer in accordance with written instructions
provided to the Agent by the Borrower. If any Bid Loan is funded by a
Designated Bid Lender, its Designating Bank shall provide the Agent with
notice to that effect on the date of such Borrowing.
(ii) Unless the Agent receives notice from any Bank at least one
Banking Day prior to the date of a Borrowing that such Bank (or such Bank's
Designated Bid Lender, in the case of a Bid Loan) will not make available
to the Agent when required (A) its Pro Rata Share of the Committed Loan to
be made thereon, or (B) the amount of the Bid Loans to be made by such Bank
(or its Designated Bid Lender) thereon, as the case may be, the Agent may
assume that such Bank (or, if applicable, its Designated Bid Lender) has
made such amount available to the Agent in immediately available funds on
the date of such Borrowing.
(iii) The failure of any Bank or Designated Bid Lender to make
available to the Agent any amount it is required to make so available in
respect of any Borrowing shall not relieve any other Bank or Designated Bid
Lender of any obligation hereunder to make an Advance on the date of such
Borrowing, but, except to the extent expressly provided (A) in Section
7(b)(ix) with respect to the obligation of any Designating Bank to fund Bid
Loans that are not funded by its Designated Bid Lender or (B) in Section
16(e)(ii), no Bank or Designated Bid Lender shall be responsible for the
failure of any other Bank or Designated Bid Lender to make any amount so
available.
8. Contract Rate Elections With Respect to Committed Loans.
-------------------------------------------------------
(a) The Borrower may elect interest rates applicable to the Committed
Loans in accordance with the requirements, terms and conditions set forth in the
Note upon irrevocable written notice to the Agent to be received by the Agent on
the appropriate day not later than 9:30 a.m. (San Francisco time).
(b) The Agent will promptly notify each Bank of receipt of an election
of the Contract Rate. If no timely notice is provided by the Borrower, the
Agent will promptly notify each Bank of any automatic conversion to the
Reference-based Rate. All rate elections and conversions with respect to
Committed Loans shall be made ratably according to the respective outstanding
principal amounts of the Committed Loan held by each Bank with respect to which
the notice was given.
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9. Fees.
----
(a) Agency Fee. The Borrower shall pay an agency fee to the Agent for
----------
the Agent's own account, as set forth in a separate letter understanding between
the Agent and the Borrower.
(b) Auction Fee. Together with the Borrower's submission of each
-----------
Competitive Bid Request, the Borrower shall pay to the Agent an auction fee in
the amount of $2,500, which fee shall be fully earned and nonrefundable upon the
Agent's transmittal of the Competitive Bid Request to the Banks, regardless of
whether the request is subsequently cancelled by the Borrower, any Bid Loans are
made by any Bank or Designated Bid Lender in response thereto or any Competitive
Bids are accepted by the Borrower.
(c) Other Fees. The Borrower shall pay to the Agent for the account
----------
of each Bank, as provided in separate letter agreements between the Agent and
each Bank, the Commitment Fee and the facility fee as set forth in Section 2.1
of the Loan Agreement and any extension fee payable under Section 22 of the
Note.
10. Payments by the Borrower.
------------------------
(a) All payments to be made by the Borrower shall be made without set-
off, recoupment or counterclaim. Except as otherwise provided, all payments by
the Borrower shall be made to the Agent for the account of the Banks and the
Designated Bid Lenders, as applicable, at the Agent's Payment Office, and shall
be made in U.S. dollars and in immediately available funds, in accordance with
the Loan Documents. The Agent will promptly distribute to each Bank (including,
to the extent applicable, for the account of its Designated Bid Lender, in
accordance with Section 16(e)), in like funds as received: (i) its Pro Rata
Share (or other applicable share as may be agreed by a Bank) of each payment in
respect of the Line of Credit and (ii) its (or, if applicable, its Designated
Bid Lender's) pro rata share of each payment in respect of any one or more Bid
Loans (based on the proportion of the outstanding principal amount of such
Bank's (or Designated Bid Lender's) Bid Loans in respect of which such payment
is made to all the outstanding principal amount of all Bid Loans in respect of
which such payment is made); provided that if any payment is received or
-------- ----
otherwise realized by the Agent at a time when the Availability Period has ended
and all outstanding Advances have become, or have been declared, due and
payable, then the Agent shall distribute to each Bank (including, to the extent
applicable, for the account of its Designated Bid Lender, in accordance with
Section 16(e)) its (or its Designated Bid Lender's) pro rata share thereof,
based on the proportion of the aggregate principal amount of such Bank's (or its
Designated Bid Lender's) outstanding Advances to the aggregate principal amount
of all outstanding Advances. Any payment received by the Agent later than 11:00
a.m. (San Francisco time) shall be deemed to have been received on the following
Banking Day and any applicable interest or fee shall continue to accrue.
(b) To the extent that the Borrower makes a payment to the Agent or
the Banks or Designated Bid Lenders, or the Agent or (notwithstanding any
provision of the Co-Lender Agreement to the contrary) the Banks exercise the
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including by any settlement) to be repaid to a trustee,
receiver, the Borrower or any other party, in connection with any Insolvency
Proceeding or otherwise, then (i) to the extent of such recovery the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
set-off had not occurred; and (ii) each Bank
142
severally agrees to pay to the Agent upon demand (A) in the case of an amount
received in respect of a Bid Loan, its allocable share of any amount so
recovered from or repaid by the Agent, and (B) in the case of any other amount
received under the Loan Documents, its Pro Rata Share of any amount so recovered
from or repaid by the Agent; and (iii) each Designated Bid Lender agrees to pay
such Designated Bid Lender's allocable share of any amount so recovered from or
repaid by the Agent in respect of any Bid Loan made by such Designated Bid
Lender; provided however, that the foregoing clause shall not prohibit
any Designating Bank from agreeing with its Designated Bid Lender that, as
between such Designating Bank and Designated Bid Lender, such Designating Bank
shall pay to the Agent any amount that would otherwise be due to the Agent under
this Section 10(b), and such Designated Bid Lender shall not be liable for any
payment of any such amount to the extent that its Designating Bank makes such
payment.
(c) Agent shall have the exclusive right to collect on the Loan from
the Borrower or any guarantors, third parties, or otherwise including principal,
interest, fees or any prepayment premiums, whether such amounts are received
directly from the Borrower, any guarantors, or other persons, or are collected
by offset by Agent against the money or other property of the Borrower or any
guarantors deposited at or held by Agent, or other enforcement of the Loan
Documents. No Bank or Designated Bid Lender shall independently initiate any
judicial action or equivalent action or other proceeding against the Borrower
with respect to the Loan.
11. Prepayments.
-----------
(a) In the event the Borrower elects to prepay the Committed Loans in
whole or in part in accordance with the Loan Documents, the Agent will promptly
notify each Bank of such notice and of each Bank's Pro Rata Share of such
prepayment.
(b) Notwithstanding any other provision of this Agreement or of any
other Loan Document, the Borrower shall have no right to prepay any Bid Loan
prior to the last day of the applicable Bid Loan Rate Period.
(c) In the event of any prepayment by the Borrower of a Bid Loan prior
to the last day of the Bid Loan Rate Period applicable thereto (by reason of
acceleration or for any other reason), the Borrower shall pay to each Bank
holding an interest therein, or whose Designated Bid Lender holds an interest
therein, a prepayment premium equal to the sum of
(i) $250; and
(ii) the sum of such losses and expenses as such Bank or its
Designated Bid Lender, as applicable, may incur by reason of such
prepayment, including without limitation any losses or expenses
incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after such
prepayment.
The prepayment premium provided for herein shall be due and payable not later
than fifteen (15) days after delivery to the Borrower, by or on behalf of the
affected Bank or Designated Bid Lender, of a demand for payment accompanied by a
calculation, in reasonable detail, of such losses and expenses, which shall be
conclusive in the absence of manifest error.
(d) Each of the waivers and acknowledgments of the Borrower set forth
in Paragraphs 4 and 5 of Exhibit B to the Note shall apply to the Borrower's
covenants set forth in this
143
Section 11 as if set forth herein.
12. Usury. If a court ultimately determines that the Loan (or any
-----
Advance) violates applicable usury law, then (a) the Borrower shall not be
required to pay to or for the account of any Bank or Designated Bid Lender
interest on the Loan (or such Advance) at a rate in excess of the maximum rate
that may be lawfully charged under applicable law; and (b) in the event that any
Bank or Designated Bid Lender shall collect interest or other monies which are
deemed to constitute interest which would increase the effective interest rate
on the Loan (or any Advance) to a rate in excess of that permitted by applicable
law, such excess interest shall, at the option of said Bank or Designated Bid
Lender, be returned to the Borrower or credited against the principal balance of
the Loan (or such Advance) then outstanding; (c) provided, however, that if a
usury law applies to one or more but not all Banks and Designated Bid Lenders,
then the Banks and Designated Bid Lenders not affected by the usury law shall be
entitled to the full amount of interest from the Borrower under the Loan
Documents even though other Banks or Designated Bid Lenders may receive or
retain less due to the usury law.
13. Increased Costs and Reduction of Return. If any Bank shall have
----------------------------------------
determined that a change in or compliance with any Capital Adequacy Regulation
affects the amount of capital required to be maintained by the Bank, or by any
Person controlling the Bank, and such Bank determines that the amount of such
required capital is increased as a consequence of the Line of Credit or other
obligations under the Loan Documents taking into consideration such Bank's or
controlling Person's policies with respect to capital adequacy and desired
return on capital, then, upon demand of such Bank to the Borrower through the
Agent, the Borrower shall pay to the Bank an additional amount sufficient to
compensate the Bank for such increase.
14. Costs and Expenses. The Borrower shall:
------------------
(a) pay or reimburse the Agent within five Banking Days after demand
for all costs and expenses (including legal fees) incurred by it in connection
with the preparation, administration and execution of any Loan Document and any
amendment, supplement, waiver or modification and any other documents prepared
in connection herewith or therewith, (whether or not the particular Loan,
transaction or document is consummated), including reasonable legal fees
incurred by BofA (including as Agent) with respect thereto; and
(b) pay or reimburse the Agent and each Bank within five Banking Days
after demand for all costs and expenses (including legal fees) incurred by them
in connection with the enforcement or preservation of any rights or remedies
under any Loan Document with respect to an Event of Default (including any
"workout" or restructuring of the Line of Credit or other obligations under the
Loan Documents, and any Insolvency Proceeding, judicial proceeding or
arbitration).
15. Indemnification by the Borrower. The Borrower shall indemnify, defend
-------------------------------
and hold the Agent-Related Persons and each Bank, and each of their respective
officers, directors, employees and agents (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
actions, judgments, costs and expenses (including legal fees) which may be
incurred by or asserted against any such Person arising out of or relating to
the Line of Credit, the Bid Loan Facility, Advances under the Loan Documents or
the Loan Documents or any document or transaction or action taken or not by any
such Person in connection with any of the foregoing, including any
investigation, arbitration, litigation, Insolvency Proceeding or other
proceeding whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified
144
Liabilities resulting solely from the gross negligence or willful misconduct of
such Indemnified Person; nor shall the Borrower have any obligation to indemnify
any Designating Bank in respect of any matter with respect to which the Borrower
is entitled to be indemnified pursuant to Section 16(e) or in respect of any act
or omission by such Designating Bank or its Designated Bid Lender under their
Designation Agreement or any other agreement entered into between them in
connection therewith. The agreements in this Section 15 shall survive payment of
all other Obligations.
16. Assignments, Participations, etc.
---------------------------------
(a) A Bank may at any time assign to one or more Eligible Assignees
(each an "Assignee") with the written consent of the Borrower (other than during
the existence of an Event of Default) and of the Agent (at all times), which
consent shall not be unreasonably withheld (provided that no written consent
shall be required for an Eligible Assignee that is an Affiliate of such assignor
Bank) all or part of its Pro Rata Share of the Line of Credit and the other
rights and obligations of such assignor Bank hereunder with respect to the
Committed Loans and the Line of Credit (excluding, however, its interest in any
outstanding Bid Loans), in a minimum amount (with respect to such Bank's
Commitment) of $5,000,000; provided, however, that no such assignment shall be
permitted if the effect thereof is to cause the remaining Commitment of the
assignor Bank to be less than $15,000,000, and no assignment may be made of any
outstanding Committed Loan except in connection with an assignment of a
corresponding proportional share of the assignor Bank's Commitment. However,
such assignment shall be conditioned on, and the Borrower and the Agent may
continue to deal solely and directly with such assignor Bank until, (i) written
notice of such assignment, substantially in the form of the attached Exhibit A
shall have been given to the Borrower and the Agent by such Bank and the
Assignee; (ii) such Bank and its Assignee shall have delivered to the Agent and
the Borrower an Assignment and Assumption Agreement substantially in the form of
the attached Exhibit B ("Assignment and Assumption Agreement") (together with
any Note(s) subject to such assignment); and (iii) the Assignor has paid (or
caused to be paid) to the Agent a processing fee in the amount of $5,000.
(b) From the date that the Agent notifies the assignor Bank that all
conditions and requirements of the assignment have been met, then to the extent
that rights and obligations hereunder have been assigned (i) the Assignee
thereunder shall be a party hereto and shall have the rights and obligations of
a Bank under the Loan Documents and the Co-Lender Agreement, (ii) the assignor
Bank shall relinquish such assigned rights and be released from such assigned
obligations under the Loan Documents, (iii) this Agreement shall be deemed to be
amended to the extent necessary to reflect the addition of the Assignee and the
resulting adjustment of the Pro Rata Shares of the Loan arising therefrom, and
(iv) the Pro Rata Share allocated to an Assignee shall reduce the Pro Rata Share
of the assigning Bank.
(c) A Bank or Designated Bid Lender (the "originating Lender") may
sell to one or more Persons not Affiliates of the Borrower (a "Participant")
participating interests in the Line of Credit or in any Bid Loans made by the
originating Lender; provided that (i) the originating Lender's obligations under
the Loan Documents and the Co-Lender Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance of such
obligations, (iii) the Borrower and the Agent shall continue to deal solely and
directly with the originating Lender (or, in the case of a Designated Bid
Lender, its Designating Bank) in connection with the Advances and Loan
Documents, (iv) (A) no Bank shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment, consent or
waiver with respect to any Loan Document, except (1) in the case of a
participation that includes an interest in the originating Lender's Commitment,
to the extent such amendment, consent or waiver would require unanimous consent
of the Banks under Section 7(a) of the
145
Co-Lender Agreement, or (2) in the case of a participation that is limited to an
interest in one or more Bid Loans, to the extent such amendment, consent or
waiver would take effect while such Bid Loan(s) remained outstanding and would
require the unanimous consent of the Banks under any of the following clauses of
Section 7(a) of the Co-Lender Agreement: clause (ii), to the extent that the
proposed action would affect Bid Loans or any amount payable with respect to Bid
Loans; clause (iii), to the extent that the proposed action would affect any
amount payable in connection with Bid Loans; clause (iv); clause (v); and clause
(vi); and (B) no Designated Bid Lender shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment,
consent or waiver with respect to any Loan Document greater that the lesser of
(1) such rights of approval as may have been granted to such Designated Bid
Lender in connection with its entry into the relevant Designation Agreement, or
(2) as described in Section 7(e)(i) as being permitted to Designated Bid
Lenders, (v) with respect to the sale of participating interests in the Line of
Credit (it being understood that the limitations of this clause (v) shall not
apply with respect to the sale of a participating interest in all or any portion
of a Bid Loan), each participating interest in a Bank's Commitment shall be in a
minimum amount of $5,000,000, and no such participation shall be permitted if
the non-participated interest of the originating Lender in its Commitment would
thereafter be less than $15,000,000. A Participant shall not have any rights
under the Loan Documents or the Co-Lender Agreement, and all amounts payable by
the Borrower hereunder shall be determined as if the originating Lender had not
sold such participation.
(d) Notwithstanding any other provision of this Agreement, any other
Loan Document or the Co-Lender Agreement: (i) a Bank or Designated Bid Lender
may pledge its interest in the Borrower's obligations under the Loan Documents
in favor of any Federal Reserve Bank in accordance with Federal law; and (ii) a
Designated Bid Lender may pledge its interest in the Borrower's obligations
under the Loan Documents in respect of any Bid Loan in favor of any Liquidity
Provider qualifying as such with respect to the Bid Loan so pledged.
(e) (i) Any Bank may at any time, with the prior written consent of
the Borrower and the Agent, which consent shall not be unreasonably
withheld, designate one Designated Bid Lender to fund Bid Loans on behalf
of such Designating Bank subject to the terms of this Section 16(e), and
the provisions of Sections 16(a), (b) and (c) shall not apply to such
designation, except that no Designating Bank shall enter into any agreement
------ ----
under which its Designated Bid Lender has rights to approve any amendment,
consent or waiver with respect to any Loan Document, except to the extent
such amendment, consent or waiver would amend any right of Designated Bid
Lenders or would require the unanimous consent of the Banks under any of
the following clauses of Section 7(a) of the Co-Lender Agreement: clause
(ii), to the extent that the proposed action would affect Bid Loans or any
amount payable with respect to Bid Loans; clause (iii), to the extent that
the proposed action would affect any amount payable in connection with Bid
Loans; clause (iv); clause (v), if the proposed action would take effect
while any Bid Loans made by such Designated Bid Lender were outstanding;
and clause (vi). No Bank may designate more than one Designated Bid Lender
at any one time, and, following the termination of a designation with
respect to one Designated Bid Lender, no new Designated Bid Lender may be
designated until all outstanding Bid Loans made by the prior Designated Bid
Lender have been paid in full. The parties to each such designation shall
execute and deliver to the Borrower and the Agent for their acceptance a
Designation Agreement, and, upon the Agent's receipt of (A) an
appropriately completed Designation Agreement (1) executed by a Designating
Bank and a designee representing that it is a Designated Bid Lender and (2)
accepted by the Borrower, and (B) a processing fee in the amount of $2,500,
the Agent shall accept such Designation Agreement and register such
Designated Bid Lender as a Designated Bid Lender, and give prompt notice
thereof to the Borrower, whereupon: from and after the effective date
146
specified in the Designation Agreement, the Designated Bid Lender shall
become a party to this Agreement and to the Co-Lender Agreement, as a
Designated Bid Lender, with (X) a right to make Bid Loans on behalf of its
Designating Bank pursuant to Section 7(b)(ix) with respect to any
Competitive Bid of such Designating Bank that is accepted in whole or in
part by the Borrower, and (Y) the other rights, and the obligations,
provided herein and therein, subject to the limitation, however, that,
------- -- --- ----------
notwithstanding the assumption by a Designated Bid Lender of certain of the
obligations of its Designating Bank (but without limiting the Designating
Bank's obligations under the following paragraph (ii)), no Designated Bid
Lender shall be required to make payments with respect to any of its
obligations under this Agreement or any other Loan Document, or under the
Co-Lender Agreement, except to the extent of excess cash flow of such
Designated Bid Lender (i.e., cash that is not otherwise required to repay
----
obligations of such Designated Bid Lender that are then due and payable).
(ii) Notwithstanding any other provision of this Agreement, any
other Loan Document or the Co-Lender Agreement: regardless of any
designation of a Designated Bid Lender hereunder, the Designating Bank
making such designation (A) shall be and remain obligated to the Borrower,
the Agent and each of the other Banks and other Designated Bid Lenders for
each and every one of the obligations of the Designating Bank and its
Designated Bid Lender with respect to this Agreement, any other Loan
Document or the Co-Lender Agreement (including, without limitation, any
indemnification obligations under the Co-Lender Agreement and other
obligation to pay any amount otherwise payable to the Borrower by the
Designated Bid Lender); and (B) shall indemnify, defend and hold the Agent,
the Borrower, each Bank and each Designated Bid Lender harmless from and
against any and all losses, costs, expenses (including reasonable
attorneys' fees and the cost of any services of in-house counsel) and
liabilities incurred by any such Person in connection with or arising from
(1) (a) the non-performance by such Designating Bank's Designated Bid
Lender of any obligation assumed by the Designated Bid Lender under its
Designation Agreement, (b) any other act or omission of the Designated Bid
Lender committed in violation of the provisions of any Loan Document or the
Co-Lender Agreement, or (c) the failure of any representation or warranty
made by such Designating Bank's Designated Bid Lender for the benefit of
the Agent, the Borrower, any other Bank or any other Designated Bid Lender
to be true and correct in all material respects, or (2) such Designating
Bank's nonperformance of any obligation owed to its Designated Bid Lender
under the Designation Agreement or any other agreement between such
Designating Bank and its Designated Bid Lender with respect to the
transactions contemplated hereby.
(iii) Notwithstanding any designation hereunder, the Borrower and
the Agent shall continue to deal solely and directly with the Designating
Bank in connection with the Advances (including any Bid Loans made by such
Designating Bank's Designated Bid Lender), the Loan Documents and the Co-
Lender Agreement. Each Designating Bank shall serve as the administrative
agent of its Designated Bid Lender and shall on behalf of the Designated
Bid Lender: (A) receive any and all payments made for the benefit of the
Designated Bid Lender (and Borrower's and Agent's obligation to make any
payment to the Designated Bid Lender shall be satisfied upon payment of
such amount to its Designating Bank for the benefit of such Designated Bid
Lender, without any duty to see to the application thereof by such
Designating Bank), and (B) give and receive all communications and notices
and take all actions under any Loan Document or the Co-Lender Agreement,
including, without limitation, votes, approvals, waivers, consents and
amendments under or relating to this Agreement, the other Loan Documents
and the Co-Lender Agreement; and any notice or other communication so
delivered to a Designating Bank shall be deemed validly delivered to its
Designated Bid Lender, without
147
any duty on the part of the Borrower or the Agent to verify whether such
notice or other communication is actually delivered by such Designating
Bank to its Designated Bid Lender. The Agent shall have no responsibility
for, and shall not incur liability to any Designated Bid Lender arising out
of, the disposition by such Designated Bid Lender's Designating Bank of any
funds or notice or other communication delivered to such Designating Bank
for the account of such Designated Bid Lender in accordance herewith. Any
notice, communication, vote, approval, waiver, consent or amendment of or
with respect to any Loan Document or the Co-Lender Agreement that is
delivered or executed on behalf of any Designated Bid Lender shall be
signed by its Designating Bank as administrative agent for the Designated
Bid Lender (whether or not noted as such thereon), and shall not be signed
by the Designated Bid Lender on its own behalf. The Borrower, the Agent,
the Banks and the other Designated Bid Lenders may rely thereon without any
requirement that the Designated Bid Lender sign or acknowledge the same. No
Designated Bid Lender may assign or transfer all or any portion of its
interest hereunder or under any other Loan Documents, other than (X) an
assignment to the Designating Bank which originally designated such
Designated Bid Lender, or (Y) in accordance with the provisions of Section
16(c) or (d).
(iv) A Designated Bid Lender shall not have any right to the payment
of any amount under the Loan Documents or the Co-Lender Agreement other
-----
than with respect to (i) principal of and interest (including, to the
----
extent, interest at the Default Rate) on Bid Loans made by such Designated
Bid Lender, (ii) late charges with respect to Bid Loans made by such
Designated Bid Lender that are not paid when due, and (iii) compensatory
amounts payable by the Borrower in respect of Bid Loans made by such
Designated Bid Lender that are paid prior to the last day of the Bid Rate
Interest Period applicable thereto; and all other amounts payable by the
Borrower hereunder, under any other Loan Document or under the Co-Lender
Agreement shall be determined as if such Designated Bid Lender's
Designating Bank had not made such designation.
17. Publicity. Each Bank and Designated Bid Lender may refer to the
---------
credit facilities provided pursuant to the Loan Documents in its own promotional
and advertising materials. The Borrower shall not identify a Bank or Designated
Bid Lender as a lender, except with such Bank's or Designated Bid Lender's prior
written consent, provided through the Agent in each instance.
18. Conditions Precedent. The obligation of each Bank and Designated Bid
--------------------
Lender under the Loan Documents to make any Advances on or after the Effective
Date is subject to the further conditions that Agent has received all of the
following in form and substance satisfactory to Agent:
(a) Fully executed originals of this Agreement (including the
Reconfirmation of Guaranty attached hereto, executed on behalf of each
Guarantor) and the Co-Lender Agreement and any other documents any Bank may
reasonably require or request in accordance with the Loan Documents.
(b) Reimbursement of all costs and expenses incurred by the Agent in
connection with this Agreement, including legal fees and expenses of the Agent's
counsel, and the costs for services of the Agent's in-house staff, such as legal
services.
19. Conditions to All Borrowings. The obligation of each Bank and
----------------------------
Designated Bid Lender to make any Advance (including its initial disbursement on
or after the Effective Date) under the Loan Documents is subject to the
satisfaction on the date of the relevant Borrowing of the conditions set forth
in the Loan Documents, and, in the case of a Bid Loan, shall be subject to the
further condition that each of the statements made in the applicable Competitive
Bid Request shall be true and accurate in all material respects as if made on
and as of the date of such Bid Loan.
148
20. Authorization and Enforceability Representations. Each Bank, each
------------------------------------------------
Designated Bid Lender, the Agent and the Borrower hereby represents to the other
parties hereto that all necessary action has been taken to authorize it to
execute and to perform its obligations under the Loan Documents, and that the
Loan Documents are binding and enforceable against it.
21. CONSENT TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
-----------------------
TO ANY LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA, OR
OF THE UNITED STATES FOR THE NORTHERN OR CENTRAL DISTRICTS OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT (OR ASSIGNMENT AND ASSUMPTION OR
DESIGNATION AGREEMENT, AS THE CASE MAY BE), THE BORROWER, THE AGENT, EACH BANK
AND EACH DESIGNATED BID LENDER CONSENTS, FOR ITSELF AND ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE AGENT, EACH BANK
AND EACH DESIGNATED BID LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING BASED
ON VENUE OR FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
--------------------
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN CONNECTION WITH THE
LOAN OR OTHER ADVANCES MADE UNDER THE LOAN DOCUMENTS. THE BORROWER, THE AGENT,
EACH BANK AND EACH DESIGNATED BID LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS WHICH MAY BE MADE BY OTHER MEANS UNDER APPLICABLE
LAW.
22. Incorporation. This Agreement shall form a part of each Loan
-------------
Document, and all references to a given Loan Document shall mean that document
as hereby modified.
23. No Impairment. As specifically hereby amended, the Loan Documents
-------------
shall remain in full force and effect. This Agreement shall not prejudice any
rights or remedies of Banks under the Loan Documents. Banks and Designated Bid
Lenders reserve, without limitation, all rights which they have against any
guarantor or indemnitor.
24. Integration. The Loan Documents, including this Agreement: (a)
-----------
integrate all the terms and conditions incidental to the Loan Documents; (b)
supersede all oral negotiations and prior and other writings with respect to
their subject matter; and (c) are intended by the parties as the final
expression of their agreement with respect to the terms and conditions set forth
in those documents and as the complete and exclusive statement of the terms
agreed to by the parties. If there is any conflict between the terms,
conditions and provisions of this Agreement and those of any other agreement or
instrument, including any of the other Loan Documents, the terms, conditions and
provisions of this Agreement shall prevail. The Co-Lender Agreement addresses
matters among the Banks, the Designated Bid Lenders and the Agent and is
intended by the Banks, the Designated Bid Lenders and the Agent to supplement
and be compatible with and not abrogate the Loan Documents, and the Borrower's
rights, obligations and liabilities shall not be diminished or increased by the
Co-Lender Agreement.
25. Electronic Notices. Any agreement of the Agent to receive certain
------------------
notices from the Borrower or the Banks (in their own capacities or in their
capacities as administrative agent for any Designated Bid Lender) by telephone
or facsimile is solely for their convenience and at their request. The Agent
shall be entitled to rely on the authority of any Person giving such notice and
the Agent shall not have any liability to the Borrower, any Bank, any Designated
Bid Lender or other Persons on account of any action taken or not taken by the
Agent in reliance upon such telephonic or facsimile notice.
149
26. Notices.
-------
Notices and other communications that the Borrower, the Agent or any
Lender is required to deliver under any Loan Document, or that any such Person
desires to deliver to any other party to a Loan Document, shall be sent to the
following addresses:
To the Borrower:
BRE Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telesis Tower, Suite 2500
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
150
To BofA as Bank:
Bank of America National Trust
and Savings Association
Commercial Real Estate Services/
National Accounts 9105
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To BofA as Agent:
Bank of America National Trust
and Savings Association
Commercial Real Estate Services/
National Accounts 9105
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Commerzbank:
Commerzbank AG, New York Branch
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇/(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Commerzbank AG, Los Angeles Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To IBJ:
The Industrial Bank of Japan, Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
151
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To NationsBank:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Keybank:
Keybank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Dresdner:
Dresdner Bank AG
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Manufacturers:
Manufacturers Bank
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
152
To Sumitomo:
The Sumitomo Bank of California
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
As provided in Section 16(e), any notice or other communication to a Designated
Bid Lender shall be sent to its Designating Bank. Except as otherwise specified:
(x) all notices or other communications sent by mail, if duly given, shall be
effective three (3) Business Days after deposit into the mails, postage prepaid,
(y) all notices or other communications sent by a nationally recognized
overnight courier service, if duly given, shall be effective one (1) Business
Day after delivery to such courier service (with the relevant fees paid or duly
provided for), and (z) all other notices or other communications, if duly given
or made, shall be effective upon receipt.
27. No Bankruptcy Proceedings Against Designated Bid Lenders. Each of the
--------------------------------------------------------
Borrower, the Banks, and the Agent hereby agrees that it will not institute
against any Designated Bid Lender, or join with any other Person in instituting
against any Designated Bid Lender, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, at any time prior to the date that is one year and one day after
payment in full of the latest maturing commercial paper note issued by such
Designated Bid Lender.
28. Certain Acknowledgments by Borrower. The Borrower acknowledges that
-----------------------------------
(i) it has been advised by counsel in the negotiation, execution and delivery of
this Agreement and the other Loan Documents; and (ii) the relationship between
the Borrower, on the one hand, and the Agent and the Banks and Designated Bid
Lenders, on the other hand, in connection with the Loan Documents and the
transactions contemplated thereby is solely that of debtor and creditor; no
joint venture is created hereby or by the other Loan Documents or otherwise
exists (among the Borrower, the Banks and the Designated Bid Lenders or between
the Borrower and the Agent) by virtue of the transactions contemplated hereby.
153
29. Miscellaneous. This Agreement shall be governed by the laws of the
-------------
State of California, without regard to the choice of law rules of that State.
This Agreement and any attached consents or exhibits requiring signatures may be
executed in counterparts, and all counterparts shall constitute but one and the
same document. If any court of competent jurisdiction determines any provision
of this Agreement or any of the other Loan Documents to be illegal or
unenforceable, that portion shall be deemed severed from the rest which shall
remain in full force and effect. As used herein, the word "include(s)" means
"includes(s), without limitation," and the word "including" means "including,
but not limited to." Schedule I and Exhibits A (form of Notice of Assignment),
B (form of Assignment and Assumption Agreement), C (form of Competitive Bid
Request), D (form of Competitive Bid) and E (form of Designation Agreement) are
attached to this Agreement and are incorporated in this Agreement by this
reference.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT.
BRE PROPERTIES, INC., A MARYLAND CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Executive Vice President &
Chief Financial Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: President & Chief Executive Officer
-------------------------------------
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Title: Vice President
----------------
COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES
BRANCH, as a Bank and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Title: Vice President
----------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
--------------------------
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Bank and as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------
Title: Senior vice President
--------------------------
NATIONSBANK OF TEXAS, N.A., as a Bank and as Co-
Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
-------------------------
KEYBANK NATIONAL ASSOCIATION, as a Bank and as Co-
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Assistant Vice-President
------------------------
DRESDNER BANK AG, New York Branch and Grand Cayman
Branch, as a Bank and as Co-Agent
155
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Assistant Treasurer
--------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
--------------------- -
Title: Assistant Vice President
--------------------------
MANUFACTURERS BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Senior Vice
President/Regional
Manager
THE SUMITOMO BANK OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
-------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Vice President
------------------------
156
RECONFIRMATION OF GUARANTY
The undersigned hereby (i) acknowledges and approves the foregoing
Modification Agreement to Syndicate Loan ("Modification Agreement") and the
other Loan Documents referred to therein; (ii) agrees to the modifications to
the undersigned's Guaranty set forth in the Modification Agreement; and (iii)
restates and reconfirms each and every representation, warranty and covenant as
set forth in its Guaranty, dated as of November 17, 1997, executed in favor of
BofA, and acknowledges and agrees that each such representation, warrranty and
covenant shall inure to the benefit of each of Agent, Banks and Designated Bid
Lenders.
GUARANTOR: BRE PROPERTY INVESTORS, LLC, a Delaware limited
liability company,
By: BRE PROPERTIES, INC., a
Maryland corporation
Its: Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Its: Executive Vice President &
Chief Financial Officer
157
