Exhibit 10.5
WAIVER, AMENDMENT AND SECOND CONSENT TO CREDIT AGREEMENT
This WAIVER, AMENDMENT AND SECOND CONSENT TO CREDIT AGREEMENT
(this "SECOND CONSENT"), dated as of December 15, 1999, is among BPP RETAIL,
LLC, a Delaware limited liability company (the "COMPANY"), BPAC TEXAS, L.P., a
Delaware limited partnership ("BPAC"; together with the Company, collectively,
the "BORROWERS"), the Lenders (as defined in the Credit Agreement (as defined
below)), and THE CHASE MANHATTAN BANK, as administrative agent for itself, the
Issuing Bank (as defined in the Credit Agreement) and the Lenders (in such
capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H
WHEREAS, the Borrowers, the Lenders, the Administrative Agent,
the Issuing Bank and The First National Bank of Chicago, as Syndication Agent,
entered into a Credit Agreement, dated as of June 14, 1999, as amended by that
certain First Consent, dated as of August 6, 1999, among the Borrowers, the
Lenders, the Administrative Bank, the Issuing Bank and The First National Bank
of Chicago, as Syndication Agent (as amended, supplemented or modified from time
to time, including, by this Second Consent, the "CREDIT AGREEMENT"; capitalized
terms not defined herein shall have the meaning ascribed thereto in the Credit
Agreement);
WHEREAS, pursuant to Section 2.10(d)(iv) of the Credit
Agreement, BPPI or an Affiliate thereof is required to maintain at least a 12.5%
Percentage Interest (as defined in the Operating Agreement) in the Company
("OWNERSHIP REQUIREMENT");
WHEREAS, the Company has informed the Lenders and the
Administrative Agent that the Company desires to amend its Operating Agreement
pursuant to a Second Amendment to Operating Agreement (the "AMENDMENT"), dated
on or about December 15, 1999, between the State of California Public Employees'
Retirement System ("CalPERS") and ▇▇▇▇▇▇▇ Pacific Employees LLC ("BPE"),
pursuant to which, among other things, BPE's Percentage Interest (as defined in
the Operating Agreement) in the Company shall be decreased to 1%;
WHEREAS, in connection with such Amendment, the Company shall
also cause the Nominee Project commonly known as ▇▇▇▇ Gardens Shopping Center
located in Bell Gardens, California (the "▇▇▇▇ GARDENS PROPERTY") to be
transferred to BPE;
WHEREAS, the Company has requested that the Lenders
acknowledge their consent to such Amendment and to amend and waive certain
provisions of the Credit Agreement as a result thereof (including, the waiver
and removal of the Ownership Requirement), and the Lenders have agreed, as set
forth herein; and
WHEREAS, the Lenders have requested and CalPERS has agreed to
execute this Second Consent to acknowledge and confirm their consent to the
execution by the Company of this Second Consent.
NOW, THEREFORE, for fair and valuable consideration, the
adequacy of which is hereby acknowledged, the parties agree as follows:
1. CONSENT TO AMENDMENT. Subject to the satisfaction of the
Consent Conditions (as defined below) and the terms of this Second Consent, the
Lenders hereby consent to the Amendment, which amendment shall be substantially
in the form attached hereto as EXHIBIT A, notwithstanding anything to the
contrary that may be contained in the Credit Agreement (including, without
limitation, the terms and provisions of SECTIONS 3.02, 6.03, 6.06, 6.11 AND 6.14
of the Credit Agreement). In connection with consummating the transactions
provided for in the Amendment, the Manager (as defined in the Operating
Agreement) will be released from its obligation to contribute additional capital
to the Company.
2. AMENDMENTS TO CREDIT AGREEMENT. Upon satisfaction of the
Consent Conditions,
(a) SECTION 2.10(D)(IV) of the Credit Agreement is hereby
deleted in its entirety and replaced with the following: "(iv) BPPI or an
Affiliate thereof fails to maintain at least a 1% Percentage Interest (as
defined in the Operating Agreement) in the Company; ".
(b) The definitions "Nominee Acknowledgment", "Nominee
Agreements", "Nominee Party" and "Nominee Projects" shall be deleted in its
entirety from SECTION 1.01 of the Credit Agreement and all references in the
Credit Agreement to such terms shall be amended accordingly to reflect such
deletion (including, without limitation, SECTIONS 1.01, 3.05, 3.07, 3.13,
4.01(F), 5.02, 5.05, 5.11, 5.15, 6.01(H), 6.14 AND 9.02(B) of the Credit
Agreement). In addition, SCHEDULE 3.05(G) of the Credit Agreement is hereby
deleted in its entirety.
(c) SCHEDULE 3.02 of the Credit Agreement is hereby deleted in
its entirety and replaced with Schedule 3.02 attached hereto.
(d) SCHEDULE 3.05(A) of the Credit Agreement is hereby deleted
in its entirety and replaced with Schedule 3.05(a) attached hereto.
(e) The definition "Change of Control" set forth in SECTION
1.01 of the Credit Agreement shall be amended by inserting the following
sentence as the last sentence of such definition: "Notwithstanding the
foregoing, a "Change in Control" shall not be deemed to have occurred in the
event that BPE withdraws as a member and manager of the Company so long as BPOP
is substituted as to BPE's interest as a member and manager under the Operating
Agreement in accordance with the terms and provisions of the Operating
Agreement."
(f) From and after the effective date of the transfer of the
▇▇▇▇ Gardens Property to BPE, the ▇▇▇▇ Gardens Property shall no longer be
considered an Eligible Project.
(g) Notwithstanding anything to the contrary contained in the
Credit Agreement, the consent of the Administrative Agent or the Lenders shall
not be required in the event that BPE withdraws as a member and manager of the
Company so long as (i) BPOP is substituted as to BPE's interest as a member and
manager under the Operating Agreement in accordance with the terms and
provisions of the Operating Agreement (as amended by the Amendment) and (ii) the
documents and instruments effectuating such transfer and withdrawal are in form
and substance reasonably satisfactory to the Administrative Agent.
(h) Notwithstanding anything to the contrary contained in the
Credit Agreement, the parties hereto acknowledge and agree that the Term Loan
Commitments terminated on December 1, 1999.
3. WAIVER. Upon the satisfaction of the Consent Conditions,
the Lenders hereby waive (a) their right under SECTION 2.10 of the Credit
Agreement to require the Borrowers to prepay the Loans in their entirety as a
result of the reduction in BPE's Percentage Interest in the Company to 1% and
(b) any Event of Default under the Credit Agreement or under SECTION 4 hereof,
arising for the period commencing on the Effective Date thorugh the effective
date of this Second Consent (including any default interest on account thereof)
as a result of a breach of the Ownership Requirement.
4. CONDITIONS TO EFFECTIVENESS. This Second Consent shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with SECTION 9.02 of the Credit
Agreement)(collectively, the "CONSENT CONDITIONS"):
(a) The Administrative Agent (or its counsel) shall have
received either (i) one or more copies of this Second
Consent, executed by each of the Borrowers, the
Administrative Agent and the Lenders or (ii) written
evidence satisfactory to the Administrative Agent
(which may include a facsimile transmission of a
signed copy of this Second Consent) that each of such
parties has signed a copy of this Second Consent.
(b) The Borrowers shall have delivered to the
Administrative Agent a certificate signed by an
executive officer of the managing member or general
partner of each Borrower, as applicable, certifying
to the Administrative Agent and the Lenders that (i)
the representations and warranties made by any Credit
Party or Constituent Party set forth in the Credit
Agreement or any other Loan Document (including this
Second Consent) are true and correct in all material
respects on and as of the date of this Second Consent
(except with respect to such representations and
warranties that are made expressly as of an earlier
date, in which case, such representations and
warranties were true and correct in all material
respects on and as of such date), (ii) immediately
prior to, at the time of, and immediately after
giving effect to this Second Consent, no Default or
Event of Default shall have occurred and be
continuing, and (iii) no Borrower has received
written notice from the Required Lenders that an
event has occurred since the date of the Credit
Agreement which has had, and continues to have, or is
reasonable likely to have, a Material Adverse Effect.
(c) Intentionally Omitted..
(d) The Borrowers shall have delivered to the
Administrative Agent an updated Compliance
Certificate (together with all appropriate schedules
and back-up documentation) demonstrating compliance
with the financial
covenants and ratios set forth in Article VI of the
Credit Agreement both immediately prior to, and after
giving effect to the Amendment.
(e) The Company shall execute and deliver to the
Administrative Agent a consent, waiver or amendment
to the credit agreement and loan documents under the
Secured Facility, in form and substance satisfactory
to the Administrative Agent.
(f) The Administrative Agent shall have received such
other documents and certificates as the
Administrative Agent or its counsel may reasonably
request relating to the organization, existence and
good standing of the Credit Parties and their Related
Parties, the authorization of the Amendment or this
Second Consent or the consummation of the
transactions described therein and herein, all in
form reasonably satisfactory to the Administrative
Agent.
(g) The Borrowers shall have paid to the Administrative
Agent, (i) for the account of each Lender in
accordance with its respective Applicable Percentage,
a nonrefundable amendment fee in an amount equal to
0.05% of the sum of (A) the aggregate outstanding
principal amount of the Term Loans on the date hereof
and (B) $20,000,000; and (ii) for the account of the
Chase Manhattan Bank ("CHASE") or Chase Securities,
Inc. ("CSI"), a nonrefundable advisory fee in an
amount separately agreed upon in writing among Chase,
CSI and the Borrowers.
By entering into this Second Consent, each Borrower shall be deemed to represent
and warrant on the date hereof that each of the Consent Conditions have been
satisfied. The Administrative Agent shall notify the Borrowers and each of the
Lenders if and when the Consent Conditions have been satisfied, and such notice
shall be conclusive and binding.
5. ADDITIONAL COVENANTS, REPRESENTATIONS AND WARRANTIES
OF THE BORROWERS. (a) Each Borrower hereby represents and warrants to the
Administrative Agent and the Lenders as follows:
(i) Each Borrower has the legal power and authority to enter
into this Second Consent without consent or approval by and third party (or such
consent has been obtained) and this Second Consent constitutes the legal, valid
and binding obligation of each Borrower enforceable against such Borrower in
accordance with its terms.
(ii) The execution and deliver by each Borrower of this Second
Consent has been duly authorized by all requisite limited liability company or
partnership action, as the case may be, on the part of such Borrower and will
not violate any provision of such Borrower's organizational documents or any
other agreements or contracts to which such Borrower is a party or to which its
assets or property are bound.
(iii) Each Borrower hereby confirms and acknowledges that such
Borrower has no offsets, defenses, claims, counterclaims, setoffs or other basis
for reduction with respect to any of the Obligations owed to the Lenders.
(iv) Each Borrower hereby represents and warrants that it owns
good and marketable fee simple absolute title to all of the Real Property listed
on SCHEDULE 3.05(A) to the Credit Agreement (as amended by this Second Consent).
There are no Real Properties owned by any Person for the benefit of any Borrower
pursuant to any nominee or similar arrangements as of the date hereof and the
Borrowers covenant that it shall not enter into any such arrangements after the
date hereof, without the prior written consent of the Administrative Agent.
(b) The Borrowers acknowledge and agree that a breach of any
of the representations, warranties and covenants contained in this Second
Consent shall constitute an Event of Default under the Credit Agreement,
entitling the Administrative Agent and the Lenders to exercise any all rights
and remedies thereunder or available to it at law or in equity.
6. TERMINATION OF NOMINEE ACKNOWLEDGEMENTS. Upon the
satisfaction of the Consent Conditions and the transfer of fee simple title (a)
of the Point Loma Project to the Company and (b) of the ▇▇▇▇ Gardens Property to
BPE, each of the Acknowledgement and Agreement of Nominee Party, dated as of
June 14, 1990, executed by BPOP and the Company in favor of the Administrative
Agent for the benefit of the Lenders with respect to the Point Loma Project and
the ▇▇▇▇ Gardens Property shall be terminated and of no further force and effect
(other than any indemnity obligations expressly provided for under the terms of
such agreements).
7. MISCELLANEOUS. (a) Except as specifically set forth
herein, all terms and conditions of the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed. This Second Consent is effective exclusively for the purposes set
forth herein, and any additional consents, waivers or amendments, modifications
or supplements to any Loan Document must be in writing in accordance with the
terms of the Credit Agreement or other applicable Loan Document. The execution,
delivery and effectiveness of this Second Consent shall not operate as a waiver
of any right, power or remedy of the Administrative Agent or any Lender under
the Loan Documents (except to the extent expressly set forth herein), or in any
other document, instrument or agreement executed and/or delivered in connection
therewith.
(b) Any inconsistency between this Second Consent and the
terms and provisions of the Credit Agreement prior to its modification
hereunder, shall be resolved in favor of this Second Consent, whether or not
this Second Consent specifically modifies the particular provision(s) in the
original Credit Agreement inconsistent with this Second Consent. All references
to the "Credit Agreement" in the Loan Documents and to "this Agreement" in the
original Credit Agreement shall mean and refer to the original Credit Agreement
as modified and amended hereby.
(c) This Second Consent may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Second Consent constitutes the entire understanding among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. This Second Consent shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature
page of this Second Consent by telecopy shall be effective as delivery of a
manually executed counterpart of this Second Consent.
(d) The Borrowers agree to pay on demand all reasonable costs
and expenses of the Administrative Agent and the Lenders in connection with, or
arising out of the negotiation, preparation, execution and delivery of this
Second Consent (including the reasonable fees and expenses of counsel) and the
consummation of the transactions contemplated by the Amendment.
(e) This Second Consent shall be construed in accordance with
and governed by the law of the State of New York.
8. CALPERS. By its execution of this Second Consent,
CalPERS hereby acknowledges and consents to the entering into of this Second
Consent by the Company and confirms that the Loans as modified by this Second
Consent do not violate any policy, guidelines or limitations applicable to the
Company under the Operating Agreement, as amended by the Amendment.
Signatures Commence on Following Page.
IN WITNESS WHEREOF, the parties hereto have caused
this Waiver, Amendment and Second Consent to Credit Agreement be duly executed
by their respective authorized officers as of the day and year first above
written.
BPP RETAIL, LLC,
a Delaware limited liability company,
By: ▇▇▇▇▇▇▇ Pacific Employees LLC,
a Delaware limited liability company,
its managing member
By: ▇▇▇▇▇▇▇ Pacific Operating
Partnership, L.P.,
a Delaware limited partnership,
its managing member
By: ▇▇▇▇▇▇▇ Pacific Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Secretary
------------------------
BPAC TEXAS, L.P.,
a Delaware limited partnership
By: BPAC Texas GP, LLC,
a Delaware limited liability company,
its general partner
By: BPAC Texas, Inc.,
a Delaware corporation,
its managing member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Secretary
----------------------------
THE CHASE MANHATTAN BANK, individually
and acknowledged as Administrative Agent
By: /s/ ▇▇▇▇ ▇. Mix
-----------------------------------
Name: ▇▇▇▇ ▇. Mix
------------------------------
Title: Vice President
-----------------------------
LAND BANK OF TAIWAN
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: Vice President & General Manger
-----------------------------
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
-----------------------------
Title: Vice President & General Manger
-----------------------------
BANK ONE, NA as Successor to
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Dell ▇. ▇▇▇▇▇
------------------------------------
Name: Dell ▇. ▇▇▇▇▇
-----------------------------
Title: Vice President
-----------------------------
AMSOUTH BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Vice President
-----------------------------
CITIZENS BANK OF RHODE ISLAND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
FIRST COMMERCIAL BANK
By: /s/ ▇▇▇▇▇ ▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇
----------------------------
Title: Deputy General Manger
----------------------------
USTRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
FIRST AMERICAN BANK TEXAS, SSB
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
----------------------------
COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
----------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Title: Vice President
----------------------------
NEW YORK LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
----------------------------
ACKNOWLEDGED AND CONSENTED TO:
STATE OF CALIFORNIA PUBLIC
EMPLOYEES' RETIREMENT SYSTEM, AN
agency of the State of California
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Real Estate Investment Officer
------------------------------------