Exhibit 10.28
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THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
dated as of February 15, 2002
among
PS BUSINESS PARKS, L.P.,
THE LENDERS LISTED HEREIN,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Agent
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TABLE OF CONTENTS
Page
ARTICLE I. THE AMENDMENTS..............................................13
SECTION 1.1. Definitions......................................13
SECTION 1.2. Employees........................................13
SECTION 1.3. Shareholder Agreement............................13
SECTION 1.4. Limitation of Guarantor..........................13
SECTION 1.5. Year 2000........................................13
SECTION 1.6. Change in Management.............................13
SECTION 1.7. Transactions with Affiliates.....................13
ARTICLE II. Conditions to Effectiveness of this Amendment..............13
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ARTICLE IiI. Representations of Borrower...............................13
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ARTICLE IV. MisCELLANEOUS..............................................13
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SECTION 4.1. Capitalized Terms................................13
SECTION 4.2. Ratification.....................................13
SECTION 4.3. Counterparts.....................................13
SECTION 4.4. Governing Law....................................13
i
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment") dated as of February 15, 2002 among PS BUSINESS PARKS, L.P., a
California limited partnership (the "Borrower"), the lenders listed on the
signature pages hereof ("Lenders"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as agent and representative for the Lenders (in such capacity, the "Agent").
WHEREAS, Borrower, the Agent and the Lenders entered into that
certain Revolving Credit Agreement dated as of August 6, 1998 (the "Original
Agreement"), which Original Agreement was amended by that certain First
Amendment to Revolving Credit Agreement dated as of August 19, 1999 (the "First
Amendment") among the Borrower, the Agent and the Lenders, and further amended
by that certain Second Amendment to Revolving Credit Agreement dated as of
September 29, 2000 (the "Second Amendment") (the Original Agreement as amended
by the First Amendment and the Second Amendment being referred to herein as the
"Modified Credit Agreement");
WHEREAS, Borrower, the Lenders and the Agent wish to make
certain amendments to the Modified Credit Agreement effective as of January 1,
2002. The Modified Credit Agreement, as modified by this Amendment may be
referred to herein as the "Credit Agreement";
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, the Borrower, the Lenders
and the Agent agree as follows:
ARTICLE I.
THE AMENDMENTS
SECTION 1.1. Definitions. The following terms shall be
substituted in lieu of the corresponding terms in, Section 1.1 of the Modified
Credit Agreement:
"Capitalization Rate" means nine and one-half percent (9.5%).
"Unencumbered Asset Value" means, at any time, with respect to
Unencumbered Assets that have been Wholly-Owned for at least one full Fiscal
Quarter at such time, the product of the Property NOI of such Unencumbered
Assets during the period of the full Fiscal Quarter ended most recently,
multiplied by 4, less the product of (i) $.95 multiplied by (ii) the gross
rentable square footage of all Unencumbered Assets that have been Wholly-Owned
owned for such period, divided by the Capitalization Rate (the foregoing may be
referred to herein as the "Unencumbered Pool Value") plus (y) Cash and Cash
Equivalents (excluding tenant deposits and other restricted cash) and (z) the
book value of Construction-in-Process and Land Holdings; provided that the value
of clause (z) shall be limited to 5% of the Unencumbered Pool Value.
SECTION 1.2. Employees. Section 4.12 is hereby deleted in its
entirety.
SECTION 1.3. Shareholder Agreement. Section 5.10 is hereby
deleted in its entirety as the Shareholder Agreement expired on its own terms on
December 31, 2001.
SECTION 1.4. Limitation of Guarantor. Section 5.11 of the
Modified Credit Agreement is hereby modified to delete the last two sentences
thereof.
SECTION 1.5. Year 2000. Section 5.14 is hereby deleted in its
entirety.
SECTION 1.6. Change in Management. Section 5.15 is hereby
deleted in its entirety and the following shall be substituted in lieu thereof:
5.15 Change in Management. Borrower shall provide to Lender
prompt notice of (i) any change in the senior management of the Borrower, or any
other Subsidiary and (ii) any change in the business, assets, liabilities,
financial condition, results of operations or business prospects of the Borrower
or any Subsidiary which has had or could have a Material Adverse Effect.
SECTION 1.7. Transactions with Affiliates. Section 6.6 shall
be deleted in its entirety and the following shall be substituted in lieu
thereof:
6.6 Transactions with Affiliates. Borrower Parties shall not,
directly or indirectly, permit to exist or enter into any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Borrower or with any director, officer or
employee of any Subsidiary, except transactions in the ordinary course of, and
pursuant to, the reasonable requirements of the business of the Borrower or any
of its Subsidiaries and upon fair and reasonable terms and are no less favorable
to the Borrower or such Subsidiary than would be obtained in a comparable arm's
length transaction with a Person that is not an Affiliate.
ARTICLE II.
CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT
The closing hereunder shall occur on the date when each of the
following conditions is satisfied (or waived by the Agent and the Lenders) (the
"Amendment Date"), each document to be dated the Amendment Date unless otherwise
indicated:
(a) the Borrower, the Agent and each of the Lenders shall have
executed and delivered to the Borrower and the Agent a duly executed original of
this Amendment;
(b) Guarantor shall have executed and delivered to the Agent a
duly executed consent to this Amendment reaffirming Guarantor's obligations
under the Guaranty;
(c) the Agent shall have received all documents the Agent may
reasonably request relating to the existence of the Borrower and Guarantor, the
authority for and the validity of this Amendment and the other Loan Documents,
and any other matters relevant hereto, all in form and substance satisfactory to
the Agent. Such documentation shall include, without limitation, the agreement
of limited partnership of the Borrower, as well as the certificate of limited
partnership of the Borrower, both as amended, modified or supplemented to the
Amendment Date, certified to be true, correct and complete by a senior officer
of the Borrower as of a date not more than ten (10) days prior to the Amendment
Date, as well as the articles of incorporation and bylaws of Guarantor, as
amended, modified or supplemented to the Amendment Date, certified to be true,
correct and complete by a senior officer of Guarantor as of a date not more than
ten (10) days prior to the Amendment Date;
(d) the Borrower and Guarantor shall have taken all actions
required to authorize the execution and delivery of this Amendment and the other
Loan Documents and the performance thereof by the Borrower and Guarantor, as the
case may be;
(e) the Agent shall have received, by debit(s) to Borrower's
account with Lender numbered 4828-665364, which debit(s) Agent is hereby
authorized to make as follows: (i) the sum of $15,000 as a modification fee due
to Agent and Lender and (ii) the sum of $2,500 for legal fees due to ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP; and
(f) no Default or Event of Default shall have occurred.
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ARTICLE III.
REPRESENTATIONS OF BORROWER
The Borrower hereby represents and warrants to the Agent and
each of the Lenders the following:
(a) All of the representations and warranties contained in the
Modified Credit Agreement are true and correct on and as of the date hereof and
will be true and correct after giving effect to this Amendment; the foregoing
representation and warranty is not intended to modify Section 7.1.4 of the
Credit Agreement.
(b) No event which constitutes a Default or an Event of
Default under the Modified Credit Agreement, as amended hereby, has occurred and
is continuing, or would result from the execution and delivery of this
Amendment.
(c) The Borrower has the power and authority to execute and
deliver this Amendment and to perform its obligations under the Modified Credit
Agreement, as amended hereby, and under the Notes; and all such action has been
duly authorized by all necessary proceeding on its part. Each of the Modified
Credit Agreement, this Amendment and the Notes has been duly and validly
executed and delivered by the Borrower and constitutes the valid and legally
binding obligation of the Borrower enforceable in accordance with its terms,
except as limited by moratorium, bankruptcy, reorganization, insolvency or other
laws affecting creditor's rights generally or by the exercise of judicial
discretion in accordance with general principles of equity.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1 Capitalized Terms The capitalized terms used
herein which are defined in the Modified Credit Agreement and not otherwise
defined herein shall have the meanings specified therein.
SECTION 4.2 Ratification The Modified Credit Agreement, as
hereby amended, is in all respects ratified and confirmed, and all other rights
and powers created thereby or thereunder shall be and remain in full force and
effect.
SECTION 4.3 Counterparts This Amendment may be executed in
several counterparts, and each counterpart, when so executed and delivered,
shall constitute an original instrument, and all such separate counterparts
shall constitute one and the same instrument.
SECTION 4.4 Governing Law THIS AMENDMENT AND THE OTHER LOAN
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE
OF CALIFORNIA EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW (WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
Borrower:
PS BUSINESS PARKS, L.P.,
a California limited partnership
By: PS BUSINESS PARKS, INC.,
a California corporation,
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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Address: PS BUSINESS PARKS, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Agent:
▇▇▇▇▇ Fargo Bank, National Association
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
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Title: Vice President
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Address: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Lender:
▇▇▇▇▇ Fargo Bank, National Association
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
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Title: Vice President
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Address: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
LIBOR LENDING ▇▇▇▇▇ Fargo Bank, National Association
OFFICE: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CONSENT OF GUARANTOR
The undersigned, PS BUSINESS PARKS, INC., a California corporation
("Guarantor"), (i) hereby consents to the foregoing Third Amendment to Revolving
Credit Agreement dated as of February 15, 2002 (the "Third Amendment") among PS
BUSINESS PARKS, L.P., a California limited partnership ("Borrower"), the lenders
listed therein (the "Lenders") and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Agent (in such capacity, the "Agent"), and (ii) hereby reaffirms its obligations
under that certain General Continuing Repayment Guaranty dated as of August 6,
1998 made by Guarantor in favor of the Lenders and the Agent pursuant to which,
among other things, Guarantor guarantees the payment and performance of
Borrower's obligations under the Revolving Credit Agreement dated as of August
6, 1998 among Borrower, the Lenders and the Agent, as amended by each of the
First Amendment to Revolving Credit Agreement dated as of August 19, 1999 among
Borrower, the Lenders and the Agent, the Second Amendment to Revolving Credit
Agreement dated as of September 29, 2000 among Borrower, the Lenders and the
Agent and the Third Amendment.
PS BUSINESS PARKS, INC.,
a California corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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