EXHIBIT 10.12
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT AND LOAN DOCUMENTS
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT AND LOAN DOCUMENTS
("Amendment") is made and entered into as of December 28, 1998, by and among
PRICE ENTERPRISES, INC., a Maryland corporation ("Borrower"), XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as a Lender (the "Original Lender"), BANK ONE,
ARIZONA, NA ("Bank One"), AMSOUTH BANK ("AmSouth"), and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Agent.
RECITALS
A. Borrower, Original Lender and Agent entered into that certain
Revolving Credit Agreement dated as of December 3, 1998 (as amended,
supplemented or modified from time to time, the "Credit Agreement"), pursuant
to which Original Lender agreed to make, and Borrower agreed to take, a
revolving loan in the principal amount of up to $50,000,000. All capitalized
terms used in this Amendment and not otherwise defined shall have the
meanings given such terms in the Credit Agreement.
B. Borrower executed and delivered to Original Lender that certain
Promissory Note dated December 3, 1998, in the stated principal amount of
$50,000,000 (the "Xxxxx Fargo Note"). As of the date of this Amendment,
Advances under the
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Xxxxx Fargo Note in the amount of $49,111,573.79 (the "Outstanding Principal
Balance") are outstanding.
C. Effective as of the Effective Date, Bank One and AmSouth will become
Lenders for all purposes of the Credit Agreement and the other Loan Documents.
D. Borrower, the Lenders and Agent desire to amend the Credit Agreement
and the other Loan Documents, all as more particularly set forth in this
Amendment.
NOW, THEREFORE, Borrower, the Lenders and Agent agree as follows:
1. INCORPORATION OF RECITALS; EFFECTIVE DATE. The foregoing recitals
are incorporated herein as an agreement of Borrower, Lenders and Agent. The
date of this Amendment and the other Modification Documents (defined in
Section 14(a), below), is for reference purposes only. The effective date
(the "Effective Date") of this Amendment and the other Modification Documents
is the date on which the conditions set forth in Section 14, below, have been
satisfied or waived by all of the Lenders.
2. SECTION 1.1.
(1) The definition of "Applicable LIBOR Rate Margin", as set forth
in Section 1.1 of the Credit Agreement, is hereby amended to read in full as
follows:
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"APPLICABLE LIBOR RATE MARGIN" means, during each Pricing Period, the
interest rate margin set forth below (expressed in basis points per annum)
opposite the Applicable Pricing Level for that Pricing Period:
APPLICABLE
PRICING LEVEL MARGIN
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I 110.00
II 120.00
III 125.00
IV 130.00
V 135.00
VI 140.00
VII 145.00
(2) The definition of "Commitment", as set forth in Section 1.1 of
the Credit Agreement, is hereby amended to read in full as follows:
"COMMITMENT" means, subject to SECTIONS 2.7 and 2.8, $100,000,000.
As of the Closing Date, the respective Pro Rata Shares of the Lenders with
respect to the Commitment are set forth in SCHEDULE 1.1.
(3) The first sentence of the definition of "Lenders", as set forth
in Section 1.1 of the Credit Agreement, is hereby amended to read in full as
follows:
"LENDERS" means Xxxxx Fargo (for so long as it holds an interest in a
Note), Bank One, Arizona, NA, AmSouth Bank and any other bank, finance
company, insurance or other financial institution which is or becomes a
party to this Agreement by execution of a counterpart signature page
hereto or an Assignment and Assumption, as assignee.
3. SECTION 2.1.
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(a) Section 2.1(a)(i)(w) of the Credit Agreement is hereby
amended to read in full as follows:
(w) the aggregate principal amount of all outstanding Advances shall
not at any time exceed One Hundred Million Dollars ($100,000,000);
(b) Section 2.1(a)(i)(y) of the Credit Agreement is hereby
amended to read in full as follows:
(y) the aggregate principal amount of all outstanding Advances shall
not at any time exceed an amount which would cause the aggregate
Annualized Property NOI for all Real Properties in the Unencumbered Pool
to be less than 160% of Pro Forma Debt Service; and
4. SECTION 2.2.
(1) The following sentence is hereby added after the end of the
first sentence of Section 2.2 of the Credit Agreement:
Notices of Borrowing shall be signed by any two of the employees of
Borrower set forth on SCHEDULE 2.2.
(2) The third sentence of Section 2.2 of the Credit Agreement
(which sentence was the second sentence of Section 2.2 prior to the addition
of the sentence added by subsection (a), above) is hereby amended to read in
full as follows:
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Agent shall be entitled to act on the instructions of Persons
identifying themselves as two of the Persons authorized to execute a
Notice of Borrowing, and Borrower shall be bound thereby in the same
manner as if such Persons were actually so authorized.
5. SECTION 2.5. The reference to "$50,000,000" in clause (i) of
Section 2.5(b) of the Credit Agreement is hereby deleted and replaced with
"$100,000,000".
6. SECTION 2.8. The reference to "Forty Million Dollars ($40,000,000)"
in lines 18 and 19 of Section 2.8 of the Credit Agreement is hereby deleted
and replaced with "Sixty Million Dollars ($60,000,000)".
7. SECTION 6.16. The following is hereby added after the end of the
last sentence of Section 6.16 of the Credit Agreement:
Borrower shall not cause or permit any Entity which is a Consolidated
Entity to create, incur or assume any Debt or Guaranty Obligations
other than Debt which is secured by real property owned by such Entity
and trade Debt incurred in the ordinary course of business of such
Entity so long as such trade debt does not, at any time, exceed a
reasonable amount as reasonably determined by Agent.
8. SECTION 7.10. Section 7.10(a) of the Credit Agreement is hereby
amended to read in full as follows:
(a) Neither Borrower nor any Consolidated Entity shall engage,
directly or indirectly, in the development of any Real Property; provided,
however, that,
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notwithstanding the foregoing, Borrower and the Consolidated Entities may
engage in the development of Real Property only if the aggregate cost of
acquisition and development of all such Real Properties under development
(assuming the full cost of developing such Real Properties) does not
exceed, at any time, twenty percent (20%) of Gross Asset Value.
9. SECTION 9.1. The following sentence is hereby added after the end
of the fourth sentence of Section 9.1 of the Credit Agreement:
Agent shall deliver to the Lenders, promptly after their receipt by
Agent, copies of each Unencumbered Asset Notice, the Property Information
with respect to the Real Property covered by such Unencumbered Asset
Notice and such other information and items as may be delivered to Agent
by Borrower pursuant to the preceding sentence.
10. SECTION 12.20. Section 12.20(i) shall not apply to either Bank One
or AmSouth.
11. SCHEDULE 1.1. Schedule 1.1 to the Credit Agreement is hereby
deleted and replaced with Schedule 1.1 attached hereto.
12. PURCHASE AND SALE. On the Effective Date, Bank One and AmSouth
shall purchase, and Original Lender shall sell, the percentage interest in
the Commitment as reflected in EXHIBIT "A" hereto, in order to reallocate the
Outstanding Principal Balance under the Notes among the Lenders to correspond
to the Pro Rata Shares of the Lenders specified in SCHEDULE 1.1 hereto. The
applicable purchase price payments are specified in EXHIBIT "A" hereto and
are referred to herein
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as the "Adjusting Purchase Payments". The Adjusting Purchase Payments shall
be made to the Agent by the applicable purchasing Lender by Federal Reserve
wire transfer initiated by the payor no later than 10:00 a.m. California time
on the Effective Date. Upon receipt of all such payments, the Agent shall
promptly send such payments to Original Lender.
13. SECURITY AGREEMENT. The reference to "$50,000,000" in the third
sentence of the first paragraph of the Security Agreement dated as of
December 3, 1998, and executed by Borrower and Guarantor in favor of Agent is
hereby deleted and replaced with "$100,000,000".
14. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to the satisfaction (as determined by Agent), or waiver by all of the
Lenders, of the following conditions precedent:
(1) Receipt and approval by Agent of the following documents (the
"Modification Documents") each in form and substance satisfactory to Agent
and each fully executed:
(1) Four (4) originals of this Amendment;
(2) one original Promissory Note payable to Bank One in the
stated principal amount of $25,000,000;
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(3) one original Promissory Note payable to AmSouth in the
stated principal amount of $25,000,000; and
(4) any and all other documents and agreements which are
requested by Agent.
(2) The representations and warranties contained in this Amendment
shall be true and correct.
(3) Except as set forth on page 1 of the Compliance Certificate
executed by Borrower and dated December 11, 1998, no Unmatured Event of
Default or Event of Default shall have occurred and be continuing.
(4) Bank One and AmSouth shall have made the Adjusting Purchase
Payments as specified in Section 12, above.
(5) Agent shall have received all fees then due to Agent and the
Lenders.
(6) Agent shall have received from Borrower and Guarantor such
corporate resolutions and other authorizations with respect to the execution
of this Amendment and the other Modification Documents and the performance of
the
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transactions reflected by this Amendment and the other Modification Documents
as Agent may require.
(7) Agent shall have received, on behalf of Agent and Lenders,
favorable opinions of counsel for Borrower and Guarantor dated as of the
Effective Date, in form and substance reasonably satisfactory to Agent,
Lenders and their respective counsel.
15. REIMBURSEMENT OF COSTS AND EXPENSES. Borrower shall reimburse Agent
for all costs and expenses incurred by Agent in connection with this
Amendment, the other Modification Documents and the Syndication promptly
after Borrower's receipt of an invoice or other statement for such costs and
expenses.
16. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Agent and the Lenders that, except as otherwise set forth on page
1 of the Compliance Certificate executed by Borrower and dated December 11,
1998, (a) the representations and warranties of Borrower contained in the
Credit Agreement are true and correct as of the date hereof (other than those
representations and warranties which expressly provide that they speak as of
a certain date (E.G., "as of the Closing Date")) and (b) no Unmatured Event
of Default or Event of Default has occurred and is continuing.
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17. CONFIRMATION. In all other respects, the terms of the Credit
Agreement and the other Loan Documents are hereby confirmed.
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IN WITNESS WHEREOF, the Borrower, Lenders and Agent have caused this
Amendment to be duly executed as of the date first written above.
BORROWER: PRICE ENTERPRISES, INC.,
a Maryland corporation
By /s/ Xxxx XxXxxxx
-------------------------------
Xxxx XxXxxxx
Its President and Chief
Executive Officer
By /s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
Its Executive Vice President
and Chief Financial Officer
ADDRESS FOR NOTICE AND DELIVERY:
Price Enterprises, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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AGENT: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Agent
By /s/ Xxxxxxx Xxxx
--------------------------------
Xxxxxxx Xxxx
Its Senior Vice President
By /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxxx
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Xxxxx Fargo Bank, N.A.
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Manager
Tel: (000) 000-0000
Fax: (000) 000-0000
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LENDERS: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ Xxxxxxx Xxxx
--------------------------------
Xxxxxxx Xxxx
Its Senior Vice President
By /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxxx
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Xxxxx Fargo Bank, N.A.
Real Estate Group
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Manager
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Xxxxx Fargo Bank, N.A.
Real Estate Group Disbursement
Center
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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XXXX XXX, XXXXXXX, NA
By /s/ R Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Bank One, Arizona, NA
000 Xxxxx Xxxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: AZ1-1321
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
Bank One, Arizona, NA
000 Xxxxx Xxxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: AZ1-1009
Tel: (000) 000-0000
Fax: (000) 000-0000
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XXXXXXX XXXX
By /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
Its Assistant Vice President
ADDRESS FOR NOTICE AND DELIVERY:
AmSouth Bank
Commercial Real Estate Lending
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBOR OFFICE:
AmSouth Bank
Commercial Real Estate
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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GUARANTOR'S CONSENT AND AMENDMENT
Price Enterprises - TX, Inc., a Delaware corporation ("Guarantor"),
hereby (i) acknowledges, agrees and consents to all of the terms and
provisions of the foregoing Amendment and the other Modification Documents,
(ii) acknowledges and agrees that the Guaranty (the "Guaranty") and the
Security Agreement (the "Security Agreement"), both dated as of December 3,
1998, and, in the case of the Guaranty, executed by Guarantor in favor of
Agent, and, in the case of the Security Agreement, executed by Guarantor and
Borrower in favor of Agent, are and shall remain in full force and effect,
and that none of the terms of the Modification Documents shall be construed
to impair, or provide a defense to, any of the obligations of Guarantor under
the Guaranty and/or the Security Agreement, (iii) acknowledges and agrees
that all of the obligations to Agent and the Lenders presently guaranteed
under the Guaranty and/or secured by the Security Agreement shall, as
supplemented, amended and otherwise modified by the Modification Documents,
continue to be guaranteed and secured thereunder, (iv) agrees that the
reference to "FIFTY MILLION AND NO/100THS DOLLARS ($50,000,000.00)" in
Recital A of the Guaranty is hereby deleted and replaced with "ONE HUNDRED
MILLION AND NO/100THS DOLLARS ($100,000,000.00)", and that the reference to
"FIFTY MILLION AND NO/100THS DOLLARS ($50,000,000.00)" in Section 1 of the
Guaranty is hereby deleted and replaced with "ONE HUNDRED MILLION AND
NO/100THS DOLLARS ($100,000,000.00)", and (v) agrees that all references in
the Guaranty and/or the Security Agreement to the "Credit Agreement", the
"Loan Agreement", the "Loan Documents" and to any Loan Document shall mean
the Credit Agreement, the Loan Documents and such Loan Document,
respectively, as modified and amended by the foregoing Amendment and the
other Modification Documents.
IN WITNESS WHEREOF, Guarantor has duly executed this Guarantor's Consent
and Amendment as of December 28, 1998.
PRICE ENTERPRISES - TX, INC.,
a Delaware corporation
By /s/ Xxxx XxXxxxx
--------------------------------
Its CEO
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By /s/ Xxxx X. Xxxxxxx
--------------------------------
Its Vice President
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