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Exhibit 10.16
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
dated as of September 29, 2000
among
PS BUSINESS PARKS, L.P.,
THE LENDERS LISTED HEREIN,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Agent
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TABLE OF CONTENTS
Page
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ARTICLE I. THE AMENDMENTS..................................................1
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SECTION 1.1. Definitions..........................................1
SECTION 1.2. Extension............................................1
SECTION 1.3. Financial Information................................2
SECTION 1.4. Minimum Tangible Net Worth...........................2
ARTICLE II. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT...................2
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ARTICLE II. REPRESENTATIONS OF BORROWER.....................................3
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ARTICLE IV. MISCELLANEOUS...................................................3
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SECTION 4.1. Capitalized Terms....................................3
SECTION 4.2. Ratification.........................................3
SECTION 4.3. Counterparts.........................................3
SECTION 4.4. Governing Law........................................3
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SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment") dated as of September 29, 2000 among PS BUSINESS PARKS, L.P., a
California limited partnership (the "Borrower"), the lenders listed on the
signature pages hereof ("Lenders"), and WELLS 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
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Agreement"), which Original Agreement was amended by that certain First
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Amendment to Revolving Credit Agreement dated as of August 19, 1999 (the "First
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Amendment") among the Borrower, the Agent and the Lenders (the Original
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Agreement as amended by the First Amendment being referred to herein as the
"Modified Credit Agreement");
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WHEREAS, Borrower, the Lenders and the Agent wish to extend
the Maturity Date to August 6, 2003 and make certain other amendments to the
Modified Credit Agreement. 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.
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the AMENDMENTS
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SECTION 1.1. Definitions. The following terms shall be added
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to, or shall be substituted in lieu of the corresponding terms in, Section 1.1
of the Modified Credit Agreement:
"Maturity Date" means at any time, the then-applicable
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maturity date specified hereunder. The initial Maturity Date shall be August 6,
2003, although such date may be extended by the Lenders as provided in Section
2.5.2 hereof.
"Net Worth" means, at any date, the consolidated stockholders'
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equity of the Borrower (including minority interests in the Borrower) and the
Consolidated Entities, excluding any amounts attributable to mandatorily
redeemable preferred stock (other than preferred stock redeemable solely with
common stock); provided, solely for purposes of this definition, the
consolidated stockholders' equity will be adjusted to add the net additions to
accumulated depreciation and amortization occurring subsequent to December 31,
1999.
SECTION 1.2. Extension. Section 2.5.2 of the Modified Credit
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Agreement is hereby deleted in its entirety and the following shall be
substituted in lieu thereof:
2.5.2. Extension. Borrowers may request extensions of the
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Maturity Date by making such request to Agent ("Extension Notice") in writing at
least ninety (90) days prior to each anniversary of the Closing Date (commencing
with the anniversary falling on August 6, 2001). The Agent and the Lenders have
no obligation to extend the Maturity Date and the Maturity Date shall not be
extended unless (i) the Borrower is in full compliance with all of the terms,
conditions and covenants of this Agreement at the time of request and on the
applicable anniversary Date, (ii) all of the Lenders and the Agent have agreed
to do so in writing, (iii) Borrower shall, on or prior to the applicable
anniversary, have executed and delivered to the Agent an extension agreement in
the form provided by Agent, and (iv) Borrower shall, on or prior to the
applicable anniversary, provided all Lenders shall have approved the request,
have remitted to the Agent any extension fee, and have satisfied any other
conditions to extension, agreed to between Borrower and the Agent. If Borrower's
request for extension is approved and the other foregoing conditions are met,
then (i) the extension of the Maturity Date shall be for a period of one (1)
year and (ii) such extension shall be effective as of the applicable
anniversary. The Agent and the Lenders shall have a period of forty-five (45)
days from receipt of written notice of Borrowers' intention to extend the
Maturity Date to approve such extension, in their sole and absolute discretion.
If Borrower has not received written notice of the Lenders' intention to extend
the Maturity Date within such forty-five (45) day period, then the extension
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request shall be deemed to be not approved. If an extension is granted, Borrower
may request subsequent one (1) year extensions subject to the same criteria and
procedures established in this Section 2.5.2. As an example, in order to extend
the initial Maturity Date, Borrower must notify Agent at least ninety (90) days
prior to August 6, 2001. If approved, the Maturity Date would then be extended
from August 6, 2003 to August 6, 2004. In the event that Borrower's initial
request for extension is not granted, any subsequent request for extension is
not granted, or Borrower does not request an extension pursuant to this Section
2.5.2, then, commencing on the Maturity Date, Borrower shall no longer be able
to obtain Loans hereunder and all outstanding Loans shall become all due and
payable.
SECTION 1.3. Financial Information. Section 4.5.1 of the
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Modified Credit Agreement is hereby amended by deleting the dates "December 31,
1997" and "December 31, 1998" and substituting in lieu thereof the dates
"December 31, 1998" and "December 31, 1999" respectively. Section 4.5.2 of the
Modified Credit Agreement is hereby amended by deleting the words "June 30,
1999" and substituting in lieu thereof the words "June 30, 2000".
SECTION 1.4. Minimum Tangible Net Worth. Section 6.4.3 of the
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Modified Credit Agreement is hereby deleted in its entirety and the following
shall be substituted in lieu thereof:
6.4.3. Minimum Tangible Net Worth. Tangible Net Worth of
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Borrower and Guarantor shall not be less than, at any time: (i) $800,000,000
plus (ii) ninety percent (90%) of Equity Offering Net Proceeds.
ARTICLE II.
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Conditions to Effectiveness of this Amendment
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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, for its and any other
Lender's account and the account of Gibson, Dunn & Crutcher LLP, all fees due
and payable pursuant to the Fee Letter dated September 29, 2000 between Borrower
and Agent and the Modified Credit Agreement on or before the Amendment Date; and
(f) no Default or Event of Default shall have occurred.
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ARTICLE III.
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Representations of Borrower
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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.
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MISCELLANEOUS
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SECTION 4.1 Capitalized Terms The capitalized terms used
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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
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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
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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
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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/ Jack Corrigan
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Name: Jack Corrigan
Title: Vice President
Address: Address: PS BUSINESS PARKS, L.P.
701 Western Avenue
Glendale, California 91201
Attn: Chief Financial Officer
Telephone: (818) 244-8080
Telecopier: (818) 244-9267
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Agent:
Wells Fargo Bank, National Association
By: /s/ Sharon Fisher
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Name: Sharon Fisher
Title: Vice President
Address: Wells Fargo Bank, National Association
2030 Main Street, 8th Floor
Irvine, California 92614
Attention: Office Manager
Telephone: (949) 251-4300
Telecopier: (949) 851-9728
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Lender:
Wells Fargo Bank, National Association
By: /s/ Sharon Fisher
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Name: Sharon Fisher
Title: Vice President
Address: Wells Fargo Bank, National Association
2030 Main Street, 8th Floor
Irvine, California 92614
Attention: Office Manager
Telephone: (949) 251-4300
Telecopier: (949) 851-9728
LIBOR LENDING Wells Fargo Bank, National Association
OFFICE: 2120 East Park Place, Suite 100
El Segundo, California 90245
Attention: Anne Colvin
Telephone: (310) 335-9458
Telecopier: (310) 615-1014
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CONSENT OF GUARANTOR
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The undersigned, PS BUSINESS PARKS, INC., a California corporation
("Guarantor"), (i) hereby consents to the foregoing Second Amendment to
Revolving Credit Agreement dated as of September 29, 2000 (the "Second
Amendment") among PS BUSINESS PARKS, L.P., a California limited partnership
("Borrower"), the lenders listed therein (the "Lenders") and WELLS 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 and the Second
Amendment.
PS BUSINESS PARKS, INC.,
a California corporation
By: /s/ Jack Corrigan
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Name: Jack Corrigan
Title: Vice President
