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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
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(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE YEAR ENDED DECEMBER 31 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________________ TO __________________.
COMMISSION FILE NUMBER 0-20449
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PRICE ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 33-0628740
(State or other jurisdiction (I.R.S. Employer
of
incorporation or organization) Identification No.)
</TABLE>
4649 MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92117
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 619-581-4530
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock $.0001 Par Value
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X or No ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the voting and non-voting common equity held
by nonaffiliates of the registrant as of March 15, 1999 was $38,847,455 based on
the last reported sale price of $5.00 per share on March 15, 1999.
The number of outstanding shares of the registrant's common stock as of
March 15, 1999 was 13,293,456.
DOCUMENTS INCORPORATED BY REFERENCE: Certain information called for by Part
III of the Form 10-K will either be filed with the Commission under Regulation
14A under the Securities Exchange Act of 1934 or by amendment to this Form 10-K,
in either case on or before April 30, 1999.
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PRICE ENTERPRISES, INC.
ANNUAL REPORT ON FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 1998
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
PART I
Item 1. Business........................................... 3
Item 2. Properties......................................... 13
Item 3. Legal Proceedings................................ . 16
Item 4. Submission of Matters to a Vote of Security
Holders.......................................... 16
Item 4A. Executive Officers of the Registrant............... 17
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters.............................. 18
Item 6. Selected Financial Data............................ 20
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations.............. 20
Item 7A. Quantitative and Qualitative Disclosures About
Market Risk...................................... 33
Item 8. Financial Statements and Supplementary Data........ 35
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure.............. 69
PART III
Item 10. Directors and Executive Officers of the
Registrant....................................... 69
Item 11. Executive Compensation............................. 69
Item 12. Security Ownership of Certain Beneficial Owners and
Management....................................... 69
Item 13. Certain Relationships and Related Transactions..... 69
PART IV
Item 14. Exhibits, Financial Statement Schedules, and
Reports on Form 8-K.............................. 70
</TABLE>
2
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FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains certain "forward-looking"
statements within the meaning of the Private Securities Litigation Reform Act of
1995 which provides a "safe harbor" for these types of statements. To the extent
statements in this Form 10-K involve, without limitation, our expectations for
growth, estimates of future revenue, expenses, profit, cash flow, balance sheet
items or any other guidance on future periods, these statements are
forward-looking statements. Forward-looking statements contain risks and
uncertainties which include those identified in this Form 10-K and other risks
identified from time to time in our filings with the Securities and Exchange
Commission (SEC), press releases and other communications. We assume no
obligation to update forward-looking statements.
In this Form 10-K:
- "Company," "we," "our," "PEI," and "us" means Price Enterprises, Inc.
- "REIT" means real estate investment trust
- "GLA" means gross leasable area
- "FFO" means funds from operations
PART I
ITEM 1--BUSINESS
FORMATION OF THE COMPANY AND SUBSEQUENT TRANSACTIONS
Price Enterprises, Inc is a REIT incorporated in the state of Maryland. Our
principal business is to own, acquire, develop, operate, manage and lease real
property. We originally incorporated in July 1994 as a Delaware corporation and
began operations as a wholly owned subsidiary of Costco Companies, Inc.
(Costco), formerly Price/Costco, Inc.
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In 1994 Costco spun-off PEI and transferred to PEI the following as part of
a voluntary exchange offer:
- substantially all of the real estate assets which historically formed
Costco's non-club real estate business segment
- four existing Costco warehouses adjacent to certain transferred properties
(which we subsequently leased back to Costco in August 1994)
- certain merchandising business entities
- notes receivable from various municipalities and agencies (City Notes)
- certain other assets
In June 1997, our Board of Directors determined that it would be in the best
interest of our Company and our stockholders to separate our core real estate
business from our merchandising businesses. Accordingly, our board approved a
spin-off transaction in which we would continue to conduct our real estate
business consisting of an initial asset base of 27 retail properties and $40
million of cash following the spin-off. PEI's merchandising businesses, real
estate properties held for sale by PEI, the City Notes and certain secured notes
receivable from buyers of properties formerly held by PEI would be spun-off to
PriceSmart, Inc. (PriceSmart), a Delaware corporation and a wholly-owned
subsidiary of PEI.
On August 29, 1997, we separated ourself from PriceSmart by distributing one
share of common stock of PriceSmart for every four shares of common stock held
by our stockholders of record on August 15, 1997 pursuant to a distribution
agreement between PEI and PriceSmart (the Distribution). Since the Distribution,
we engage in a combination of acquiring, developing, owning, managing and/or
selling real estate assets, primarily shopping centers.
The Distribution resulted in our Company becoming eligible to elect Federal
tax treatment as a REIT. In addition, we distributed an amount of taxable
dividends at least equal to our current and accumulated earnings and profits,
much of which represented an allocation from Costco as a result of
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the spin-off by Costco of PEI in December 1994. By qualifying as a REIT, we
substantially eliminate our obligation to pay taxes on income.
OVERVIEW OF THE COMPANY'S BUSINESS
Our current property portfolio substantially consists of shopping centers
and "power centers" leased to major retail tenants including Costco, The Sports
Authority, The Home Depot, Kmart, Marshalls, PETsMART and Borders Books and
Music. We receive approximately 60% of annual minimum rents from tenants with
investment grade credit ratings.
For a description of our properties and of material developments during the
year regarding these investments and our Company as a whole please refer to
"Item 2--Properties" and "Item 7--Management's Discussion and Analysis of
Financial Condition and Results of Operations" included in this Form 10-K.
Our business strategy is to continue to enhance the value and operating
income of our portfolio by, among other things, completing the development and
leasing of existing properties and acquiring new investment properties. In
making new real estate investments, we emphasize acquiring well-located
income-producing commercial properties, principally occupied by credit rated
tenants in the western and northeastern United States, with attractive yields
and potential for increases in income and capital appreciation. We may also take
advantage of particularly attractive investments in other geographic areas and
product types in order to enhance stockholder value. In addition, we will, from
time to time, consider disposing or exchanging existing investments in order to
improve our investment portfolio or increase our funds from operations. We
continuously evaluate our properties and review potential strategies of
repositioning or redeveloping our properties in order to maximize FFO and
enhance property values. Our investment and portfolio management goal is
maximizing FFO and distributions to our stockholders. We also own and operate a
self storage business, "Price Self Storage," with two facilities open in San
Diego, CA at year end. We will continue to expand Price Self Storage on a
limited basis and plan to open two more facilities in the first quarter of 1999.
In addition to the self storage business, our
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portfolio includes one office complex (Sacramento/Bradshaw, CA) and one
multi-use property (San Diego, CA) which includes retail, office and self
storage.
We provide property management for all but one of our properties, which we
will manage directly beginning in July 1999. Self-management enables us to more
closely control leasing and management of our property. Internal property
management also provides opportunities for operating efficiencies by enabling us
to acquire additional properties without proportionate increases in property
management expenses. Our property management program is implemented by property
management and leasing professionals located in offices in San Diego, CA,
Fairfax, VA and White Plains, NY.
Our operating results depend on:
- performance and continuing viability of the existing tenants in our
current real estate investment portfolio
- the existence of new replacement tenants
- competition from other retail centers and other forms of retail shopping,
including internet commerce
Our growth depends on:
- availability of new real estate investment opportunities
- return on investment of new real estate investment opportunities
- cost of capital related to new real estate investments
Real estate industry cycles heavily influence our performance as a REIT. We
discuss this further in "Factors That May Affect Future Performance-- Economic
Performance and Value of Centers Dependent on Many Factors" located elsewhere in
this Form 10-K.
COMPETITION
We compete with a wide variety of corporate and individual real estate
developers and real estate investment trusts which have similar investment
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objectives and may have greater financial resources, larger staffs or longer
operating histories than us.
We compete with other property owners to obtain tenants for our retail
shopping center properties. Our competitive advantages are primarily based on
significant customer traffic generated by our national and regional tenants,
competitive lease terms and relatively high occupancy rates. The closing or
relocation of any anchor tenant could have a material adverse effect on the
operation of a shopping center. We discuss this further in "Factors That May
Affect Future Performance--Competition for Acquisition of Real Estate" located
elsewhere in this Form 10-K.
SIGNIFICANT TENANTS
Our Company's eight largest tenants account for approximately 44% of total
GLA and approximately 52% of our total annual minimum rent revenues. We show
certain information about these tenants in the following table (dollars in
thousands):
<TABLE>
<CAPTION>
AREA UNDER PERCENT OF ANNUAL PERCENT OF
NUMBER LEASE (SQ. GLA UNDER MINIMUM TOTAL ANNUAL
TENANT OF LEASES FT) LEASE RENT MINIMUM RENT
- -------------------------------- ------------- ------------- ----------- ------------ --------------
<S> <C> <C> <C> <C> <C>
Costco.......................... 4 618,192 15.0% $ 8,307.9 17.2%
The Sports Authority............ 8 341,217 8.3% 4,333.5 9.0%
The Home Depot.................. 2 214,173 5.2% 2,550.7 5.3%
AT&T Wireless................... 1 156,576 3.8% 2,240.0 4.6%
Level One Communications........ 1 140,369 3.4% 2,167.7 4.5%
Kmart........................... 1 110,054 2.7% 2,027.2 4.2%
Marshalls....................... 2 87,968 2.1% 1,826.3 3.8%
PETsMART........................ 6 155,785 3.8% 1,603.4 3.3%
--
------------- ----------- ------------ ------
25 1,824,334 44.3% $ 25,056.7 51.9%
--
--
------------- ----------- ------------ ------
------------- ----------- ------------ ------
</TABLE>
It is not uncommon for economic conditions, market surpluses of retail
space, internet purchasing and competitive pressures to negatively impact a
retail operator's financial results, especially smaller retail operators.
Caldor, a large retailer, filed for Chapter XI bankruptcy protection and
announced in January 1999 they intend to close their store at our Moorestown, NJ
property. When a tenant files for bankruptcy we assess our alternatives for
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the potentially available space. We are currently evaluating alternative uses
for the space Caldor will be vacating. We discuss this further in "Factors That
May Affect Future Performance--Risk of Bankruptcy of Major Tenants" located
elsewhere in this Form 10-K.
ENVIRONMENTAL MATTERS
Our properties are affected by Federal, state and local environmental laws.
These laws relate to the discharge of materials and protection of the
environment. We have made, and intend to continue to make, necessary
expenditures for compliance with applicable laws. The properties listed below
have required remediation and clean-up of certain past industrial activity:
- Azusa, CA
- Pentagon City, VA
- Signal Hill, CA
- New Britain, CT
Expenses related to monitoring and cleaning up these properties have not
been material to our operations. While we cannot predict with certainty the
future costs of such clean up activities, or operating costs for environmental
compliance, we do not believe they will have a material effect on our capital
expenditures, earnings or competitive position.
We owned additional properties with environmental issues that we sold prior
to the Distribution or that we transferred to PriceSmart in the Distribution.
PriceSmart agreed to indemnify us for environmental liabilities arising out of
these properties.
EMPLOYEES
We employed 45 employees as of December 31, 1998 including 15 responsible
for property management, 19 employed in finance and administration and 11
employed in the self storage business.
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SEASONALITY
Our real estate operations generally are not subject to seasonal
fluctuations.
CORPORATE HEADQUARTERS
Our headquarters is in San Diego, CA adjacent to the Morena Boulevard Costco
facility, and we believe that our current facilities meet our expected
requirements over the next 12 months.
FACTORS THAT MAY AFFECT FUTURE PERFORMANCE
ECONOMIC PERFORMANCE AND VALUE OF CENTERS DEPENDENT ON MANY FACTORS. Real
property investments are subject to varying degrees of risk. The economic
performance and values of real estate can be affected by many factors,
including:
- changes in the national, regional and local economic climates
- local conditions such as an oversupply of space or a reduction in demand
for real estate in the area
- the attractiveness of the properties to tenants
- competition from other available space
- the ability of the owner to provide adequate maintenance and insurance
- increased operating costs
MARKET FORCES IN THE RETAIL INDUSTRY COULD AFFECT OUR ABILITY TO LEASE
SPACE. In recent years, there has been a proliferation of new retailers and a
growing consumer preference for value-oriented shopping alternatives, such as
internet commerce, that have heightened competitive pressures. In certain areas
of the country, there may also be an oversupply of retail space. As a
consequence, many companies in all sectors of the retailing industry have
encountered significant financial difficulties. A substantial portion of our
income comes from rental revenues from retailers in community shopping centers
and power centers. Accordingly, no assurance can be given that our
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financial results will not be adversely affected by these developments in the
retail industry.
DEPENDENCE ON RENTAL INCOME FROM REAL PROPERTY. Substantially all of our
income is derived from rental income from real property. Accordingly, our income
and funds available for distribution would be adversely affected if a
significant number of our tenants were unable to meet their obligations to us or
if we were unable to lease a significant amount of space in our properties on
economically favorable lease terms. There can be no assurance that any tenant
whose lease expires in the future will renew such lease or that we will be able
to re-lease space on economically advantageous terms.
ILLIQUIDITY OF REAL ESTATE INVESTMENTS. Equity real estate investments are
relatively illiquid and therefore tend to limit our ability to vary our
portfolio promptly in response to changes in economic or other conditions. In
addition, to the extent the properties are not subject to triple net leases,
certain significant expenditures such as real estate taxes and maintenance costs
are generally not reduced when circumstances cause a reduction in income from
the investment. Should such events occur, our income and funds available for
distribution would be adversely affected.
RISK OF BANKRUPTCY OF MAJOR TENANTS. The bankruptcy or insolvency of a
major tenant or a number of smaller tenants may have an adverse impact on the
properties affected and on the income produced by such properties. Under
bankruptcy law, a tenant has the option of assuming (continuing) or rejecting
(terminating) any unexpired lease. If a tenant in bankruptcy assumes its lease
with us, such tenant must cure all defaults under the lease and provide us with
adequate assurance of its future performance under the lease. If a tenant in
bankruptcy rejects the lease, our claim for breach of the lease would (absent
collateral securing the claim) be treated as a general unsecured claim. We may
not receive all amounts owed us under terms of a lease if a tenant rejects a
lease in bankruptcy due to certain limits imposed by bankruptcy laws.
RELIANCE ON MAJOR TENANTS. As of December 31, 1998, our largest tenant was
Costco which accounted for approximately 17.2% of our total
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annual minimum rent revenue. In addition to our four properties where Costco is
the major tenant, Costco warehouses are adjacent to an additional 18 of our
properties. If Costco were to terminate a lease with us or a lease for space
adjacent to our properties, certain of our tenants at such properties would have
rights to reduce their rent or terminate their leases. In addition, tenants at
such properties, including those with termination rights, could elect not to
extend or renew their lease at the end of the lease term. Our financial position
and our ability to make distributions may be adversely affected by financial
difficulties experienced by Costco, or any of our other major tenants, including
a bankruptcy, insolvency or general downturn in business of any major tenant, or
in the event any major tenant does not renew its leases as they expire.
CONTROL BY DIRECTORS AND EXECUTIVE OFFICERS. Robert E. Price, who is our
Chairman of the Board, and Sol Price, a significant stockholder of PEI and the
father of Robert E. Price, beneficially owned as of December 31, 1998 an
aggregate of approximately 5.1 million shares, or 38% of the outstanding PEI
common stock. See "Item 12--Security Ownership of Certain Beneficial Owners and
Management." Robert Price and Sol Price also beneficially owned as of year end
an aggregate of approximately 8.3 million shares, or 35% of the outstanding
Series A Preferred Stock distributed to stockholders in August 1998. As a
result, these stockholders will effectively control the outcome of all matters
submitted to our stockholders for approval, including the election of directors.
In addition, their ownership could discourage acquisition of our common stock by
potential investors, and could decrease the likelihood of any takeover, possibly
depressing the trading price of our common stock.
COMPETITION FOR ACQUISITION OF REAL ESTATE. We face competition in the
acquisition, operation and sale of our properties. Competition can be expected
from other businesses, individuals, fiduciary accounts and plans and other
entities engaged in real estate investment. Some of our competitors are larger
than us and have greater financial resources available to them. This competition
may result in a higher cost for properties we wish to purchase.
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ENVIRONMENTAL RISKS. Under various Federal, state and local laws,
ordinances and regulations, we may be considered an owner or operator of real
property and, therefore, may become liable for the costs of removal or
remediation of certain hazardous substances released on or in our property, as
well as certain other potential costs which could relate to hazardous or toxic
substances (including governmental fines and injuries to persons and property).
In addition, we may have arranged for the disposal or treatment of hazardous or
toxic substances and may be liable under these environmental laws as a result of
such activity. These environmental liabilities may be imposed whether or not we
knew of, or were responsible for, the presence of such hazardous or toxic
substances. Any such liability, if imposed, could have a material adverse effect
on our business and our funds available for distribution.
TAXATION OF THE COMPANY. We elected to be taxed as a REIT under the
Internal Revenue Code of 1986, as amended (the Code), beginning with the four
months ended December 31, 1997. To maintain our status as a REIT for Federal
income tax purposes, we generally are required each year to distribute to our
stockholders at least 95% of our taxable income. In addition, we are subject to
a 4% nondeductible excise tax on the amount, if any, by which certain
distributions paid by us with respect to any calendar year are less than the sum
of 85% of our ordinary income for such calendar year, 95% of our capital gain
income for the calendar year and any amount of such taxable income that was not
distributed in prior years. As long as we meet the requirements under the Code
for qualification as a REIT each year, we will be entitled to a deduction when
calculating our taxable income for dividends paid to our stockholders. For us to
qualify as a REIT, however, certain detailed technical requirements must be met
(including certain income, asset and stock ownership tests) under Code
provisions for which, in many cases, there are only limited judicial or
administrative interpretations. Although we intend to operate so that we will
continue to qualify as a REIT, the highly complex nature of the rules governing
REITs, the ongoing importance of factual determinations and the possibility of
future changes in our circumstances preclude any assurance that we will so
qualify in any year.
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For any taxable year that we fail to qualify as a REIT, we would not be entitled
to a deduction for dividends paid to our stockholders in calculating our taxable
income. Consequently, distributions to our stockholders would be substantially
reduced and could be eliminated because of our increased tax liability. Should
our qualification as a REIT terminate, we may not be able to elect to be treated
as a REIT for the subsequent five-year period, which would substantially reduce
and could eliminate distributions to our stockholders for the years involved.
ITEM 2--PROPERTIES
OVERVIEW
At December 31, 1998, we owned 31 commercial real estate properties and held
one property with a 21-year ground lease. These properties encompass
approximately 4.4 million square feet of GLA and were 94% leased. The five
largest properties include 1.7 million square feet of GLA that generate annual
minimum rent of $25.6 million, based on leases existing as of December 31, 1998.
Included in the properties we owned at December 31, 1998 are four self
storage facilities. Two of these facilities, San Diego, CA (operating) and
Azusa, CA (opened January 1999), are located on the same sites as our commercial
properties. The other two self storage facilities are stand-alone properties. At
year end, these facilities had 0.4 million square feet of GLA and the two
operating facilities were 98% occupied.
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Here is the geographic concentration of our Company's properties:
<TABLE>
<CAPTION>
NUMBER OF PERCENT OF MINIMUM
STATE PROPERTIES ANNUAL RENT
- --------------------------------------------- --------------- -------------------
<S> <C> <C>
Northeastern States
New York................................... 3 18%
Virginia................................... 2 14%
New Jersey................................. 2 12%
Pennsylvania............................... 1 5%
Massachusetts.............................. 1 3%
Maryland................................... 1 3%
Connecticut................................ 1 1%
--
------
Total Northeastern........................... 11 56%
California................................. 17 37%
Texas...................................... 1 5%
Arizona.................................... 1 1%
Colorado................................... 2 1%
--
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Total........................................ 32 100%
--
--
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------
</TABLE>
PROPERTY TABLE
Amounts shown for annual minimum rents are based on executed leases as of
December 31, 1998. We made no allowances for contractually-based delays to
commencement of rental payments. Due to the nature of real estate investments,
our actual rental income may differ from amounts shown in this schedule. The
following table describes our portfolio of real estate properties as of December
31, 1998. Self storage properties are shown separately from our commercial
portfolio.
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REAL ESTATE PORTFOLIO
<TABLE>
<CAPTION>
LEASES IN EFFECT AS OF
DECEMBER 31, 1998
----------------------------------------------------
NUMBER OF PERCENT % OF G.L.A. LEASE
TENANTS LEASED PRINCIPAL TENANTS (SQ FT) EXPIRES
------------- GROSS ----------- ANNUAL ------------------ ----------- -----------
LEASABLE MINIMUM
AREA (SQ RENT
FT) -----------
----------- ($000'S)
(000'S)
<S> <C> <C> <C> <C> <C> <C> <C>
COMMERCIAL PROPERTIES
- ------------------------------
Westbury, NY.................. 8 398.6 100% $ 7,651.4 COSTCO 37% 2009
KMART 28% 2013
MARSHALLS 11% 2009
THE SPORTS 11% 2013
AUTHORITY
BORDERS BOOKS 8% 2019
Pentagon City, VA............. 12 336.8 100% 6,566.1 COSTCO 50% 2009
MARSHALLS 13% 2010
BEST BUY 11% 2010
LINENS'N THINGS 10% 2010
BORDERS BOOKS 10% 2010
Sacramento/Bradshaw, CA....... 2 296.9 100% 4,407.7 AT&T 53% 2006
LEVEL ONE 47% 2006
COMMUNICATIONS
Wayne, NJ..................... 5 348.1 89% 4,258.5 COSTCO 42% 2009
LACKLAND STORAGE 13% 2012
(includes 37,000 sq. ft. of
THE SPORTS 13% 2012
vacant storage space) AUTHORITY
NOBODY BEATS THE 11% 2002
WIZ
Philadelphia, PA.............. 16 304.4 89% 2,733.5 THE HOME DEPOT 37% 2009
BABYS R US 13% 2006
AMC THEATERS 13% 2015
ACME SUPERSAVER 11% 2000
Dallas, TX.................... 5 177.5 93% 2,623.2 BEST BUY, WICKES FURNITURE, OFFICE MAX
San Diego, CA(1).............. 3 443.2 100% 2,282.5 COSTCO, CHARLOTTE RUSSE
Signal Hill, CA............... 14 154.8 100% 2,190.9 THE HOME DEPOT, PETSMART
Roseville, CA................. 9 189.6 90% 2,008.4 THE SPORTS AUTHORITY, LINENS 'N THINGS, ROSS
STORES
Fountain Valley, CA........... 15 119.0 92% 1,680.7 THE SPORTS AUTHORITY, PETSMART,
SOUPLANTATION
Moorestown, NJ (leased
land)....................... 3 172.6 100% 1,632.9 CALDOR, THE SPORTS AUTHORITY
Glen Burnie, MD............... 11 130.6 98% 1,501.4 THE SPORTS AUTHORITY, PETSMART, COMPUTER
CITY
Seekonk, MA................... 9 213.1 48% 1,337.2 THE SPORTS AUTHORITY, CIRCUIT CITY, PIER 1
San Diego/Rancho San Diego,
CA.......................... 16 93.7 97% 1,104.5 RITE AID, ROSS STORES, PETCO
Inglewood, CA................. 1 119.9 100% 847.0 HOMEBASE
San Diego/Carmel Mountain,
CA.......................... 5 35.0 90% 797.7 CLAIM JUMPER, MCMILLIN REALTY, ISLANDS
Northridge, CA................ 2 22.0 100% 734.0 BARNES & NOBLE, FRESH CHOICE
Buffalo, NY................... 1 115.4 100% 733.3 BUILDERS SQUARE
New Britain, CT............... 1 112.4 100% 671.1 WAL-MART
San Juan Capistrano, CA....... 6 56.4 100% 589.9 PETSMART, STAPLES
Smithtown, NY................. 1 55.6 100% 500.7 LEVITZ FURNITURE
Sacramento/Stockton, CA....... 2 49.8 100% 470.2 PETSMART, OFFICE DEPOT
Hampton, VA................... 2 45.6 100% 445.2 THE SPORTS AUTHORITY, COMMERCE BANK
Redwood City, CA.............. 2 49.4 100% 376.6 ORCHARD SUPPLY (GROUND LEASE)
Azusa, CA(1).................. 3 121.4 100% 360.5 S&S FOODS, TACO BELL, CARL'S JR.
Tucson, AZ.................... 9 40.1 100% 293.8 PETSMART
Denver/Littleton, CO.......... 1 26.4 100% 216.1 PETSMART
Denver/Aurora, CO............. 1 7.3 100% 164.3 RED ROBIN
San Diego/Southeast, CA....... 2 8.9 100% 148.1 NAVY FEDERAL C.U., BURGER KING
Chula Vista/Rancho del Rey,
CA.......................... 1 3.2 100% 75.0 BURGER KING (GROUND LEASE)
--- ----------- ----- -----------
TOTAL COMMERCIAL PROPERTIES... 168 4,247.7 94% $49,402.4
--- ----------- ----- -----------
--- ----------- ----- -----------
</TABLE>
- ----------------------------------
(1) Price Self Storage is also located at this property.
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<TABLE>
<CAPTION>
AS OF DECEMBER 31,
1998
----------------------
PERCENT
LEASED
GROSS ---------
LEASEABLE
AREA (SQ
FT)
-----------
(000'S)
<S> <C> <C> <C>
SELF STORAGE PROPERTIES
- ----------------------------------------------------
San Diego/Murphy Canyon, CA......................... 197.9 97%
San Diego, CA....................................... 89.9(2) 100%
Azusa, CA........................................... -- -- OPENED 1/99
Solana Beach, CA.................................... -- -- UNDER DEVELOPMENT
----- ---------
TOTAL SELF STORAGE PROPERTIES....................... 287.8 98%
----- ---------
----- ---------
</TABLE>
- ---------------------
(2) GLA of this facility is also included in GLA for the San Diego, CA
commercial property location listed above.
The annual gross potential rent for the two operating self storage
facilities is $3.4 million. Gross potential rent equals the GLA times the
average rent per square foot.
PENDING REAL ESTATE TRANSACTIONS
Since December 31, 1998 we executed four leases for approximately 24,000
square feet of GLA. These new leases will generate $328,000 in annual minimum
rents. The development costs necessary to provide appropriate facilities for
these signed leases is estimated to be approximately $800,000. We are also
currently in negotiations to purchase additional commercial properties as well
as evaluating various properties for acquisition.
ITEM 3--LEGAL PROCEEDINGS
We are not a party to any material legal proceedings.
ITEM 4--SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of security holders during 1998. Our
annual meeting of stockholders will be held at the San Diego Mission Valley
Hilton in San Diego, CA on May 18, 1999 at 10:00 am. Matters to be voted
16
<PAGE>
on will be included in our proxy statement to be filed with the SEC and
distributed to our stockholders prior to the meeting.
ITEM 4A--EXECUTIVE OFFICERS OF THE REGISTRANT
Our executive officers at the date of this report are:
<TABLE>
<CAPTION>
NAME AGE TITLE
- ----------------------------------- --- -----------------------------------
<S> <C> <C>
Jack McGrory....................... 49 President and Chief Executive
Officer
Gary W. Nielson.................... 48 Executive Vice President and Chief
Financial Officer
Joseph R. Satz..................... 57 Executive Vice President, General
Counsel and Secretary
Kathleen M. Hillan................. 40 Senior Vice-President-- Finance
</TABLE>
Jack McGrory became a Director of the Company on August 29, 1997. Mr.
McGrory also became President and Chief Executive Office of our Company on
September 2, 1997. Prior to September 2, 1997, Mr. McGrory served as City
Manager of the City of San Diego from March 1991 through August 1997.
Gary W. Nielson became our Executive Vice President and Chief Financial
Officer on February 2, 1998. Prior to February 2, 1998, Mr. Nielson was Senior
Vice President of Finance for Koll Real Estate Services from November 1992
through January 1998. He also previously served as Chief Financial Officer for
Carver Development Corporation and served in various senior financial management
positions at The Hahn Company.
Joseph R. Satz has been Executive Vice President of our Company since
October 16, 1997. He became the Secretary and General Counsel of our Company on
September 16, 1997. Mr. Satz held the position of Vice President and Counsel of
the Company from August 1994 until he assumed his current positions. Mr. Satz
has provided legal counsel for The Price Company and Price/Costco since 1983.
Kathleen M. Hillan became our Senior Vice President--Finance of the Company
on October 16, 1997. Ms. Hillan was Corporate Controller of the Company from
August 1994 until she assumed her current position. Ms. Hillan was International
Finance Manager of the Price Company from 1992 until August 1994.
17
<PAGE>
PART II
ITEM 5--MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
STOCK PRICES
Our common stock trades on The Nasdaq Stock Market-Registered Trademark-
under the symbol PREN. On August 17, 1998 we distributed one share of 8 3/4%
Series A Cumulative Redeemable Preferred Stock (Series A Preferred Stock) for
every one share of common stock owned by our stockholders on July 30, 1998. The
Series A Preferred Stock began trading on August 18, 1998 under the symbol
PRENP. The table below provides the high and low sales prices of our common
stock and preferred stock for the period indicated, as reported by The Nasdaq
Stock Market-Registered Trademark-.
<TABLE>
<CAPTION>
COMMON STOCK PREFERRED STOCK
-------------------- --------------------
HIGH LOW HIGH LOW
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Calendar Year--1996
First Quarter........................... 16 1/8 15
Second Quarter.......................... 16 1/2 15 1/4
Third Quarter........................... 16 1/2 14 3/4
Fourth Quarter.......................... 17 5/8 16
Calendar Year--1997
First Quarter........................... 19 16 3/4
Second Quarter.......................... 19 5/8 17 3/8
Third Quarter........................... 23 17 5/8
Fourth Quarter.......................... 19 3/8 17 1/8
Calendar Year--1998
First Quarter........................... 20 1/4 18
Second Quarter.......................... 19 1/2 17 3/8
Third Quarter........................... 19 1/4 2 1/4 15 12 7/8
Fourth Quarter.......................... 6 7/32 4 1/4 14 1/4 13
Calendar Year--1999
First Quarter (through 3/15/99)......... 5 9/16 4 3/4 15 1/8 13 1/2
</TABLE>
On March 15, 1999, the last reported sales price per share of the common
stock was $5.00, and we had approximately 600 common stockholders of record.
18
<PAGE>
In October 1998, we completed a tender offer and purchased approximately
10.5 million shares of our common stock for $5.50 per share totaling $57.6
million. We now have approximately 13.3 million shares of common stock
outstanding.
In August 1997 we completed our spin-off distribution of one share of common
stock of PriceSmart for every four shares of our Company's common stock held of
record. PriceSmart began separate trading on The Nasdaq Stock Market-Registered
Trademark- on September 2, 1997.
DIVIDENDS
We intend to distribute at least 95% of our taxable earnings to maintain our
qualification as a REIT.
During 1998, we declared and paid three quarterly dividends of $0.35 on each
common share and one quarterly dividend of $0.35 on each Series A Preferred
share for a total of $1.40 per share or $33.3 million. Prior to the distribution
of Series A Preferred Stock, we paid dividends on our common stock.
Beginning with our November 1998 dividend payment, dividends of $1.40 per
year will be paid on the Series A Preferred Stock. Any dividends required to be
paid in excess of $1.40 will be paid to our common stockholders.
For the transition period ended December 31, 1997, our Board of Directors
declared and paid one dividend of $0.35 per share for a total of $8.3 million.
During the year ended August 31, 1997, our Board of Directors declared and paid
four quarterly dividends of $0.30 per share for a total of $1.20 per share, or
$28.0 million. No dividends were declared or paid during the year ended August
31, 1996.
It is possible that, from time to time, we may not have sufficient cash or
other liquid assets to meet our distribution requirements due to timing
differences between (i) the actual receipt of such income and actual payment of
deductible expenses and (ii) the inclusion of such income and deduction of such
expenses in arriving at our taxable income. In the event that such
19
<PAGE>
timing differences occur, in order to meet these distribution requirements, we
may find it necessary to arrange for short-term, or possibly long-term
borrowings or to pay dividends in the form of taxable stock dividends.
ITEM 6--SELECTED FINANCIAL DATA
The following selected data should be read in conjunction with our financial
statements located elsewhere in this Form 10-K and "Item 7-- Management's
Discussion and Analysis of Financial Condition and Results of Operations."
(amounts in thousands, except per share data)
<TABLE>
<CAPTION>
FOUR MONTHS ENDED
YEAR ENDED
DECEMBER 31 DECEMBER 31 YEAR ENDED AUGUST 31
-------------------- -------------------- ------------------------------------------
1998 1997 1997 1996 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Selected Income Statement
Data
Rental revenues........ $ 62,485 $ 56,067 $ 18,170 $ 18,941 $ 56,838 $ 56,221 $ 51,897 $ 30,316
Operating income
(loss)............... 31,393 23,289 9,045 8,178 22,422 5,829 16,635 (74,711)
Income (loss) from
continuing
operations........... 29,429 29,003 17,508 7,590 19,085 8,340 13,297 (40,596)
Discontinued
operations........... -- (1,625) -- (3,235) (4,860) (8,250) (12,751) (883)
Net income (loss) per
share from continuing
operations--basic.... .97 1.23 .74 .33 .82 .36 .53 (1.50)
Cash dividends per
share................ 1.40 1.25 .35 .30 1.20 -- .08 --
</TABLE>
<TABLE>
<CAPTION>
AS OF
DECEMBER 31 AS OF AUGUST 31
-------------------- ------------------------------------------
1998 1997 1997 1996 1995 1994
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Selected Balance Sheet Data
Real estate assets, net.............. $ 418,507 $ 353,056 $ 337,139 $ 337,098 $ 330,443 $ 405,966
Total assets......................... 457,352 408,478 403,757 540,325 555,994 591,511
Long-term debt....................... -- -- -- -- 15,425 --
Stockholders' equity and investment
by Costco.......................... 344,811 406,624 396,476 532,899 532,085 578,788
Book value per common share.......... (.65) 17.13 16.78 22.88 22.90 21.44
</TABLE>
ITEM 7-- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
INTRODUCTION
In Management's Discussion and Analysis of Financial Conditions and Results
of Operations we explain our general financial condition and results of
operations including:
- results of operations
20
<PAGE>
- why revenues, costs and earnings changed from the prior period
- funds from operations (FFO)
- how we used cash for capital projects and dividends in 1996 through 1998
and how we expect to use cash in 1999
- where we plan on obtaining cash for future dividend payments and future
capital expenditures
- impact of year 2000 technology issues on our operations
In 1997 we changed our fiscal year end from August 31 to December 31, which
is required for REITs. Because of this change, the transition period ended
December 31, 1997 consisted of only four months. For that reason, we will
compare our discussion of the year ended December 31, 1998 with the equivalent
recast twelve month period of 1997. Financial information for the year ended
December 31, 1997 is unaudited and used for this discussion only. We will also
compare the two years ending August 31, 1997 and 1996.
As you read Management's Discussion and Analysis, it may be helpful to refer
to our financial statements and accompanying notes beginning on page 27. In
Management's Discussion and Analysis we explain the changes in specific line
items in the statements of income. Where changes are due to more than one
reason, we list the reasons in order of importance.
RENTAL REVENUES
<TABLE>
<CAPTION>
RENTAL PERCENT
REVENUES CHANGE CHANGE
---------- --------- -----------
<S> <C> <C> <C>
1998--Year ended December 31................. $ 62,485 $ 6,418 11%
1997--Year ended December 31 (unaudited)..... 56,067 -- --
1997--Year ended August 31................... 56,838 617 1%
1996--Year ended August 31................... 56,221 -- --
</TABLE>
21
<PAGE>
Revenues increased $6.4 million to $62.5 million in 1998 compared to 1997
because:
- properties we acquired at the end of 1997 and in 1998 generated $6.5
million of revenues in 1998
- expansion of our self storage business provided an additional $1.7 million
of revenue
- revenues from properties we owned in both 1997 and 1998 generated an
additional $0.3 million from new leases generating revenues
- revenues from properties sold or transferred to PriceSmart in the
distribution contributed $2.0 million of revenues in the prior year.
- revenues of $0.8 million were lost from the Homeplace bankruptcy, a former
tenant at our Dallas, TX location
Revenues increased $0.6 million to $56.8 million in the year ended August
31, 1997 compared to 1996 because:
- new leases at our Dallas, TX location generated an additional $2.8 million
of revenues offset by
- revenues lost from the Bradlees bankruptcy, a former tenant at our
Seekonk, MA location
- revenues lost from selling our Richmond, CA location
EXPENSES
<TABLE>
<CAPTION>
PERCENT
AMOUNT CHANGE CHANGE
---------- ----------- ---------
<S> <C> <C> <C>
1998--Year ended December 31.................... $ 31,092 $ (1,686) -5%
1997--Year ended December 31 (unaudited)........ 32,778 -- --
1997--Year ended August 31...................... 34,416 (15,976) -32%
1996--Year ended August 31...................... 50,392 -- --
</TABLE>
22
<PAGE>
Expenses decreased $1.7 million to $31.1 million in 1998 compared to 1997
primarily because:
- we wrote off $2.0 million in 1997 for asset impairments on properties held
for sale because their book value was higher than what we expected to
receive when the properties sold
- we wrote off costs in 1997 related to the PriceSmart distribution,
consisting of insurance, legal and accounting fees of $1.5 million which
contributed to our decrease in general and administrative expenses in 1998
- properties we acquired at the end of 1997 and in 1998 increased 1998
expenses $3.0 million
- expansion of our self storage business in 1998 increased expenses an
additional $0.6 million
- properties sold or transferred to PriceSmart resulted in a decrease in
expenses of $1.1 million
Expenses decreased $16.0 million to $34.4 million in the year ended August
31, 1997 compared to 1996 because:
- we wrote off $17.0 million in 1996 for asset impairments on properties
held for sale
- properties sold and leases terminated in 1996 accounted for $2.2 million
in expense reductions for 1997
- we expensed costs in 1997 related to the PriceSmart distribution,
consisting of insurance, legal and accounting fees of $1.5 million,
partially offsetting expense reductions discussed above
23
<PAGE>
OPERATING INCOME
<TABLE>
<CAPTION>
PERCENT
AMOUNT CHANGE CHANGE
---------- ----------- ---------
<S> <C> <C> <C>
1998--Year ended December 31.............. $ 31,393 $ 8,104 35%
1997--Year ended December 31
(unaudited)............................. 23,289 -- --
1997--Year ended August 31................ 22,422 16,593 285%
1996--Year ended August 31................ 5,829 -- --
</TABLE>
Operating income increased for 1998 and the year ended August 31, 1997
compared to the same periods in the prior year primarily because of the changes
in Rental Revenues and Expenses discussed above.
INTEREST EXPENSE
<TABLE>
<CAPTION>
PERCENT
AMOUNT CHANGE CHANGE
---------- ----------- ------------
<S> <C> <C> <C>
1998--Year ended December 31.......... $ 2,811 $ 2,789 12,677%
1997--Year ended December 31
(unaudited)......................... 22 -- --
1997--Year ended August 31............ 180 (342) -65%
1996--Year ended August 31............ 522 -- --
</TABLE>
During 1998, interest expense increased $2.8 million because:
- we recorded $2.6 million in interest expense related to our unsecured
revolving credit facilities
- we recorded $0.5 million in interest expense related to the note payable
associated with our San Diego/Murphy Canyon, CA self storage facility
purchase
24
<PAGE>
- we capitalized $0.3 million of this $3.1 million interest incurred to real
estate assets
Interest expense decreased $0.3 million to $0.2 million in the year ended
August 31, 1997 compared to 1996 because:
- we repaid a $15.4 million note payable to Costco during the last quarter
of the year ended August 31, 1996
- less construction activity in 1997 reduced capitalized interest over the
prior year
INTEREST INCOME
<TABLE>
<CAPTION>
PERCENT
AMOUNT CHANGE CHANGE
--------- ---------- ---------
<S> <C> <C> <C>
1998--Year ended December 31............... $ 663 $ (5,610) -89%
1997--Year ended December 31 (unaudited)... 6,273 -- --
1997--Year ended August 31................. 8,213 249 3%
1996--Year ended August 31................. 7,964 -- --
</TABLE>
Interest income decreased $5.6 million to $0.7 million in 1998 compared to
1997 primarily because:
- we received full payment for a $41.2 million interest bearing note
receivable in 1997
- we transferred previously invested cash and other interest bearing notes
receivable to PriceSmart in August 1997
- we used previously invested cash for acquiring and developing properties
Interest income increased $0.2 million to $8.2 million in the year ended
August 31, 1997 compared to 1996 because we earned more interest income on
invested cash balances.
25
<PAGE>
GAIN (LOSS) ON SALE OF REAL ESTATE AND INVESTMENTS (NET)
<TABLE>
<CAPTION>
PERCENT
AMOUNT CHANGE CHANGE
---------- ----------- ---------
<S> <C> <C> <C>
1998--Year ended December 31.............. $ 184 $ 362 203%
1997--Year ended December 31
(unaudited)............................. (178) -- --
1997--Year ended August 31................ 1,893 1,029 119%
1996--Year ended August 31................ 864 -- --
</TABLE>
During 1998 we sold a free-standing restaurant building at our Azusa, CA
property and recorded a $184,000 gain. We also sold a free-standing carwash at
our Northridge, CA site and recognized no gain or loss. We consider these two
parcels incidental to our main business. The loss recorded in the year ended
December 31, 1997 relates to the properties and investments sold prior to the
PriceSmart distribution.
The gain on sale of properties for the year ended August 31, 1997 related to
the sale of properties in Schaumburg, IL, Gaithersburg, MD, Colton, CA, and
Concord, CA. These gains were partially offset by losses on the sale of
properties in Houston, TX and Washington Metro, MD. We recorded a $782,000 gain
during the year ended August 31, 1997 related to the sale of a preferred stock
investment in a privately held specialty retailer and on the sale of options to
purchase stock in a privately held automobile broker.
26
<PAGE>
PROVISION FOR INCOME TAXES
<TABLE>
<CAPTION>
PERCENT EFFECTIVE
AMOUNT CHANGE CHANGE TAX RATE
---------- --------- ----------- -----------
<S> <C> <C> <C> <C>
1998--Year ended December 31... $ -- $ (359) -100% n/a
1997--Year ended December 31
(unaudited).................. 359 -- -- n/a
1997--Year ended August 31..... 13,263 7,468 129% 41%
1996--Year ended August 31..... 5,795 -- -- 41%
</TABLE>
We have no income tax expense for 1998 because of our REIT status. Before we
became a REIT in September 1997 we recorded income taxes at an effective tax
rate of 41%. We recorded an income tax benefit of $7.6 million in the year ended
December 31, 1997 that offset the tax expense recorded. The tax benefit related
to a previously recorded income tax liability that was presumed no longer
payable because of our conversion to a REIT as well as income tax refunds
receivable related to Federal tax net operating loss carrybacks.
DISCONTINUED OPERATIONS
<TABLE>
<CAPTION>
PERCENT
AMOUNT CHANGE CHANGE
---------- ----------- ---------
<S> <C> <C> <C>
1998--Year ended December 31.............. $ -- $ 1,625 100%
1997--Year ended December 31.............. (1,625) -- --
1997--Year ended August 31................ (4,860) 3,390 41%
1996--Year ended August 31................ (8,250) -- --
</TABLE>
Due to the PriceSmart distribution in August 1997, there were no
discontinued operations in 1998.
27
<PAGE>
The decrease in the net loss from operations of the discontinued
merchandising segment for the year ended August, 31 1997 compared to the year
ended August 31, 1996, was primarily a result of decreased expenses upon the
expiration of certain contractual obligations to pay Costco $4.5 million per
year for marketing-related activities, as well as increases in sales and gross
margin due to the opening of the Panama City location in October 1996 and
increases in sales of U.S.-sourced products to licensees. The discontinued
merchandising segment was transferred to PriceSmart in the Distribution.
FUNDS FROM OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31 YEAR ENDED AUGUST 31
---------------------- ----------------------
1998 1997 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Income before provision for income taxes........... $ 29,429 $ 29,362 $ 32,348 $ 14,135
Depreciation and amortization...................... 12,471 9,887 9,860 10,071
Provision for asset impairments.................... -- 2,000 2,000 17,000
(Gain) loss on sale of real estate and investments,
net.............................................. -- 179 (1,893) (864)
Other.............................................. 509 -- -- --
---------- ---------- ---------- ----------
Funds from operations............................ 42,409 41,428 42,315 40,342
Straight-line rents................................ (2,654) (2,305) (2,499) (3,150)
---------- ---------- ---------- ----------
Adjusted funds from operations................... $ 39,755 $ 39,123 $ 39,816 $ 37,192
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
Weighted average shares outstanding................ 21,688 23,480 23,354 23,262
</TABLE>
Real estate industry analysts generally consider funds from operations (FFO)
as another measurement of performance for real estate-oriented companies. In
general, FFO adjusts net income for noncash charges such as depreciation,
amortization and most non-recurring gains and losses. The National Association
for Real Estate Investment Trusts (NAREIT), defines FFO as net income, excluding
depreciation and amortization expense, and gains (losses) from certain sales of
property. We also exclude provisions for asset impairments and gains (losses)
from sale of investments when we calculate FFO. We also adjust the NAREIT
definition to eliminate straight-
28
<PAGE>
line rents in adjusted FFO because of their significance in our operations.
Straight-line rent accruals are noncash revenues associated with fixed future
minimum rent increases.
FFO during 1998 increased 2% to $42.4 million compared to 1997 because:
- properties acquired at the end of 1997 and in 1998 generated $5.2 million
- we reduced general and administrative expenses $1.9 million primarily
related to the PriceSmart distribution
- expansion of our self storage business in 1998 generated $1.4 million
- the change in net interest of $8.4 million from $6.3 million net interest
income in 1997 to $2.1 net interest expense in 1998 offset the increases
in net operating income generated from our properties
FFO for 1998, excluding income earned from assets transferred to PriceSmart,
increased 17% to $42.4 million in 1998 from $36.3 million in 1997.
FFO and adjusted FFO do not represent the generally accepted accounting
principles definition of cash flows from operations and should not be considered
as an alternative to net income as an indicator of our operating performance or
to cash flows as a measure of liquidity.
For the years ended August 31, 1997 and 1996, the growth in adjusted FFO
reflects many of the factors mentioned in the rental revenues, expenses and
operating income discussed previously in this section of Item 7.
LIQUIDITY AND CAPITAL RESOURCES
Liquidity refers to our ability to generate sufficient cash flows to meet
the short and long-term cash requirements of our business operations. Capital
resources represent those funds used or available to be used to support our
business operations and consist of stockholders' equity and debt.
Cash flow from operations has been the principal source of capital to fund
our ongoing operations and dividend payments, while use of our credit
29
<PAGE>
facilities and mortgage financing have been the principal sources of capital
required to fund our growth. While we are positioned to finance our business
activities through a variety of sources, we expect to satisfy short-term
liquidity requirements through net cash provided by operations and through
borrowings.
Through 1999 we anticipate investing approximately:
- up to $10 million for commercial real estate development on property we
own (a portion of this amount represents commitments under executed
construction contracts)
- up to $10 million for development and expansion of our self storage
business
- up to $50 million for real estate acquisitions and development
opportunities
We cannot guarantee that these estimates will be realized, although we
believe we have been prudent in our plans and assumptions. Business conditions
and other risks and uncertainties could cause our actual results to differ
materially from these estimates, particularly our plan to acquire real estate
which is primarily dependent on the continued attractiveness of real estate
values and the available cost of capital for the Company.
We are currently in various stages of negotiations to purchase additional
commercial properties and continuing to evaluate various other properties for
acquisition or development. To the extent that investment opportunities exceed
available cash flow from the sources mentioned above, we may raise additional
capital through bank credit facilities and/or secured mortgage financing. We
also may choose to seek additional funds through future public offerings of debt
or equity securities.
From time to time we will consider selling properties to better align our
portfolio with our geographic and tenant composition strategies. We are in the
process of selling two properties from our portfolio for approximately $32.3
million. We are also contemplating selling certain other properties.
30
<PAGE>
These sales may not be completed due to uncertainties associated with contract
negotiations and buyer due diligence contingencies.
In December 1998 we obtained a $100 million unsecured credit facility from
Wells Fargo Bank, AmSouth Bank and Bank One. This facility has a three-year term
with an initial interest rate of LIBOR plus 135 basis points. The rate may vary
based on our leverage and other financial ratios. At December 31, 1998, there
was $49.1 million outstanding on the Wells Fargo facility at a 6.91% interest
rate.
In September 1998 we announced our intention to purchase approximately 10
million shares of our common stock for $5.50 per share. To fund this purchase,
we obtained a $50 million credit facility with Morgan Guaranty Trust Company
(the Morgan Facility). The Morgan Facility has a one-year term with an interest
rate of LIBOR plus 30 basis points. Sol Price (a significant stockholder of our
Company and the father of Robert Price, our Chairman of the Board), Helen Price
(Sol Price's spouse) and the Sol & Helen Price Trust entered into a Guaranty and
Pledge Agreement (the Guaranty) in which they agreed to guaranty our obligations
under the Morgan Facility. The Sol and Helen Price Trust also granted Morgan
Guaranty Trust Company a continuing security interest in U.S. Treasury Notes
worth more than the amount outstanding under the Morgan Facility to secure their
obligations under the Guaranty. At year end, $50.0 million was outstanding under
the Morgan Facility at a weighted average interest rate of 5.69%.
In conjunction with the San Diego/Murphy Canyon, CA self storage facility
purchase, we assumed an existing $8.9 million note secured by the property. The
note, payable to a financial institution, matures in July 2004 and bears an
interest rate of 9.0%. The note does not permit repayment prior to July 2001.
In August 1998 we distributed to stockholders of record one share of newly
created Series A Preferred Stock, par value $.0001, for each share of common
stock held by them on the record date. We raised no capital through this
transaction. The Series A Preferred Stock pays quarterly
31
<PAGE>
dividends totaling $1.40 per year with a $16.00 per share liquidation
preference. Prior to the distribution of Series A Preferred Stock, we paid
dividends on our common stock. Dividends of $1.40 will be paid on the Series A
Preferred Stock and any dividends paid in excess of $1.40, will be paid to our
common stockholders. We have the right to redeem the Series A Preferred Stock
after August 16, 2003 or after a change of control of our Company at a
redemption price of $16.00 per share plus accrued and unpaid dividends, if any.
YEAR 2000
Many older computer software programs refer to years in terms of their final
two digits only. Such programs may interpret the Year 2000 to mean the year 1900
instead. If not corrected, those programs could cause date-related transaction
failures. We recognize the significance of ensuring our operations and systems
are not adversely impacted by Year 2000 problems.
We are in the final phases of upgrading our existing computer software and
information technology. The project cost is approximately $220,000 and we expect
to be substantially finished by June 30, 1999, which is prior to any anticipated
impact on our operating systems. We believe that with modifications to existing
software and conversions to new software, the Year 2000 issue will not pose
significant operational problems for our computer systems.
In connection with our operating properties, we are evaluating all systems
that contain embedded chips such as security systems, elevators, lighting and
HVAC systems. We will continue to commit the resources necessary for the
management and elimination of critical Year 2000 risks. We expect to complete
our evaluation and make necessary changes by June 30, 1999. Although it is not
possible to quantify the total cost of all corrections at this time, we do not
expect that these costs will have a material adverse effect on our operations or
financial condition. We expect all critical internal Year 2000 issues will be
resolved prior to the year 2000.
We are also currently evaluating the Year 2000 readiness of third parties
such as utilities, financial institutions, governmental agencies, municipalities
32
<PAGE>
and tenants, and the impact, if any, on our company and the operations of our
properties. However, we cannot quantify or ensure that these external systems,
whether certified to be Year 2000 compliant or not, would not create
difficulties for us before, on, or after the year 2000.
We intend to develop a contingency plan to handle most likely and worst case
Year 2000 scenarios. We intend to complete our determination of a worst case
scenario after receiving and analyzing responses to substantially all inquiries
we made to third parties. Following our analysis, we intend to develop a
timetable for completing our contingency plans and expect to complete our
contingency plan by June 30, 1999.
INFLATION
Because a substantial number of our leases contain provisions for rent
increases based on changes in various consumer price indices, based on fixed
rate increases, or based on percentage rent if tenant sales exceed certain base
amounts, we do not expect inflation to have a material impact on future net
income or cash flow from developed and operating properties. In addition,
substantially all leases are triple net, which means specific operating expenses
and property taxes are passed through to the tenant.
ITEM 7A.--QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market risks relating to our operations result primarily from changes in
short-term LIBOR interest rates. We do not have any foreign exchange or other
significant market risk. We did not have any derivative financial instruments at
December 31, 1998.
Our exposure to market risk for changes in interest rates relates primarily
to our unsecured lines of credit. We enter into variable rate debt obligations
to support general corporate purposes, including acquisitions, capital
expenditures and working capital needs. We continuously evaluate our level of
variable rate debt with respect to total debt and other factors, including our
assessment of the current and future economic environment.
We had $99.1 million in variable rate debt outstanding at December 31, 1998.
Based upon these year-end debt levels, a hypothetical 10% adverse
33
<PAGE>
change in interest rates would increase interest expense by approximately $0.6
million on an annual basis, and likewise decrease our earnings and cash flows.
We cannot predict market fluctuations in interest rates and their impact on our
variable rate debt, nor can there be any assurance that fixed rate long-term
debt will be available to us at favorable rates, if at all. Consequently, future
results may differ materially from the estimated adverse changes discussed
above.
34
<PAGE>
ITEM 8--FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
PRICE ENTERPRISES, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31
----------------------
1998 1997
---------- ----------
<S> <C> <C>
<CAPTION>
ASSETS
<S> <C> <C>
Real estate assets
Land and land improvements.................................................. $ 210,839 $ 193,881
Building and improvements................................................... 260,709 204,184
Fixtures and equipment...................................................... 581 242
Construction in progress.................................................... 3,744 946
---------- ----------
475,873 399,253
Less accumulated depreciation............................................... (57,366) (46,197)
---------- ----------
418,507 353,056
Investment in real estate joint venture....................................... 4,050 --
Cash and cash equivalents..................................................... 3,691 27,003
Accounts receivable........................................................... 2,699 2,360
Income tax receivable......................................................... 7,615 8,117
Deferred rents................................................................ 14,921 12,400
Other assets.................................................................. 5,869 5,542
---------- ----------
Total assets.................................................................. $ 457,352 $ 408,478
---------- ----------
---------- ----------
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
Liabilities
Revolving lines of credit and note payable.................................. $ 108,023 $ --
Accounts payable and other liabilities...................................... 4,518 1,854
---------- ----------
Total liabilities......................................................... 112,541 1,854
Commitments
Stockholders' equity
Series A preferred stock, cumulative, redeemable, $.0001 par value,
26,000,000 shares authorized, 23,758,801 shares issued and outstanding.... 353,404 --
Common stock, $.0001 par value, 74,000,000 shares authorized, 13,293,456 and
23,730,951 shares issued and outstanding.................................. 1 2
Additional paid-in capital.................................................. 929 412,321
Accumulated deficit......................................................... (9,523) (5,699)
---------- ----------
Total stockholders' equity................................................ 344,811 406,624
---------- ----------
Total liabilities and stockholders' equity.................................... $ 457,352 $ 408,478
---------- ----------
---------- ----------
</TABLE>
SEE ACCOMPANYING NOTES.
35
<PAGE>
PRICE ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED FOUR MONTHS ENDED YEAR ENDED AUGUST 31
DECEMBER 31 DECEMBER 31
------------ -------------------- --------------------
1998 1997 1996 1997 1996
------------ --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
(UNAUDITED)
Rental revenues.................................... $ 62,485 $ 18,170 $ 18,941 $ 56,838 $ 56,221
Expenses
Operating and maintenance........................ 7,616 2,392 3,037 9,105 9,591
Property taxes................................... 8,025 2,361 2,789 7,882 8,380
Depreciation and amortization.................... 12,471 3,326 3,299 9,860 10,071
General and administrative....................... 2,980 1,046 1,638 5,569 5,350
Provision for asset impairments.................. -- -- -- 2,000 17,000
------------ --------- --------- --------- ---------
Total expenses................................. 31,092 9,125 10,763 34,416 50,392
------------ --------- --------- --------- ---------
Operating income................................... 31,393 9,045 8,178 22,422 5,829
Interest and other
Interest expense................................. (2,811) -- (158) (180) (522)
Interest income.................................. 663 833 2,773 8,213 7,964
Gain on sale of real estate and
investments, net............................... 184 -- 2,071 1,893 864
------------ --------- --------- --------- ---------
Total interest and other....................... (1,964) 833 4,686 9,926 8,306
------------ --------- --------- --------- ---------
Income before provision (benefit) for income
taxes............................................ 29,429 9,878 12,864 32,348 14,135
Provision (benefit) for income taxes............... -- (7,630) 5,274 13,263 5,795
------------ --------- --------- --------- ---------
Income from continuing operations.................. 29,429 17,508 7,590 19,085 8,340
Discontinued operations (Note 2):
Net loss from operations of discontinued
merchandising segment (less applicable benefit
for income taxes of $2,248, $3,379 and $4,531
respectively).................................. -- -- (3,235) (4,860) (8,250)
------------ --------- --------- --------- ---------
Net income......................................... 29,429 17,508 4,355 14,225 90
Dividends paid to preferred stockholders........... (8,316) -- -- -- --
------------ --------- --------- --------- ---------
Net income applicable to common stockholders....... $ 21,113 $ 17,508 $ 4,355 $ 14,225 $ 90
------------ --------- --------- --------- ---------
------------ --------- --------- --------- ---------
Earnings per common share--basic
Income from continuing operations................ $.97 $.74 $.33 $.82 $.36
Net income....................................... $.97 $.74 $.19 $.61 $.00
Earnings per common share--assuming dilution
Income from continuing operations................ $.96 $.73 $.32 $.82 $.36
Net Income....................................... $.96 $.73 $.18 $.61 $.00
</TABLE>
SEE ACCOMPANYING NOTES.
36
<PAGE>
PRICE ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK ADDITIONAL
-------------------- ---------------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT TOTAL
--------- --------- --------- ----------- ---------- ------------ ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at August 31, 1995....... -- $ -- 23,234 $ 2 $ 533,280 $ (1,197) $ 532,085
Net income..................... -- -- -- -- -- 90 90
Stock options exercised
including income tax
benefits..................... -- -- 56 -- 724 -- 724
--
--------- --------- --------- ---------- ------------ ---------
Balance at August 31, 1996....... -- -- 23,290 2 534,004 (1,107) 532,899
Net income..................... -- -- -- -- -- 14,225 14,225
Stock options exercised
including income tax
benefits..................... -- -- 343 -- 5,429 -- 5,429
Cash dividends, $1.20 per
share........................ -- -- -- -- -- (28,037) (28,037)
Special dividend--Distribution
of PriceSmart................ -- -- -- -- (128,040) -- (128,040)
--
--------- --------- --------- ---------- ------------ ---------
Balance at August 31, 1997....... -- -- 23,633 2 411,393 (14,919) 396,476
Net income..................... -- -- -- -- -- 17,508 17,508
Stock options exercised........ -- -- 98 -- 928 -- 928
Cash dividend, $.35 per share.. -- -- -- -- -- (8,288) (8,288)
--
--------- --------- --------- ---------- ------------ ---------
Balance at December 31, 1997..... -- -- 23,731 2 412,321 (5,699) 406,624
Net income..................... -- -- -- -- -- 29,429 29,429
Stock options exercised and
stock grants................. -- -- 37 -- 350 -- 350
Adjustment to special
dividend--Distribution of
PriceSmart................... -- -- -- -- (550) -- (550)
Cash dividends(1).............. -- -- -- -- -- (33,253) (33,253)
Distribution of 8 3/4% Series A
Preferred Stock.............. 23,759 353,404 -- -- (353,404) -- --
Shares repurchased, including
costs........................ -- -- (10,475) (1) (57,788) -- (57,789)
--
--------- --------- --------- ---------- ------------ ---------
BALANCE AT DECEMBER 31, 1998... 23,759 $ 353,404 13,293 $ 1 $ 929 $ (9,523) $ 344,811
--
--
--------- --------- --------- ---------- ------------ ---------
--------- --------- --------- ---------- ------------ ---------
</TABLE>
(1) $1.05 per share of common stock and $.35 per share of preferred stock
SEE ACCOMPANYING NOTES.
37
<PAGE>
PRICE ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOUR MONTHS ENDED
YEAR ENDED YEAR ENDED AUGUST 31
DECEMBER 31 DECEMBER 31
------------ -------------------- --------------------
1998 1997 1996 1997 1996
------------ --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Operating activities
Net income...................................... $ 29,429 $ 17,508 $ 4,355 $ 14,225 $ 90
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization............... 12,471 3,326 3,299 9,860 10,071
Deferred rents.............................. (2,521) (590) (1,024) (2,406) (3,150)
Gain on sale of real estate and investments,
net....................................... (184) -- (2,071) (1,893) (864)
Deferred income taxes....................... -- (6,660) 4,267 15,894 3,676
Provision for asset impairments............. -- -- -- 2,000 17,000
Changes in operating assets and liabilities:
Accounts receivable and other assets........ (1,118) (1,536) (359) (4,278) (6,613)
Leasing costs............................... (314) (12) (47) (139) (1,374)
Accounts payable and other liabilities...... 2,664 1,233 (685) (1,123) (56)
Net assets of discontinued segment.......... -- -- 3,112 4,495 3,832
------------ --------- --------- --------- ---------
Net cash flows provided by operating
activities.................................. 40,427 13,269 10,847 36,635 22,612
Investing activities
Additions to real estate assets............. (70,648) (18,906) (919) (2,720) (17,105)
Proceeds from sale of real estate assets.... 2,571 -- 13,234 29,279 26,059
Contributions to real estate joint
venture................................... (4,050) -- -- -- --
Additions to notes receivable............... -- -- -- (200) (1,149)
Payments of notes receivable................ -- -- 4,450 50,526 3,105
Net investing activities of discontinued
segment................................... -- -- (677) (7,987) (2,362)
------------ --------- --------- --------- ---------
Net cash flows (used in) provided by investing
activities.................................. (72,127) (18,906) 16,088 68,898 8,548
Financing activities
Advances to revolving lines of credit....... 181,213 -- -- -- --
Repayments to revolving lines of credit..... (82,133) -- -- -- --
Dividends paid.............................. (33,253) (8,288) (6,988) (28,037) --
Proceeds from exercise of stock options
including tax benefits.................... 350 928 426 5,429 724
Purchase of common stock.................... (57,789) -- -- -- --
Cash transferred to PriceSmart.............. -- -- -- (58,383) --
Repayments of Costco note payable and line
of credit................................. -- -- -- -- (16,426)
------------ --------- --------- --------- ---------
Net cash flows provided by (used in) financing
activities.................................. 8,388 (7,360) (6,562) (80,991) (15,702)
------------ --------- --------- --------- ---------
Net (decrease) increase in cash........... (23,312) (12,997) 20,373 24,542 15,458
Cash and cash equivalents at beginning of
period........................................ 27,003 40,000 15,458 15,458 0
------------ --------- --------- --------- ---------
Cash and cash equivalents at end of period...... $ 3,691 $ 27,003 $ 35,831 $ 40,000 $ 15,458
------------ --------- --------- --------- ---------
------------ --------- --------- --------- ---------
Supplemental disclosure:
Cash paid for interest...................... $ 2,252 $ -- $ 150 $ 150 $ 2,911
Net (refunds received) cash paid for income
taxes..................................... 25 (1,061) (2,723) (717) 829
Supplemental schedule of noncash operating and
financing activities:
Assumption of note payable to acquire real
estate assets............................. 8,943 -- -- -- --
Adjustment to special dividend--distribution
of PriceSmart............................. 550 -- -- -- --
</TABLE>
SEE ACCOMPANYING NOTES.
38
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
Price Enterprises, Inc. (PEI) operates as a real estate investment trust
(REIT) incorporated in the state of Maryland. Our principle business is to own,
acquire, operate, manage and lease real property, primarily shopping centers. We
became a REIT in September 1997 after we spun-off our merchandising segment and
certain other assets to PriceSmart, Inc.
ACCOUNTING PRINCIPLES
We prepare our financial statements in accordance with generally accepted
accounting principles. We follow the accounting standards established by the
Financial Accounting Standards Board and the American Institute of Certified
Public Accountants.
CONSOLIDATION
We combine our financial statements with those of our wholly-owned
subsidiaries and present them on a consolidated basis. The consolidated
financial statements do not include the results and transactions between us and
our subsidiaries or among our subsidiaries.
FISCAL YEAR
Effective September 1, 1997 we changed our fiscal year end from August 31 to
December 31 as required by the Internal Revenue Service for REITs. The
four-month transition period ending December 31, 1997 bridges the gap between
our old and new fiscal year ends.
REAL ESTATE ASSETS AND DEPRECIATION
We record real estate assets at historical costs, and adjust them for
recognition of impairment losses. We review long-lived assets for impairment
39
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
when events or changes in business conditions indicate that their full carrying
value may not be recovered. We consider assets to be impaired and write them
down to fair value if their expected associated future undiscounted cash flows
are less than their carrying amounts. We reduced historical costs for real
estate and related assets $2.0 million during the year ended August 31, 1997 and
$17.0 million during the year ended August 31, 1996. We determined fair value
using the present value of the expected associated cash flows. Ordinary repairs
and maintenance are expensed as incurred; major replacements and betterments are
capitalized and depreciated over their estimated useful lives. We compute real
estate asset depreciation on a straight-line basis over their estimated useful
lives, as follows:
<TABLE>
<S> <C>
Land improvements.................... 25 years
Building and improvements............ 10-25 years
Tenant improvements.................. Term of lease or 10 years
Fixtures and equipment............... 3-5 years
</TABLE>
We capitalize interest incurred during the construction period of certain
assets and this interest is depreciated over the lives of those assets. The
following table shows interest expense and the amount capitalized (amounts in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
------------ ---------------------------- ----------------------------
1998 1997 1996 1997 1996
------------ ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Interest incurred.............. $ 3,112 -- $ 165 $ 187 $ 882
Interest capitalized........... 301 -- 7 7 360
</TABLE>
40
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
INVESTMENTS
We use the "equity method" of accounting for our joint venture, which means
we carry this investment at cost, adjusted for our share of earnings or losses
and any distributions received.
RENTAL REVENUE RECOGNITION
Rental revenues include: (1) minimum annual rentals, adjusted for the
straight-line method for recognition of fixed future increases; (2) additional
rentals, including recovery of property operating expenses, and certain other
expenses which we accrue in the period in which the related expense occurs; and
(3) percentage rents which we accrue on the basis of actual sales reported by
tenants.
CASH AND CASH EQUIVALENTS
We consider all highly liquid investments with a maturity of less than three
months when purchased to be cash and cash equivalents.
LEASING COSTS
We capitalize costs associated with leasing space to tenants and amortize
leasing costs using the straight-line method over the initial terms of the
related tenant leases.
FINANCIAL INSTRUMENTS
The carrying amounts reflected in our balance sheets for cash and cash
equivalents, receivables and all liabilities approximate their fair values. In
making these assessments we used estimates and market rates for similar
instruments.
41
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
AUTHORIZED STOCK
As of December 31, 1998, our Company's authorized stock consisted of 100
million shares of capital stock of which 26 million shares have been designated
as 8 3/4% Series A Cumulative Redeemable Preferred Stock, par value $.0001 per
share.
INCOME TAXES
We intend to continue meeting all conditions necessary to qualify as a REIT
under the Internal Revenue Code. To qualify as a REIT, we are required to pay
dividends of at least 95% of our "REIT taxable income" each year and meet
certain other criteria. As a qualifying REIT, we will not be taxed on income
distributed to our stockholders. The reported amounts of our net assets, as of
December 31, 1998 and 1997 were more than their tax basis for Federal tax
purposes by approximately $35.9 million and $29.1 million, respectively.
In prior years, we reported income taxes in accordance with Statement of
Financial Accounting Standards (SFAS) No. 109, "Accounting for Income Taxes."
That standard requires companies to account for deferred taxes using the asset
and liability method. Accordingly, deferred income taxes are provided to reflect
temporary differences between financial and tax reporting, including: asset
write-downs of real estate and related assets, deferred gains on sales of real
estate, accelerated tax depreciation methods, and accruals for straight-line
rents.
NET INCOME PER SHARE
In 1997, the Financial Accounting Standards Board issued SFAS No. 128,
"Earnings Per Share." SFAS No. 128 requires presentation of two calculations of
earnings per common share. Basic earnings per common
42
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
share equals net income divided by weighted average common shares outstanding
during the period. Diluted earnings per common share equals net income divided
by the sum of weighted average common shares outstanding during the period plus
common stock equivalents. Common stock equivalents are shares assumed to be
issued if outstanding stock options were exercised. All earnings per share
amounts for all periods have been presented, and where appropriate, restated to
reflect these calculations.
<TABLE>
<CAPTION>
YEAR ENDED FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
-------------- ------------------------------ ------------------------------
1998 1997 1996 1997 1996
-------------- -------------- -------------- -------------- --------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Weighted average shares
outstanding............... 21,687,776 23,675,310 23,298,255 23,353,666 23,262,374
Effect of dilutive
securities:
Employee stock options... 322,335 244,164 321,936 -- 117,797
-------------- -------------- -------------- -------------- --------------
Weighted average shares
outstanding-- assuming
dilution.................. 22,010,111 23,919,474 23,620,191 23,353,666 23,380,171
-------------- -------------- -------------- -------------- --------------
-------------- -------------- -------------- -------------- --------------
</TABLE>
In September 1998 we announced a self-tender offer to purchase a portion of
our common stock for $5.50 per share and completed the offer on October 21,
1998. We purchased approximately 10.5 million shares, which was 44% of our
outstanding shares, for $57.6 million. We now have approximately 13.3 million
shares of common stock outstanding.
43
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
RECLASSIFICATIONS
Certain reclassifications have been reflected in the financial statements in
order to conform with the current year presentation.
USE OF ESTIMATES
Preparing financial statements in conformity with generally accepted
accounting principles requires we make estimates and assumptions that affect the
amounts reported in the financial statements and accompanying notes. We
continually review our estimates and make adjustments as necessary, but actual
results could turn out different than what we envisioned when we made these
estimates.
STOCK-BASED COMPENSATION
We follow Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees" (APB No. 25), and related interpretations, in accounting
for our employee and non-employee director stock options instead of following
SFAS No. 123, "Accounting for Stock-Based Compensation." The alternative fair
value accounting provided for under SFAS No. 123, "Accounting for Stock-Based
Compensation," requires use of option valuation models that were not developed
for use in valuing employee stock options. As a result, deferred compensation is
recorded only in the event that the fair market value of the stock on the date
of the option grant exceeds the exercise price of the options. Since the
exercise price of our stock options equals the market price of our stock on the
day the options are granted there is no related compensation expense.
44
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
NEW ACCOUNTING STANDARDS
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards (SFAS) No. 130, "Reporting Comprehensive Income,"
and SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information." These statements, which are effective for fiscal years beginning
after December 15, 1997, currently have no impact on our financial statements.
NOTE 2--DISCONTINUED OPERATIONS
In August 1997, we completed a distribution of our merchandising segment and
certain other assets to PriceSmart. As a result, the financial statements for
all periods presented reflect our merchandising segment as a discontinued
operation. The results of operations and cash flows of other assets and
liabilities transferred to PriceSmart that were not part of the merchandising
segment are included in our continuing operations.
45
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 2--DISCONTINUED OPERATIONS (CONTINUED)
Summarized results of operations of the discontinued merchandising segment
were as follows (amounts in thousands):
<TABLE>
<CAPTION>
YEAR ENDED
AUGUST 31
--------------------------
1997 1996
FOUR MONTHS ------------ ------------
ENDED
DECEMBER 31
------------
1996
------------
(UNAUDITED)
<S> <C> <C> <C>
Sales...................................... $ 23,462 $ 59,042 $ 36,211
Other revenues............................. 1,611 5,487 2,709
Cost of sales.............................. (23,270) (55,948) (34,644)
Operating expenses......................... (7,286) (16,761) (21,644)
Minority interest.......................... -- (59) 4,587
Income tax benefit......................... 2,248 3,379 4,531
------------ ------------ ------------
$ (3,235) $ (4,860) $ (8,250)
------------ ------------ ------------
------------ ------------ ------------
Discontinued operations loss per
share--basic and diluted.................. $ (.14) $ (.21) $ (.35)
------------ ------------ ------------
------------ ------------ ------------
</TABLE>
46
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3--REAL ESTATE PROPERTIES
Our real estate properties are generally leased under noncancelable leases
with remaining terms ranging from one to 21 years. Rental revenues include the
following (amounts in thousands):
<TABLE>
<CAPTION>
YEAR ENDED FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
------------ -------------------------- --------------------------
1998 1997 1996 1997 1996
------------ ------------ ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Minimum rent................... $ 48,230 $ 13,727 $ 14,358 $ 42,681 $ 42,529
Straight-line accrual of future
rent.......................... 2,654 828 1,024 2,499 3,150
Additional rent--cost
recoveries.................... 11,388 3,605 3,557 11,467 10,371
Percentage rent................ 213 10 2 191 171
------------ ------------ ------------ ------------ ------------
Rental revenues.............. $ 62,485 $ 18,170 $ 18,941 $ 56,838 $ 56,221
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
</TABLE>
Costco, our largest tenant, contributes 17.1% of total annual minimum rent
from four leases. Rental revenues generated from Costco were as follows (amounts
in thousands):
<TABLE>
<CAPTION>
YEAR ENDED FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
------------ -------------------------- --------------------------
1998 1997 1996 1997 1996
------------ ------------ ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Costco rental revenues......... $ 8,300 $ 2,700 $ 2,700 $ 8,100 $ 8,000
</TABLE>
47
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3--REAL ESTATE PROPERTIES (CONTINUED)
As of December 31, 1998, future minimum rental income due under the terms of
all noncancelable tenant leases is as follows (amounts in thousands):
<TABLE>
<S> <C>
1999..................................... $ 47,029
2000..................................... 49,829
2001..................................... 50,112
2002..................................... 49,481
2003..................................... 48,588
After 2003............................... 363,674
</TABLE>
ACQUISITIONS
We acquired the following properties during 1998:
<TABLE>
<CAPTION>
GROSS
LEASEABLE PURCHASE
DATE AREA PRICE
LOCATION DESCRIPTION ACQUIRED (SQ. FT.) (000'S)
- ----------------- ---------------------------------------------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Sacramento/
Bradshaw, CA.... office complex 5/1/98 296,900 $ 35,551
San Diego/ Murphy
Canyon, CA...... self storage facility 5/26/98 243,600 17,750
Solana Beach,
CA.............. land (future development) 6/22/98 -- 3,450
San Diego/ Rancho
San Diego, CA... retail complex 7/13/98 93,700 11,300
Fresno, CA....... land (contributed to joint venture) 7/29/98 -- 3,950
</TABLE>
48
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3--REAL ESTATE PROPERTIES (CONTINUED)
We funded these acquisitions through available cash, advances under our
unsecured revolving credit facilities, and by assuming a note payable in
conjunction with the San Diego/Murphy Canyon, CA self storage facility purchase.
On May 28, 1998, we announced a joint venture with River Park Properties to
develop a 173,000 square foot retail and commercial center in Fresno, CA. We own
50% of this joint venture investment. We purchased the land from PriceSmart at
the appraised value of $4.0 million and contributed the land to the joint
venture.
In December 1997 we purchased a shopping center in Roseville, CA for $23.6
million.
DISPOSITIONS
During 1998 we sold a free-standing restaurant building at our Azusa, CA
property and recorded a $184,000 gain on the sale. We also sold a free-standing
car wash at our Northridge, CA site and recognized no gain on the sale. We
consider both of these parcels incidental to our main business.
We sold no properties during the four months ended December 31, 1997. During
each of the two years ended August 31, we sold certain significant real estate
properties to unrelated parties and recognized related gains or losses on
dispositions, as shown in the following table. In addition, we recognized
$644,000 of net gains during the year ended August 31, 1997 on sales of
insignificant real estate properties. In conjunction with the
49
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 3--REAL ESTATE PROPERTIES (CONTINUED)
PriceSmart distribution, we transferred all remaining properties held for sale
to PriceSmart (amounts in thousands).
<TABLE>
<CAPTION>
SALES PRETAX GAIN
LOCATION DESCRIPTION DATE SOLD PRICE (LOSS)
- ---------------------------------- -------------------------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
YEAR ENDED AUGUST 31, 1997
Santee, CA........................ warehouse building 12/6/96 $ 3,187 $ 17
Schaumburg, IL.................... undeveloped land 12/10/96 6,865 802
Houston, TX....................... retail building 5/29/97 6,000 (352)
YEAR ENDED AUGUST 31, 1996
Palm Harbor, FL................... warehouse building 12/22/95 3,483 65
San Diego (Convoy Ct.), CA........ office building 2/9/96 3,500 143
Richmond, CA...................... warehouse building 4/12/96 11,075 80
</TABLE>
NOTE 4--CREDIT FACILITIES AND NOTE PAYABLE
Our credit facility activity for 1998 consisted of the following:
- In April we obtained a revolving credit facility with a commercial bank
for up to $75 million in unsecured advances. Since certain financial
covenants and restrictions in the loan agreement were impacted by our
distribution of preferred stock, the credit facility was amended and
expired on December 31, 1998. No amounts remain outstanding on this
facility.
- In September we obtained an additional credit facility for $50 million
with Morgan Guaranty Trust Company. This credit facility has a one-year
term and bears interest at LIBOR plus 30 basis points. Sol Price (a
significant stockholder of our Company and the father of Robert
50
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 4--CREDIT FACILITIES AND NOTE PAYABLE (CONTINUED)
Price, our Company's Chairman of the Board), Helen Price (Sol Price's
spouse) and the Sol & Helen Price Trust entered into a Guaranty and Pledge
Agreement in which they agreed to guaranty our obligations under this
credit facility. The Sol and Helen Price Trust also granted the Morgan
Guaranty Trust Company a continuing security interest in U.S. Treasury
Notes worth more than the amount outstanding under this credit facility to
secure their obligations under the guaranty. At year end, $50.0 million
was outstanding under this credit facility at a weighted average interest
rate of 5.69%.
- In December we obtained a $100 million unsecured credit facility with
Wells Fargo Bank, AmSouth Bank and Bank One. This facility has a term of
three years with an interest rate of LIBOR plus 135 basis points. The rate
may vary based on our leverage and other financial ratios. As of December
31, we owed $49.1 million on this credit facility at an interest rate of
6.91%.
In conjunction with the San Diego/Murphy Canyon, CA self storage facility
purchase, we assumed an existing $8.9 million note secured by the property. The
note, payable to a financial institution, matures in July 2003 and bears an
interest rate of 9.0%. Prepayment of the note may not occur prior to July 2001.
The amount of secured debt that becomes due in each of the next five years
is as follows (amounts in thousands):
<TABLE>
<S> <C>
1999......................................... $ 70
2000......................................... 76
2001......................................... 84
2002......................................... 91
2003......................................... 100
</TABLE>
51
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 5--RELATED PARTY TRANSACTIONS
Because of the PriceSmart distribution and for the purpose of governing
certain of the ongoing relationships between PriceSmart and PEI after the
distribution, and to provide for an orderly transition, PriceSmart and PEI
entered into various agreements as described below.
Our Company and PriceSmart entered into an Asset Management and Disposition
Agreement in August 1997 for us to provide asset management services for certain
properties distributed to PriceSmart. PriceSmart pays us management fees,
leasing fees, disposition fees and developer's fees for providing these
services. This agreement has a two-year term; provided that either the Company
or PriceSmart may terminate the agreement with 60 days written notice. During
1998, we charged PriceSmart $201,000 for asset management services and $43,000
during the four months ending December 31, 1997.
We also entered into a Tax Sharing Agreement with PriceSmart in August 1997
defining rights and obligations with respect to tax returns and tax liabilities
for taxable years and other taxable periods ending on or before August 31, 1997.
In general, we will be responsible for (i) filing all Federal and state income
tax returns of our Company, PriceSmart and any of their subsidiaries for all
taxable years ending on or before or including August 31, 1997 and (ii) paying
the taxes relating to these returns (or be entitled to tax refunds) to the
extent attributable to pre-August 31, 1997 periods.
PriceSmart leases space from us for its corporate offices in San Diego. The
lease expires August 31, 1999. In 1998 we recorded $590,000 in revenue related
to this lease and $158,000 in revenue during the four months ended December 31,
1997.
In July 1998 we acquired approximately 15 acres of land in Fresno, CA from
PriceSmart for $4.0 million.
52
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 5--RELATED PARTY TRANSACTIONS (CONTINUED)
In May 1998, we acquired an office complex in Sacramento, CA for $35.6
million. We acquired the property from Ivanhoe-Bradshaw, L.L.C.
(Ivanhoe-Bradshaw), a company controlled by Sol Price. In addition, James F.
Cahill, a member of our Board of Directors, served as Manager of
Ivanhoe-Bradshaw and previously held membership interests in Ivanhoe-Bradshaw.
NOTE 6--PROFIT SHARING AND 401(K) PLAN
Substantially all of our employees participate in a defined contribution
profit sharing and 401(k) plan. Profit sharing contributions, if any, are based
on a discretionary amount determined by our Board of Directors and we allocate
contributions to each participant based on their relative compensation, subject
to certain limitations, to the compensation of all participants. We make these
contributions annually. We also make a matching 401(k) contribution equal to 50%
of each participant's contribution up to an annual maximum matching contribution
of $250.
During the year ended August 31, 1996, the plan year was converted to a
December 31 year-end from an August 31 year-end; therefore, the contribution to
the profit sharing plan in the year ended August 31, 1996 was for the period of
September 1995 to December 1995.
We contributed the following amounts to our profit sharing and 401(k) plan
(amounts in thousands):
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31 AUGUST 31
------------- ----------------------------
1998 1997 1996
------------- ------------- -------------
<S> <C> <C> <C>
Profit Sharing.............................. $ 117 $ 490 $ 187
401(k)...................................... 7 29 37
</TABLE>
53
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--STOCK OPTION PLANS
In 1995, we established an Employee Stock Option and Stock Grant Plan and a
Director Stock Option Plan and we may grant stock options to any employee or
director under these two plans. We reserved 1,500,000 shares for issuance under
the employee plan and 150,000 for issuance under the director plan. The director
plan was amended on October 1, 1997. Options generally vest over five years and
expire six years after the grant date. Once exercisable, the employee or
director can purchase shares of our stock at the market price on the date we
granted the option. Subsequent to August 31, 1997, and as a direct result of the
PriceSmart distribution, we adjusted all outstanding options, both in quantity
and exercise price, so each optionee remained in the same economic position as
before the distribution. We made an equitable adjustment by issuing 54,352
additional stock options to compensate for a reduction in our stock price
because of the PriceSmart distribution.
In August 1998 we distributed one share of Series A Preferred Stock for
every share of common stock outstanding. Subsequent to this distribution our
common stock began trading at a significantly reduced price. In order to put
optionees with outstanding stock options in the same position as common
stockholders of the Company after the distribution, each optionee was granted
the right to receive one share of preferred stock upon the exercise of a share
of common stock. This right was granted instead of adjusting the exercise price
or quantity of common stock options outstanding. This right is triggered by the
exercise of the common stock option and the optionee may not exercise options in
the common or preferred stock independently. We amended both stock options plans
in August 1998 to allow for this change.
You will see in the following table the activity in the common stock options
and related weighted average exercise price per share. The quantity of stock
options granted, exercised and cancelled for 1998 reflect only
54
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--STOCK OPTION PLANS (CONTINUED)
common stock options. In order to make this disclosure more meaningful, we have
reflected the weighted average exercise price per share as a prorated price
based on the relative value of the common stock and the preferred stock. We used
the closing prices on the first day of trading of the preferred stock, where the
common stock closed at $4.38, or 23%, and the preferred closed at $14.87, or
77%, of the total of $19.25.
Since the issuance of the Series A Preferred Stock, we have only granted new
options in common stock at the market value on the date of grant. We do not
intend to issue any preferred stock options in the future.
55
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--STOCK OPTION PLANS (CONTINUED)
The following table summarizes the activity for both plans:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
STOCK EXERCISE PRICE
OPTIONS PER SHARE
------------ ----------------
<S> <C> <C>
Outstanding at August 31, 1995....................... 1,052,108 $ 11.53
Granted............................................ 193,500 15.65
Exercised.......................................... (55,982) 11.27
Canceled........................................... (145,861) 11.25
------------
Outstanding at August 31, 1996....................... 1,043,765 12.35
Granted............................................ 11,900 21.67
Exercised.......................................... (342,880) 12.12
Canceled........................................... (446,776) 12.78
------------
Outstanding at August 31, 1997....................... 266,009 12.34
Adjustment and revaluation resulting from
distribution of PriceSmart.......................... 54,352
------------
Adjusted outstanding at August 31, 1997.............. 320,361 10.25
Granted............................................ 476,329 18.87
Exercised.......................................... (98,383) 9.19
Canceled........................................... (45,312) 11.55
------------
Outstanding at December 31, 1997..................... 652,995 16.60
Granted............................................ 68,750 4.60
Exercised.......................................... (23,397) 10.43
Canceled........................................... (13,500) 18.75
------------
Outstanding at December 31, 1998..................... 684,848 3.89
------------
------------
</TABLE>
56
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--STOCK OPTION PLANS (CONTINUED)
As of December 31, 1998, options to purchase 141,680 shares were exercisable
under the Employee Plan and 28,715 shares were exercisable under the Director
Plan. At year end 1,024,840 shares of common stock remained available for future
issuance in connection with the Employee Plan and 91,026 shares remained
available for future issuance under the Director Plan.
The following table summarizes information concerning options outstanding
under both plans as of December 31, 1998.
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
WEIGHTED AVERAGE EXERCISE PRICE OF
RANGE OF OPTIONS WEIGHTED AVERAGE REMAINING LIFE IN OPTIONS OPTIONS
EXERCISE PRICES OUTSTANDING EXERCISE PRICE YEARS EXERCISABLE EXERCISABLE
- --------------- ----------- ----------------- ------------------- ----------- -----------------
<S> <C> <C> <C> <C> <C>
$ 2.07 - 2.58 140,911 $ 2.24 2.1 75,359 $ 2.25
4.00 - 4.30 481,437 4.27 4.8 95,036 4.28
4.50 - 5.35 62,500 4.66 5.2 -- --
----------- -----------
684,848 3.89 4.3 170,395 3.38
----------- -----------
----------- -----------
</TABLE>
As we stated in Note 1, we follow the provisions for APB No. 25, "Accounting
for Stock Issued to Employees." In 1997 we implemented the disclosure provisions
required by SFAS No. 123, "Accounting for Stock-Based Compensation" for our
stock option plans. SFAS No. 123 requires pro forma net income and earnings per
share information, which is calculated assuming we had accounted for our stock
option plans under the "fair value" method described in that statement. We
estimated the fair value using the Black-
57
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--STOCK OPTION PLANS (CONTINUED)
Scholes option pricing model, modified for dividends and using the following
assumptions:
<TABLE>
<CAPTION>
FOUR MONTHS
YEAR ENDED ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
------------- ------------- ----------------------------
1998 1997 1997 1996
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Risk free interest rate.................. 6% 6% 6% 6%
Annual dividend rate..................... 5.6% 7% 7% 7%
Volatility factor of the stock price..... 23.80% 27.16% 26.54% 26.54%
Weighted average expected life (years)... 3 3 3 3
</TABLE>
58
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--STOCK OPTION PLANS (CONTINUED)
We do not record compensation expense for stock option grants. The following
table summarizes results as if we had recorded compensation expense for the
1998, 1997 and 1996 option grants.
<TABLE>
<CAPTION>
FOUR MONTHS
YEAR ENDED ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
------------ ------------ ---------------------------
1998 1997 1997 1996
------------ ------------ ------------ -------------
<S> <C> <C> <C> <C>
Net income:
As reported............................ $ 21,113 $ 17,508 $ 14,225 $ 90
Pro forma.............................. 21,044 17,454 14,225 33
Net income per share:
As reported............................ .97 .74 .61 .00
Pro forma.............................. .97 .74 .61 .00
Net income per share-- assuming dilution:
As reported............................ .96 .73 .61 .00
Pro forma.............................. .96 .73 .61 .00
Weighted average fair value of options
granted during the year................. .63 2.51 3.19 2.09
</TABLE>
NOTE 8--INCOME TAXES
Because we have operated as a REIT since September 1997, there is no Federal
income tax expense for 1998 or the transition period ended December 31, 1997.
The income tax benefit recorded in the four months ending December 31, 1997 is a
result of our previously deferred tax liability being eliminated because of our
conversion to a REIT as well as income tax refunds receivable that are a result
of Federal tax net operating loss
59
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 8--INCOME TAXES (CONTINUED)
carrybacks. The provision (benefit) for income taxes for the years prior to our
conversion to a REIT consists of the following (amounts in thousands):
<TABLE>
<CAPTION>
FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 AUGUST 31
-------------------------- --------------------------
1997 1997 1996
------------ 1996 ------------ ------------
------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Current:
Federal.................... $ (970) $ 1,709 $ (655) $ (1,285)
State...................... -- 293 (432) (513)
------------ ------------ ------------ ------------
(970) 2,002 (1,087) (1,798)
Allocated to discontinued
operations.................. -- 835 2,301 1,683
------------ ------------ ------------ ------------
(970) 2,837 1,214 (115)
Deferred:
Federal.................... (5,451) 874 8,509 1,887
State...................... (1,209) 150 2,462 1,175
------------ ------------ ------------ ------------
(6,660) 1,024 10,971 3,062
Allocated to discontinued
operations.................. -- 1,413 1,078 2,848
------------ ------------ ------------ ------------
(6,660) 2,437 12,049 5,910
Provision (benefit) for
income tax-- continuing
operations.................. $ (7,630) $ 5,274 $ 13,263 $ 5,795
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
60
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 8--INCOME TAXES (CONTINUED)
A reconciliation between the Federal statutory rate and the effective tax
rate follows (amounts in thousands):
<TABLE>
<CAPTION>
FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 AUGUST 31
-------------------------- --------------------------
1997 1996 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Federal taxes at the
statutory rate.............. $ 3,457 $ 4,502 $ 11,322 $ 4,947
State taxes, net of Federal
benefit..................... 593 772 1,941 848
------------ ------------ ------------ ------------
4,050 5,274 13,263 5,795
Deduction for dividends
paid........................ (4,050) -- -- --
Adjustment due to change in
tax status.................. (7,630) -- -- --
------------ ------------ ------------ ------------
Total provision
(benefit)................ $ (7,630) $ 5,274 $ 13,263 $ 5,795
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
61
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 8--INCOME TAXES (CONTINUED)
The significant components of deferred income taxes are attributable to the
following temporary differences (amounts in thousands):
<TABLE>
<CAPTION>
AUGUST 31
--------------------------
1997 1996
------------ ------------
<S> <C> <C>
Deferred tax assets:
Real estate properties.................................. $ -- $ 8,086
All other, net.......................................... 1,214 1,006
------------ ------------
1,214 9,092
Deferred tax liabilities:
Deferred rental income.................................. (5,128) (3,703)
Real estate properties.................................. (2,746) --
------------ ------------
(7,874) (3,703)
------------ ------------
Net deferred tax assets (liabilities)..................... $ (6,660) $ 5,389
------------ ------------
------------ ------------
</TABLE>
NOTE 9--STOCKHOLDERS' EQUITY
On August 17, 1998, we distributed to stockholders of record on July 30,
1998, one share of newly created 8 3/4% Series A Cumulative Redeemable Preferred
Stock, par value $.0001, for each share of common stock held by them on the
record date. We raised no capital through this transaction. The Series A
Preferred Stock pays quarterly dividends at a rate of $1.40 per year and has a
$16.00 per share liquidation preference. Prior to the distribution of Series A
Preferred Stock, we paid dividends on our common stock. Beginning with our
November 1998 dividend payment, dividends of $1.40 per share will be paid on the
Series A Preferred Stock. Any dividends required to be paid in excess of $1.40
will be paid to our common stockholders. We have the right to redeem the Series
A Preferred Stock anytime after August 16, 2003 at a redemption price of $16.00
per share plus accrued and
62
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 9--STOCKHOLDERS' EQUITY (CONTINUED)
unpaid dividends, if any. Holders of the Series A Preferred Stock have one-tenth
of one vote per share, voting together with our common stock.
The total market value of the Series A Preferred Stock is based on the
closing price on its first day of trading and is shown on the balance sheet as
Series A Preferred Stock. We reduced additional paid in capital by the Series A
Preferred Stock's value to reflect our change in capital structure.
NOTE 10--COMMITMENTS AND CONTINGENCIES
Our company owns a property in New Jersey with a ground lease that has a
remaining term of 21 years with three 15-year options to renew. Rent expense
related to the ground lease is summarized below (amounts in thousands):
<TABLE>
<CAPTION>
YEAR ENDED FOUR MONTHS ENDED YEAR ENDED
DECEMBER 31 DECEMBER 31 AUGUST 31
------------- ---------------------------- --------------------------
1998 1997 1996 1997 1996
------------- ------------- ------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Ground lease rent expense...... $ 800 $ 300 $ 800 $ 1,700 $ 2,500
</TABLE>
Prior years' rental expense included additional leases which we either
transferred to PriceSmart in the distribution or terminated. Future minimum
63
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 10--COMMITMENTS AND CONTINGENCIES (CONTINUED)
payments during the next five years and thereafter under this noncancelable
lease at December 31, 1998 are as follows (amounts in thousands):
<TABLE>
<S> <C>
1999...................................... $ 754
2000...................................... 754
2001...................................... 754
2002...................................... 754
2003...................................... 754
After 2003................................ 13,138
---------
Total minimum payments.................... $ 16,593
---------
---------
</TABLE>
The above property is subleased and as of year end total future sublease
revenues are $28.9 million, which are included in future minimum rental income
amounts in Note 3.
64
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 11--QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
The following is an unaudited summary of our quarterly results for the last
two years (amounts in thousands, except per share data):
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1998
Revenues......................................... $ 14,486 $ 15,287 $ 15,915 $ 16,797
Operating income................................. 7,408 7,836 8,409 7,740
Income from continuing operations................ 7,795 7,689 7,536 6,409
Net income....................................... 7,795 7,689 7,536 6,409
Earnings per common share-- basic & diluted
Income from continuing operations............ 0.33 0.32 0.32 (0.12)
Net income................................... 0.33 0.32 0.32 (0.12)
YEAR ENDED DECEMBER 31, 1997
Revenues......................................... $ 13,363 $ 14,509 $ 13,754 $ 14,141
Operating income................................. 6,390 6,173 3,899 6,827
Income from continuing operations................ 4,930 4,654 4,330 15,089
Net income....................................... 4,495 4,004 3,790 15,089
Earnings per common share
Basic
Income from continuing operations............ 0.21 0.20 0.18 0.64
Net income................................... 0.19 0.17 0.16 0.64
Diluted
Income from continuing operations............ 0.21 0.20 0.18 0.63
Net income................................... 0.19 0.17 0.16 0.63
</TABLE>
65
<PAGE>
PRICE ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 12--SUBSEQUENT EVENTS
Caldor, a tenant at our Moorestown, NJ property, announced in January 1999
they will be closing their store. Caldor closed their store in March and they
indicated to us they intend to continue paying rent through at least April. We
are currently evaluating alternatives for the best possible use of this vacant
space.
In January 1999 we purchased 15 acres of land in Tucson, Arizona for $2.6
million for a proposed shopping center development.
In January 1999 we repaid $25.0 million on our $50.0 million credit facility
with Morgan Guaranty Trust Company and reduced our commitment with them. We
repaid this amount through an advance on our unsecured credit facility with
Wells Fargo Bank, BankOne and AmSouth Bank.
66
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Price Enterprises, Inc.
We have audited the accompanying consolidated balance sheets of Price
Enterprises, Inc. as of December 31, 1998 and 1997 and the related consolidated
statements of income, stockholders' equity and cash flows for the year ended
December 31, 1998, for the period September 1, 1997 through December 31, 1997
and for each of the two years in the period ended August 31, 1997. Our audits
also included the financial statement schedule listed in the Index at Item
14(a). These financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements and schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Price Enterprises, Inc. at December 31, 1998 and 1997 and the consolidated
results of its operations and its cash flows for the year ended December 31,
1998, for the period September 1, 1997 through December 31, 1997, and for each
of the two years in the period ended August 31, 1997 in conformity with
generally accepted accounting principles. Also, in our opinion, the related
financial statement schedule, when considered in relation to the basic
67
<PAGE>
financial statements taken as a whole, presents fairly in all material respects
the information set forth therein.
/s/ ERNST & YOUNG LLP
San Diego, California
January 19, 1999, except for Note 12,
as to which the date is January 22, 1999.
68
<PAGE>
ITEM 9-- CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
Note that in this Form 10-K, we "incorporate by reference" certain
information in parts of other documents filed with the Securities and Exchange
Commission (SEC). The SEC allows us to disclose important information by
referring to it in that manner. Please refer to such information.
ITEM 10--DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information about Directors of the Company is incorporated by reference from
the discussion under Item 1 of our Proxy Statement for the 1999 Annual Meeting
of Stockholders. The balance of the response to this item is contained in the
discussion entitled Executive Officers of the Company contained in Item 4A of
Part I of this report.
ITEM 11--EXECUTIVE COMPENSATION
Information about executive compensation is incorporated by reference from
the discussion under the heading Executive Compensation in our Proxy Statement
for the 1999 Annual Meeting of Stockholders.
ITEM 12--SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information about security ownership of certain beneficial owners and
management is incorporated by reference from the discussion under the heading
Security Ownership of Directors and Officers in Item 1 of our Proxy Statement
for the 1999 Annual Meeting of Stockholders.
ITEM 13--CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information about certain relationships and transactions with related
parties is incorporated by reference from the discussion under the heading
Related Transactions in our Proxy Statement for the 1999 Annual Meeting of
Stockholders.
69
<PAGE>
PART IV
ITEM 14-- EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) List of Financial Statements and Financial Statement Schedules:
The following consolidated financial statements of Price Enterprises, Inc.
are included in Item 8.
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
(1) (A) Report of Independent Auditors................................................... 67
(B) Consolidated Financial Statements
(i) Consolidated Balance Sheets--December 31, 1998 and 1997..................... 35
(ii) Consolidated Statements of Income--Year Ended December 31, 1998, Four
Months Ended December 31, 1997 and 1996 and the Years Ended August 31, 1997
and 1996................................................................... 36
(iii) Consolidated Statements of Stockholders' Equity-- Year Ended December 31,
1998, Four Months Ended December 31, 1997 and the Years Ended August 31,
1997 and 1996.............................................................. 37
(iv) Consolidated Statements of Cash Flows--Year Ended December 31, 1998, Four
Months Ended December 31, 1997 and 1996 and the Years Ended August 31, 1997
and 1996................................................................... 38
(v) Notes to Consolidated Financial Statements-- December 31, 1998.............. 39
(2) Financial Statement Schedules:
The following financial statement schedule of Price Enterprises, Inc. is included in
Item 14(d) Schedule III--Real Estate and Accumulated Depreciation.................... 72
</TABLE>
70
<PAGE>
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
All other schedules for which provision is made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable and therefore have been omitted.
(3) For a list of exhibits filed with this annual report, refer to the exhibit index
beginning on page 77.
</TABLE>
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the quarter ended December 31,
1998.
(c) Exhibits: For a list of exhibits filed with this annual report, refer to the
exhibit index beginning on page 77.
(d) Financial Statement Schedules:
72Schedule III--Real Estate and Accumulated Depreciation......................
71
<PAGE>
PRICE ENTERPRISES, INC.
SCHEDULE III
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
GROSS AMOUNT
AT WHICH
CARRIED
AT CLOSE OF
INITIAL COSTS COSTS PERIOD
---------------------------- CAPITALIZED -------------
LAND AND BUILDING AND SUBSEQUENT TO LAND AND
LOCATION DESCRIPTION IMPROVEMENTS IMPROVEMENTS ACQUISITION IMPROVEMENTS
- --------------------------------- ----------------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
Westbury, NY Shopping Center........ $ 41,784 $ 0 $ 28,329 $ 46,621
Pentagon City, VA Shopping Center........ 24,742 14,473 25,700 26,289
Wayne, NJ Shopping Center........ 19,760 6,912 12,689 22,200
Sacramento/Bradshaw, CA Office Complex......... 4,220 31,403 0 4,220
San Diego, CA Warehouse/Office
Building/Self
Storage.............. 5,244 7,990 13,281 6,284
Philadelphia, PA Shopping Center........ 8,649 4,382 13,339 9,115
Dallas, TX Retail Building........ 10,662 0 13,283 12,453
Seekonk, MA Shopping Center........ 7,636 0 12,698 10,153
Roseville, CA Shopping Center........ 9,173 8,165 4,044 6,877
San Diego/Murphy Canyon, CA Self Storage........... 9,274 8,575 5 9,274
Signal Hill, CA Shopping Center........ 5,872 0 10,223 8,289
Fountain Valley, CA Shopping Center........ 4,551 0 10,677 6,916
San Diego/Rancho San Diego, CA Shopping Center........ 4,424 6,889 0 4,424
Glen Burnie, MD Shopping Center........ 1,795 0 8,847 3,699
Azusa, CA Warehouse/Self
Storage.............. 4,248 896 4,401 3,847
Moorsetown, NJ (leased land) Shopping Center........ Leased 0 8,029 0
San Diego/Carmel Mtn., CA Shopping Center........ 3,464 0 3,431 3,742
Northridge, CA Shopping Center........ 4,029 0 2,183 3,702
Buffalo, NY Retail Building........ 2,503 0 3,724 3,656
Inglewood, CA Warehouse Building..... 1,438 0 3,710 1,666
Sacramento/Stockton, CA Shopping Center........ 1,437 0 3,568 2,436
New Britain, CT Warehouse Building..... 3,640 0 1,118 2,634
San Juan Capistrano, CA Shopping Center........ 3,150 0 1,293 2,042
Solana Beach, CA Self Storage........... 2,324 1,227 362 2,324
Tucson, AZ Shopping Center........ 1,073 0 2,776 1,787
Hampton, VA Retail Building/Bank... 1,132 0 1,826 1,436
Smithtown, NY Retail Building........ 721 0 2,022 1,231
Redwood City, CA Retail Building........ 1,860 0 235 2,095
Denver/Littleton, CO Retail Building........ 607 847 470 584
Denver/Aurora, CO Restaurant............. 105 0 648 173
San Diego/Southeast, CA Restaurant/Bank........ 217 0 388 170
Chula Vista/Rancho del Rey, CA Land................... 915 0 (415) 500
------------- ------------- ------------- -------------
Total Investment Properties............................... $ 190,649 $ 91,759 $ 192,884 $ 210,839
<CAPTION>
BUILDING AND
LOCATION IMPROVEMENTS TOTAL(1)
- --------------------------------- ------------- ---------
<S> <C> <C>
Westbury, NY $ 23,492 $ 70,113
Pentagon City, VA 38,626 64,915
Wayne, NJ 17,161 39,361
Sacramento/Bradshaw, CA 31,403 35,623
San Diego, CA
20,231 26,515
Philadelphia, PA 17,255 26,370
Dallas, TX 11,492 23,945
Seekonk, MA 10,181 20,334
Roseville, CA 14,505 21,382
San Diego/Murphy Canyon, CA 8,580 17,854
Signal Hill, CA 7,806 16,095
Fountain Valley, CA 8,312 15,228
San Diego/Rancho San Diego, CA 6,889 11,313
Glen Burnie, MD 6,943 10,642
Azusa, CA
5,698 9,545
Moorsetown, NJ (leased land) 8,029 8,029
San Diego/Carmel Mtn., CA 3,153 6,895
Northridge, CA 2,510 6,212
Buffalo, NY 2,571 6,227
Inglewood, CA 3,482 5,148
Sacramento/Stockton, CA 2,569 5,005
New Britain, CT 2,124 4,758
San Juan Capistrano, CA 2,401 4,443
Solana Beach, CA 1,589 3,913
Tucson, AZ 2,062 3,849
Hampton, VA 1,522 2,958
Smithtown, NY 1,512 2,743
Redwood City, CA 0 2,095
Denver/Littleton, CO 1,340 1,924
Denver/Aurora, CO 580 753
San Diego/Southeast, CA 435 605
Chula Vista/Rancho del Rey, CA 0 500
------------- ---------
Total Investment Properties...... $ 264,453 $ 475,292
</TABLE>
72
<PAGE>
<TABLE>
<CAPTION>
DEPRECIABLE LIFE
-------------------
ACCUMULATED DATE OF DATE OF
LOCATION DESCRIPTION DEPRECIATION CONSTRUCTION ACQUISITION LAND IMPROVEMENTS
- --------------------------------- ----------------------- ------------ -------------- ------------- -------------------
<S> <C> <C> <C> <C> <C>
Westbury, NY Shopping Center........ (6,865) 1993-94 1993 25
Pentagon City, VA Shopping Center........ $ (6,029) 1992-93 1992 25
Wayne, NJ Shopping Center........ (4,732) 1991-93 1991 25
Sacramento/Bradshaw, CA Office Complex......... (940) 1998 25
San Diego, CA Warehouse/Office
Building/Self
Storage.............. (10,712) 1981 25
Philadelphia, PA Shopping Center........ (3,752) 1992, 1994-95 1991 25
Dallas, TX Retail Building........ (2,536) 1991-92, 96 1991 25
Seekonk, MA Shopping Center........ (2,799) 1991-94 1991 25
Roseville, CA Shopping Center........ (655) 1997 25
San Diego/Murphy Canyon, CA Self Storage........... (266) 1998 25
Signal Hill, CA Shopping Center........ (1,913) 1992-93 1991 25
Fountain Valley, CA Shopping Center........ (2,171) 1990-93 1989 25
San Diego/Rancho San Diego, CA Shopping Center........ (160) 1998 25
Glen Burnie, MD Shopping Center........ (2,102) 1990-92 1985 25
Azusa, CA Warehouse/Self
Storage.............. (761) 1983, 1998 1983 25
Moorsetown, NJ (leased land) Shopping Center........ (2,311) 1989-91 1989 25
San Diego/Carmel Mtn., CA Shopping Center........ (695) 1992-93 1991 25
Northridge, CA Shopping Center........ (485) 1993-94 1988 25
Buffalo, NY Retail Building........ (1,558) 1989-90 1989 25
Inglewood, CA Warehouse Building..... (1,293) 1989 1984 25
Sacramento/Stockton, CA Shopping Center........ (473) 1994-95 1993 25
New Britain, CT Warehouse Building..... (571) 1991 25
San Juan Capistrano, CA Shopping Center........ (604) 1988-89, 94-95 1987 25
Solana Beach, CA Self Storage........... 0 1998 1998 25
Tucson, AZ Shopping Center........ (687) 1989-91 1988 25
Hampton, VA Retail Building/Bank... (447) 1992 1987 25
Smithtown, NY Retail Building........ (858) 1988-89 1985 25
Redwood City, CA Retail Building........ 0 1982 --
Denver/Littleton, CO Retail Building........ (403) 1990 25
Denver/Aurora, CO Restaurant............. (127) 1993 1990 25
San Diego/Southeast, CA Restaurant/Bank........ (269) 1989-90 1989 25
Chula Vista/Rancho del Rey, CA Land................... 0 0 1993
------------
Total Investment Properties............................... $ (57,174)
------------
------------
<CAPTION>
BUILDING
LOCATION BUILDING IMPROVEMENTS
- --------------------------------- ------------- -------------------
<S> <C> <C>
Westbury, NY 25 10
Pentagon City, VA 25 10
Wayne, NJ 25 10
Sacramento/Bradshaw, CA 25 10
San Diego, CA
25 10
Philadelphia, PA 25 10
Dallas, TX 25 10
Seekonk, MA 25 10
Roseville, CA 25 10
San Diego/Murphy Canyon, CA 25 10
Signal Hill, CA 25 10
Fountain Valley, CA 25 10
San Diego/Rancho San Diego, CA 25 10
Glen Burnie, MD 25 10
Azusa, CA
25 10
Moorsetown, NJ (leased land) 25 10
San Diego/Carmel Mtn., CA 25 10
Northridge, CA 25 10
Buffalo, NY 25 10
Inglewood, CA 25 10
Sacramento/Stockton, CA 25 10
New Britain, CT 25 10
San Juan Capistrano, CA 25 10
Solana Beach, CA 25 1
Tucson, AZ 25 10
Hampton, VA 25 10
Smithtown, NY 25 10
Redwood City, CA -- --
Denver/Littleton, CO 25 10
Denver/Aurora, CO 25 10
San Diego/Southeast, CA 25 10
Chula Vista/Rancho del Rey, CA -- --
Total Investment Properties......
</TABLE>
- ----------------------------------
(1) The aggregate cost for Federal income tax purposes is $463,363
73
<PAGE>
PRICE ENTERPRISES, INC.
SCHEDULE III (CONTINUED)
REAL ESTATE AND ACCUMULATED DEPRECIATION
(IN THOUSANDS)
<TABLE>
<CAPTION>
FOUR MONTHS
YEAR ENDED ENDED
DECEMBER 31 DECEMBER 31 YEAR ENDED AUGUST 31
------------ ------------ --------------------------
RECONCILIATION TO REPORTED AMOUNTS 1998 1997 1997 1996
- ------------------------------------------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
PROPERTY AND EQUIPMENT
Balance at beginning of period................ $ 399,011 $ 380,145(1) $ 436,672 $ 469,337
Additions during the period:
Purchases................................... 78,781 18,866 2,720 17,003
Deductions during the period:
Cost of properties sold..................... (2,500) -- (35,741) (32,668)
Asset impairment loss....................... -- -- (2,000) (17,000)
------------ ------------ ------------ ------------
Subtotal.................................. 475,292 399,011 401,651 436,672
Other:
Property and equipment transferred to
PriceSmart................................ -- -- (21,506) (31,541)
FF&E........................................ 581 242 203 733
------------ ------------ ------------ ------------
Balance at end of period...................... $ 475,873 $ 399,253 $ 380,348 $ 405,864
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
ACCUMULATED DEPRECIATION
Balance at beginning of period................ $ 46,089 $ 43,131(1) $ 43,991 $ 39,282
Depreciation expense.......................... 11,085 2,958 9,347 9,433
Accumulated depreciation of properties sold... -- -- (7,589) (4,724)
------------ ------------ ------------ ------------
Subtotal.................................. 57,174 46,089 45,749 43,991
Other:
Accumulated depreciation of property and
equipment transferred to PriceSmart....... -- -- (2,618) (3,927)
Accumulated depreciation of FF&E............ 192 108 78 365
------------ ------------ ------------ ------------
Balance at end of period...................... $ 57,366 $ 46,197 $ 43,209 $ 40,429
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
- ---------------------
(1) Adjusted for property and equipment transferred to PriceSmart
74
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C> <C>
PRICE ENTERPRISES, INC.
DATED: March 22, 1999 By: /s/ JACK MCGRORY
--------------------------------
Jack McGrory
President and Chief Executive Officer
DATED: March 22, 1999 By: /s/ GARY W. NIELSON
--------------------------------
Gary W. Nielson
Executive Vice President and Chief
Financial Officer
</TABLE>
75
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ ROBERT E. PRICE
- ------------------------------ Chairman of the Board of March 22, 1999
Robert E. Price Directors
/s/ PAUL A. PETERSON
- ------------------------------ Vice Chairman of the Board March 22, 1999
Paul A. Peterson of Directors
/s/ JAMES F. CAHILL
- ------------------------------ Director March 22, 1999
James F. Cahill
/s/ ANNE L. EVANS
- ------------------------------ Director March 22, 1999
Anne L. Evans
/s/ MURRAY L. GALINSON
- ------------------------------ Director March 22, 1999
Murray L. Galinson
/s/ JACK MCGRORY
- ------------------------------ Director, President, and March 22, 1999
Jack McGrory Chief Executive Officer
</TABLE>
76
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------
<C> <S> <C>
2.1 Distribution Agreement dated as of August 26, 1997 between Price Enterprises, Inc.
and PriceSmart, Inc. (incorporated by reference to Exhibit 2.1 to Current Report
on Form 8-K of Price Enterprises, Inc. filed with the Commission on September 12,
1997 (File No. 0-20449)).........................................................
3.1 Articles of Incorporation of Price Enterprises, Inc. (incorporated by reference to
Exhibit 3.1 to Transition Report on Form 10-K of Price Enterprises, Inc. filed
with the Commission on March 27, 1998 (File No. 0-20449))........................
3.2 Articles Supplementary of Price Enterprises, Inc. (incorporated by reference to
Exhibit 3.2 to Registration Statement on Form 8-A of Price Enterprises, Inc.
filed with the Commission on August 7, 1998 (File No. 0-20449))..................
3.3 Bylaws of Price Enterprises, Inc. (incorporated by reference to Exhibit 3.2 to
Transition Report on Form 10-K of Price Enterprises, Inc. filed with the
Commission on March 27, 1998 (File No. 0-20449)).................................
10.1 Employee Benefits and Other Employment Matters Allocation Agreement dated as of
August 26, 1997 between Price Enterprises, Inc. and PriceSmart, Inc.
(incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K of Price
Enterprises, Inc. filed with the Commission on September 12, 1997 (File No.
0-20449))........................................................................
10.2 Tax Sharing Agreement dated as of August 26, 1997 between Price Enterprises, Inc.
and PriceSmart, Inc. (incorporated by reference to Exhibit 10.2 to Current Report
on Form 8-K of Price Enterprises, Inc. filed with the Commission on September 12,
1997 (File No. 0-20449)).........................................................
</TABLE>
77
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------
<C> <S> <C>
10.3 Asset Management Agreement dated as of August 26, 1997 between Price Enterprises,
Inc. and PriceSmart, Inc. (incorporated by reference to Exhibit 10.3 to Current
Report on Form 8-K of Price Enterprises, Inc. filed with the Commission on
September 12, 1997 (File No. 0-20449))...........................................
10.4 Transitional Services Agreement dated as of August 26, 1997 between Price
Enterprises Inc. and PriceSmart, Inc. (incorporated by reference to Exhibit 10.4
to Current Report on Form 8-K of Price Enterprises, Inc. filed with the
Commission on September 12, 1997 (File No. 0-20449)).............................
10.5 Employment Agreement dated June 18, 1997, by and between Price Enterprises, Inc.
and Jack McGrory (incorporated by reference to Exhibit 10.6 to Annual Report on
Form 10-K of Price Enterprises, Inc. filed with the Commission on November 26,
1997 (File No. 0-20449)).........................................................
10.6 Amendment No. 1 to Employment Agreement dated as of August 27, 1997, by and between
Price Enterprises, Inc. and Jack McGrory (incorporated by reference to Exhibit
10.7 to Annual Report on Form 10-K of Price Enterprises, Inc. filed with the
Commission on November 26, 1997 (File No. 0-20449))..............................
10.7 Purchase and Sale Agreement for Stanford Ranch Crossing dated December 31, 1997, by
and between Price Enterprises, Inc. and Opus West Corporation (incorporated by
reference to Exhibit 10.7 to Transition Report on Form 10-K of Price Enterprises,
Inc. filed with the Commission on March 27, 1998 (File No. 0-20449)).............
10.8 Form of Indemnity Agreement (incorporated by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998
filed with the Commission on May 14, 1998 (File No. 0-20449))....................
</TABLE>
78
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------
<C> <S> <C>
10.9 Revolving Credit Agreement dated as of December 3, 1998 among the Company, and
Wells Fargo Bank, National Association, as Agent.................................
10.10 Form of Promissory Note Agreement under Revolving Credit Agreement as amended and
schedule of notes signed, dates, banks and amounts...............................
10.11 Form of Guaranty between Price Enterprises, Inc. and Wells Fargo Bank, National
Association......................................................................
10.12 First Amendment to Revolving Credit Agreement and Loan Documents dated as of
December 29, 1998 among the Company, Wells Fargo Bank, National Association, as a
Lender (the "Original Lender"), BankOne, Arizona, NA, AmSouth Bank, and Wells
Fargo Bank, National Association, as Agent.......................................
10.13 Pro rata share of lenders participating in Amended Revolving Credit Agreement dated
as of December 29, 1998 among the Company, Wells Fargo Bank, National
Association, BankOne, Arizona, NA, AmSouth Bank and Wells Fargo Bank, NA, as
agent............................................................................
10.14 Amendment No. 2 to Employment Agreement dated as of February 2, 1999, by and
between Price Enterprises, Inc. and Jack McGrory.................................
10.15 Revolving Credit Agreement dated as of March 31, 1998 among the Company, Union Bank
of Switzerland and Union Bank of Switzerland, as Agent (incorporated by reference
to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 filed with the Commission on May 14, 1998 (File No.
0-20449))........................................................................
</TABLE>
79
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------
<C> <S> <C>
10.16 Amendment No. 1 to Revolving Credit Agreement dated as of August 27, 1998 among the
Company, Union Bank of Switzerland and Union Bank of Switzerland, as Agent
(incorporated by reference to Exhibit (b)(2) to Issuer Tender Offer Statement on
Schedule 13-E4 of Price Enterprises, Inc. filed with the Commission on September
17, 1998 (File No. 005-43425))...................................................
10.17 Letter Agreement dated as of September 15, 1998 by and between the Company and
Morgan Guaranty Trust Company of New York (incorporated by reference to Exhibit
(b)(3) to Issuer Tender Offer Statement on Schedule 13-E4 of Price Enterprises,
Inc. filed with the Commission on September 17, 1998 (File No. 005-43425)).......
10.18 Guaranty and Pledge Agreement dated as of September 15, 1998 among Sol Price, Helen
Price, The Sol and Helen Price Trust and Morgan Guaranty Trust Company of New
York (incorporated by reference to Exhibit (c)(1) to Issuer Tender Offer
Statement on Schedule 13-E4 of Price Enterprises, Inc. filed with the Commission
on September 17, 1998 (File No. 005-43425))......................................
10.19 The Price Enterprises 1995 Combined Stock Grant and Stock Option Plan (the "Stock
Plan" ) (incorporated by reference to Exhibit 10.23 to Registration Statement on
Form 10 of Price Enterprises, Inc. filed with the Commission on December 13, 1994
(File No. 0-20449))..............................................................
10.20 Form of Incentive Stock Option Agreement under the Stock Plan (incorporated herein
by reference to Exhibit 4.2 of the Current Report on Form S-8 of Price
Enterprises, Inc. filed with the Commission on July 13, 1995 (File No.
33-60999)).......................................................................
</TABLE>
80
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------
<C> <S> <C>
10.21 Form of Non-Qualified Stock Option Agreement under the Stock Plan (incorporated by
reference to Exhibit 4.3 of the Current Report on Form S-8 of Price Enterprises,
Inc. filed with the Commission on July 13, 1995 (File No. 33-60999)).............
10.22 The Price Enterprises Directors' 1995 Stock Option Plan (the "Directors' Plan)
(incorporated by reference to Exhibit 10.24 to Registration Statement on Form 10
of Price Enterprises, Inc. filed with the Commission on December 13, 1994 (File
No. 0-20449))....................................................................
10.23 Form of Non-Qualified Stock Option Agreement under the Directors' Plan
(incorporated by reference to Exhibit 4.5 of the Current Report on Form S-8 of
Price Enterprises, Inc. filed with the Commission on July 13, 1995 (File No.
33-60999)).......................................................................
10.24 First Amendment to the Price Enterprises Directors' 1995 Stock Option Plan
(incorporated by reference to Exhibit 4.7 to Transition Report on Form 10-K of
Price Enterprises, Inc. filed with the Commission on March 27, 1998 (File No.
0-20449))........................................................................
10.25 First Amendment to The Price Enterprises 1995 Combined Stock Grant and Stock Option
Plan (incorporated by reference to Exhibit 4.2 to Registration Statement on Form
S-8 of Price Enterprises, Inc. filed with the Commission on September 2, 1998
(File No. 333-62723))............................................................
10.26 Second Amendment to the Price Enterprises Directors' 1995 Stock Option Plan
(incorporated by reference to Exhibit 4.5 to Registration Statement on Form S-8
of price Enterprises, Inc. filed with the Commission on September 2, 1998 (File
No. 333-62723))..................................................................
</TABLE>
81
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- --------- -----------------------------------------------------------------------------------
<C> <S> <C>
10.27 Form of Amended and Restated Non-Qualified Stock Option Agreement under the 1995
Plan (incorporated by reference to Exhibit 4.6 to Registration Statement on Form
S-8 of Price Enterprises, Inc. filed with the Commission on September 2, 1998
(File No. 333-62723))............................................................
10.28 Form of Amended and Restated Non-Qualified Stock Option Agreement under the
Director's Plan (incorporated by reference to Exhibit 4.7 to Registration
Statement on Form S-8 of Price Enterprises, Inc. filed with the Commission on
September 2, 1998 (File No. 333-62723))..........................................
10.29 Purchase and Sale Agreement as Amended for Sacramento/ Bradshaw Business Park dated
April 6, 1998, by and between Price Enterprises, Inc. and Ivanhoe-Bradshaw,
L.L.C. (incorporated by reference to Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1998 filed with the Commission
on August 12, 1998 (File No. 0-20449))...........................................
10.30 Employment Agreement dated January 6, 1998 by and between Price Enterprises, Inc.
and Gary W. Nielson (incorporated by reference to Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998 filed with the
Commission on May 14, 1998 (File No. 0-20449))...................................
12.1 Computation of ratio of earnings to fixed charges..................................
21.1 Subsidiaries of Price Enterprises, Inc.............................................
23.1 Consent of Independent Auditors....................................................
27.1 Financial Data Schedule............................................................
</TABLE>
82
<PAGE>
EXHIBIT 10.9
_______________________________________________________
_______________________________________________________
REVOLVING CREDIT AGREEMENT
AMONG
PRICE ENTERPRISES, INC.,
A MARYLAND CORPORATION,
AS BORROWER,
THE LENDERS HEREIN NAMED
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS AGENT
Dated as of December 3, 1998
_______________________________________________________
_______________________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1 DEFINITIONS....................................................... 1
1.1 Certain Defined Terms............................................. 1
1.2 Use of Defined Terms.............................................. 32
1.3 Terms............................................................. 32
ARTICLE 2 ADVANCES.......................................................... 33
2.1 Loan Advances and Repayment....................................... 33
2.2 Authorization to Obtain Advances.................................. 36
2.3 Lenders' Accounting............................................... 36
2.4 Interest on the Advances.......................................... 37
2.5 Fees.............................................................. 42
2.6 Payments.......................................................... 44
2.7 Notice of Increased Costs and Certain
Provisions Regarding LIBOR Advances............................... 44
2.8 Voluntary Termination or Reduction of
Commitment........................................................ 46
2.9 Facility Increase................................................. 46
ARTICLE 3 CONDITIONS TO ADVANCES............................................ 48
3.1 Conditions to Initial Advances.................................... 48
3.2 Conditions Precedent to All Advances.............................. 49
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.................................... 51
4.1 Organization; Partnership Powers.................................. 51
4.2 Authority......................................................... 51
4.3 No Conflict....................................................... 51
4.4 Consents and Authorizations....................................... 52
4.5 Governmental Regulation........................................... 52
4.6 Financial Statements; Projections and
Forecasts......................................................... 52
4.7 Prior Operating Statements........................................ 52
4.8 Unencumbered Pool Statements and Projections...................... 53
4.9 Litigation; Adverse Effects....................................... 53
4.10 No Material Adverse Change........................................ 53
4.11 Payment of Taxes.................................................. 53
4.12 Material Adverse Agreements....................................... 54
4.13 Performance....................................................... 54
4.14 Federal Reserve Regulations....................................... 54
4.15 Disclosure........................................................ 54
4.16 Requirements of Law............................................... 55
4.17 Patents, Trademarks, Permits, etc................................. 55
4.18 Environmental Matters............................................. 55
4.19 Solvency.......................................................... 56
4.20 Title to Assets................................................... 56
4.21 Management Agreements............................................. 56
-i-
<PAGE>
4.22 Capitalization.................................................... 56
4.23 ERISA............................................................. 56
4.24 Status as a REIT.................................................. 57
4.25 NASDAQ Listing.................................................... 57
4.26 J.P. Morgan Loan.................................................. 57
ARTICLE 5 REPORTING COVENANTS............................................... 58
5.1 Financial Statements and Other Financial and
Operating Information............................................. 58
5.2 Environmental Notices............................................. 65
5.3 Confidentiality................................................... 65
ARTICLE 6 AFFIRMATIVE COVENANTS............................................. 67
6.1 Existence......................................................... 67
6.2 Qualification..................................................... 67
6.3 Compliance with Laws, Etc......................................... 67
6.4 Payment of Taxes and Claims....................................... 67
6.5 Maintenance of Properties; Insurance.............................. 68
6.6 Inspection of Property; Books and Records; Discussion............. 68
6.7 Maintenance of Permits, Etc....................................... 69
6.8 Conduct of Business............................................... 69
6.9 Use of Proceeds................................................... 69
6.10 Securities Law Compliance......................................... 69
6.11 Continued Status as a REIT; Prohibited
Transactions ..................................................... 69
6.12 NASDAQ Listed Company............................................. 69
6.13 Year 2000 Covenant................................................ 70
6.14 Additional Guarantors............................................. 70
6.15 UBS Loan.......................................................... 70
6.16 Security Interest in Entities..................................... 70
6.17 Pledge of Stock................................................... 71
6.18 Security Interest in Price Enterprises - Texas,
L.P., a Delaware Limited Partnership and Guaranty................. 71
ARTICLE 7 NEGATIVE COVENANTS................................................ 73
7.1 Restrictions on Fundamental Changes............................... 73
7.2 ERISA............................................................. 73
7.3 Debt and Guaranty Obligations..................................... 74
7.4 Amendment of Constituent Documents................................ 74
7.5 Minimum Ownership Interest of Sol and Robert
Price ............................................................ 75
7.6 Management........................................................ 75
7.7 Margin Regulations................................................ 75
7.8 Management Agreements. .......................................... 75
7.9 Preferred Stock. ................................................ 75
7.10 Development Activity.............................................. 76
7.11 Organization of Borrower. ....................................... 77
7.12 Debt of Price Self Storage and Price
Enterprises LP.................................................... 77
-ii-
<PAGE>
ARTICLE 8 FINANCIAL COVENANTS............................................... 78
8.1 Tangible Net Worth................................................ 78
8.2 Maximum Total Liabilities to Gross Asset Value.................... 78
8.3 Minimum Unencumbered Asset Pool Value............................. 78
8.4 Minimum Interest Coverage Ratio................................... 78
8.5 Minimum Fixed Charge Coverage Ratio............................... 78
8.6 Minimum Unsecured Interest Expense Coverage....................... 78
8.7 Distributions..................................................... 78
8.8 Investments; Asset Mix............................................ 79
8.9 Secured Debt...................................................... 80
8.10 Gross Revenue..................................................... 80
ARTICLE 9 UNENCUMBERED ASSETS............................................... 81
9.1 Designation of Unencumbered Assets................................ 81
9.2 Removal of Unencumbered Assets from
Unencumbered Pool................................................. 81
9.3 Site Inspections; Structural Inspections; and
Environmental Site Assessments.................................... 82
ARTICLE 10 EVENTS OF DEFAULT; RIGHTS AND REMEDIES........................... 83
10.1 Events of Default................................................. 83
10.2 Remedies Upon Event of Default.................................... 85
ARTICLE 11 AGENCY PROVISIONS................................................ 89
11.1 Appointment and Authorization..................................... 89
11.2 Agent and Affiliates.............................................. 89
11.3 Proportionate Interest in any Collateral.......................... 89
11.4 Lenders' Credit Decisions......................................... 90
11.5 Action by Agent................................................... 90
11.6 Liability of Agent................................................ 91
11.7 Indemnification................................................... 92
11.8 Successor Agent................................................... 93
11.9 No Obligations of Borrower........................................ 93
11.10 Disbursements of Advances........................................ 94
11.11 Distribution and Apportionment of Payments....................... 95
11.12 Consent and Approvals............................................ 97
11.13 Certain Agency Provisions Relating to
Enforcement ..................................................... 98
11.14 Ratable Sharing.................................................. 98
ARTICLE 12 MISCELLANEOUS.................................................... 100
12.1 Expenses.......................................................... 100
12.2 Indemnity......................................................... 101
12.3 Change in Accounting Principles and "Funds
from Operations" Definition....................................... 101
12.4 Amendments and Consents........................................... 102
12.5 Independence of Covenants......................................... 104
-iii-
<PAGE>
12.6 Notices and Delivery.............................................. 104
12.7 Survival of Warranties, Indemnities and
Agreements ....................................................... 104
12.8 Failure or Indulgence Not Waiver; Remedies Cumulative............. 104
12.9 Payments Set Aside................................................ 105
12.10 Severability..................................................... 105
12.11 Headings......................................................... 105
12.12 Governing Law.................................................... 105
12.13 Limitation of Liability.......................................... 105
12.14 Successors and Assigns........................................... 106
12.15 Consent to Jurisdiction and Service of
Process; Waiver of Jury Trial.................................... 106
12.16 Counterparts; Effectiveness; Inconsistencies..................... 107
12.17 Performance of Obligations....................................... 107
12.18 Construction..................................................... 107
12.19 Entire Agreement................................................. 107
12.20 Assignments and Participations................................... 107
</TABLE>
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<PAGE>
LIST OF EXHIBITS AND SCHEDULES
Exhibits:
A - Form of Assignment and Assumption Agreement
B - Form of Compliance Certificate
C - Form of Fixed Rate Notice
D - Form of Guaranty
E - Form of Note
F - Form of Notice of Borrowing
G - Form of Pricing Certificate
Schedules:
1.1 - Pro Rata Shares of Lenders
2.2 - Employees Authorized to Sign Notices of Borrowing
4.9 - List of Litigation
4.18 - Environmental Matters
4.21 - Management Agreements
4.23 - Benefit Plans
9.1 - List of Unencumbred Assets
-v-
<PAGE>
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of December 3, 1998 (as
amended, supplemented or modified from time to time, the "Agreement"), is made
and entered into by and among PRICE ENTERPRISES, INC., a Maryland corporation
("Borrower"), each of the Lenders, as hereinafter defined, and WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Wells Fargo"), as Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties covenant and agree:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"ACCOUNTANTS" means any (i) "big five" accounting firm or (ii) another
firm of certified public accountants of recognized national standing selected by
Borrower and acceptable to Agent.
"ACQUISITION PRICE" means the aggregate purchase price for an asset,
including bona fide purchase money financing provided by the seller and all
other Indebtedness encumbering such asset at the time of acquisition.
"ADDITIONAL GUARANTORS" means each wholly-owned Subsidiary of Borrower
formed or acquired by Borrower after the date of this Agreement.
"ADVANCE" means any advance made or to be made to Borrower pursuant to
ARTICLE 2, and includes each Base Rate Advance and each LIBOR Advance.
"AFFILIATES" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means (a) the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the Securities
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting Securities
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<PAGE>
or by contract or otherwise, or (b) the ownership of ten percent (10%) or more
of the outstanding general partnership or other ownership interests of such
Person.
"AGENT" means Wells Fargo in its capacity as agent for the Lenders
under this Agreement, and any successor Agent appointed pursuant hereto.
"ANNUALIZED PROPERTY NOI" means, with respect to any Real Property
(including, without limitation, any Retail Property) and for any fiscal period,
(a) Property NOI of that Real Property plus (b) with respect to any such fiscal
period in which any Real Property (herein, the "New Property") has not been
owned and operated by Borrower for at least four (4) full Fiscal Quarters, such
amount as is necessary to reflect the annualization of Property NOI attributable
to the New Property using the following conventions: (i) if the New Property
has been owned and operated by Borrower for at least one (1) Fiscal Quarter, the
Property NOI of the New Property shall be multiplied by the appropriate factor
so as to result in Annualized Property NOI for the full four (4) Fiscal Quarters
and (ii) if the New Property has not been owned and operated by Borrower for at
least one (1) Fiscal Quarter, the Annualized Property NOI of the New Property
for the four (4) Fiscal Quarters shall be deemed to be the Property NOI for such
period reflected in a pro-forma income statement for the New Property prepared
by Borrower in good faith using reasonable assumptions consistent with all facts
known to Borrower and reasonably approved by Agent.
"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:
<TABLE>
<CAPTION>
Applicable
Pricing Level Margin
------------- ------
<S> <C>
I 100.00
II 110.00
III 115.00
IV 120.00
V 135.00
VI 140.00
VII 145.00
</TABLE>
"APPLICABLE PRICING LEVEL" means (a) for the Pricing Period from the
Closing Date and ending on January 15, 1999, Pricing Level V and (b) for each
Pricing Period thereafter, the pricing level set forth below opposite, as
applicable, either (i) if Agent did not receive a Rating Notice, the Total
Liabilities to Gross Asset Value Ratio as of the last day of the Fiscal Quarter
most recently ended prior to the commence-
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<PAGE>
ment of that Pricing Period, or (ii) if Agent did receive a Rating Notice, the
Borrower's Long-Term Unsecured Senior Debt Rating as of such last day of the
Fiscal Quarter most recently ended, in each case as determined by Agent:
<TABLE>
<CAPTION>
Borrower's Long-Term
Pricing Level Unsecured Senior Debt Rating
------------- ----------------------------
<S> <C>
I A-/A3 or higher
II BBB+/Baa1
III BBB/Baa2
IV BBB-/Baa3
Total Liabilities to
Gross Asset Value Ratio
-----------------------
V Less than or equal to 25%
VI Greater than 25%, but less than 35%
VII Equal to or greater than 35%
</TABLE>
If the Applicable Pricing Level for any Pricing Period is to be determined based
upon the ratio of Total Liabilities to Gross Asset Value and in the event that
Borrower does not deliver a Pricing Certificate with respect to such Pricing
Period prior to the commencement of such Pricing Period, then until (but only
until) such Pricing Certificate is delivered the applicable Pricing Level for
that Pricing Period shall be Pricing Level VII. "Borrower's Long-Term Unsecured
Senior Debt Rating" referred to above shall be the lower of such rating as set
by Standard & Poor's and as set by Moody's Investors Service, Inc.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
Agreement substantially in the form of EXHIBIT A hereto (with blanks
appropriately filled in) delivered to Agent in connection with each assignment
of a Lender's interest under this Agreement pursuant to SECTION 12.20.
"BASE RATE" means, on any day, the higher of (a) the rate of interest
per annum established from time to time by Agent at its principal office in
San Francisco, California, and designated as its prime rate as in effect on such
day and (b) the Federal Funds Rate in effect on such day PLUS one-half of
one percent (0.5%) per annum.
"BASE RATE ADVANCE" means an Advance bearing interest at the Base
Rate.
"BASE RENT" means the "base rent" or "minimum rent" due under a lease
or other rental agreement. "Base Rent" shall not include any percentage rent or
operating cost reimbursement items.
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<PAGE>
"BENEFIT PLAN" means any employee pension benefit plan as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan) which is subject to
Title IV of ERISA in respect of which a Person or an ERISA Affiliate is, or
within the immediately preceding five (5) years was, an "employer" as defined in
Section 3(5) of ERISA.
"BORROWER" means Price Enterprises, Inc., a Maryland corporation.
"BUSINESS DAY" means (a) with respect to any Advance, payment or rate
determination of LIBOR Advances, a day, other than a Saturday or Sunday, on
which Agent is open for business in San Francisco and on which dealings in
Dollars are carried on in the London interbank market, and (b) for all other
purposes any day excluding Saturday, Sunday and any day which is a legal holiday
under the laws of the State of California, or is a day on which banking
institutions located in California are required or authorized by law or other
governmental action to close.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a Person
under any Capital Lease.
"CAPITALIZED LOAN FEES" means, with respect to the Borrower and any
Consolidated Entity, and with respect to any period, (a) any up-front, closing
or similar fees paid by such Person in connection with the incurring or
refinancing of Indebtedness during such period and (b) all other costs incurred
in connection with the incurring or refinancing of Indebtedness during such
period, including, without limitation, appraisal fees paid to lenders, costs and
expenses incurred in connection with Swap Agreements, phase 1 environmental
report review fees paid to lenders and legal fees, in each of the foregoing
cases, that are capitalized on the balance sheet of such Person and amortized
over the term of such Indebtedness.
"CAPITAL STOCK" means, with respect to any Person, all (i) shares,
interests, participations or other equivalents (howsoever designated) of capital
stock (including, without limitation, preferred stock and common stock) or
partnership or other equity interests of such Person and (ii) rights (other than
debt securities convertible into capital stock or other equity interests),
warrants or options to acquire any such capital stock or partnership or other
equity interests of such Person.
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<PAGE>
"CASH" means, when used in connection with any Person, all monetary
and nonmonetary items owned by that Person that are treated as cash in
accordance with GAAP, consistently applied. "Cash" shall not include tenant
deposits.
"CASH EQUIVALENTS" means, when used in connection with any Person,
that Person's Investments in: (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year after the date of acquisition thereof;
(b) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within ninety (90) days after the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from any two of Standard & Poor's, Moody's Investors
Service, Inc., Duff and Phelps, or Fitch Investors Service, Inc. (or, if at any
time no two of the foregoing shall be rating such obligations, then from such
other nationally recognized rating services as may be acceptable to Agent) and
not listed for possible down-grade in Credit Watch published by Standard &
Poor's; (c) commercial paper, other than commercial paper issued by Borrower or
any of its Affiliates, maturing no more than ninety (90) days after the date of
creation thereof and, at the time of acquisition, having a rating of at least
A-1 or P-1 from either Standard & Poor's, or Moody's Investors Service, Inc. or,
if at any time neither Standard & Poor's, nor Moody's Investors Service, Inc.
shall be rating such obligations, then the highest rating from such other
nationally recognized rating services as may be acceptable to Agent; and
(d) domestic and Eurodollar certificates of deposit or time deposits or bankers'
acceptances maturing within ninety (90) days after the date of acquisition
thereof, overnight securities repurchase agreements, or reverse repurchase
agreements secured by any of the foregoing types of securities or debt
instruments issued, in each case, by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia or Canada which at the time of acquisition (A) has (or, in the case of
a bank which is a subsidiary, such bank's parent has) a rating of its senior
unsecured debt obligations of not less than Baa-2 by Moody's Investors
Service, Inc. or a comparable rating by a rating agency acceptable to Agent and
(B) has total assets in excess of Ten Billion Dollars ($10,000,000,000).
"CLOSING DATE" means the date on which the applicable conditions
contained in SECTIONS 3.1 and 3.2 are satisfied or waived. The Agent shall
deliver written notice to the Borrower and the Lenders confirming the date on
which the Closing Date
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<PAGE>
occurs.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMISSION" means the Securities and Exchange Commission.
"COMMITMENT" means, subject to SECTIONS 2.7, 2.8 and 2.9, $50,000,000.
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.
"COMPLIANCE CERTIFICATE" means a certificate in the form of EXHIBIT B
properly completed and signed by an Executive Officer.
"CONSOLIDATED ENTITY" means any Person the accounts of which are
consolidated with those of the Borrower in the consolidated financial statements
of the Borrower in accordance with GAAP.
"CONSTRUCTION ADVANCE" means an Advance all or a portion of which is
or will be used to construct improvements on Real Property or otherwise used in
the development of Real Property.
"CONSTRUCTION EXPENDITURES" means the total expenditures made through
any given date for project costs of all construction projects on Real Property
which expenditures with respect to each such construction project shall be
counted until a valid notice of completion with respect to all of such
construction project is recorded in the official records of the county in which
such project is located.
"CONTAMINANT" means any pollutant (as that term is defined in 42
U.S.C. 9601(33)) or toxic pollutant (as that term is defined in 33 U.S.C.
1362(13)), hazardous substance (as that term is defined in 42 U.S.C. 9601(14)),
hazardous chemical (as that term is defined by 29 CFR Section 1910.1200(c)),
toxic substance, hazardous waste (as that term is defined in 42 U.S.C. 6903(5)),
radioactive material, special waste, petroleum (including crude oil or any
petroleum-derived substance, waste, or breakdown or decomposition product
thereof), any constituent of any such substance or waste, including, but not
limited to, polychlorinated biphenyls and asbestos, or any other substance or
waste deleterious to the environment the release, disposal or remediation of
which is now or at any time becomes subject to regulation under any
Environmental Law.
"CONTRACTUAL OBLIGATION" as applied to any Person, means any provision
of any Securities issued by that Person or
-6-
<PAGE>
any indenture, mortgage, deed of trust, lease, contract, undertaking, document
or instrument to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject
(including, without limitation, any restrictive covenant affecting such Person
or any of its properties).
"COURT ORDER" means any judgment, writ, injunction, decree, rule or
regulation of any court or Governmental Authority binding upon the Person in
question.
"CREDIT TENANT" means a tenant of Real Property which is a corporation
with senior long-term unsecured debt obligations which are rated at least BBB-
by Standard & Poor's or at least an equivalent rating by Moody's Investors
Service, Inc.
"DEBT" means, with respect to any Person, without duplication, the
principal amount of (a) its liabilities for borrowed money, (b) its liabilities
for the deferred purchase price of property acquired by such Person (excluding
accounts payable in the ordinary course of business, but including, without
limitation, all liabilities created or arising under any conditional sale or
other title retention agreement with respect to any property), (c) its
Capitalized Lease Obligations, (d) any liabilities for borrowed money secured by
a Lien with respect to any property owned by such Person (whether or not it is
assumed by such Person or such Person otherwise becomes liable for such
liabilities), (e) all liabilities with respect to any unreimbursed draws on
letters of credit and (f) any guaranty of such Person with respect to any of the
foregoing.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States of
America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to time in
effect affecting the rights of creditors generally.
"DEBT SERVICE" means, for any period, Interest Expense for such period
PLUS scheduled principal amortization (excluding any balloon or bullet payment
due at maturity) for such period on all Debt of the Borrower and the
Consolidated Entities and on the Borrower's and each Consolidated Entity's
pro rata share of all Debt of each Unconsolidated Joint Venture. For purposes
of the foregoing definition, the Borrower's and such Consolidated Entity's
pro rata share of such Debt shall be deemed to be equal to the product of
(i) such Debt, multiplied by (ii) the percentage of the total outstanding
Capital Stock of such Unconsolidated Joint Venture held by the Borrower or such
Consolidated Entity, expressed as a decimal.
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<PAGE>
"DEFAULTING LENDER" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after notice
from Agent.
"DEPRECIATION AND AMORTIZATION EXPENSE" means (without duplication),
for any period, the sum for such period of (i) total depreciation and
amortization expense, whether paid or accrued, of the Borrower and the
Consolidated Entities, plus (ii) the Borrower's and each Consolidated Entity's
pro rata share of depreciation and amortization expenses of Unconsolidated Joint
Ventures. For purposes of this definition, the Borrower's and such Consolidated
Entity's pro rata share of depreciation and amortization expense of any
Unconsolidated Joint Venture shall be deemed equal to the product of (i) the
depreciation and amortization expense of such Unconsolidated Joint Venture,
multiplied by (ii) the percentage of the total outstanding Capital Stock of such
Unconsolidated Joint Venture held by the Borrower or such Consolidated Entity,
expressed as a decimal.
"DESIGNATED MARKET" means, with respect to any LIBOR Advance, the
London interbank LIBOR market or such other interbank LIBOR market as may be
designated in writing from time to time by the Requisite Lenders.
"DEVELOPER AFFILIATES" means each Affiliate of Borrower engaged in the
development of real estate and any entity in which any such Affiliate has an
ownership interest.
"DEVELOPMENT INVESTMENTS" means the aggregate of all Investments by
Borrower or any Consolidated Entity in (a) Developer Affiliates or (b) any other
Person (whether or not an affiliate of Borrower) directly or indirectly engaged
in the development of real estate or in the making of land acquisition or
construction loans to other Persons engaged in the development of real estate.
"DISQUALIFIED STOCK" means any capital stock, warrants, options or
other rights to acquire capital stock (but excluding any debt security which is
convertible, or exchangeable, for capital stock), which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable prior to the Maturity Date, pursuant to a sinking fund obligation or
otherwise, or is or may be redeemable at the option of the holder thereof, in
whole or in part, prior to the Maturity Date.
"DOL" means the United States Department of Labor and
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<PAGE>
any successor department or agency.
"DOLLARS" AND "$" means the lawful money of the United States of
America.
"EBITDA" means, for any period, Net Income, plus (without duplication)
(a) Interest Expense (including Borrower's pro rata share of such expense with
respect to each Unconsolidated Joint Venture), (b) Tax Expense (including
Borrower's pro rata share of such expense with respect to each Unconsolidated
Joint Venture) and (c) Depreciation and Amortization Expense (including
Borrower's pro rata share of such expense with respect to each Unconsolidated
Joint Ventures), in each case for such period MINUS (d) the income of any
Consolidated Entity, to the extent that the declaration or payment of dividends
or other distributions by that Consolidated Entity of such income is not at the
time permitted by operation of any Contractual Obligation or Requirement of Law
applicable to such Consolidated Entity. For purposes of this definition,
Borrower's pro rata share of each of the foregoing expenses shall be deemed
equal to the product of (i) such expense of such Unconsolidated Joint Venture,
multiplied by (ii) the percentage of the total outstanding Capital Stock of such
Person held by the Borrower, expressed as a decimal.
"ENTITY" has the meaning set forth in SECTION 6.16.
"ENTITY SECURITY AGREEMENT" has the meaning set forth in SECTION 6.16.
"ENVIRONMENTAL LAWS" has the meaning set forth in SECTION 4.18.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for (a) any liability under Environmental Laws, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA AFFILIATE" means, with respect to any Person, any
(a) corporation which is, becomes, or is deemed to be a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as such Person, (b) partnership, trade or business (whether or not
incorporated) which is, becomes or is deemed to be under common control (within
the meaning of Section 414(c) of the Code) with such Person, (c) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the
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<PAGE>
Code and the lien created under Section 302(f) of ERISA and Section 412(n) of
the Code, Person which is, becomes or is deemed to be a member of the same
"affiliated service group" (as defined in Section 414(m) of the Code) as such
Person, or (d) solely for purposes of potential liability under Section
302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien created
under Section 302(f) of ERISA and Section 412(n) of the Code, other
organization or arrangement described in Section 414(o) of the Code which is,
becomes or is deemed to be required to be aggregated pursuant to regulations
issued under Section 414(o) of the Code with such Person pursuant to Section
414(o) of the Code.
"EVENT OF DEFAULT" means any of the occurrences so defined in
ARTICLE 10.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"EXECUTIVE OFFICER" means the chief executive officer and the chief
financial officer of Borrower.
"FEDERAL FUNDS RATE" means, as of any date of determination, the rate
set forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor, "H.15(519)") for such date opposite the caption "Federal Funds
(Effective)". If for any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotation for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such date under the caption "Federal Funds Effective Rate". If
on any relevant date the appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotation, the rate for such date
will be the arithmetic mean of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that date by
each of three leading brokers of Federal Funds transactions in New York City
selected by the Agent. For purposes of this Agreement, any change in the Base
Rate due to a change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such change.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any governmental authority succeeding to its functions.
"FIRREA" means the Financial Institutions Recovery, Reform and
Enforcement Act of 1989, as amended from time to time.
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<PAGE>
"FISCAL QUARTER" means each three-month period ending on March 31,
June 30, September 30 and December 31.
"FISCAL YEAR" means the fiscal year of Borrower ending on each
December 31.
"FIXED CHARGE COVERAGE RATIO" means, as of the last day of each Fiscal
Quarter, the ratio of (i) EBITDA for the fiscal period consisting of that Fiscal
Quarter and the three (3) immediately preceding Fiscal Quarters, to (ii) Fixed
Charges for such period.
"FIXED CHARGES" means, for any fiscal period, the sum of (i) scheduled
payments of principal of Debt of the Borrower and the Consolidated Entities
(other than any balloon payment, referred to herein as a "BULLET PAYMENT"),
(ii) the Borrower's and each Consolidated Entity's pro rata share of scheduled
payments of principal of Debt of Unconsolidated Joint Ventures (other than
bullet payments) that does not otherwise constitute Debt of and is not otherwise
recourse to the Borrower or such Consolidated Entity or their assets,
(iii) Interest Expense, (iv) the Replacement Reserve Amount for all Real
Properties owned by the Borrower or any of the Consolidated Entities, (v) Tax
Expense, and (vi) all dividends on Preferred Stock distributed or otherwise paid
during such fiscal period, in each case, at the end of such period. For
purposes of clause (ii), the Borrower's and such Consolidated Entity's pro rata
share of payments by any Unconsolidated Joint Venture shall be deemed equal to
the product of (a) the payments made by such Unconsolidated Joint Venture,
multiplied by (b) the percentage of the total outstanding Capital Stock of such
Unconsolidated Joint Venture held by the Borrower or such Consolidated Entity,
expressed as a decimal.
"FIXED RATE NOTICE" means, with respect to a LIBOR Advance pursuant to
SECTION 2.1(b), a notice substantially in the form of EXHIBIT C.
"FIXED RATE PRICE ADJUSTMENT" has the meaning given to such term in
SECTION 2.4(h)(iii).
"FOREIGN PROPERTIES" means all Real Properties which are not located
within the boundaries of the United States.
"FUNDING DATE" means, with respect to any Advance, the date of the
funding of such Advance.
"FUNDS FROM OPERATIONS" shall be interpreted consistently with the
NAREIT Definition and, subject to SECTION 12.3, shall mean, for any period, net
income for such period excluding gains (or losses) from debt restructuring and
sales of Real Property, plus the portion of Depreciation and
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Amortization Expenses during such period which is attributable to Real
Property, and after adjustments for Unconsolidated Joint Ventures.
(Adjustments for Unconsolidated Joint Ventures shall be calculated to reflect
funds from operations on the same basis.)
"GAAP" means generally accepted accounting principles set forth in the
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 nation or government, any federal,
state, local, municipal or other political subdivision thereof or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GROSS ASSET VALUE" means, as of the date of determination, the sum of
(without duplication):
(i) the product of (x) EBITDA of the Borrower and the Consolidated
Entities for the fiscal period consisting of the Fiscal Quarter most recently
ended, multiplied by (y) 4, divided by .10; and
(ii) Cash and Cash Equivalents held by the Borrower and the
Consolidated Entities on the last day of such most recently ended Fiscal
Quarter.
"GROSS REVENUE" means, for any fiscal period, all base and minimum
rent recognized in accordance with GAAP by Borrower and the Consolidated
Entities during such fiscal period from tenants of Unencumbered Assets. "Gross
Revenue" shall not include percentage rent, reimbursements, pass-through
expenses or other amounts.
"GUARANTORS" means Price Enterprises - TX, Inc., a Delaware
corporation, and each Additional Guarantor.
"GUARANTY" means a guaranty in the form of EXHIBIT D executed by
Guarantors.
"GUARANTY OBLIGATION" means, as to any Person, any (a) guarantee by
that Person of Indebtedness of, or other obligation performable by, any other
Person or (b) assurance given by that Person to an obligee of any other Person
with respect to the performance of an obligation by, or the financial condition
of, such other Person, whether direct, indirect or contingent, INCLUDING any
purchase or repurchase
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<PAGE>
agreement covering such obligation or any collateral security therefor, any
agreement to provide funds (by means of loans, capital contributions or
otherwise) to such other Person, any agreement to support the solvency or
level of any balance sheet item of such other Person or any "keep-well" or
other arrangement of whatever nature given for the purpose of assuring or
holding harmless such obligee against loss with respect to any obligation of
such other Person; PROVIDED, HOWEVER, that the term Guaranty Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guaranty Obligation in respect
of Indebtedness shall be deemed to be an amount equal to the stated or
determinable amount of the related Indebtedness (unless the Guaranty
Obligation is limited by its terms to a lesser amount, in which case to the
extent of such amount) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
Person in good faith. The amount of any other Guaranty Obligation shall be
deemed to be zero unless and until the amount thereof has been (or in
accordance with Financial Accounting Standards Board Statement No. 5 should
be) quantified and reflected or disclosed in the consolidated financial
statements (or notes thereto) of such Person.
"INDEBTEDNESS" means, as to any Person (without duplication), (a) all
indebtedness, obligations or other liabilities of such Person for borrowed
money, whether or not subordinated and whether with or without recourse beyond
any collateral security, (b) all indebtedness, obligations or other liabilities
of such Person evidenced by Securities or other similar instruments (other than
payments or distributions with respect to Borrower's Capital Stock), (c) all
reimbursement obligations and other liabilities of such Person with respect to
letters of credit or banker's acceptances issued for such Person's account,
(d) all obligations of such Person to pay the deferred purchase price of
Property or services, (e) the principal portion of Capital Lease Obligations of
such Person set forth in the financial statements of such Person, (f) all
Guaranty Obligations of such Person, (g) all Contractual Obligations of such
Person (other than payments or distributions with respect to the Borrower's
Capital Stock), (h) all indebtedness, obligations or other liabilities of such
Person or others secured by a Lien on any asset of such Person, whether or not
such indebtedness, obligations or liabilities are assumed by, or are a personal
liability of, such Person (including, without limitation, the principal amount
of any assessment or similar indebtedness encumbering any property),(i) ERISA
obligations currently due and payable, (j) as applied to the Borrower and the
Consolidated Entities, all indebtedness, obligations or other liabilities of
Unconsolidated Joint Ventures which are recourse to the Borrower and/or any of
the Consolidated Entities, (k) the Borrower's and Consolidated Entities'
pro rata share of
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Nonrecourse Debt of Unconsolidated Joint Ventures, (l) improvement and
assessment district taxes (including, without limitation, taxes under the
Mello-Roos Community Facilities Act of 1982,) assessed or otherwise due with
respect to any Property of such Person, (m) forward purchase obligations, (n)
purchase obligations based on forward equity sales, (o) contingent
liabilities, (p) unfunded obligations of such Person (including, without
limitation, all obligations to invest in other Persons), and (q) without
duplication or limitation, all liabilities and other obligations included in
the financial statements (or notes thereto) of such Person as prepared in
accordance with GAAP. For purposes of clause (k), the Borrower's and the
Consolidated Entities' pro rata share of Nonrecourse Debt of any
Unconsolidated Joint Venture shall be deemed to be equal to the product of (i)
the Nonrecourse Debt of such Unconsolidated Joint Venture, multiplied by (ii)
the percentage of the total outstanding Capital Stock of such Joint Venture
held by the Borrower or any Consolidated Entity, expressed as a decimal. With
respect to any agreement entered into by such Person to purchase Real
Property, "Indebtedness" shall not include any amount in excess of the amount
(if any) which such Person is obligated to pay as liquidated damages under
such agreement in the event such Person breaches its obligation to purchase
such Real Property.
"INTANGIBLE ASSETS" means assets that are considered intangible assets
under GAAP, including customer lists, goodwill, copyrights, trade names,
trademarks, and patents.
"INTEREST COVERAGE RATIO" means, as of the last day of each Fiscal
Quarter, the ratio of (i) EBITDA for the fiscal period consisting of that Fiscal
Quarter and the three (3) immediately preceding Fiscal Quarters then most
recently ended, to (ii) Interest Expense for such fiscal period.
"INTEREST EXPENSE" means, for any period, the sum (without
duplication) for such period of (i) total interest expense, whether paid or
accrued, of the Borrower and the Consolidated Entities and the portion of any
Capitalized Lease Obligations allocable to interest expense during such period,
including the Borrower's and each Consolidated Entity's share of interest
expenses in Unconsolidated Joint Ventures but excluding amortization or writeoff
of debt discount and expense (except as provided in clause (ii) below),
(ii) with respect to the Borrower and the Consolidated Entities, amortization of
costs related to Swap Agreements, (iii) with respect to the Borrower and the
Consolidated Entities, capitalized interest, (iv) with respect to the Borrower
and the Consolidated Entities, letter of credit fees, (v) amortization of
Capitalized Loan Fees, (vi) to the extent not included in clauses (i), (ii),
(iii), (iv) and (v), the Borrower's and each Consolidated Entity's pro rata
share of interest expense and other amounts of the type referred to in such
clauses of the
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Unconsolidated Joint Ventures, and (vii) interest incurred on any liability or
obligation that constitutes a Guaranty Obligation of the Borrower or any
Consolidated Entity. For purposes of clause (vi), the Borrower's and such
Consolidated Entity's pro rata share of interest expense or other amount of
any Unconsolidated Joint Venture shall be deemed equal to the product of (a)
the interest expense or other relevant amount of such Unconsolidated Joint
Venture, multiplied by (b) the percentage of the total outstanding Capital
Stock of such Unconsolidated Joint Venture held by the Borrower or such
Consolidated Entity, expressed as a decimal.
"INTEREST PERIOD" means, with respect to each LIBOR Advance, a period
commencing on a Business Day and ending one (1), three (3), six (6) or twelve
(12) months thereafter, as specified by the Borrower pursuant to SECTION 2.1(b),
PROVIDED that any such period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such period shall
end on the immediately preceding Business Day.
"INVESTMENT" means, with respect to any Person, (i) any direct or
indirect purchase or other acquisition by that Person of stock or securities, or
any beneficial interest in stock or other securities, of any other Person, any
partnership interest (whether general or limited) in any other Person, or all or
any substantial part of the business or assets of any other Person, (ii) any
direct or indirect loan, advance or capital contribution by that Person to any
other Person, including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business. The amount of any Investment shall
be the amount actually invested (minus any return of capital with respect to
such Investment which has actually been received in Cash or has been converted
into Cash), without adjustments for subsequent increases or decreases in the
value of such Investment.
"INVESTMENT MORTGAGES" mean mortgages or deeds of trust securing
indebtedness owned by Borrower.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"JOINT VENTURE" means a joint venture, partnership, limited liability
company, business trust or similar arrangement, whether in corporate,
partnership or other legal form; provided that, as to any such arrangement in
corporate form, such corporation shall not, as to any Person of which such
corporation is a Subsidiary, be considered to be a Joint Venture to which such
Person is a party.
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"J.P. MORGAN LOAN" means the loan made by Morgan Guaranty Trust
Company of New York ("Morgan Guaranty Trust") to Borrower in the principal
amount of $50,000,000 pursuant to the terms of that certain letter agreement
dated as of September 15, 1998, between Borrower and Morgan Guaranty Trust.
"LAND" means unimproved land owned by Borrower or any Consolidated
Entity for the purpose of future development of improvements. For purposes of
the foregoing definition, "unimproved" means Land on which the construction of
improvements has not commenced or has been discontinued, prior to the completion
of such improvements, for a continuous period of more than sixty (60) days.
"LAW" means, collectively, all international, foreign, federal, state
and local laws, statutes, treaties, rules, regulations, ordinances, codes and
administrative and judicial precedents.
"LENDER TAXES" has the meaning given to such term in SECTION 2.4(g).
"LENDERS" means Wells Fargo (for so long as it holds an interest in a
Note) 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.
At all times that there are no Lenders other than Wells Fargo, the terms
"Lender" and "Lenders" means Wells Fargo (for so long as it holds an interest in
a Note) in its individual capacity. With respect to matters requiring the
consent to or approval of all Lenders at any given time, all then existing
Defaulting Lenders will be disregarded and excluded, and, for voting purposes
only, "all Lenders" shall be deemed to mean "all Lenders other than Defaulting
Lenders".
"LIABILITIES AND COSTS" means all claims, judgments, liabilities,
obligations, responsibilities, losses, damages (including lost profits),
punitive or treble damages, costs, disbursements and expenses (including,
without limitation, reasonable attorneys', experts' and consulting fees and
costs of investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"LIBOR ADVANCE" means an Advance bearing interest at a fixed rate of
interest determined by reference to the LIBOR Rate.
"LIBOR OFFICE" means, relative to any Lender, the office of such
Lender designated as such on the counterpart signature pages hereto or such
other office of a Lender as designated from time to time by notice from such
Lender to Agent, whether or not outside the United States.
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"LIBOR RATE" means, with respect to any LIBOR Advance, the rate per
annum (determined solely by the Agent and rounded upward to the next 1/16th of
one percent ) at which deposits in Dollars are offered to the Agent in the
Designated Market at approximately 9:00 a.m. (California time) two (2) Business
Days prior to the first day of the applicable Interest Period in an amount
approximately equal to such LIBOR Advance, and for a period of time comparable
to the number of days in the applicable Interest Period. The determination of
the LIBOR Rate by Agent shall be conclusive in the absence of manifest error.
The foregoing rate of interest shall be reserve adjusted by dividing the LIBOR
Rate by one (1.00) minus the LIBOR Reserve Percentage, with such quotient to be
rounded upward to the nearest whole multiple of one-hundredth of one percent
(0.01%). All references in this Agreement or other Loan Documents to the LIBOR
Rate include the aforesaid reserve adjustment.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for
LIBOR Advances made by any Lender, the reserve percentage (expressed as a
decimal) equal to the actual aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into
account any transactional adjustments or other scheduled changes in reserve
requirements) announced within Agent as the reserve percentage applicable to
Agent as specified under regulations issued from time to time by the Federal
Reserve Board. The LIBOR Reserve Percentage shall be based on Regulation D of
the Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though Agent were in a net borrowing position.
"LIEN" means any mortgage, deed of trust, pledge, negative pledge,
hypothecation, collateral assignment, deposit arrangement, security interest,
encumbrance (including, but not limited to, easements, rights-of-way, zoning
restrictions and the like), lien (statutory or other), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever, including, without limitation, any conditional sale or other title
retention agreement, the interest of a lessor under a Capital Lease, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement or document having similar
effect (other than a financing statement filed by a "true" lessor pursuant to
9408 of the Uniform Commercial Code) naming the owner of the asset to which such
Lien relates as debtor, under the Uniform Commercial Code or other comparable
law of any jurisdiction.
"LOAN ACCOUNT" has the meaning given to such term in SECTION 2.3.
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"LOAN DOCUMENTS" means this Agreement, the Notes, each Guaranty, the
Stock Pledge Agreement, each Entity Security Agreement, the Price Enterprises
Security Agreement, a Funds Transfer Agreement and all other agreements,
instruments and documents (together with amendments and supplements thereto and
replacements thereof) now or hereafter executed by the Borrower, any Guarantor,
Price Enterprises LP, any Entity and/or any other Person which evidence,
guarantee or secure the Obligations, in each case either as originally executed
or as the same may from time to time be supplemented, modified, amended,
renewed, extended or supplanted.
"MAJOR AGREEMENTS" means, with respect to any Real Property included
within the Unencumbered Pool or which Borrower proposes for inclusion within the
Unencumbered Pool, (a) a lease of such Real Property with respect to 25,000
square feet or more of gross leasable area, and (b) any other agreement,
contract or other document or instrument pertaining to the operation, management
and/or maintenance of such Real Property that affects or otherwise impacts more
than 25% of gross leasable area of such Real Property.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or events
which (a) has had or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Loan Document,
(b) has been or could reasonably be expected to be material and adverse to the
business or condition (financial or otherwise) of Borrower and the Guarantors,
taken as a whole, or (c) has materially impaired or could reasonably be expected
to materially impair the ability of Borrower to perform the
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Obligations or the ability of the Guarantors, taken as a whole, to perform their
obligations under the Guaranties executed by them.
"MATURITY DATE" has the meaning given to such term in SECTION 2.1(d).
"MINORITY INTERESTS" means "minority interests" (determined in
accordance with GAAP) as set forth in Borrower's consolidated financial
statements.
"MULTIEMPLOYER PLAN" means an employee benefit plan defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding
six (6) years was, contributed to by a Person or an ERISA Affiliate.
"NAREIT DEFINITION" has the meaning given to such term in SECTION
12.3.
"NASDAQ" means The Nasdaq National Market.
"NET INCOME" means, for any period, total net income (or loss) of the
Borrower and the Consolidated Entities for such period determined in accordance
with GAAP, provided that there shall be excluded therefrom (i) any charge
attributable to, or otherwise on account of, Minority Interests, (ii) any income
or loss attributable to extraordinary items (including, without limitation, any
income or loss attributable to restructuring of Indebtedness), and (iii) gains
and losses from sales of assets.
"NET OFFERING PROCEEDS" means all cash proceeds (net of discounts)
received by Borrower as a result of (a) the sale or issuance of any equity
security or security convertible into an equity security including common,
preferred or other classes of stock in Borrower or (b) the sale or issuance of
debt instruments or obligations of Borrower, whether or not convertible into any
equity security, LESS, in each case, customary fees and expenses incurred in
connection with such sale or issuance.
"NON-PRO RATA ADVANCE" means an Advance with respect to which fewer
than all Lenders have funded their respective Pro Rata Shares of such Advance
and the failure of the non-funding Lender or Lenders to fund its or their
respective Pro Rata Shares of such Advance constitutes a breach of this
Agreement.
"NONRECOURSE DEBT" means any Debt: (a) under the terms of which the
payee's remedies upon the occurrence of a default are limited to specific,
identified assets of the payor which secure such Debt; and (b) for the repayment
of which the payor has no personal liability beyond the loss of such
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specified assets, except for liability for fraud, material misrepresentations or
misuse or misapplication of insurance proceeds, condemnation awards or rents,
existence of hazardous waste or other customary exceptions to nonrecourse
provisions.
"NOTE" means the promissory note made by Borrower to a Lender
evidencing the Advances under that Lender's Pro Rata Share of the Commitment,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted. The Notes
shall be substantially in the form of EXHIBIT E.
"NOTICE OF BORROWING" means, with respect to a proposed Advance
pursuant to SECTION 2.1(b), a notice substantially in the form of EXHIBIT F.
"OBLIGATIONS" means all present and future obligations of every kind
or nature of Borrower at any time and from time to time owed to Agent or the
Lenders or any one or more of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured, liquidated or unliquidated,
or contingent or noncontingent, including obligations of performance as well as
obligations of payment, and including interest that accrues after the
commencement of any proceeding under any Debtor Relief Law by or against
Borrower.
"OFFICER'S CERTIFICATE" means a certificate signed by a specified
officer of a Person certifying as to the matters set forth therein.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to the functions thereof.
"PERMIT" means any permit, approval, authorization, license, variance
or permission required from a Governmental Authority under an applicable
Requirement of Law.
"PERMITTED LIENS" mean:
(a) Liens (other than Environmental Liens and any Lien imposed under
ERISA) for taxes, assessments or charges of any Governmental Authority or
claims not yet due and any such taxes, assessments, charges or claims which
are due if they are being contested by Borrower in accordance with
SECTION 6.4;
(b) Liens (other than any Lien imposed under ERISA) incurred or
deposits made in the ordinary course of business (including without
limitation surety bonds and appeal bonds) in connection with workers'
compensation, unemployment insurance and other types of social security
benefits or to secure the performance of tenders, bids, leases, contracts
(other than for the repayment of
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Indebtedness), and statutory obligations;
(c) Liens imposed by laws, such as mechanics' liens and other similar
liens arising in the ordinary course of business which secure payment of
obligations not more than thirty (30) days past due or are being contested
as permitted under this Agreement; and
(d) any Liens which are approved by Requisite Lenders.
"PERSON" means any natural person, corporation, limited partnership,
general partnership, joint stock company, limited liability company, limited
liability partnership, joint venture, association, company, trust, bank, trust
company, land trust, business trust or other organization, whether or not a
legal entity, or any other nongovernmental entity, or any Governmental
Authority.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
(other than a Multiemployer Plan) in respect of which Borrower or an ERISA
Affiliate, as applicable, is an "employer" as defined in Section 3(5) of ERISA.
"PREFERRED STOCK" means Borrower's 8-3/4% Series A Cumulative
Redeemable Preferred Stock, par value $0.0001 per share.
"PRICE ADJUSTMENT DATE" has the meaning given to such term in
SECTION 2.4(h)(iii).
"PRICE ENTERPRISES LP" has the meaning set forth in SECTION 6.18.
"PRICE ENTERPRISES SECURITY AGREEMENT" has the meaning set forth in
SECTION 6.18.
"PRICE SELF STORAGE" has the meaning set forth in SECTION 6.17.
"PRICING CERTIFICATE" means a certificate in the form of EXHIBIT G,
properly completed and signed by the chief financial officer, chief executive
officer or chief operating officer of Borrower. Each Pricing Certificate shall
be in such detail and contain such supporting information as Agent may
reasonably require.
"PRICING PERIOD" means the period commencing on the Closing Date and
ending on January 15, 1999, and, thereafter, (a) a period commencing on each
January 16 and ending on the next following April 15, (b) a period commencing on
each April 16 and ending on the next following July 15, (c) a period commencing
on each July 16 and ending on the next following
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October 15 and (d) a period commencing on each October 16 and ending on the
next following January 15.
"PRO FORMA DEBT SERVICE" means, as of the date of determination, the
aggregate annual payments of principal and interest that would be required with
respect to a loan with a principal amount equal to the sum of the outstanding
principal balance of the Advances plus all other unsecured Debt on such date,
where (a) monthly principal and interest payments are calculated based on a
25-year amortization period with equal monthly installments of principal and
interest and (b) interest accrues on such loan at a rate per annum equal to the
greater of (i) the Treasury Base Rate plus 1.75% or (ii) the rate at which the
last Advance for which an interest rate has been set is then bearing interest.
"PRO RATA SHARE" means, with respect to each Lender, the percentage of
the Commitment set forth opposite the name of that Lender on SCHEDULE 1.1, as
such percentage may be increased or decreased pursuant to an Assignment and
Assumption executed in accordance with Section 12.20.
"PROCEEDINGS" means, collectively, all actions, suits and proceedings
before, and investigations commenced or threatened by or before, any court or
Governmental Authority with respect to a Person.
"PROPERTY" means, as to any Person, any real or personal property,
building, facility, structure, equipment or unit, or other asset owned and
operated by such Person in the ordinary course of its business.
"PROPERTY INFORMATION" means the following information and other items
with respect to any Real Property which Borrower intends to designate as an
Unencumbered Asset to be added to the Unencumbered Pool and with respect to each
Real Property which is included in the Unencumbered Pool:
(1) A physical description of such Real Property, the date upon
which such Real Property was acquired by Borrower, the Acquisition Price of
such Real Property, a copy of the purchase agreement pursuant to which
Borrower acquired such Real Property, an appraisal of such Real Property
(if available to Borrower), if the building located on such Real Property
or the use of such building or buildings does not conform to applicable
zoning ordinances and laws, a description of such nonconformity and whether
such building or buildings or use is a legal nonconforming use, a copy of
any reports delivered to Borrower with respect to the structural integrity
of improvements located on such Real Property, Borrower's budget for
capital expenditures for such Real Property for the next succeeding four
(4) Fiscal Quarters
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and market data;
(20 A current operating statement for such Real Property,
audited or certified by Borrower as being true and correct in all material
respects and prepared in accordance with GAAP, and comparative operating
statements for the current interim fiscal period and for the previous two
(2) Fiscal Years (or such lesser period as it has been operating);
PROVIDED, HOWEVER, that, if Borrower shall have owned such Real Property
for less than the period to be covered by such operating statements and
comparative operating statements, then the audit and certification
requirements shall extend only to the period of ownership by Borrower, and
Borrower shall provide to Agent complete copies of any operating statements
prepared by former owner(s) of such Real Property with respect to the
remainder of the periods required hereunder, if the same are available to
Borrower;
(30 Cash flow projections for such Real Property for the next
succeeding four (4) Fiscal Quarters;
(40 A current Rent Roll for such Real Property, certified by
Borrower as being true and correct;
(50 A "Phase I" environmental assessment of such Real Property
not more than twelve (12) months old, prepared by an environmental
engineering firm reasonably acceptable to Agent;
(60 Copies of all Major Agreements affecting such Real Property;
(70 Copies of all insurance policies covering such Real Property
or certificates of such insurance;
(80 A copy of Borrower's most recent Owner's Policy of Title
Insurance covering such Real Property;
(90 A structural inspection report for such Real Property; and
(100 Such other information and materials with respect to such
Real Property as Agent may reasonably request.
"PROPERTY NOI" means, for any Real Property (including, without
limitation, any Retail Property) for any fiscal period, the net operating income
generated by such Real Property for such period determined in accordance with
GAAP (excluding depreciation and amortization), and adjusted by subtracting
therefrom the Replacement Reserve Amount for such Real Property for such period.
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"RATED TENANT" means a tenant of Real Property which is a corporation
with senior long-term unsecured debt obligations which are rated at least BB- by
Standard & Poor's or at least an equivalent rating by Moody's Investors
Service, Inc.
"RATING NOTICE" means written notice from Borrower to Agent delivered
during the period commencing on the first day of a Fiscal Quarter and ending on
the 45th day of such Fiscal Quarter and certifying that, as of the last day of
the Fiscal Quarter most recently ended, (i) Borrower's long-term unsecured
senior Debt was rated by Standard & Poor's (and setting forth such rating and
certifying thereto), (ii) Borrower's long-term unsecured senior Debt was rated
by Moody's Investors Service, Inc. (and setting forth such rating and certifying
thereto) and (iii) the lower of such ratings was BBB- (which is a Standard &
Poor's rating or its equivalent by Moody's Investors Service, Inc.) or higher.
"REAL PROPERTY" means each lot or parcel (or portions thereof) of real
property, together with the improvements and fixtures thereon and appurtenances
thereto now or hereafter owned in fee by the Borrower or any Consolidated
Entity.
"REGULATIONS T, U AND X" mean such Regulations of the Federal Reserve
Board as in effect from time to time.
"RELEASE" means the release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any Real Property, including
the movement of Contaminants through or in the air, soil, surface water,
groundwater or property.
"REMEDIAL ACTION" means any action required by applicable
Environmental Laws to (a) clean up, remove, treat or in any other way address
Contaminants in the indoor or outdoor environment; (b) prevent the Release or
threat of Release or minimize the further Release of Contaminants so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; or (c) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
"RENT ROLL" means, with respect to any Real Property, a rent roll for
such Real Property stating for each tenancy within such Real Property the
identity of the lessee, the suite designation of the space leased, the gross
leasable area included within such space, the date of commencement and the date
of termination of such tenancy, the periods of any options to extend or
terminate such tenancy, the base rent and any escalations or operating expense
reimbursement
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payable in respect of such tenancy, the type of lease (I.E., gross or degree
to which net of expenses, taxes and other items) and whether such lease
contains an option to purchase and/or a right of first refusal.
"REPLACEMENT RESERVE AMOUNT" means, with respect to any Real Property,
a normalized annual reserve for recurring capital expenditures which reserve
shall initially be at the rate of $0.10 per year per square foot of gross
leasable area of such Real Property. Commencing in 2000 such rate may be
adjusted by the Agent, based on the actual experienced rate of capital
expenditures incurred by Borrower with respect to the applicable Real Properties
during 1999 and prior years, provided that such rate shall not, in any event, be
adjusted below $0.10 per year per square foot of gross leasable area of such
Real Property.
"REPORTABLE EVENT" means any of the events described in
Section 4043(c) of ERISA, other than an event for which the thirty (30) day
notice requirement is waived by regulations.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-
laws, partnership agreement or other organizational or governing documents of
such Person, and any law, rule or regulation, Permit, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject, including without limitation, the Securities
Act, the Securities Exchange Act, Regulations T, U and X, FIRREA and any
certificate of occupancy, zoning ordinance, building, environmental or land use
requirement or Permit or occupational safety or health law, rule or regulation.
"REQUISITE LENDERS" means, as of any date of determination,
collectively, Agent and Lenders whose Pro Rata Shares, in the aggregate, are at
least sixty-six and two-thirds percent (66-2/3%), PROVIDED that, in determining
such percentage at any given time, all then existing Defaulting Lenders will be
disregarded and excluded and the Pro Rata Shares of Lenders shall be
redetermined, for voting purposes only, to exclude the Pro Rata Shares of such
Defaulting Lenders.
"RESPONSIBLE OFFICIAL" means those individuals referenced on
Schedule 2.2.
"RETAIL PROPERTY" means any Real Property occupied by Retail Tenants
and shall include shopping centers occupied primarily (as reasonably determined
by Agent) by Retail Tenants, provided that such shopping centers may include, in
addition to Retail Tenants, movie theaters, banks and office uses of the type
commonly located in shopping centers.
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"RETAIL TENANTS" means any Person engaged in the sale of merchandise
directly to consumers. "Retail Tenants" shall not include any Person engaged
primarily in the sale of pornography or services to consumers, such as health
clubs, bowling alleys and such other similar uses as Agent may reasonably
designate.
"SECURITIES" means any stock, shares, voting trust certificates,
bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities", or any certificate of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include any evidence of the Obligations, PROVIDED that
Securities shall not include Cash Equivalents, Investment Mortgages or equity
investments in Unconsolidated Joint Ventures.
"SECURITIES ACT" means the Securities Act of 1933, as amended to the
date hereof and from time to time hereafter, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"SENIOR LOANS" has the meaning given to such term in SECTION 11.11(b).
"SOLVENT" means as to any Person at the time of determination, that
such Person (a) owns Property the value of which (both at fair valuation and at
present fair saleable value) is greater than the amount required to pay all of
such Person's liabilities (including the probable amount of contingent
liabilities and debts); (b) is able to pay all of its debts as such debts mature
(including through refinancing on commercially reasonable terms); and (c) has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage.
"SPECULATIVE DEVELOPMENT" means the development by Borrower or any
Consolidated Entity of improvements to Land where Borrower or such Consolidated
Entity commences construction of such improvements, or enters into any
Contractual Obligation to construct or finance such improvements, prior to
leasing 70% or more of the space within such improvements to Persons (who are
not Affiliates of Borrower) who are unconditionally committed to occupy such
improvements and commence paying rent upon the completion of such improvements.
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"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies.
"STOCKHOLDERS' EQUITY" means, as of any date of determination and with
respect to any Person, the consolidated stockholders' equity of the Person as of
that date determined in accordance with GAAP; provided that there shall be
excluded from Stockholders' Equity any amount attributable to Disqualified
Stock.
"STOCK PLEDGE AGREEMENT" has the meaning set forth in SECTION 6.17.
"SUBSIDIARY" means, as of any date of determination and with respect
to any Person, any corporation, limited liability company or partnership
(whether or not, in either case, characterized as such or as a "joint venture"),
whether now existing or hereafter organized or acquired: (a) in the case of a
corporation or limited liability company, of which a majority of the Securities
having ordinary voting power for the election of directors or other governing
body (other than Securities having such power only by reason of the happening of
a contingency) are at the time beneficially owned by such Person and/or one or
more Subsidiaries of such Person, or (b) in the case of a partnership, of which
a majority of the partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries.
"SWAP AGREEMENT" means a written agreement between Borrower and one or
more financial institutions providing for "swap", "cap", "collar", "floor," "buy
down" or other interest rate protection with respect to any Indebtedness.
"TANGIBLE NET WORTH" means, as of the last day of any Fiscal Quarter,
the net worth of Borrower and the Consolidated Entities, on a consolidated
basis, as determined in accordance with GAAP, MINUS Intangible Assets of
Borrower and the Consolidated Entities (to the extent such Intangible Assets
were included in the foregoing net worth of Borrower and the Consolidated
Entities).
"TAX EXPENSE" means (without duplication), for any period, total tax
expense (if any) attributable to income and franchise taxes based on or measured
by income, whether paid or accrued, of the Borrower and the Consolidated
Entities, including the Borrower's and each Consolidated Entity's pro rata share
of tax expenses in each Unconsolidated Joint Venture. For purposes of this
definition, the Borrower's and such Consolidated Entity's pro rata share of any
such tax expense of such Unconsolidated Joint Venture shall be deemed equal to
the product of (i) such tax expense of such Unconsolidated Joint Venture,
multiplied by (ii) the percentage of the
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total outstanding Capital Stock of such Unconsolidated Joint Venture held by
the Borrower or such Consolidated Entity, expressed as a decimal.
"TERMINATION EVENT" means (a) any Reportable Event, (b) the withdrawal
of a Person or an ERISA Affiliate of such Person from a Benefit Plan during a
plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the occurrence of an obligation arising under
Section 4041 of ERISA of a Person or an ERISA Affiliate of such Person to
provide affected parties with a written notice of an intent to terminate a
Benefit Plan in a distress termination described in Section 4041(c) of ERISA,
(d) the institution by the PBGC of proceedings to terminate any Benefit Plan
under Section 4042 of ERISA, (e) any event or condition which constitutes
grounds under Section 4042 of ERISA for the appointment of a trustee to
administer a Benefit Plan, (f) the partial or complete withdrawal of such Person
or any ERISA Affiliate of such Person from a Multiemployer Plan, or (g) the
adoption of an amendment by any Person or any ERISA Affiliate of such Person to
terminate any Benefit Plan.
"TOTAL LIABILITIES" means, at any time, without duplication, the
aggregate amount of (i) all Indebtedness and other liabilities of the Borrower
and the Consolidated Entities reflected in the financial statements of the
Borrower or disclosed in the financial notes thereto, plus (ii) all liabilities
of all Unconsolidated Joint Ventures that are recourse to the Borrower or any
Consolidated Entity or any of its assets or that otherwise constitute
Indebtedness of the Borrower or any Consolidated Entity, plus (iii) the
Borrower's and each Consolidated Entity's pro rata share of all Indebtedness and
other liabilities of any Unconsolidated Joint Venture not otherwise constituting
Indebtedness of the Borrower or such Consolidated Entity, plus (iv) all Guaranty
Obligations of the Borrower and the Consolidated Entities. For purposes of
clause (iii), the Borrower's and such Consolidated Entity's pro rata share of
all Indebtedness and other liabilities of any Unconsolidated Joint Venture shall
be deemed equal to the product of (a) such Indebtedness or other liabilities,
multiplied by (b) the percentage of the total outstanding Capital Stock of such
Person held by the Borrower or such Consolidated Entity, expressed as a decimal.
"TO THE BEST KNOWLEDGE OF" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by the Person (or, in the case of a person other than a natural
person, known by a Responsible Official of that Person) making the
representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a
reasonable Person in similar circumstances would have done) would have been
known by
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the Person (or, in the case of a Person other than a natural Person, would
have been known by a Responsible Official of that Person).
"TREASURY BASE RATE" means, as of any date of determination, (a) the
rate of interest per annum equal to the yield (adjusted to constant maturity) on
such date of the U.S. Treasury Security maturing on the ten (10)-year
anniversary of such date, provided that, if there shall be more than one
U.S. Treasury Security maturing on the ten (10)-year anniversary of such date,
the Treasury Base Rate shall equal the average of the yields (adjusted to
constant maturity and expressed as a rate per annum) of such U.S. Treasury
Securities, or (b) if no U.S. Treasury Security matures on the ten (10)-year
anniversary of such date, the rate of interest per annum determined by
interpolation between (i) the yield (adjusted to constant maturity and expressed
as a rate per annum) of the U.S. Treasury Security having a maturity as close as
possible to, but after, the ten (10)-year anniversary of such date, and (ii) the
yield (adjusted to constant maturity and expressed as a rate per annum) of the
U.S. Treasury Security having a maturity as close as possible to, but before,
the ten (10)-year anniversary of such date.
"UBS LOAN" means the revolving loan made by Union Bank of Switzerland
(New York Branch) ("UBS") to Borrower in the commitment amount of $50,000,000
pursuant to the terms of that certain Revolving Credit Agreement dated as of
March 31, 1998, among Borrower, UBS, as Bank, and UBS, as Administrative Agent.
"UNCONSOLIDATED JOINT VENTURE" means any Joint Venture of the Borrower
or any Consolidated Entity in which the Borrower or such Consolidated Entity
holds any Capital Stock but which would not be combined with the Borrower in the
consolidated financial statements of the Borrower in accordance with GAAP.
"UNENCUMBERED ASSET" means any Real Property designated by Borrower
that satisfies all of the following conditions:
(i) is a Retail Property;
(ii) is free and clear of any Lien, other than (a) easements,
covenants, and other restrictions, charges or encumbrances not securing
Indebtedness that do not interfere materially with the ordinary operations of
such Real Property and do not materially detract from the value of such Real
Property; (b) building restrictions, zoning laws and other Requirements of
Law,(c) leases and subleases of such Real Property in the ordinary course of
business (which shall not include any ground lease), and (d) Permitted Liens;
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(iii) is Wholly-Owned;
(iv) such Real Property is not less than 85% leased (measured by
rentable square feet) by Persons that (A) are not an Affiliate of Borrower,
(B) are in possession of such Real Property and open for business and operating
their respective businesses from such Real Property and (C) are no more than
30 days in default for nonpayment of Base Rent under their respective leases.
(v) Such Real Property shall be in good condition and repair and
contain no structural defects;
(vi) Such Real Property does not contain any Contaminants;
(vii) If such Real Property is added to the Unencumbered Pool, (A)
no more than twenty-five percent (25%) of Gross Revenue for the Fiscal Quarter
immediately following the Fiscal Quarter during which such Real Property is
added to the Unencumbered Pool will be derived from one Person who is a tenant
of one or more Real Properties within the Unencumbered Pool and/or Affiliates of
such Person, (B) no more than ten percent (10%) of Gross Revenue for the Fiscal
Quarter immediately following the Fiscal Quarter during which such Real Property
is added to the Unencumbered Pool will be derived from restaurants, (C) no less
than forty percent (40%) of Gross Revenue for the Fiscal Quarter immediately
following the Fiscal Quarter during which such Real Property is added to the
Unencumbered Pool will be derived from Rated Tenants and (D) no less than
twenty-five percent (25%) of Gross Revenue for the Fiscal Quarter immediately
following the Fiscal Quarter during which such Real Property is added to the
Unencumbered Pool will be derived from Credit Tenants; and
(viii) The Real Property has been expressly approved by Requisite
Lenders in writing as an Unencumbered Asset as provided in Section 9.1.
"UNENCUMBERED ASSET POOL VALUE" means, as of the last day of each
Fiscal Quarter, the aggregate dollar amount equal to the sum of each of the
amounts obtained by dividing (a) the Annualized Property NOI for each Real
Property in the Unencumbered Pool for the fiscal period consisting of that
Fiscal Quarter and the three immediately preceding Fiscal Quarters, by (b) 10%.
"UNENCUMBERED POOL" means the pool of Unencumbered Assets designated
pursuant to Article 9.
"UNENCUMBERED POOL STATEMENTS" has the meaning given to such term in
SECTION 5.1(f).
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"UNMATURED EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"UNSECURED INDEBTEDNESS" means Debt that is not secured by any Lien
and includes, without limitation, outstanding Advances.
"UNSECURED INTEREST EXPENSE COVERAGE RATIO" means, as of the last day
of each Fiscal Quarter, the ratio of (i) Property NOI of all Unencumbered Assets
for the fiscal period consisting of that Fiscal Quarter and the three
immediately preceding Fiscal Quarters, to (ii) the portion of Interest Expense
that is attributable to Unsecured Indebtedness for such fiscal period.
"UNUSED FACILITY FEE" has the meaning given to such term in
SECTION 2.5(B).
"U.S. TREASURY SECURITY" means, as of any date of determination, each
of the U.S. Treasury Notes and Bonds having the applicable maturities and yields
to maturity (a) as reported at the close of business on such date on the
Bloomberg Financial Market Information Service or, if not available, any other
nationally recognized trading screen reporting on-line intraday trading in
U.S. Treasury Securities, or (b) if such on-line trading screen service is not
available, then as set forth in the most recent Federal Reserve Board
Statistical Release. If there is more than one issuance date associated with
the U.S. Treasury Securities which mature on the ten (10)-year anniversary of
such date and for which the yield to maturity is set forth, then a yield to
maturity for the most recent issuance date associated with such maturity shall
be used for purposes of determining the Treasury Base Rate and if, for any
particularly maturity in the most recent issuance date associated with such
U.S. Treasury Securities that is set forth on such on-line trading screen or
Federal Reserve Board Statistical Release, more than one yield to maturity is
set forth therein, then the average yield associated with such maturity and the
applicable issuance date shall be used for purposes of determining the Treasury
Base Rate.
"WHOLLY-OWNED" means, with respect to any Real Property, that title to
such Real Property is held in fee directly by the Borrower or any wholly-owned
Subsidiary of Borrower.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural shall refer
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
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1.3 TERMS.
(10 Any accounting terms used in this Agreement which are not
specifically defined shall be construed in conformity with, and all financial
data required to be submitted by this Agreement shall be prepared in conformity
with, GAAP, EXCEPT as otherwise specifically prescribed in this Agreement.
(20 In each case where the consent or approval of Agent, all Lenders
and/or Requisite Lenders is required, or their non-obligatory action is
requested by Borrower, such consent, approval or action shall be in the sole and
absolute discretion of Agent and, as applicable, each Lender, unless otherwise
specifically indicated.
(30 Any reference herein to "Borrower and its Subsidiaries" or the
like shall refer solely to Borrower during such times, if any, as Borrower shall
have no Subsidiaries.
(40 Any time the word "or" is used herein, unless the context
otherwise clearly requires, it has the inclusive meaning represented by the
phrase "and/or". The words "hereof", "herein", "hereby", "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement. Article, section, subsection, clause, exhibit and
schedule references are to this Agreement unless otherwise specified. Any
reference in this Agreement to this Agreement or to any other Loan Document
includes any and all amendments, modifications, supplements, renewals or
restatements thereto or thereof, as applicable.
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ARTICLE 2
ADVANCES
2.1 LOAN ADVANCES AND REPAYMENT.
(10 LOAN AVAILABILITY.
(10 Subject to the terms and conditions set forth in this
Agreement, Lenders hereby agree to make Advances to Borrower from time to
time during the period from the Closing Date to the Business Day next
preceding the Maturity Date, subject to the following:
(w) the aggregate principal amount of all outstanding
Advances shall not at any time exceed Fifty Million Dollars
($50,000,000);
(x) the aggregate principal amount of all outstanding
Advances shall not at any time exceed the lesser of (1) the Commitment
or (2) the amount which, when combined with all components of the
unsecured Total Liabilities of Borrower and the Consolidated Entities
other than outstanding Advances and Guaranty Obligations with respect
thereto as of the date of determination, is equal to fifty percent
(50%) of the Unencumbered Asset Pool Value as of such date;
(y) the aggregate principal amount of all outstanding
Advances shall not at any time exceed an amount which would cause
Annualized Property NOI to be less than 160% of Pro Forma Debt
Service; and
(z) The aggregate principal amount of all outstanding
Construction Advances shall not at any time exceed the lesser of
(1) one-half of the Commitment or (2) $25,000,000.
All Advances under this Agreement shall be made by Lenders simultaneously
and proportionately to their respective Pro Rata Shares. Borrower
acknowledges and agrees that neither the Agent nor any Lender shall be
responsible for any failure by any other Lender to perform its obligation
to make an Advance hereunder and that the Pro Rata Share of the Commitment
of any Lender shall not be increased or decreased as a result of the
failure by any other Lender to perform its obligation to make an Advance.
Advances may be voluntarily prepaid pursuant to SECTION 2.6(a) and, subject
to the provisions of this Agreement, any amounts so prepaid may be
reborrowed under this SECTION 2.1(a)(i).
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Interest shall accrue and be payable on outstanding Advances as provided in
SECTION 2.4. The principal balance of the Advances shall be payable in
full on the Maturity Date. The obligation of Borrower to repay Advances
will be evidenced by the Notes.
(20 If, at any time, the aggregate principal amount of all
outstanding Advances is in excess (the "Excess Amount") of the amount
permitted pursuant to Section 2.1(a)(i)(x), Section 2.1(a)(i)(y) and/or
Section 2.1(a)(i)(z), Borrower shall make a principal payment to Agent, for
the benefit of the Lenders, in an amount equal to the Excess Amount within
five (5) days after a Responsible Officer first has notice of such excess.
(20 NOTICE OF BORROWING.
(10 Whenever Borrower desires to borrow under this SECTION 2.1,
but in no event more than three (3) times during any one (1) calendar
month, Borrower shall give Agent, at Wells Fargo Real Estate Group
Disbursement Center, 2120 East Park Place, Suite 100, El Segundo,
California 90245, Attention: Ms. Angela Meick (telephone: (310) 335-9457;
telecopier: (310) 615-1014), with a copy to: Wells Fargo Bank, Real Estate
Group, 401 B Street, San Diego, California 92101, Attention: Ms. Susan
Rosenblatt, or at such other addresses as Agent shall designate, an
original or facsimile Notice of Borrowing no later than 9:00 A.M.
(San Francisco time), not less than three (3) nor more than five (5)
Business Days prior to the proposed Funding Date of each Advance. Each
Notice of Borrowing shall specify (A) the Funding Date (which shall be a
Business Day) of the proposed Advance, (B) the amount of the proposed
Advance, PROVIDED that the aggregate amount of such proposed Advance shall,
if such Advance is a LIBOR Advance, equal One Million Dollars ($1,000,000)
or integral multiples of Fifty Thousand Dollars ($50,000) in excess
thereof, and PROVIDED FURTHER that the aggregate amount of such proposed
Advance shall, if such Advance is a Base Rate Advance, be equal to Two
Hundred Fifty Thousand Dollars ($250,000) or integral multiples of
Ten Thousand Dollars ($10,000) in excess thereof, (C) whether the Advance
to be made thereunder will be a Base Rate Advance or a LIBOR Advance and,
if a LIBOR Advance, the Interest Period, (D) the proposed use of such
Advance and (E) whether all or any portion of the proceeds of such Advance
will constitute a Construction Advance. If all or any portion of any
Advance constitutes a Construction Advance, the Notice of Borrowing with
respect to such Advance shall be accompanied by a cost breakdown with
respect to the use of such Construction Advance in such detail as Agent may
reasonably require, a project description, a proforma income statement,
copies of
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executed leases (if any), a sources and uses of funds statement and such
other materials and information as Agent may reasonably require with
respect to such Construction Advance and the Real Property to be improved
with such Construction Advance. Any Notice of Borrowing pursuant to this
SECTION 2.1(b) shall be irrevocable.
(20 Borrower may elect (A) to convert LIBOR Advances or any
portion thereof into Base Rate Advances, or (B) to convert Base Rate
Advances or any portion thereof to LIBOR Advances, or (C) to convert LIBOR
Advances or any portion thereof into new LIBOR Advances, PROVIDED, HOWEVER,
that the aggregate amount of the Advances being converted into or continued
as LIBOR Advances at any time shall, in the aggregate, equal One Million
Dollars ($1,000,000) or an integral multiple of Fifty Thousand
Dollars ($50,000) in excess thereof. The conversion of a LIBOR Advance to
a Base Rate Advance or to a new LIBOR Advance shall only occur on the last
Business Day of the Interest Period relating to such LIBOR Advance. Each
election under clause (B) above shall be made by Borrower giving Agent an
original or facsimile Notice of Borrowing no later than 9:00 A.M.
(San Francisco time), not less than three (3) nor more than five (5)
Business Days prior to the date of proposed conversion to a LIBOR Advance.
Each election under clause (A) or clause (C) above shall be made by
Borrower giving Agent an original or facsimile Notice of Borrowing no later
than 9:00 A.M. (San Francisco time), not less than three (3) nor more than
five (5) Business Days prior to the last day of the Interest Period for the
LIBOR Advance in question. Each Notice of Borrowing delivered pursuant to
this SECTION 2.1(b)(ii) shall specify (1) the amount of the new LIBOR
Advance or Base Rate Advance, as the case may be, (2) with respect to a new
LIBOR Advance, the Interest Period therefor, and (3) the date of the
effectiveness of the LIBOR Rate or Base Rate, as the case may be (which
date shall be a Business Day).
(30 Upon receipt of a Notice of Borrowing in proper form
requesting LIBOR Advances under subparagraph (i) or (ii) above, Agent shall
deliver a copy thereof (by facsimile) to each Lender by noon (San Francisco
time) on the same day of Agent's receipt thereof and shall determine the
LIBOR Rate applicable to the Interest Period for such LIBOR Advances, and
shall, two (2) Business Days prior to the beginning of such Interest
Period, give (by facsimile) a Fixed Rate Notice in respect thereof to
Borrower and Lenders; PROVIDED, HOWEVER, that failure to give such notice
to Borrower shall not affect the validity of such rate. Each determination
by Agent of the LIBOR Rate shall be conclusive and binding upon the parties
hereto in the
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absence of manifest error.
(40 If Borrower does not make a timely election to convert all
or a portion of a LIBOR Advance into a new LIBOR Advance in accordance with
SECTION 2.1(b)(ii), such LIBOR Advance shall be automatically converted to
a Base Rate Advance upon expiration of the Interest Period applicable to
such LIBOR Advance.
(30 MAKING OF ADVANCES. Subject to SECTION 11.10 or as otherwise
provided herein, Agent shall deposit the proceeds of each new Advance in
Borrower's account number 4443-283155 at the San Diego main office of Agent.
(40 TERM. The outstanding balance of the Advances shall be payable
in full on the EARLIEST TO OCCUR OF, (i) the third anniversary of the Closing
Date, (ii) the acceleration of the Advances pursuant to SECTION 10.2, or
(iii) Borrower's written notice to Agent (pursuant to SECTION 2.8) of Borrower's
election to prepay all accrued Obligations and terminate the Commitment (said
earliest date referred to herein as the "Maturity Date").
(50 PRINCIPAL PAYMENTS. Within ten (10) days after Borrower's
receipt of any Net Offering Proceeds, Borrower shall make a principal payment on
the outstanding principal balance of the Advances to Agent in an amount equal to
the lesser of (i) such outstanding principal balance or (ii) the amount of such
Net Offering Proceeds.
2.2 AUTHORIZATION TO OBTAIN ADVANCES. SCHEDULE 2.2 sets forth the names
of those employees of Borrower authorized by Borrower to sign Notices of
Borrowing, and Agent and Lenders shall be entitled to rely on such Schedule
until notified in writing by Borrower of any change(s) of the persons so
authorized. Agent shall be entitled to act on the instructions of anyone
identifying himself or herself as one of the Persons authorized to execute a
Notice of Borrowing, and Borrower shall be bound thereby in the same manner as
if such Person were actually so authorized. Borrower agrees to indemnify,
defend and hold Lenders and Agent harmless from and against any and all
Liabilities and Costs which may arise or be created by the acceptance of
instructions in any Notice of Borrowing, unless caused by the gross negligence
or willful misconduct of the Person to be indemnified.
2.3 LENDERS' ACCOUNTING. Agent shall maintain a loan account (the "Loan
Account") on its books in which shall be recorded (a) the names and addresses
and the Pro Rata Shares of the Commitment of each of the Lenders, and principal
amount of Advances owing to each Lender from time to time, and (b) all Advances
and repayments of principal and payments of accrued
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interest, as well as payments of fees required to be paid pursuant to this
Agreement. All entries in the Loan Account shall be made in accordance with
Agent's customary accounting practices as in effect from time to time.
Monthly or at such other interval as is customary with Agent's practice, Agent
will render a statement of the Loan Account to Borrower and will deliver a
copy thereof to each Lender. Each such statement shall be deemed final,
binding and conclusive upon Borrower in all respects as to all matters
reflected therein (absent manifest error).
2.4 INTEREST ON THE ADVANCES.
(10 BASE RATE ADVANCES. Subject to SECTION 2.4(d), all Base Rate
Advances shall bear interest on the daily unpaid principal amount thereof from
the date made until paid in full at a fluctuating rate per annum equal to the
Base Rate.
(20 LIBOR ADVANCES. Subject to SECTIONS 2.4(d) and 2.4(h), LIBOR
Advances shall bear interest on the unpaid principal amount thereof during the
Interest Period applicable thereto at a rate per annum equal to the sum of the
LIBOR Rate for such Interest Period PLUS the Applicable LIBOR Rate Margin (which
may change during such Interest Period). No more than six (6) LIBOR Advances
shall be outstanding at any one time. Notwithstanding anything to the contrary
contained herein and subject to the default interest provisions contained in
SECTION 2.4(d), if an Event of Default occurs and as a result thereof the
Commitment is terminated, all LIBOR Advances will convert to Base Rate Advances
upon the expiration of the applicable Interest Periods therefor or the date all
Advances become due, whichever occurs first.
(30 INTEREST PAYMENTS. Subject to SECTION 2.4(d), interest accrued
on all Advances shall be payable by Borrower, in the manner provided in
SECTION 2.6(b), in arrears on the first Business Day of the first calendar month
following the Closing Date, the first Business Day of each succeeding calendar
month thereafter, and on the Maturity Date.
(40 DEFAULT INTEREST. Notwithstanding the rates of interest
specified in SECTIONS 2.4(a) and 2.4(b) and the payment dates specified in
SECTION 2.4(c), effective at the option of Requisite Lenders following the
occurrence and during the continuance of any Event of Default, the principal
balance of all Advances then outstanding and, to the extent permitted by
applicable law, any interest payments not paid when due, shall bear interest,
payable upon demand, at a rate which is five percent (5%) per annum in excess of
the rate(s) of interest otherwise payable from time to time under this
Agreement. Notwithstanding anything to the contrary in any of
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the other Loan Documents, all other amounts due Agent or Lenders (whether
directly or for reimbursement) under this Agreement or any of the other Loan
Documents if not paid when due, or if no time period is expressed, if not paid
within ten (10) days after demand, shall bear interest from and after demand
at the rate set forth in this SECTION 2.4(d).
(50 LATE FEE. Borrower acknowledges that late payment to Agent will
cause Agent and Lenders to incur costs not contemplated by this Agreement. Such
costs include, without limitation, processing and accounting charges.
Therefore, if Borrower fails timely to pay any sum due and payable hereunder
through the Maturity Date, unless waived by Agent pursuant to the last sentence
of this SECTION 2.4(e) or by Requisite Lenders, a late charge of four
percent (4%) of any such principal payment, interest or other charge which is
due hereon and which is not paid within fifteen (15) days after such payment is
due, shall be charged by Agent (for the benefit of Lenders) and paid by Borrower
for the purpose of defraying the expense incident to handling such delinquent
payment. Borrower, Lenders and Agent agree that this late charge represents a
reasonable sum considering all of the circumstances existing on the date hereof
and represents a fair and reasonable estimate of the costs that Agent and
Lenders will incur by reason of late payment. Borrower, Lenders and Agent
further agree that proof of actual damages would be costly and inconvenient.
Acceptance of any late charge shall not constitute a waiver of the default with
respect to the overdue installment, and shall not prevent Agent from exercising
any of the other rights available hereunder or under any other Loan Document.
Such late charge shall be paid without prejudice to any other rights or remedies
of Agent or any Lender. Lenders agree that, notwithstanding the foregoing, no
such late charge shall be charged by Agent or any Lender if the outstanding
Advances are then bearing interest at the default rate of interest set forth in
SECTION 2.4(d). Agent is hereby authorized on behalf of all Lenders, without
the necessity of any notice to, or further consent from, any Lender, to waive
the imposition of the late fees provided for in this SECTION 2.4(e) up to a
maximum of three (3) times per calendar year.
(60 COMPUTATION OF INTEREST. Interest shall be computed on the basis
of the actual number of days elapsed in the period during which interest or fees
accrue and a year of three hundred sixty (360) days. In computing interest on
any Advance, subject to Section 2.6(b), the date of the making of the Advance
shall be included and the date of payment shall be excluded; PROVIDED, HOWEVER,
that if an Advance is repaid on the same day on which it is made, one (1) day's
interest shall be paid on that Advance. Notwithstanding any provision in this
SECTION 2.4, interest in respect of any Advance shall not exceed the maximum
rate permitted by applicable law.
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(70 CHANGES; LEGAL RESTRICTIONS. In the event that, after the
Closing Date, (i) the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of a court or Governmental Authority or
any change in the interpretation or application thereof by a court or
Governmental Authority, or (ii) compliance by Agent or any Lender with any
request or directive made or issued after the Closing Date (whether or not
having the force of law and whether or not the failure to comply therewith would
be unlawful) from any central bank or other Governmental Authority or quasi-
governmental authority:
(10 subjects Agent or any Lender to any tax, duty or other
charge of any kind with respect to the Commitment, this Agreement or any of
the other Loan Documents, including the Notes or the Advances, or changes
the basis of taxation of payments to Agent or such Lender of principal,
fees, interest or any other amount payable hereunder, except for net
income, gross receipts, gross profits or franchise taxes imposed by any
jurisdiction and not specifically based upon loan transactions (all such
non-excepted taxes, duties and other charges being hereinafter referred to
as "Lender Taxes");
(20 imposes, modifies or holds applicable, in the determination
of Agent or any Lender, any reserve, special deposit, compulsory loan, FDIC
insurance, capital allocation or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, Agent or such Lender or any applicable lending office (except to the
extent that the reserve and FDIC insurance requirements are reflected in
the "Base Rate" or in determining the LIBOR Rate); or
(30 imposes on Agent or any Lender any other condition
materially more burdensome in nature, extent or consequence than those in
existence as of the Closing Date,
and the result of any of the foregoing is to increase the cost to Agent or any
Lender of making, renewing, maintaining or participating in the Advances or to
reduce any amount receivable thereunder; THEN, in any such case, Borrower shall
promptly pay to Agent or such Lender, as applicable, within seven (7) Business
Days after Borrower's receipt of written demand, such amount or amounts (based
upon a reasonable allocation thereof by Agent or such Lender to the financing
transactions contemplated by this Agreement and affected by this SECTION 2.4(g))
as may be necessary to compensate Agent or such Lender for any such additional
cost incurred or reduced amounts received. Agent or such Lender shall deliver
to
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Borrower and in the case of a delivery by any Lender, such Lender shall also
deliver to Agent, a written statement of the claimed additional costs incurred
or reduced amounts received and the basis therefor as soon as reasonably
practicable after such Lender obtains knowledge thereof. If Agent or any Lender
subsequently recovers any amount of Lender Taxes previously paid by Borrower
pursuant to this SECTION 2.4(g), whether before or after termination of this
Agreement, then, upon receipt of good funds with respect to such recovery, Agent
or such Lender will refund such amount to Borrower if no Event of Default or
Unmatured Event of Default then exists or, if an Event of Default or Unmatured
Event of Default then exists, such amount will be credited to the Obligations in
the manner determined by Agent or such Lender.
(80 CERTAIN PROVISIONS REGARDING LIBOR ADVANCES.
(10 LIBOR LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to Borrower and Agent, be
conclusive and binding on the parties hereto) that after the Closing Date
the introduction of or any change in or in the interpretation of any law
makes it unlawful, or any central bank or other Governmental Authority
asserts that it is unlawful, for such Lender to make or maintain any
Advance as a LIBOR Advance, (A) the obligations of such Lender to make or
maintain any Advances as LIBOR Advances shall, upon such determination,
forthwith be suspended until such Lender shall notify Agent that the
circumstances causing such suspension no longer exist (and such Lender
shall give notice if such circumstances no longer exist), and (B) if
required by such law or assertion, the existing LIBOR Advances of such
Lender shall automatically convert into Base Rate Advances.
(20 DEPOSITS UNAVAILABLE. If Agent shall have determined in
good faith that adequate means do not exist for ascertaining the interest
rate applicable hereunder to LIBOR Advances, then, upon notice from Agent
to Borrower the obligations of all Lenders to make or maintain Advances as
LIBOR Advances shall forthwith be suspended until Agent shall notify
Borrower that the circumstances causing such suspension no longer exist.
Agent will give such notice when it determines, in good faith, that such
circumstances no longer exist; PROVIDED, HOWEVER, that neither Agent nor
any Lender shall have any liability to any Person with respect to any delay
in giving such notice.
(30 FIXED RATE PRICE ADJUSTMENT. Borrower acknowledges that
prepayment or acceleration of a LIBOR Advance during an Interest Period
shall result in Lenders incurring additional costs, expenses and/or
liabilities
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and that it is extremely difficult and impractical to ascertain the
extent of such costs, expenses and/or liabilities. Therefore, on the
date a LIBOR Advance is prepaid or the date all sums payable hereunder
become due and payable, by acceleration or otherwise ("Price Adjustment
Date"), Borrower shall pay to Agent, for the account of each Lender, in
addition to all other sums then owing, an amount ("Fixed Rate Price
Adjustment") equal to the then present value of (A) the amount of interest
that would have accrued on the LIBOR Advance for the remainder of the
Interest Period at the rate applicable to such LIBOR Advance, less (B) the
amount of interest that would accrue on the same LIBOR Advance for the same
period if the LIBOR Rate were set on the Price Adjustment Date. The
present value shall be calculated by using as a discount rate the LIBOR
Rate quoted on the Price Adjustment Date.
By initialing this provision where indicated Borrower waives any
right Borrower may have under California Civil Code Section 2954.10
to repay any LIBOR Advances, in whole or in part, without payment
of the Fixed Rate Price Adjustment upon acceleration of the
maturity date of such Advances, and Borrower further confirms that
Lenders' agreement to make LIBOR Advances at the interest rates and
on the other terms set forth herein constitutes adequate and
valuable consideration, given individual weight by Borrower, for
this waiver and agreement.
BORROWER'S INITIALS: /s/ JM /s/ GN
-----------------------
Within seven (7) Business Days after Borrower's receipt of written notice
from Agent, Borrower shall immediately pay to Agent, for the account of
Lenders, the Fixed Rate Price Adjustment as calculated by Agent. Such
written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
parties hereto.
(40 Borrower understands, agrees and acknowledges the following:
(A) no Lender has any obligation to purchase, sell and/or match funds in
connection with the use of the LIBOR Rate as a basis for calculating the
rate of interest on a LIBOR Rate Advance or a Fixed Rate Price Adjustment;
(B) the LIBOR Rate is used merely as a reference in determining such rate
and/or Fixed Rate Price Adjustment; and (C) Borrower has accepted the LIBOR
Rate as a reasonable and fair basis for calculating such rate and a Fixed
Rate Price Adjustment. Borrower further agrees to pay the Fixed Rate Price
Adjustment and Lender Taxes, if any, whether or not a
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Lender elects to purchase, sell and/or match funds.
(90 WITHHOLDING TAX EXEMPTION. At least five (5) Business Days prior
to the first day on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the
United States of America, or a state thereof, agrees that it will deliver to
Agent and Borrower two (2) duly completed copies of United States Internal
Revenue Service Form 1001 or Form 4224, certifying in either case that such
Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Lender which so
delivers a Form 1001 or Form 4224 further undertakes to deliver to Agent and
Borrower two (2) additional copies of such form (or any applicable successor
form) on or before the date that such form expires (currently, three (3)
successive calendar years for Form 1001 and one (1) calendar year for Form 4224)
or becomes obsolete or after the occurrence of any event requiring a change in
the most recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by Agent or
Borrower, in each case certifying that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income taxes. If any Lender cannot deliver
such form, then Borrower may withhold from such payments such amounts as are
required by the Code.
2.5 FEES.
(10 COMMITMENT FEE. Borrower shall pay to Agent, solely for the
account of Agent, a commitment fee in respect of the Commitment pursuant to a
separate agreement between Agent and Borrower.
(20 UNUSED FACILITY FEE. From and after the Closing Date and until
the Obligations are paid in full and this Agreement is terminated or, if sooner,
the date the Commitment terminates, and subject to SECTION 11.11(b), Borrower
shall pay to Agent, for the account of each Lender, a fee (the "UNUSED FACILITY
FEE") accruing at the "Unused Facility Fee Rate" (as that term is hereinafter
defined) upon an amount equal to (i) $50,000,000 less all reductions in the
Commitment pursuant to SECTION 2.7 or SECTION 2.8 MINUS (ii) the average daily
principal balance of all outstanding Advances as determined for each Fiscal
Quarter.
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The Unused Facility Fee Rate shall be computed as follows:
(10 For any Fiscal Quarter in which the average daily principal
balance of all outstanding Advances is less than or equal to
fifty percent (50%) of the Commitment, the Unused Facility Fee
Rate shall be 0.20% per annum;
(20 For any Fiscal Quarter in which the average daily principal
balance of all outstanding Advances is greater than fifty percent
(50%) of the Commitment, the Unused Facility Fee Rate shall be
0.125% per annum.
The Unused Facility Fee shall be payable, in the manner provided in
Section 2.5(d), in arrears on the first Business Day in each Fiscal Quarter,
beginning with the first Fiscal Quarter after the Closing Date, and shall be
payable on the Maturity Date or, if sooner, the date the Commitment terminates.
The Unused Facility Fee shall be prorated for any period of less than a full
Fiscal Quarter.
(30 AGENCY FEES. Borrower shall pay Agent, solely for the account of
Agent, such fees as are provided for in the fee agreement between Agent and
Borrower, as in existence from time to time.
(4) PAYMENT OF FEES. The fees described in this SECTION 2.5
represent compensation for services rendered and to be rendered separate and
apart from the lending of money or the provision of credit and do not constitute
compensation for the use, detention or forbearance of money, and the obligation
of Borrower to pay the fees described herein shall be in addition to, and not in
lieu of, the obligation of Borrower to pay interest, other fees and expenses
otherwise described in this Agreement. All fees shall be payable when due in
immediately available funds and shall be nonrefundable when paid. If Borrower
fails to make any payment of fees or expenses specified or referred to in this
Agreement due to Agent or Lenders, including without limitation those referred
to in this SECTION 2.5, in SECTION 12.1, or otherwise under this Agreement or
any separate fee agreement between Borrower and Agent or any Lender relating to
this Agreement, when due, the amount due shall bear interest until paid at the
Base Rate and after ten (10) days at the rate specified in SECTION 2.4(d) (but
not to exceed the maximum rate permitted by applicable law), and shall
constitute part of the Obligations. The Unused Facility Fee shall be calculated
on the basis of a 360-day year and the actual number of days elapsed.
2.6 PAYMENTS.
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(1) VOLUNTARY PREPAYMENTS. Borrower may, upon not less than three
(3) Business Days prior written notice to Agent not later than 11:00 A.M. (San
Francisco time) on the date given, at any time and from time to time, prepay any
Advances in whole or in part. Any notice of prepayment given to Agent under
this SECTION 2.6(a) shall specify the date of prepayment and the aggregate
principal amount of the prepayment. In the event of a prepayment of LIBOR
Advances, Borrower shall pay any Fixed Rate Price Adjustment payable in respect
thereof in accordance with SECTION 2.4(h). Agent shall provide to each Lender a
confirming copy of such notice on the same Business Day such notice is received.
(2) MANNER AND TIME OF PAYMENT. All payments of principal, interest
and fees hereunder payable to Agent or the Lenders shall be made without
condition or reservation of right and free of set-off or counterclaim, in
Dollars and by wire transfer (pursuant to Agent's written wire transfer
instructions) of immediately available funds, to Agent, for the account of each
Lender entitled thereto not later than 11:00 A.M. (San Francisco time) on the
date due; and funds received by Agent after that time and date shall be deemed
to have been paid on the next succeeding Business Day.
(3) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
by Borrower hereunder shall be stated to be due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder and of any of the fees specified in SECTION 2.5, as the case
may be.
2.7 NOTICE OF INCREASED COSTS AND CERTAIN PROVISIONS REGARDING LIBOR
ADVANCES. Each Lender agrees that, as promptly as reasonably practicable after
it becomes aware of the occurrence of an event or the existence of a condition
which would cause it to be affected by any of the events or conditions described
in SECTION 2.4(g) or (h) and in no event later than ninety (90) days after the
principal officer of such Lender responsible for administering this Agreement
for such Lender obtains knowledge thereof, it will notify Borrower, and provide
a copy of such notice to Agent, of such event and the possible effects thereof,
PROVIDED that the failure to provide notice shall not affect such Lender's
rights to reimbursement provided for herein with respect to claims arising prior
to the end of such 90-day period, but shall relieve Borrower of its obligations
under this Section 2.7 with respect to the time between the end of such
90-period and such time as Borrower receives notice from such Lender. Provided
no Event of Default or Unmatured Event of Default has occurred and is
continuing, Borrower shall have the following rights:
(1) The right (the "Payoff Right") to pay to such
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Lender all principal, accrued and unpaid interest and any other amounts
(collectively, the "Payoff Amount") due such Lender under this Agreement and
the other Loan Documents (including amounts due such Lender under SECTION
2.4(g)). Borrower may exercise the Payoff Right ONLY by delivering written
notice of Borrower's exercise of such Payoff Right to such Lender, the Agent
and the other Lenders within 15 days after Borrower's receipt of written
notice from such Lender that Borrower owes amounts under SECTION 2.4(g) or
LIBOR Advances are being suspended or terminated pursuant to SECTION 2.4(h)
and thereafter paying, in immediately available funds, the Payoff Amount to
such Lender within such 15-day period. Upon such Lender's receipt of the
Payoff Amount, such Lender's Pro Rata Share of the Commitment shall be
terminated, the Commitment shall be reduced by an amount equal to such
Lender's Pro Rata Share of the Commitment and the Pro Rata Shares of the
Commitment of the remaining Lenders shall be adjusted and the Agent shall give
written notice to each of the Lenders of the adjusted Pro Rata Shares; and
(2) Upon at least twenty (20) Business Days' prior irrevocable
written notice to each of such Lender and Agent, to replace the Pro Rata Share
of the Commitment of such Lender in its entirety; PROVIDED that Borrower shall
replace such Pro Rata Share of such Commitment with the Commitment of a
commercial bank reasonably satisfactory to the Agent. Such replacement Lender
shall upon the effective date of replacement purchase, pursuant to an
appropriately modified Assignment and Assumption, the Obligations owed to such
replaced Lender for the aggregate amount thereof and shall thereupon for all
purposes become a "Lender" hereunder. Such notice from Borrower shall specify
an effective date for the replacement of such Lender's Commitment, which date
shall not be later than the twentieth (20th) day after the day such notice is
given. On the effective date of any replacement of such Lender's Commitment
pursuant to this Section 2.7, Borrower shall pay to Agent for the account of
such Lender (i) any fees due to such Lender to the date of such replacement,
(ii) accrued interest on the principal amount of outstanding Advances held by
such Lender to the date of such replacement, (iii) the amount or amounts
requested by such Lender pursuant to Section 2.4(g), as applicable and (iv) all
other amounts owing to such Lender under the Loan Documents. Without limitation
upon the foregoing, Borrower shall remain liable to such replaced Lender for any
Fixed Rate Price Adjustment. Upon the effective date of repayment of the
foregoing amounts and termination of such Lender's Commitment pursuant to this
Section 2.7, such Lender shall cease to be a Lender hereunder.
2.8 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENT. At any time prior
to the Maturity Date, Borrower may, upon not less than 5 Business Days' prior
written notice to the Agent, terminate the Commitment in effect or permanently
reduce the
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Commitment in effect by an aggregate minimum amount of Five Million Dollars
($5,000,000) or any multiple of One Million Dollars ($1,000,000) in excess
thereof; PROVIDED, HOWEVER, that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayment of Advances
made on the effective date of such termination or reduction, as the case may
be, the then outstanding principal amount of the Advances would exceed the
Commitment in effect; PROVIDED FURTHER, HOWEVER, that once terminated or
reduced in accordance with this SECTION 2.8, the Commitment in effect may not
thereafter be reinstated or increased; and PROVIDED FURTHER, HOWEVER, that
although the Commitment in effect may be terminated entirely pursuant to this
SECTION 2.8, the Commitment in effect shall not be reduced below Forty Million
Dollars ($40,000,000). All accrued and unpaid fees due under SECTION 2.5 with
respect to the portion of the Commitment in effect being terminated or reduced
shall be paid to the Agent on the effective date of such termination or
reduction.
2.9 FACILITY INCREASE.
(1) Wells Fargo shall, during the period commencing on the Closing
Date and ending on January 31, 1999, use reasonable efforts to attempt to
syndicate (the "Syndication") this Agreement to one or more new Lenders (each, a
"New Syndicate Member") pursuant to such agreements and other documents (the
"New Syndicate Member Documents") as Wells Fargo may require, including, without
limitation, a joinder to this Agreement to be executed by any New Syndicate
Member in form and substance satisfactory to Wells Fargo. Borrower agrees to
cooperate fully with Wells Fargo's Syndication efforts and to provide sufficient
information (including, without limitation, financial information) as Wells
Fargo may reasonably request to enable Wells Fargo to prepare an information
package for use in the Syndication efforts. Wells Fargo shall have no liability
or obligation of any kind whatsoever to Borrower or any other Person in the
event that Wells Fargo does not, for any reason, syndicate this Agreement to one
or more New Syndicate Members.
(2) If one or more New Syndicate Members join in this Agreement, the
Commitment shall be increased to an amount (the "Increased Commitment") not to
exceed $100,000,000.
(3) Borrower acknowledges and agrees that the execution of the New
Syndicate Member Documents will require that this Agreement and the other Loan
Documents be modified and Borrower agrees to execute and deliver, and to cause
each Guarantor to execute and deliver, such modifications as Wells Fargo may
reasonably require. In connection with the Syndication, Borrower shall execute
and deliver such new Notes to the New Syndicate Members as are necessary to
reflect the foregoing. The Agent shall prepare and circulate a revised
Schedule 1.1 giving effect to the Increased Commitment.
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(4) In connection with the Syndication, Borrower agrees to reimburse
Wells Fargo for all reasonable costs and expenses incurred by Wells Fargo in
connection with the Syndication.
(5) Upon the effective date of the New Syndicate Member Documents
with respect to each New Syndicate Member, such New Syndicate Member shall be a
Lender for all purposes of this Agreement and the other Loan Documents.
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ARTICLE 3
CONDITIONS TO ADVANCES
3.1 CONDITIONS TO INITIAL ADVANCES. The obligation of Lenders to make the
initial Advances shall be subject to the satisfaction, or waiver by Requisite
Lenders, of each of the following conditions precedent on or before December 31,
1998:
(1) BORROWER LOAN DOCUMENTS. Borrower and each Guarantor shall have
executed and delivered to Agent each of the following (to the extent such entity
is a party to such document), in form and substance acceptable to Agent and each
other Lender:
(1) this Agreement;
(2) the Notes;
(3) the Guaranty;
(4) the Price Enterprises Security Agreement;
(5) a Funds Transfer Agreement;
(6) the Stock Pledge Agreement; and
(7) all other documents which Agent reasonably requires to be
executed by or on behalf of Borrower.
(2) CORPORATE AND OTHER GOVERNING DOCUMENTS. Agent shall have
received the corporate and other governing documents of the Borrower and each
Guarantor and a certificate of each such entity's Secretary or an officer
comparable thereto with respect to authorization, incumbency and all
organizational documents.
(3) FEES AND EXPENSES. Agent shall have received all fees then due
to Agent and to Lenders and shall have received reimbursement for all costs and
expenses for which Borrower is obligated pursuant to Section 12.1 and for which
Borrower has received an invoice, and Borrower shall have performed all of its
other obligations as set forth in the Loan Documents to make payments to Agent
on or before the Closing Date and all expenses of Agent incurred prior to such
Closing Date and for which Borrower has received an invoice shall have been paid
by Borrower.
(4) OPINION OF COUNSEL. Agent shall have received, on behalf of
Agent and Lenders, favorable opinions of counsel for Borrower and each Guarantor
dated as of the Closing
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Date, in form and substance reasonably satisfactory to Agent, Lenders and
their respective counsel.
(5) CONSENTS AND APPROVALS. All material licenses, permits,
consents, regulatory approvals and corporate action necessary to enter into the
financing transactions contemplated by this Agreement shall have been obtained
by Borrower and each Guarantor.
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES. The obligation of each Lender
to make any Advance (including the initial Advance) requested to be made by it,
on any date, is subject to the satisfaction or waiver by Requisite Lenders of
the following conditions precedent as of such date:
(1) NOTICE OF BORROWING. With respect to a request for an Advance,
Agent shall have received, on or before the Funding Date and in accordance with
the provisions of SECTION 2.1(b), an original and duly executed Notice of
Borrowing.
(2) ADDITIONAL MATTERS. As of the Funding Date for any Advance and
after giving effect to the Advance being requested:
(1) NO DEFAULT. After giving effect to the requested Advance,
no Event of Default or Unmatured Event of Default shall have occurred and
be continuing or would result from the making of the requested Advance (it
being intended that Lenders shall have no obligation to fund any Advance
during the period allowed under this Agreement for cure of any event or
condition which, if not cured during such period, would become an Event of
Default), and, without limitation, all of the covenants contained in
SECTIONS 7.5 and 7.6 and ARTICLE 8 shall be satisfied;
(2) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties contained in this Agreement and in any other Loan Document
(other than those representations and warranties which expressly provide
that they speak as of a certain date (E.G., "as of the Closing Date"))
shall be true and correct in all material respects on and as of such
Funding Date, as though made on and as of such date, and Borrower shall so
certify;
(3) NO MATERIAL ADVERSE EFFECT. No Material Adverse Effect
shall have occurred; and
(4) LITIGATION PROCEEDINGS. There shall not have been
instituted or threatened, any litigation or proceeding in any court or
before any Governmental Authority affecting or threatening to affect
Borrower which, if adversely determined, would have a Material
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Adverse Effect on Borrower, as reasonably determined by Agent.
(5) COMPLIANCE WITH SECTION 8.3. Borrower shall be in
compliance with SECTION 8.3 after such Advance is made.
Each submission by Borrower to Agent of a Notice of Borrowing with respect to an
Advance and the acceptance by Borrower of the proceeds of each such Advance made
hereunder shall constitute a representation and warranty by Borrower as of the
Funding Date in respect of such Advance that all the conditions contained in
this SECTION 3.2 have been satisfied.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to make the Advances, Borrower hereby
represents and warrants to Agent and Lenders as follows:
4.1 ORGANIZATION; PARTNERSHIP POWERS. Borrower (i) is a corporation duly
organized, validly existing and in good standing under the laws of Maryland,
(ii) is duly qualified to do business and in good standing under the laws of
California and each other jurisdiction in which it owns or leases real property
or in which the nature of its business requires it to be so qualified, except
for those jurisdictions where failure to so qualify and be in good standing
would not have a Material Adverse Effect on Borrower, and (iii) has all
requisite power and authority to own, operate and encumber its Property and
assets and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the transactions
contemplated by the Loan Documents.
4.2 AUTHORITY. Borrower has the requisite corporate power and authority
to execute, deliver and perform each of the Loan Documents to which it is or
will be a party. The execution, delivery and performance thereof, and the
consummation of the transactions contemplated thereby, have been duly authorized
by all necessary actions. Each of the Loan Documents to which Borrower is a
party has been duly and validly executed and delivered by Borrower and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency and other laws
affecting creditors' rights generally and general equitable principles.
4.3 NO CONFLICT. The execution, delivery and performance by Borrower of
the Loan Documents to which it is or will be a party, and each of the
transactions contemplated thereby, do not and will not (i) conflict with or
violate Borrower's articles of incorporation, bylaws or other organizational
documents, as the case may be, or (ii) conflict with, result in a breach of or
constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law, Contractual Obligation or Court Order of or binding upon
Borrower, which would constitute a Material Adverse Effect or (iii) require
termination of any Contractual Obligation, which termination would constitute a
Material Adverse Effect or (iv) to the best of Borrower's knowledge, result in
or require the creation or imposition of any Lien whatsoever upon any of the
Properties or assets of Borrower (other than Permitted Liens).
4.4 CONSENTS AND AUTHORIZATIONS. Borrower has obtained
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all consents and authorizations required pursuant to its Contractual
Obligations with any other Person, and shall have obtained all consents and
authorizations of, and effected all notices to and filings with, any
Governmental Authority, as may be necessary to allow Borrower to lawfully
execute, deliver and perform its obligations under the Loan Documents to which
Borrower is a party, except to the extent that failure to obtain any such
consent or authorization or to effect such notice or filing would not
constitute a Material Adverse Effect.
4.5 GOVERNMENTAL REGULATION. Borrower is not subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, the Investment Company Act of 1940 or any other federal
or state statute or regulation such that its ability to incur indebtedness is
limited or its ability to consummate the transactions contemplated by the Loan
Documents is materially impaired.
4.6 FINANCIAL STATEMENTS; PROJECTIONS AND FORECASTS. Each of the
financial statements to be delivered to Agent pursuant to SECTIONS 5.1(b) and
(c) (i) has been, or will be, as applicable, prepared in accordance with the
books and records of the Borrower and the Consolidated Entities on a
consolidated basis, and (ii) either fairly present in all material respects, or
will fairly present in all material respects, as applicable, the financial
condition of the Borrower and the Consolidated Entities on a consolidated basis,
at the dates thereof (and, if applicable, subject to normal year-end
adjustments) and the results of its operations and cash flows, on a consolidated
basis, for the period then ended. Each of the projections delivered to Agent
prior to the date hereof and each of the projected consolidated cash flows to be
delivered to Agent pursuant to SECTION 5.1(e), (A) has been, or will be, as
applicable, prepared by the Borrower in light of the past business and
performance of the Borrower on a consolidated basis and (B) represent, or will
represent, as of the date thereof, the reasonable good faith estimates of the
Borrower's financial personnel as of their respective dates.
4.7 PRIOR OPERATING STATEMENTS. Each of the operating statements
pertaining to each of the Unencumbered Assets in the Unencumbered Pool prepared
by Borrower and delivered to Agent prior to the date hereof was prepared in
accordance with GAAP in effect on the date such operating statement of each such
Unencumbered Asset was prepared and fairly presents the results of operations of
such Unencumbered Asset for the period then ended.
4.8 UNENCUMBERED POOL STATEMENTS AND PROJECTIONS. Each of the
Unencumbered Pool Statements to be delivered to Agent pursuant to SECTION 5.1(f)
(i) has been or will be, as
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applicable, prepared in accordance with the books and records of the
applicable Unencumbered Asset and (ii) fairly presents or will fairly present
in all material respects, as applicable, the results of operations of such
Unencumbered Asset for the period then ended.
4.9 LITIGATION; ADVERSE EFFECTS.
(1) Except as otherwise disclosed on SCHEDULE 4.9, there is no
action, suit, proceeding, governmental investigation or arbitration, at law
or in equity, or before or by any Governmental Authority, pending or, to
the best of Borrower's knowledge, threatened against Borrower or any
Property of Borrower which, if adversely determined, would constitute a
Material Adverse Effect.
(2) Borrower is not (A) in violation of any applicable law,
which violation has a Material Adverse Effect on Borrower, or (B) subject
to or in default with respect to any Court Order which has a Material
Adverse Effect on Borrower. There are no material Proceedings pending or,
to the best of Borrower's knowledge, threatened against Borrower or any
Unencumbered Asset which, if adversely decided, would constitute a Material
Adverse Effect.
4.10 NO MATERIAL ADVERSE CHANGE. Since the Closing Date, (i) there has
occurred no event which would constitute a Material Adverse Effect and (ii) no
material adverse change in Borrower's ability to perform its obligations under
the Loan Documents to which it is a party or the transactions contemplated
thereby has occurred.
4.11 PAYMENT OF TAXES. All tax returns and reports to be filed by
Borrower have been timely filed, and all taxes, assessments, fees and other
governmental charges shown on such returns or otherwise payable by Borrower have
been paid when due and payable (other than real property taxes, which may be
paid prior to delinquency so long as no penalty or interest shall attach
thereto), except such taxes, if any, as are reserved against in accordance with
GAAP and are being contested in good faith by appropriate proceedings or such
taxes, the failure to make payment of which when due and payable will not
constitute, in the aggregate, a Material Adverse Effect. Borrower has no
knowledge of any proposed tax assessment against Borrower that would constitute
a Material Adverse Effect.
4.12 MATERIAL ADVERSE AGREEMENTS. Borrower is not a party to or subject
to any Contractual Obligation or other restriction contained in its articles of
incorporation, bylaws or similar governing documents which would constitute a
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Material Adverse Effect.
4.13 PERFORMANCE. To the best of Borrower's knowledge, Borrower is not in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation applicable to
it, and no condition exists which, with the giving of notice or the lapse of
time or both, would constitute a default under such Contractual Obligation,
except where the consequences, direct or indirect, of such default or defaults,
if any, would not constitute a Material Adverse Effect.
4.14 FEDERAL RESERVE REGULATIONS. The Borrower is not engaged primarily
in the business of extending credit for the purpose of purchasing or carrying
out any "margin stock" as defined in Regulation U. No part of the proceeds of
the Advances hereunder will be used for any purpose that violates, or which is
inconsistent with, the provisions of Regulation X or any other regulation of the
Federal Reserve Board.
4.15 DISCLOSURE. The representations and warranties of Borrower contained
in the Loan Documents and all certificates, financial statements and other
documents delivered to Agent in connection therewith, do not contain any untrue
statement of a material fact or omit to state a material fact necessary, in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading; provided no
representation is made as to any information in the financial reports for any
Real Property prior to its ownership by Borrower. The factual information in
any document, certificate or written statement furnished to the Agent by or on
behalf of the Borrower or any Consolidated Entity with respect to the business,
assets, prospects, results of operations or financial condition of the Borrower
or any Consolidated Entity, including operating statements and Rent Rolls for
periods when the Real Property covered by such statements or Rent Rolls is owned
by Borrower, for use in connection with the transactions contemplated by this
Agreement, was true and correct in all material respects as of the applicable
date. There is no fact known to Borrower or any Consolidated Entity that would
constitute a Material Adverse Effect which has not been disclosed herein or in
such other documents, certificates and statements. Borrower has given to Agent
true, correct and complete copies of all Major Agreements, organizational
documents, financial statements of the Borrower and the Consolidated Entities,
Unencumbered Pool Statements and all other documents and instruments referred to
in the Loan Documents as having been delivered to Agent. Borrower has not
intentionally withheld any material fact from Agent in regard to any matter
raised in the Loan Documents which would cause its representations and
warranties to be misleading. Notwithstanding the foregoing, with respect to
projections of Borrower's future performance such
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representations and warranties are made in good faith and to the best judgment
of Borrower as of the date thereof.
4.16 REQUIREMENTS OF LAW. The Borrower and the Consolidated Entities are
in compliance with all Requirements of Law (including without limitation the
Securities Act and the Securities Exchange Act, and the applicable rules and
regulations thereunder, state securities law and "Blue Sky" laws) applicable to
it and its respective businesses, in each case, where the failure to so comply
will have a Material Adverse Effect on any such Person. The Borrower has made
all filings with and obtained all consents of the Commission required under the
Securities Act and the Securities Exchange Act in connection with the execution,
delivery and performance by the Borrower of the Loan Documents.
4.17 PATENTS, TRADEMARKS, PERMITS, ETC. The Borrower and the Consolidated
Entities own, are licensed or otherwise have the lawful right to use, or have,
all Permits, patents, trademarks, trade names, copyrights, technology, know-how
and processes used in or necessary for the conduct of each such Person's
business as currently conducted, the absence of which would constitute a
Material Adverse Effect. The use of such Permits, patents, trademarks, trade
names, copyrights, technology, know-how and processes by each such Person does
not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liability on the
part of any such Person which would constitute a Material Adverse Effect.
4.18 ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE 4.18 or in
any phase I environmental or other reports delivered to Agent, to the best
knowledge of Borrower, (i) the operations of the Borrower comply in all material
respects with all applicable, local, state and federal environmental, health and
safety Requirements of Law ("ENVIRONMENTAL LAWS"); (ii) none of the Unencumbered
Assets or operations thereon are subject to any Remedial Action or other
Liabilities and Costs arising from the Release or threatened Release of a
Contaminant into the environment in violation of any Environmental Laws, which
Remedial Action or other Liabilities and Costs would constitute a Material
Adverse Effect; (iii) neither the Borrower nor any Consolidated Entity has filed
any notice under applicable Environmental Laws reporting a Release of a
Contaminant into the environment in violation of any Environmental Laws, except
as the same may have been heretofore remedied or otherwise would not constitute
a Material Adverse Effect; (iv) there is not now on or in any Unencumbered
Assets (except in compliance in all material respects with all applicable
Environmental Laws): (A) any underground storage tanks, (B) any asbestos-
containing material, or (C) any polychlorinated biphenyls (PCB's) used in
hydraulic oils, electrical transformers or other equipment owned by such
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Person; and (v) neither the Borrower nor any Consolidated Entity has received
any notice or claim to the effect that it is or may be liable to any Person
as a result of the Release or threatened Release of a Contaminant into the
environment which would constitute a Material Adverse Effect.
4.19 SOLVENCY. Borrower is and will be Solvent after giving effect to the
disbursements of the Advances and the payment and accrual of all fees then
payable.
4.20 TITLE TO ASSETS. Borrower has good, indefeasible and merchantable
title to all Properties, including, without limitation, all Unencumbered Assets,
owned by it.
4.21 MANAGEMENT AGREEMENTS. Except as disclosed on SCHEDULE 4.21 (as
amended from time to time), Borrower is not a party or subject to any third
party management agreement with respect to any of the Properties included within
the Unencumbered Pool.
4.22 CAPITALIZATION. All of the issued capital stock of the Borrower has
been issued in compliance in all material respects with all applicable
Requirements of Law.
4.23 ERISA. Neither the Borrower nor any ERISA Affiliate thereof
(including, for all purposes under this SECTION 4.23, the Consolidated Entities)
has in the past five (5) years maintained or contributed to or currently
maintains or contributes to any Benefit Plan other than the Benefit Plans
identified on SCHEDULE 4.23 (as such Schedule may be amended from time to time).
Neither the Borrower nor any ERISA Affiliate thereof has during the past five
(5) years maintained or contributed to or currently maintains or contributes to
any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
which provides benefits to retirees other than benefits required to be provided
under Section 4980B of the Code and Sections 601 through 608 of ERISA (or any
successor provisions thereto) or applicable state law. Neither the Borrower nor
any ERISA Affiliate thereof is now contributing nor has it ever contributed to
or been obligated to contribute to any Multiemployer Plan, no employees or
former employees of the Borrower, or such ERISA Affiliate, have been covered by
any Multiemployer Plan in respect of their employment by the Borrower, and no
ERISA Affiliate of the Borrower has or is likely to incur any withdrawal
liability with respect to any Multiemployer Plan which would have a Material
Adverse Effect on the Borrower.
4.24 STATUS AS A REIT. Borrower (i) is a real estate investment trust as
defined in Section 856 of the Code, (ii) has not engaged in any "prohibited
transactions" as defined in Section 857(b)(6)(B)(iii) of the Code, (iii) for its
current "tax year" (as defined in the Code) is, and shall
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remain, entitled to a dividends paid deduction which meets the requirements
of Section 857 of the Code and (iv) its ownership and method of operation
enable it to meet the requirements for taxation as a real estate investment
trust under the Code.
4.25 NASDAQ LISTING. The Preferred Stock and the common stock of the
Borrower is, and shall be, listed for trading and traded on NASDAQ or another
national securities exchange reasonably acceptable to Agent.
4.26 J.P. MORGAN LOAN. Prior to the date of this Agreement, Borrower
delivered to Agent copies of all agreements, notes and other documents executed
by Borrower in connection with the J.P. Morgan Loan (collectively, the
"J.P. Morgan Loan Documents"). Borrower is not in default under any J.P. Morgan
Loan Document. As of the date of this Agreement, the outstanding principal
balance of the J.P. Morgan Loan is $50,000,000.
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ARTICLE 5
REPORTING COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment and performance in full of all of the Obligations, the
expiration of the Commitment and termination of this Agreement:
5.1 FINANCIAL STATEMENTS AND OTHER FINANCIAL AND OPERATING INFORMATION.
Borrower shall maintain or cause to be maintained a system of accounting
established and administered in accordance with sound business practices and
consistent with past practice to permit preparation of quarterly and annual
financial statements in conformity with GAAP, and each of the financial
statements described below shall be prepared on a consolidated basis for
Borrower and the Consolidated Entities from such system and records. Borrower
shall deliver or cause to be delivered to Agent (with copies of bound materials
sufficient for each Lender):
(1) COMMISSION FILINGS. Reasonably promptly following their filing
with the Commission, copies of all required reports and filings filed with the
Commission, including, without limitation, the Annual Report on Form 10-K, the
Quarterly Reports on Form 10-Q, registration statements, proxy statements and
the annual reports delivered to the shareholders of Borrower and the
Consolidated Entities.
(2) ANNUAL FINANCIAL STATEMENTS. Within ninety (90) days after the
close of each Fiscal Year, consolidated balance sheets, statements of
operations, stockholders' equity and cash flows for Borrower and the
Consolidated Entities (in the form provided to the Commission on Borrower's
Form 10-K), audited and certified without qualification by the Accountants and
accompanied by a statement directed to the Borrower that, in the course of their
audit (conducted in accordance with generally accepted auditing standards), the
Accountants obtained no knowledge of noncompliance by the Borrower with any term
or provision of this Agreement insofar as accounting matters are concerned. To
the extent Agent desires additional details or supporting information with
respect to Unconsolidated Joint Ventures or individual Real Properties which are
not Unencumbered Assets within the Unencumbered Pool and which details and
information are not contained in the Borrower's Form 10-K, Borrower shall
provide Agent with such details or supporting information as Agent requests
which is reasonably available to Borrower. Without limiting the foregoing, at
Agent's request, within ninety (90) days after the end of each Fiscal Year,
Borrower, with respect to Real Property which is not included within the
Unencumbered Pool, shall provide to Agent operating statements and a schedule
setting forth the percentage of leasable area leased to tenants
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in occupancy, with footnotes indicating which leases are in default in rent
payments by more than thirty (30) days (other than technical, nonmaterial
disputes concerning percentage rentals due) and any other material provisions
in respect to which Borrower has issued a notice of default, for such Real
Property.
(3) QUARTERLY FINANCIAL STATEMENTS CERTIFIED BY EXECUTIVE OFFICER.
As soon as practicable, and in any event within forty-five (45) days after the
end of each Fiscal Quarter, consolidated balance sheets, stockholders' equity,
statements of operations and statements of cash flow for Borrower and the
Consolidated Entities, which may, in the case of the first three Fiscal
Quarters, be in the form provided to the Commission on Borrower's Form 10-Q, and
certified by an Executive Officer.
(4) OFFICER'S CERTIFICATE OF BORROWER. (i) Together with each
delivery of any financial statement pursuant to subsection (c) above, an
Officer's Certificate of Borrower, stating that the Executive Officer who is the
signatory thereto has reviewed, or caused under his or her supervision to be
reviewed, the terms of this Agreement and the other principal Loan Documents,
and has made, or caused to be made under his or her supervision, a review in
reasonable detail of the transactions and condition of Borrower and the
Consolidated Entities during the accounting period covered by such financial
statements of Borrower and the Consolidated Entities, and that such review has
not disclosed the existence at the end of such accounting period, and that the
signers do not have knowledge of the existence as of the date of the Officer's
Certificate, of any condition or event which constitutes an Event of Default or
Unmatured Event of Default, or, if any such condition or event exists,
specifying the nature and period of existence thereof and what action has been
taken, is being taken and is proposed to be taken with respect thereto; and
(ii) together with each delivery pursuant to subsection (c) above, a Compliance
Certificate demonstrating in reasonable detail (which detail shall include
actual calculations and such supporting information as Agent may reasonably
require) compliance at the end of such accounting periods with the covenants
contained in SECTIONS 7.5 and 7.6 and ARTICLE 8.
(5) CASH FLOWS; BALANCE SHEET PROJECTIONS; "BLUE BOOK"; PROJECTS
UNDER CONSTRUCTION. As soon as practicable, and, in any event, within sixty
(60) days after each June 30 and December 31, (i) projected consolidated cash
flows for Borrower and the Consolidated Entities for the current Fiscal Quarter
and the immediately following four (4) Fiscal Quarters (which shall include,
without limitation, Cash and Cash Equivalents and the projected use of Advances
during such Fiscal Quarters), (ii) projected consolidated balance sheets for
Borrower and the Consolidated Entities for the
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current Fiscal Quarter and the immediately following four (4) Fiscal
Quarters, (iii) Borrower's most current "blue book", (iv) a written statement
setting forth each construction project of Borrower and each Consolidated
Entity, together with such information with respect thereto as Agent may
reasonably require and (v) a summary of Borrower's acquisition pipeline.
Borrower shall also provide such additional supporting details as Agent may
reasonably request.
(6) UNENCUMBERED POOL STATEMENTS AND OPERATING RESULTS. As soon as
practicable, and in any event within forty-five (45) days after the end of each
Fiscal Quarter, quarterly operating statements for each Unencumbered Asset in
the Unencumbered Pool, in a form approved by Agent, which operating statements
shall include actual quarterly and year-to-date operating income results, and
Rent Rolls for each Unencumbered Asset within the Unencumbered Pool dated as of
the last day of such Fiscal Quarter (the "QUARTERLY UNENCUMBERED POOL
STATEMENTS"), in form and substance satisfactory to Agent, certified as being
true and correct in all material respects by Borrower's chief financial officer,
chief accounting officer, chief executive officer or chief operating officer.
In addition, each Quarterly Unencumbered Pool Statement shall certify (i) the
Gross Revenue for such Fiscal Quarter, (ii) that no more than
twenty-five percent (25%) of Gross Revenue for such Fiscal Quarter was derived
from one Person who is a tenant of one or more Real Properties within the
Unencumbered Pool and/or Affiliates of such Person (collectively, "SINGLE
TENANT"), or, if such is not the case, the percentage of Gross Revenue for such
Fiscal Quarter which was derived from a Single Tenant and the identity of such
Single Tenant, (iii) the percentage of Gross Revenue for such Fiscal Quarter
which was derived from each of Rated Tenants and Credit Tenants and (iv) the
percentage of Gross Revenue for such Fiscal Quarter which was derived from
restaurants, all in such reasonable detail as Agent may reasonably require. In
addition, as soon as practicable, and in any event within ninety (90) days after
the end of the fourth Fiscal Quarter, a year-end operating statement, in form
approved by Agent, which operating statement shall include year-to-date net
operating income results for each Unencumbered Asset within the Unencumbered
Pool dated as of the last day of such Fiscal Quarter (collectively, with the
Quarterly Unencumbered Pool Statements, the "UNENCUMBERED POOL STATEMENTS").
Agent shall also have the right to request the foregoing information with
respect to any Real Property owned by Borrower or any Consolidated Entity.
(7) BUDGETS FOR UNENCUMBERED POOL. Not later than fifteen (15) days
prior to the beginning of each Fiscal Year, annual operating budgets (including,
without limitation, overhead items and capital expenditures) for each
Unencumbered Asset in the Unencumbered Pool for such Fiscal Year, prepared
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on an annual basis, in a form approved by Agent, together with all supporting
details reasonably requested by Agent, and certified by the chief executive
officer, chief operating officer, chief financial officer or chief accounting
officer of Borrower as being based upon Borrower's reasonable good faith
estimates, information and assumptions at the time.
(8) KNOWLEDGE OF EVENT OF DEFAULT. Promptly upon a Responsible
Official of Borrower obtaining knowledge (i) of any condition or event which
constitutes an Event of Default or Unmatured Event of Default, or becoming aware
that any Lender has given notice or taken any other action with respect to a
claimed Event of Default or Unmatured Event of Default or (ii) of any condition
or event which constitutes a Material Adverse Effect, an Officer's Certificate
specifying the nature and period of existence of any such condition or event, or
specifying the notice given or action taken by such Lender and the nature of
such claimed Event of Default, Unmatured Event of Default, event or condition,
and what action Borrower has taken, is taking and proposes to take with respect
thereto.
(9) LITIGATION, ARBITRATION OR GOVERNMENT INVESTIGATION. Promptly
upon a Responsible Official of Borrower obtaining knowledge of (i) the
institution of, or threat of, any material action, suit, proceeding,
governmental investigation or arbitration against or affecting Borrower not
previously disclosed in writing by Borrower to Agent pursuant to this
SECTION 5.1(i) or (ii) any material development in any action, suit, proceeding,
governmental investigation or arbitration already disclosed, which, in either
case, has, or if adversely determined is reasonably likely to have, a Material
Adverse Effect, a notice thereof to Agent and such other information as may be
reasonably available to it to enable Agent, Lenders and their counsel to
evaluate such matters.
(10) ERISA TERMINATION EVENT. As soon as possible, and in any event
within thirty (30) days after a Responsible Official of Borrower knows that a
Termination Event has occurred, a written statement of the chief financial
officer of Borrower describing such Termination Event and the action, if any,
which Borrower or any ERISA Affiliate of Borrower has taken, is taking or
proposes to take, with respect thereto, and, when known, any action taken or
threatened by the IRS, the DOL or the PBGC with respect thereto.
(11) PROHIBITED ERISA TRANSACTION. As soon as possible, and in any
event within thirty (30) days, after a Responsible Official of Borrower or any
ERISA Affiliate of any of them knows that a prohibited transaction (defined in
Section 406 of ERISA and Section 4975 of the Code and which is not subject to a
statutory or prohibited transaction class exemption) has occurred, a statement
of the chief financial
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officer of Borrower describing such transaction.
(12) BENEFIT PLAN ANNUAL REPORT. On request of Agent, within thirty
(30) days after the filing thereof with the DOL, the IRS or the PBGC, copies of
each annual report, including Schedule B thereto, filed with respect to each
Benefit Plan of Borrower or any ERISA Affiliate of Borrower.
(13) BENEFIT PLAN FUNDING WAIVER REQUEST. Within thirty (30) days
after the filing thereof with the IRS, a copy of each funding waiver request
filed with respect to any Benefit Plan of Borrower or any ERISA Affiliate of
Borrower and all communications received by Borrower or any ERISA Affiliate of
Borrower with respect to such request.
(14) ESTABLISHMENT OF BENEFIT PLAN AND INCREASE IN CONTRIBUTIONS TO
THE BENEFIT PLAN. Not less than ten (10) days prior to the effective date
thereof, a notice to Agent of the establishment of a Benefit Plan (or the
incurrence of any obligation to contribute to a Multiemployer Plan) by Borrower
or any ERISA Affiliate of Borrower. Within thirty (30) days after the first to
occur of an amendment of any then existing Benefit Plan of Borrower or any ERISA
Affiliate of Borrower which will result in a material increase in the benefits
under such Benefit Plan or a notification of any such increase, or the
establishment of any new Benefit Plan by Borrower or any ERISA Affiliate of
Borrower or the commencement of contributions to any Benefit Plan to which
Borrower or any ERISA Affiliate of Borrower was not previously contributing, a
copy of said amendment, notification or Benefit Plan.
(15) QUALIFICATION OF ERISA PLAN. Promptly upon, and in any event
within thirty (30) days after, receipt by Borrower or any ERISA Affiliate of
Borrower of an unfavorable determination letter from the IRS regarding the
qualification of a Plan under Section 401(a) of the Internal Revenue Code, a
copy of said determination letter, if such disqualification would have a
Material Adverse Effect on Borrower.
(16) MULTIEMPLOYER PLAN WITHDRAWAL LIABILITY. Promptly upon, and in
any event within thirty (30) days after receipt by Borrower or any ERISA
Affiliate of Borrower of a notice from a Multiemployer Plan regarding the
imposition of material withdrawal liability, a copy of said notice.
(17) FAILURE TO MAKE SECTION 412 PAYMENT. Promptly upon, and in any
event within thirty (30) days after, Borrower or any ERISA Affiliate of Borrower
fails to make a required installment under subsection (m) of Section 412 of the
Internal Revenue Code or any other payment required under Section 412 of the
Internal Revenue Code on or before the due date for such installment or payment,
a notification of such failure, if such failure could result in either the
imposition of a Lien under
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said Section 412 or otherwise have or could reasonably be anticipated to have
a Material Adverse Effect.
(18) FAILURE OF BORROWER TO QUALIFY AS REAL ESTATE INVESTMENT TRUST.
Promptly upon, and in any event within forty-eight (48) hours after a
Responsible Official of Borrower first has actual knowledge of (i) Borrower
failing to continue to qualify as a real estate investment trust as defined in
Section 856 of the Internal Revenue Code (or any successor provision thereof),
(ii) any act by Borrower causing its election to be taxed as a real estate
investment trust to be terminated, (iii) any act causing Borrower to be subject
to the taxes imposed by Section 857(b)(6) of the Internal Revenue Code (or any
successor provision thereto), or (iv) Borrower failing to be entitled to a
dividends paid deduction which meets the requirements of Section 857 of the
Internal Revenue Code, a notice of any such occurrence or circumstance.
(19) ASSET ACQUISITIONS AND DISPOSITIONS, INDEBTEDNESS, MERGER, ETC.
Without limiting, modifying or waiving any restriction in the Loan Documents,
concurrently with notice to Borrower's priority mailing list and in all events
not later than any public disclosure, written notice of any material investments
(other than in Cash Equivalents), material acquisitions, asset purchases,
dispositions, disposals, divestitures or similar transactions involving
Property, the raising of additional equity or the incurring or repayment of
material Debt, or any material merger, by or with Borrower, and, if requested by
Agent after the consummation of such transaction, a Compliance Certificate
within 7 Business Days after the date of such request, in form and substance
reasonably acceptable to Agent, demonstrating in reasonable detail (which detail
shall include actual calculations and such supporting information as Agent may
reasonably require) compliance, after giving effect to such proposed
transaction(s), with the covenants contained in SECTIONS 7.5 and 7.6 and
ARTICLE 8. For purposes of this SECTION 5.1(s), any investment, acquisition,
asset purchase, disposition, disposal, divestiture, merger or similar
transaction shall be considered "material" if it involves assets exceeding ten
percent (10%) of Borrower's assets (as existing prior to giving effect to such
transaction). Borrower's written notice of each Real Property acquisition or
disposition, if required in accordance with the foregoing, shall contain a
description of all improvements which are a part of such Real Property, the
square footage of such improvements, the acquisition or disposition price and
such other information with respect thereto reasonably requested by the Agent.
(20) OTHER INFORMATION. Upon the reasonable request of Agent, such
other information, reports, contracts, schedules, lists, documents, agreements
and instruments in the possession of the Borrower with respect to (i) the
Unencumbered
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Assets (which, if requested by Agent, shall include Property Information) or
any other assets of the Borrower or any Consolidated Entity (either on an
individual or an aggregate basis), (ii) any material change in the Borrower's
investment, finance or operating policies, or (iii) the Borrower's or any
Consolidated Entity's business, condition (financial or otherwise),
operations, performance, properties or prospects as Agent may from time to
time reasonably request, including, without limitation, annual information
with respect to cash flow projections, budgets, operating statements (current
year and immediately preceding year), Rent Rolls, lease expiration reports,
leasing status reports, note payable summaries, bullet note summaries, equity
funding requirements, contingent liability summaries, line of credit
summaries, line of credit collateral summaries, wrap note or note receivable
summaries, schedules of outstanding letters of credit, summaries of Cash and
Cash Equivalents, projections of leasing fees and overhead budgets. Provided
that Agent gives Borrower reasonable prior written notice and an opportunity
to participate, Borrower hereby authorizes Agent (whenever Agent deems it
reasonably necessary or appropriate) to communicate with the Accountants and
authorizes the Accountants to disclose (subject to the Accountants'
disclosure policies) to Agent any and all financial statements and other
information of any kind, including copies of any management letter or the
substance of any oral information, that such accountants may have with
respect to the Unencumbered Assets or Borrower's or any Consolidated Entity's
condition (financial or otherwise), operations, properties, performance and
prospects. Concurrently therewith, Agent will notify Borrower of any such
communication and, at Agent's request, Borrower shall deliver a letter
addressed to the Accountants instructing them to disclose such information in
compliance with this SECTION 5.1(t).
(21) PRESS RELEASES; SEC FILINGS AND FINANCIAL STATEMENTS. Telephonic
or telecopy notice to Agent concurrently with or prior to issuance of any
material press release concerning the Borrower and, as soon as practicable after
filing with the Commission, all reports and notices, proxy statements,
registration statements and prospectuses of the Borrower. All materials sent or
made available generally by the Borrower to the holders of its publicly-held
Securities or filed with the Commission, including all periodic reports required
to be filed with the Commission, shall be delivered by Borrower to Agent as soon
as available.
(22) ACCOUNTANT REPORTS. Copies of all reports prepared by the
Accountants and submitted to Borrower in connection with each annual, interim or
special audit or review of the financial statements or practices of Borrower,
including the comment letter submitted by the Accountants in connection with
their annual audit.
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5.2 ENVIRONMENTAL NOTICES. Borrower shall notify Agent, in writing, as
soon as practicable, and in any event within ten (10) days after a Responsible
Official of Borrower's learning thereof, of any: (a) written notice or claim to
the effect that the Borrower or any Consolidated Entity is or may be liable to
any Person as a result of any material Release or threatened Release of any
Contaminant into the environment; (b) written notice that the Borrower or any
Consolidated Entity is subject to investigation by any Governmental Authority
evaluating whether any Remedial Action is needed to respond to the Release or
threatened Release of any Contaminant into the environment; (c) written notice
that any Property of the Borrower or any Consolidated Entity is subject to an
Environmental Lien; (d) written notice of violation of any Environmental Laws to
the Borrower or any Consolidated Entity or awareness of a condition which might
reasonably result in a notice of violation of any Environmental Laws by the
Borrower or any Consolidated Entity; (e) commencement or written threat of any
judicial or administrative proceeding alleging a violation of any Environmental
Laws; (f) written notice from a Governmental Authority of any changes to any
existing Environmental Laws that could constitute a Material Adverse Effect; or
(g) any proposed acquisition of stock, assets, real estate or leasing of
property, or any other action by Borrower that, to the best of Borrower's
knowledge, could subject the Borrower or any Consolidated Entity to
environmental, health or safety Liabilities and Costs that could constitute a
Material Adverse Effect. With regard to the matters referred to in clauses (a)
through (e) above, the same shall apply in respect of each Unencumbered Asset
only if the matter will have a material adverse effect on such Unencumbered
Asset and, in the case of other Real Property of the Borrower or any
Consolidated Entity, only if the matter could reasonably be expected to
constitute a Material Adverse Effect.
5.3 CONFIDENTIALITY. Confidential information obtained by Agent or
Lenders pursuant to this Agreement or in connection with the Advances shall not
be disseminated by Agent or Lenders and shall not be disclosed to third parties
except (a) to regulators, taxing authorities and other Governmental Authorities
having jurisdiction over Agent or such Lender or otherwise in response to
Requirements of Law, (b) to their respective auditors and legal counsel and in
connection with regulatory, administrative and judicial proceedings as necessary
or relevant, including enforcement proceedings relating to the Loan Documents,
and (c) to any prospective assignee of or participant in a Lender's interest
under this Agreement or any prospective purchaser of the assets or a controlling
interest in any Lender, provided that such prospective assignee, participant or
purchaser first agrees to be bound by the provisions of this SECTION 5.3. In
connection with disclosures of confidential information to any non-
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governmental third-party, the Lender(s) from whom the same has been requested
shall, to the extent feasible and permitted, give prior notice of such
request to Borrower; however, neither Agent nor any such Lender shall incur
any liability to Borrower for failure to do so. For purposes hereof,
"confidential information" shall mean all nonpublic information obtained by
Agent or Lenders, unless and until such information becomes publicly known,
other than as a result of unauthorized disclosure by Agent or Lenders of such
information.
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ARTICLE 6
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment and performance in full of all of the Obligations, the
expiration of the Commitment and termination of this Agreement:
6.1 EXISTENCE. Borrower shall at all times maintain its existence as a
corporation, and preserve and keep in full force and effect its rights and
franchises unless the failure to maintain such rights and franchises would not
constitute a Material Adverse Effect.
6.2 QUALIFICATION. Borrower shall qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified except for those jurisdictions where failure to so qualify would
not constitute a Material Adverse Effect.
6.3 COMPLIANCE WITH LAWS, ETC. Borrower shall (i) comply with all
Requirements of Law, and all restrictive covenants affecting Borrower or the
Properties, performance, prospects, assets or operations of Borrower, and
(ii) obtain as needed all Permits necessary for its operations and maintain such
in good standing, except in each of the foregoing cases where the failure to do
so will not have a Material Adverse Effect on Borrower.
6.4 PAYMENT OF TAXES AND CLAIMS. Borrower shall pay (i) all taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
Property before any penalty or interest accrues thereon, the failure to make
payment of which will have a Material Adverse Effect on Borrower, and (ii) all
claims (including, without limitation, claims for labor, services, materials and
supplies) for sums, material in the aggregate to Borrower, which have become due
and payable and which by law have or may become a Lien other than a judgment
lien upon any of Borrower's Properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto. Notwithstanding the
foregoing, Borrower may contest by appropriate legal proceedings conducted in
good faith and with due diligence, the amount, validity or application, in whole
or in part, of any taxes, assessments, other governmental charges or claims
described above, provided that either Borrower shall provide such evidence as
Agent may reasonably require that Borrower is maintaining adequate reserves as
may be required by GAAP or Borrower shall provide such security as may be
reasonably required by Agent, in each case to insure ultimate payment of the
same and to prevent any sale or forfeiture of any of Borrower's Property (or any
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portion thereof or interest therein), provided however, that the provisions of
this SECTION 6.4 shall not be construed to permit Borrower to contest the
payment of any Obligations or any other sums payable by Borrower to Agent or
Lenders hereunder or under any other Loan Document. Notwithstanding any of the
foregoing, Borrower shall indemnify, defend and save Agent and Lenders harmless
from and against any liability, cost or expense of any kind that may be imposed
on Agent or Lenders in connection with any such contest and any loss resulting
therefrom.
6.5 MAINTENANCE OF PROPERTIES; INSURANCE. Borrower shall maintain in good
repair, working order and condition, excepting ordinary wear and tear, all of
its Property and will make or cause to be made all appropriate repairs, renewals
and replacements thereof; provided, however, that the failure to maintain a
particular item of Property (other than improved Real Property) that is not of
significant value to Borrower or which is obsolete shall not constitute a
violation of this covenant. Borrower shall maintain (a) insurance with
responsible companies in such amounts and against such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which Borrower operates, (b) insurance required by
any Governmental Authority having jurisdiction over Borrower, and (c) all other
insurance reasonably required by Agent from time to time. Neither Borrower nor
any other Consolidated Entity shall assign or otherwise transfer, or grant a
security interest in, any casualty insurance carried by it or in the proceeds of
such insurance in a manner which is disproportionate to the value of all of the
Real Property insured by Borrower or such Consolidated Entity.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSION. Borrower shall
permit any authorized representatives designated by any Lender to visit and
inspect any of its Properties (subject to rights of tenants), including all
Unencumbered Assets, upon reasonable prior notice, to inspect financial and
accounting records and leases, and to make copies and take extracts therefrom,
all at such times during normal business hours and as often as any Lender may
reasonably request; provided that all such visits and inspections shall be
coordinated through the Agent and the Agent shall give reasonable prior notice
to Borrower of all such visits and inspections; and provided further, however,
that (i) each person designated by Agent shall take reasonable steps to minimize
disruption to the operations of Borrower caused by such inspection, and
(ii) nothing contained herein shall require Borrower to permit any Lender or
Agent to examine or otherwise have access to any matter that is protected from
disclosure by the attorney-client privilege or the doctrine of attorney work
product. In connection therewith, Borrower shall pay all expenses required by
SECTION 12.1. Borrower will keep
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proper books of record and account in which entries, in conformity with GAAP
and as otherwise required by this Agreement and applicable Requirements of
Law, shall be made of all dealings and transactions in relation to its
businesses and activities and as otherwise required under SECTION 5.1.
6.7 MAINTENANCE OF PERMITS, ETC. Borrower will maintain in full force and
effect all Permits, franchises, patents, trademarks, trade names, copyrights,
authorizations or other rights necessary for the operation of its business,
except where the failure to obtain any of the foregoing would not have a
Material Adverse Effect on Borrower; and notify Agent in writing, promptly after
learning thereof, of the suspension, cancellation, revocation or discontinuance
of, or of any pending or threatened action or proceeding seeking to suspend,
cancel, revoke or discontinue, any material Permit, patent, trademark, trade
name, copyright, governmental approval, franchise authorization or right.
6.8 CONDUCT OF BUSINESS. Except for Investments expressly permitted
pursuant to SECTION 8.8 and investments in Cash and Cash Equivalents, Borrower
shall engage only in the business of acquiring, developing, owning, operating
and managing Real Property within the continental United States and any business
activities and investments of Borrower incidental thereto.
6.9 USE OF PROCEEDS. Borrower shall use the proceeds of the Advances only
for Real Property acquisitions, development of Real Property and for any other
general corporate purposes (including payment of Borrower's Indebtedness).
6.10 SECURITIES LAW COMPLIANCE. The Borrower shall comply in all material
respects with all rules and regulations of the Commission and file all reports
required by the Commission relating to the Borrower's publicly-held Securities.
6.11 CONTINUED STATUS AS A REIT; PROHIBITED TRANSACTIONS. The Borrower
(i) will continue to be a real estate investment trust as defined in Section 856
of the Code (or any successor provision thereto), (ii) will not revoke its
election to be a real estate investment trust, (iii) will not engage in any
"prohibited transactions" as defined in Section 857(b)(6)(B)(iii) of the Code
(or any successor provision thereto), and (iv) will continue to be entitled to a
dividend paid deduction meeting the requirements of Section 857 of the Code.
6.12 NASDAQ LISTED COMPANY. The Preferred Stock and the common stock of
the Borrower shall at all times be listed for trading on NASDAQ or another
national securities exchange reasonably acceptable to Agent.
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6.13 YEAR 2000 COVENANT. Borrower shall ensure that the following are
Year 2000 Compliant in a timely manner, but in no event later than December 31,
1999; (a) Borrower itself; and (b) each Unencumbered Asset in the Unencumbered
Pool and each Consolidated Entity. Borrower shall further make reasonable
inquiries of and request reasonable validation that each of the following are
similarly Year 200 Compliant: (x) all major tenants or other entities from
which Borrower receives payments; and (y) all major contractors, suppliers,
service provider and vendors of Borrower. As used in this paragraph, "major"
shall means properties or entities that failure of which to be Year 2000
Compliant would have a material adverse economic impact upon Borrower. The term
"Year 2000 Compliant" shall mean, in regard to any property or entity, that all
software, hardware, equipment, goods or systems utilized by or material to the
physical operations, business operations, or financial reporting of such
property or entity (collectively, the "systems") will properly perform date
sensitive functions before, during and after the year 2000. In furtherance of
this covenant, Borrower shall, in addition to any other necessary actions,
perform a comprehensive review and assessment of all systems of Borrower, and
shall adopt a detailed plan, with itemized budget, for the testing, remediation,
and monitoring of such systems. Borrower shall, within thirty business days of
Agent's written request, provide to Agent such certificates or other evidence of
Borrower's compliance with the terms of this paragraph as Agent may from time to
time reasonably require.
6.14 ADDITIONAL GUARANTORS. Borrower shall give Agent written notice
within 15 Business Days after the formation or acquisition of any Subsidiary
which is an Additional Guarantor. Within 15 days after such formation or
acquisition, Borrower shall cause such Additional Guarantor to execute and
deliver to Agent a Guaranty.
6.15 UBS LOAN. On the Closing Date, Borrower shall fully repay, using the
first Advance, all amounts owing under the UBS Loan and shall not, at any time
thereafter, incur any further obligation or liability of any kind whatsoever
under or otherwise in connection with the UBS Loan, which shall, after such
repayment, be canceled.
6.16 SECURITY INTEREST IN ENTITIES. Borrower shall give Agent written
notice within 15 Business Days after the formation or acquisition by Borrower,
or any Consolidated Entity, of any corporation, partnership, joint venture,
limited liability company or other entity (each, an "Entity", which shall not
include Guarantors) in which Borrower or such Consolidated Entity holds an
ownership interest (the "Interest"). Within 30 Business Days after the
formation or acquisition of any Entity, Borrower, or the applicable Consolidated
Entity, as the case may be, shall execute and
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deliver to Agent a security agreement ("Entity Security Agreement") in form
and substance reasonably satisfactory to Agent, pursuant to which Borrower,
or such Consolidated Entity, grants to Agent, for the benefit of the Lenders,
a security interest in the Interest in such Entity, together with such
financing statements and other documents, instruments and agreements as may
be necessary to perfect such security interest. Borrower agrees to obtain
and deliver to Agent such consents and agreements from the other owners of
each Entity as Agent may reasonably require in connection with the granting
of the security interest in such Entity.
6.17 PLEDGE OF STOCK. On or before December 31, 1998, Borrower shall
execute and deliver to Agent a Security and Stock Pledge Agreement (the "Stock
Pledge Agreement") in form and substance reasonably satisfactory to Agent,
pursuant to which Borrower grants to Agent, for the benefit of the Lenders, a
security interest in all of Borrower's ownership interest in Price Self
Storage, Inc., a Delaware corporation ("Price Self Storage"), including, without
limitation, all of the Capital Stock of Price Self Storage (the "Price Stock"),
together with such financing statements and other documents, instruments and
agreements as may be necessary to perfect such security interest. In addition,
Borrower agrees to pledge and deliver to Agent, for the benefit of the Lenders,
all of the Price Stock.
6.18 SECURITY INTEREST IN PRICE ENTERPRISES - TEXAS, L.P., A DELAWARE
LIMITED PARTNERSHIP AND GUARANTY.
(1) On or before December 31, 1998, Borrower shall execute and
deliver to Agent, and shall cause each other Person (the "Price Enterprises
Owners") owning any interest in Price Enterprises - Texas, L.P., a Delaware
limited partnership ("Price Enterprises LP"), to deliver to Agent a security
agreement (the "Price Enterprises Security Agreement") in form and substance
reasonably satisfactory to Agent, pursuant to which Borrower and the other Price
Enterprises Owners, grant to Agent, for the benefit of the Lenders, a security
interest in their entire respective ownership interests in Price Enterprises LP,
together with such financing statements and other documents, instruments and
agreements as may be necessary to perfect such security interest. Borrower
agrees to take, and to cause each Price Enterprises Owner to take, such actions
as may be necessary to perfect security interest.
(2) Within 60 days after the Closing Date, Borrower shall deliver to
Agent such evidence as Agent may reasonably require to the effect that, by
signing a Guaranty, Price Enterprises LP would lose significant franchise tax
benefits otherwise available to it in the State of Texas. If Borrower does not
deliver such evidence to Agent within such period, Price Enterprises LP shall be
a "Guarantor" for purposes of
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this Agreement and the other Loan Documents and shall execute and deliver a
Guaranty to Agent prior to the expiration of such 60-day period.
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ARTICLE 7
NEGATIVE COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment and performance in full of all of the Obligations, the expiration
of the Commitment and termination of this Agreement:
7.1 RESTRICTIONS ON FUNDAMENTAL CHANGES.
(1) The Borrower and Consolidated Entities shall not enter into any
merger, consolidation or reorganization or any sale of all or a substantial
portion of the assets of the Borrower and the Consolidated Entities, taken
as a whole, or liquidate, wind up or dissolve, except that any Person
engaged in the development and operation of Retail Properties that are of
similar caliber to those of Borrower may merge or consolidate with and into
Borrower or any Consolidated Entity, provided (i) no Event of Default or
Unmatured Event of Default, then exists or would result therefrom,
(ii) Borrower or such Consolidated Entity, as the case may be, is the
surviving entity, (iii) Requisite Lenders reasonably determine that such
merger or consolidation will not constitute a Material Adverse Effect and
(iv) the Borrower delivers to the Agent, prior to the Borrower or such
Consolidated Entity becoming obligated (conditionally or otherwise) to
proceed with such transaction, a certificate, in form and substance and in
such detail as the Agent may reasonably require, of an Executive Officer
demonstrating compliance with this Agreement on a proforma basis giving
effect to such transaction;
(2) Borrower shall not change its Fiscal Year; or
(3) Borrower shall not engage in any line of business other than as
expressly permitted under SECTION 6.8.
7.2 ERISA. Borrower shall not permit any ERISA Affiliates to do any of
the following to the Borrower shall not extent that such act or failure to act
would constitute, in the aggregate, after taking into account any other such
acts or failure to act, a Material Adverse Effect:
(1) Engage, or knowingly permit an ERISA Affiliate to engage, in any
prohibited transaction described in Section 406 of ERISA or Section 4975 of
the Code which is not exempt under Section 407 or 408 of ERISA or
Section 4975(d) of the Code for which a class exemption is not available or
a private exemption has not been previously obtained from the DOL;
(2) Permit to exist any accumulated funding
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deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived;
(3) Fail, or permit an ERISA Affiliate to fail, to pay timely
required contributions or annual installments due with respect to any
waived funding deficiency to any Plan;
(4) Terminate, or permit an ERISA Affiliate to terminate, any Benefit
Plan which would result in any liability of Borrower or an ERISA Affiliate
under Title IV of ERISA; or
(5) Fail, or permit any ERISA Affiliate to fail, to pay any required
installment under section (m) of Section 412 of the Code or any other
payment required under Section 412 of the Code on or before the due date
for such installment or other payment.
7.3 DEBT AND GUARANTY OBLIGATIONS. Borrower shall not create, incur or
assume any Debt or Guaranty Obligations except:
(1) Subject to SECTION 8.9, below, Debt which is secured by Real
Property;
(2) Until September 30, 1999, the J.P. Morgan Loan. Borrower hereby
agrees to fully repay the J.P. Morgan Loan on or before September 30, 1999
and not, at any time thereafter, to incur any further obligation or
liability of any kind whatsoever under or otherwise in connection with the
J.P. Morgan Loan;
(3) Until such time as Borrower obtains a long-term unsecured senior
debt rating of at least BBB- from Standard & Poor's and at least Baa3 from
Moody's Investors Service, Inc., Borrower may incur Debt or Guaranty
Obligations so long as the aggregate of Borrower's recourse Debt and
Guaranty Obligations, other than those with respect hereto, shall not
exceed 10% of Gross Asset Value; provided, however, that notwithstanding
the foregoing, prior to September 30, 1999, the aggregate of Borrower's
recourse Debt and Guaranty Obligations, other than those with respect
hereto, shall not exceed 20% of Gross Asset Value.
7.4 AMENDMENT OF CONSTITUENT DOCUMENTS. The Borrower shall not materially
amend its articles of incorporation, by-laws or any other charter or governing
document without the prior written consent of Requisite Lenders, except as may
be required to comply with SECTION 6.11.
7.5 MINIMUM OWNERSHIP INTEREST OF SOL AND ROBERT PRICE. Sol and Robert
Price shall at all times retain directly or
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indirectly ownership, in the aggregate, of no less than fifteen percent (15%)
of the Capital Stock of the Borrower.
7.6 MANAGEMENT. Jack McGrory shall at all times be the President and CEO
of the Borrower; provided, however, that, if due to death, incapacity, his
dismissal or his resignation as the President and CEO of the Borrower, Jack
McGrory is unable to act in such capacities, Borrower shall have one hundred
eighty (180) days to obtain the approval of Requisite Lenders (which approval
shall not be unreasonably withheld) with respect to the hiring of a new
President and CEO of the Borrower or a realignment of the existing officers of
Borrower so that the President and CEO positions are filled (or duties thereof
are properly delegated). In the event Borrower shall fail to obtain approval of
Requisite Lenders within such 180-day period, then Borrower shall, at the
election and upon the demand of Requisite Lenders, pay in full all Obligations
under the Loan Documents not later than thirty (30) days after the end of such
180-day period, whereupon this Agreement and the Commitment shall be terminated.
If Borrower fails to obtain the approval of the Requisite Lenders within such
180-day period, then no further Advances shall be permitted after such 180-day
period until Borrower shall have obtained approval of Requisite Lenders under
this Section 7.6.
7.7 MARGIN REGULATIONS. No portion of the proceeds of any Advances shall
be used in any manner which might cause the extension of credit or the
application of such proceeds to violate Regulation T, U or X or any other
regulation of the Federal Reserve Board or to violate the Securities Exchange
Act or the Securities Act, in each case as in effect on the applicable Funding
Date.
7.8 MANAGEMENT AGREEMENTS. Without the consent of Requisite Lenders,
Borrower shall not enter into any third-party management agreements with respect
to more than 25% of the Borrower's Real Property based upon based upon the value
of Borrower's total assets (determined pursuant to GAAP).
7.9 PREFERRED STOCK. Without the consent of Requisite Lenders, Borrower
shall not issue preferred stock in excess of the 26,000,000 shares of Preferred
Stock that are currently authorized pursuant to Borrower's Charter and
resolutions adopted by Borrower's Board of Directors on June 15, 1998 or
increase the existing dividend for the Preferred Stock (which is $1.40 per share
annually).
7.10 DEVELOPMENT ACTIVITY.
(1) Neither Borrower nor any Consolidated Entity shall engage,
directly or indirectly, in the development of any Real Property except for the
development of Real Property which will be Retail Property; provided, however,
that,
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notwithstanding the foregoing, Borrower and the Consolidated Entities may
engage in the development of such Real Property (I.E., Real Property which
will not be Retail 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.
(2) For purposes of this Section 7.10 only:
(1) "Gross Asset Value", as of any date of determination, shall
be adjusted by subtracting from Gross Asset Value the costs incurred to
such date of determination for each such Real Properties under development
and adding to Gross Asset Value the estimated full cost of developing such
Real Properties; and
(2) The terms "development" and "under development" shall
include (A) new construction or the substantial renovation of improvements
to Real Property, (B) any interest of Borrower or any Consolidated Entity
in Real Property which is proposed to be developed, or any interest therein
pursuant to which Borrower or any Consolidated Entity has the right to
approve site plans or other plans and specifications or pursuant to which
such parties' obligations are conditioned upon the achievement of certain
leasing levels, and (C) any agreement by Borrower or any Consolidated
Entity which obligates Borrower or such Consolidated Entity to contribute
or otherwise advance funds in connection with or upon completion of the
development or which is under development and lease-up at the time such
agreement is entered into. The terms "development" and "under development"
shall not include (1) any rights pursuant to option agreements that do not
obligate Borrower or any Consolidated Entity to act pursuant thereto or
pursuant to other agreements that limit the recourse of the other party
thereto upon a default or breach by Borrower or any Consolidated Entity
thereunder to a reasonable earnest money deposit as liquidated damages or
(2) the addition of amenities or other related facilities to Real Property
which is already improved and/or developed.
(3) Notwithstanding the foregoing, neither Borrower nor any
Consolidated Entity shall make, own or otherwise hold any Investment in, or
otherwise engage in, any Speculative Development if it would result in the
aggregate of all such Investments being in excess of ten percent (10%) of Gross
Asset Value. The values of the Investments and other assets which make up the
foregoing Speculative Development shall be the original cost of such Investments
and assets.
(4) Nothing in this Section 7.10 shall prohibit or
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otherwise preclude Borrower or any Consolidated Entity from entering into an
agreement to acquire, or acquiring, Real Property which has been developed
and initially leased by another Person.
7.11 ORGANIZATION OF BORROWER. Without the prior written consent of
Agent, Borrower shall not change its state of incorporation from Maryland.
7.12 DEBT OF PRICE SELF STORAGE AND PRICE ENTERPRISES LP. Borrower shall
not cause or permit (i) Price Self Storage to create, incur or assume any Debt
or Guaranty Obligations other than its existing Debt to General Motors
Acceptance Corporation in the approximate amount of $8,900,000 and shall not
cause or permit Price Self Storage to increase the amount of such Debt above the
amount outstanding as of the date of this Agreement and (ii) Price
Enterprises LP to create, incur or assume any Debt or Guaranty Obligations other
than its existing Debt as of the date of this Agreement and shall not cause or
permit Price Enterprises LP to increase the amount of such Debt above the amount
outstanding as of the date of this Agreement. Notwithstanding the foregoing,
Price Self Storage and Price Enterprises LP shall each be permitted to incur
trade debt in the ordinary course of business so long as such trade debt does
not, at any time, exceed $100,000. In the event that the Guaranty of Price
Enterprises LP referred to in Section 6.18(b) is delivered in accordance with
the terms of such Section, clause (ii) of the first sentence of this Section
shall no longer be of any force or effect whatsoever and the preceding sentence
shall no longer limit the amount of trade debt which Price Enterprises LP may
incur.
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ARTICLE 8
FINANCIAL COVENANTS
Borrower covenants and agrees that, on and after the date of this
Agreement and until payment and performance in full of all the Obligations, the
expiration of the Commitment and the termination of this Agreement:
8.1 TANGIBLE NET WORTH. The Tangible Net Worth of the Borrower and the
Consolidated Entities, as of the last day of each Fiscal Quarter, shall not be
less than the sum of (i) $309,000,000, plus (ii) 90% of the cumulative net cash
proceeds received by Borrower from the issuance of Capital Stock of the Borrower
after the Closing Date. For the purposes of clause (ii), "net" means net of
underwriters' discounts, commissions and other reasonable out-of-pocket expenses
of the transaction actually paid to any Person (other than any Affiliate of
Borrower).
8.2 MAXIMUM TOTAL LIABILITIES TO GROSS ASSET VALUE. The ratio of Total
Liabilities to Gross Asset Value shall not exceed 40% at any time.
8.3 MINIMUM UNENCUMBERED ASSET POOL VALUE. The Unencumbered Asset Pool
Value shall not, at any time, be less than 200% of the unsecured Total
Liabilities of the Borrower and the Consolidated Entities.
8.4 MINIMUM INTEREST COVERAGE RATIO. As of the last day of any Fiscal
Quarter, the Interest Coverage Ratio shall not be less than 2.00 to 1.00.
8.5 MINIMUM FIXED CHARGE COVERAGE RATIO. As of December 31, 1998, and as
of the last day of each Fiscal Quarter during 1999, the Fixed Charge Coverage
Ratio shall not be less than 1.15 to 1.00, and as of the last day of any Fiscal
Quarter thereafter, the Fixed Charge Coverage Ratio shall not be less than 1.20
to 1.00.
8.6 MINIMUM UNSECURED INTEREST EXPENSE COVERAGE. As of the last day of
any Fiscal Quarter, the Unsecured Interest Expense Coverage Ratio of the
Borrower and the Consolidated Entities shall not be less than 1.80 to 1.00.
8.7 DISTRIBUTIONS.
(1) Subject to SUBSECTION (b) below, aggregate distributions to
shareholders of the Borrower shall not exceed, for any four (4) consecutive
Fiscal Quarters, ninety-five percent (95%) of Funds from Operations. For
purposes of this SECTION 8.7, the term "distributions" shall mean all dividends
and other distributions to the holder of any equity interests
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in Borrower. The term "distributions" shall not include the repurchase by
Borrower, or redemptions, of Borrower's Capital Stock.
(b) Aggregate distributions during the continuance of any
non-monetary Event of Default shall not exceed the sum of (i) dividends on
Borrower's Preferred Stock (which shall not exceed $1.40 per share annually),
plus (ii) the minimum amount necessary to comply with Section 857(a) of the Code
and to continue to be listed on NASDAQ or another national securities exchange
reasonably acceptable to Agent. During the continuance of any monetary Event of
Default, Borrower shall not make any distributions.
8.8 INVESTMENTS; ASSET MIX. Except as permitted under SECTION 7.1(a), the
Borrower shall not at any time make, own or otherwise hold any Investment in any
Person, or purchase, lease or own any Real Property or other asset, except that
the Borrower and the Consolidated Entities, in the aggregate and on a
consolidated basis, may own or lease the following, subject to the limitations
set forth below:
<TABLE>
<CAPTION>
ASSET TYPE LIMITATION ON VALUE
---------- FOR EACH ASSET TYPE
AT THE TIME OF
DETERMINATION
--------------------
<S> <C>
1. Wholly-Owned Retail Property Unlimited
2. Wholly-Owned Land which is not 5% of Gross Asset
part of an existing improved Value
development
3. Wholly-Owned Foreign Property 5% of Gross Asset
Value
4. Wholly-Owned Real Property 20% of Gross Asset
(other than Retail Properties Value
or Land referred to in
paragraph 2, above)
5. Wholly-owned Capital Stock of 10% of Gross Asset
corporations Value
6. Investment Mortgages 15% of Gross Asset
Value
7. Ownership Interest in 15% of Gross Asset
Unconsolidated Joint Ventures Value
</TABLE>
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Notwithstanding the foregoing, Investments and other assets in the
foregoing categories 2 through 7 may not, in the aggregate exceed, at any time,
25% of Gross Asset Value. All values of Investments and other assets shall be
the original cost of such Investments and assets, except as otherwise expressly
provided.
8.9 SECURED DEBT. The aggregate amount of all Debt of the Borrower and
the Consolidated Entities secured by Real Property shall not, at any time,
exceed 35% of Gross Asset Value.
8.10 GROSS REVENUE. With respect to any fiscal period, (a) no more than
twenty-five percent (25%) of Gross Revenue for such fiscal period shall be
derived from one Person who is a tenant of one or more Real Properties within
the Unencumbered Pool and/or Affiliates of such Person, (b) no less than
forty percent (40%) of Gross Revenue for such fiscal period shall be derived
from Rated Tenants, (c) no less than twenty-five percent (25%) of Gross Revenue
for such fiscal period shall be derived from Credit Tenants and (d) no more than
ten percent (10%) of Gross Revenue for such fiscal period shall be derived from
restaurants.
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ARTICLE 9
UNENCUMBERED ASSETS
9.1 DESIGNATION OF UNENCUMBERED ASSETS. As of the date of this Agreement,
all Unencumbered Assets are described on SCHEDULE 9.1 and constitute the initial
Unencumbered Pool. Subject to the terms and conditions of this Agreement,
Borrower may designate additional Real Property as an Unencumbered Asset. In
order to designate any Real Property as an Unencumbered Asset to be added to the
Unencumbered Pool, Borrower shall give Agent written notice ("Unencumbered Asset
Notice") that Borrower intends to so designate such Real Property. Each
Unencumbered Asset Notice shall include, with respect to the Real Property
covered by such Unencumbered Asset Notice, the Property Information with respect
to such Real Property, and such other information and items as may be reasonably
requested by Agent with respect to such Real Property. Agent shall give
Borrower written notice of whether Requisite Lenders approve (which approval
shall not be unreasonably withheld) the designation of the Real Property covered
by an Unencumbered Asset Notice as an Unencumbered Asset to be added to the
Unencumbered Pool within thirty (30) days after Agent's receipt of such
Unencumbered Asset Notice. If Agent fails to respond to an Unencumbered Asset
Notice within such 30-day period, Requisite Lenders shall be deemed to have
approved the designation of such Real Property as an Unencumbered Asset to be
added to the Unencumbered Pool and, effective upon the expiration of such 30-day
period, such Real Property shall be added to the Unencumbered Pool.
9.2 REMOVAL OF UNENCUMBERED ASSETS FROM UNENCUMBERED POOL. If, after any
Real Property is added to the Unencumbered Pool as an Unencumbered Asset, such
Real Property (including any of the properties listed on SCHEDULE 9.1) no
longer satisfies any of the conditions set forth in clauses (i) through (vii),
inclusive, of the definition of "Unencumbered Asset", which it satisfied at the
time of its addition to the Unencumbered Pool, Requisite Lenders shall have the
right, at any time and from time to time, to notify the Borrower that, effective
upon the giving of such notice, such asset shall no longer be considered an
Unencumbered Asset. If the Borrower at any time intends to withdraw any Real
Property from the Unencumbered Pool, it shall give the Agent written notice of
its intention, and deliver to the Agent, concurrently with such written notice,
a certificate of an Executive Officer setting forth the calculations
establishing that the Borrower will be in compliance with SECTION 8.3 with
giving effect to such withdrawal (and any concurrent addition of Real Properties
to the Unencumbered Pool), which calculations shall be in such detail, and
otherwise in such form and substance, as Agent reasonably requires. Effective
automatically on the date occurring 15 days after Agent's receipt of such notice
and
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certificate, such Real Property shall no longer constitute an Unencumbered
Asset.
9.3 SITE INSPECTIONS; STRUCTURAL INSPECTIONS; AND ENVIRONMENTAL SITE
ASSESSMENTS. Without limiting any other term or provision of this Agreement,
Agent and the Lenders shall have the right, upon reasonable notice and during
normal business hours, to inspect any Unencumbered Asset in the Unencumbered
Pool. The Agent may at any time request that Borrower deliver to Agent, within
thirty (30) days after the Agent's request, (i) a structural inspection report
with respect to any Unencumbered Asset in the Unencumbered Pool if the Agent
reasonably believes that such structural inspection report will disclose that
corrective work needs to be done to such Unencumbered Asset and (ii) an
environmental site assessment with respect to any Unencumbered Asset in the
Unencumbered Pool if the Agent reasonably believes that that Borrower (with
respect to such Unencumbered Asset) and/or such Unencumbered Asset is not in
material compliance with all Environmental Laws.
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ARTICLE 10
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
10.1 EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(1) Borrower shall fail to pay (i) any amount due on the Maturity
Date, (ii) any principal on any of the Notes when due, or (iii) any interest on
any Advance, or any fee or other amount payable under any Loan Documents within
three (3) days after the same becomes due.
(2) Borrower shall breach any covenant set forth in SECTION 6.11 or
8.7.
(3) Borrower shall fail duly and punctually to perform or observe any
term, agreement, covenant or obligation on its part to be performed or observed
under this Agreement or under any other Loan Document (other than as described
in any other provision of this SECTION 10.1), and such failure shall continue
for thirty (30) days after Borrower knew of such failure (or such lesser period
of time as is mandated by applicable Requirements of Law); provided that, if
cure cannot reasonably be effected within such 30-day period, such failure shall
not be an Event of Default so long as Borrower promptly (in any event, within
10 days after Borrower knew of such failure) commences cure, and thereafter
diligently (in any event, within 90 days after Borrower knew of such failure)
prosecutes such cure to completion.
(4) Any representation or warranty made or deemed made by Borrower to
Agent or any Lender in this Agreement or in any other Loan Document or in any
statement, certificate or financial statements at any time given by Borrower
pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made.
(5) Borrower or any Consolidated Entity shall have defaulted on any
monetary obligation (30 days beyond any due date) under any Debt of such party
(other than the Obligations) if the aggregate amount of such Debt is Five
Million Dollars ($5,000,000) or more.
(6) Borrower or any Consolidated Entity institutes or consents to the
institution of any proceeding under a Debtor Relief Law relating to it or to all
or any material part of its Property, or is unable or admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all
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or any material part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of Borrower or such Consolidated Entity
and the appointment continues undischarged or unstayed for sixty (60)
calendar days; or any proceeding under a Debtor Relief Law relating to
Borrower or any Consolidated Entity or to all or any part of Borrower's or
such Consolidated Entity's Property is instituted without the consent of
Borrower or such Consolidated Entity and continues undismissed or unstayed
for sixty (60) calendar days.
(7) (i) Any money judgment (other than a money judgment covered by
insurance but only if the insurer has admitted liability with respect to such
money judgment), writ or warrant of attachment, or similar process involving in
any case an amount in excess of Two Million Dollars ($2,000,000.00) shall be
entered or filed against the Borrower, any Consolidated Entity or their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of ninety (90) days, or (ii) any judgment or order of any court or
administrative agency awarding material damages shall be entered against any
such Person in any action under the Federal securities laws seeking rescission
of the purchase or sale of, or for damages arising from the purchase or sale of,
any Securities, such judgment or order shall have become final after exhaustion
of all available appellate remedies and, in Agent's judgment, the payment of
such judgment or order would have a Material Adverse Effect on such Person.
(8) Any order, judgment or decree shall be entered against the
Borrower or any Consolidated Entity decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of sixty (60) days; or the Borrower or any Consolidated Entity shall
otherwise dissolve or cease to exist.
(9) If for any reason any Loan Document shall cease to be in full
force and effect and such condition or event shall continue for fifteen (15)
days after Borrower knew of such condition or event.
(10) Any Termination Event occurs which will or is reasonably likely
to subject Borrower or any ERISA Affiliate of Borrower to a liability which
Agent reasonably determines will constitute a Material Adverse Effect, or the
plan administrator of any Benefit Plan applies for approval under Section 412(d)
of the Internal Revenue Code for a waiver of the minimum funding standards of
Section 412(a) of the Internal Revenue Code and Agent reasonably determines that
the business hardship upon which the Section 412(d) waiver was based will or
would reasonably be anticipated to subject Borrower to a liability which Agent
determines will constitute a Material Adverse Effect.
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(11) Borrower or any Consolidated Entity becomes subject to any
Liabilities and Costs which Agent reasonably deems to constitute a Material
Adverse Effect arising out of or related to (i) the Release or threatened
Release at any Property of any Contaminant into the environment, or any Remedial
Action in response thereto, or (ii) any violation of any Environmental Laws.
(12) Borrower or any Guarantor shall cease to be Solvent.
(13) Any Guarantor shall fail to duly and punctually perform or
observe any term, agreement, covenant or obligation under the Guaranty executed
by such Guarantor.
(14) Any Guaranty is repudiated, revoked or terminated without
Lenders' prior written consent, or any Guarantor claims that the Guaranty
executed by such Guarantor is ineffective or unenforceable, in whole or in part
and for any reason, with respect to amounts then outstanding or amounts that
might in the future be outstanding.
(15) The occurrence of an "Event of Default" under any loan or other
credit agreement between Wells Fargo and Borrower or under any "Loan Document"
as defined in such loan or other credit agreement, when such loan or other
credit agreement recites or otherwise refers to this Section 10.1(o).
(16) The occurrence of an Event of Default (as such term is or may
hereafter be defined in any other Loan Document) under any other Loan Document.
10.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other rights or
remedies of the Agent or the Lenders provided for elsewhere in this Agreement,
or the other Loan Documents, or by applicable Law, or in equity, or otherwise:
(1) Upon the occurrence, and during the continuance, of any
Event of Default OTHER THAN an Event of Default described in
Section 10.1(f):
(1) the Commitments to make Advances and all other
obligations of the Agent or the Lenders and all rights of Borrower
under the Loan Documents shall be suspended without notice to or
demand upon Borrower, which are expressly waived by Borrower, EXCEPT
that all of the Lenders or the Requisite Lenders (as the case
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may be, in accordance with Section 12.4) may waive an Event of
Default or, without waiving, determine, upon terms and conditions
satisfactory to the Lenders or Requisite Lenders, as the case may
be, to reinstate the Commitments and such other obligations and
rights and make further Advances, which waiver or determination
shall apply equally to, and shall be binding upon, all the Lenders;
and
(2) the Requisite Lenders may request the Agent to, and the
Agent thereupon shall, terminate the Commitment and/or declare all or
any part of the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the same shall
become and be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which
are expressly waived by Borrower.
(2) Upon the occurrence of any Event of Default described in
Section 10.1(f):
(1) the Commitments to make Advances and all other
obligations of the Agent or the Lenders and all rights of Borrower
under the Loan Documents shall terminate without notice to or demand
upon Borrower, which are expressly waived by Borrower, EXCEPT that all
of the Lenders may waive the Event of Default or, without waiving,
determine, upon terms and conditions satisfactory to all the Lenders,
to reinstate the Commitments and such other obligations and rights and
make further Advances, which determination shall apply equally to, and
shall be binding upon, all the Lenders; and
(2) the unpaid principal of all Notes, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower.
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(3) Upon the occurrence of any Event of Default, the Lenders and
the Agent, or any of them, without notice to (EXCEPT as expressly provided
for in any Loan Document) or demand upon Borrower, which are expressly
waived by Borrower (EXCEPT as to notices expressly provided for in any Loan
Document), may proceed (but only with the consent of the Requisite Lenders)
to protect, exercise and enforce their rights and remedies under the Loan
Documents against Borrower and any other Party and such other rights and
remedies as are provided by Law or equity.
(4) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole discretion, and all payments received by the Agent and the
Lenders, or any of them, shall be applied first to the costs and expenses
(including reasonable attorneys' fees and disbursements and the reasonably
allocated costs of attorneys employed by the Agent or by any Lender) of the
Agent and of the Lenders, and thereafter paid pro rata to the Lenders in
the same proportions that the aggregate Obligations owed to each Lender
under the Loan Documents bear to the aggregate Obligations owed under the
Loan Documents to all the Lenders, without priority or preference among the
Lenders. Regardless of how each Lender may treat payments for the purpose
of its own accounting, for the purpose of computing Borrowers' Obligations
hereunder and under the Notes, payments shall be applied FIRST, to the
costs and expenses of the Agent and the Lenders, as set forth above,
SECOND, to the payment of accrued and unpaid interest due under any Loan
Documents to and including the date of such application (ratably, and
without duplication, according to the accrued and unpaid interest due under
each of the Loan Documents), and THIRD, to the payment of all other amounts
(including principal and fees) then owing to the Agent or the Lenders under
the Loan Documents. No application of payments will cure any Event of
Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Lenders hereunder or thereunder or
at Law or in equity.
(5) If an Event of Default then exists, Agent shall have, in addition
to and not by way of a limitation on any
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other rights and remedies contained in this Agreement or in the other Loan
Documents, the right within forty-eight (48) hours after notice to Borrower
to obtain access to Borrower's records (including computerized information,
files and supporting software) relating to the Uncumbered Assets, and its
accounting information relating to the Unencumbered Assets, and to use all of
the foregoing and the information contained therein in any manner Agent deems
appropriate which is related to the collection of the Obligations. Borrower
hereby irrevocably authorizes any accountant or management agent employed by
Borrower to deliver such items and information to Agent. Notwithstanding
anything to the contrary contained in the Loan Documents, upon the occurrence
of and during the continuance of an Event of Default, Agent shall be entitled
to request and receive, by or through Borrower or appropriate legal process,
any and all information concerning the Borrower, any Consolidated Entity or
any Property of any of them, which is reasonably available to or obtainable
by Borrower. Agent shall deliver to each Lender copies of any information
which it obtains pursuant to this SECTION 10.2(e).
(6) Demand, presentment, protest and notice of nonpayment are hereby
waived by Borrower. Borrower also waives, to the extent permitted by law, the
benefit of all valuation, appraisal and exemption laws.
(7) No delay or omission of Agent or Lenders to exercise any right
under any Loan Document shall impair such right or be construed to be a waiver
of any Event of Default or an acquiescence therein, and any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in a writing signed by Agent after obtaining written approval
thereof or the signature thereon of those Lenders required to approve such
waiver, amendment or other variation, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or
by law afforded shall be cumulative and all shall be available to Agent and
Lenders until the Obligations have been paid in full, the Commitment has expired
or terminated and this Agreement has been terminated.
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ARTICLE 11
AGENCY PROVISIONS
11.1 APPOINTMENT AND AUTHORIZATION. Subject to Section 11.8, each Lender
hereby irrevocably appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan Documents as are
delegated to the Agent by the terms thereof or are reasonably incidental, as
determined by the Agent, thereto. This appointment and authorization is
intended solely for the purpose of facilitating the servicing of the Advances
and does not constitute appointment of the Agent as trustee for any Lender or as
representative of any Lender for any other purpose and, EXCEPT as specifically
set forth in the Loan Documents to the contrary, the Agent shall take such
action and exercise such powers only in an administrative and ministerial
capacity.
11.2 AGENT AND AFFILIATES. Wells Fargo (and each successor Agent) has the
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" includes Wells Fargo in its individual capacity. Wells Fargo (and
each successor Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Borrower, any Subsidiary thereof, or any Affiliate of Borrower or any Subsidiary
thereof, as if it were not the Agent and without any duty to account therefor to
the Lenders. Wells Fargo (and each successor Agent) need not account to any
other Lender for any monies received by it for reimbursement of its costs and
expenses as Agent hereunder, or for any monies received by it in its capacity as
a Lender hereunder. The Agent shall not be deemed to hold a fiduciary
relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
11.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The Agent, on behalf of
all the Lenders, shall hold in accordance with the Loan Documents all items of
any collateral or interests therein received or held by the Agent. Subject to
the Agent's and the Lenders' rights to reimbursement for their costs and
expenses hereunder (INCLUDING reasonable attorneys' fees and disbursements and
other professional services and the reasonably allocated costs of attorneys
employed by the Agent or a Lender) and subject to the application of payments in
accordance with SECTION 10.2(d), each Lender shall have an interest in the
Lenders' interest in such collateral or interests therein in the same
proportions that the aggregate Obligations owed such Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders.
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11.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it has,
independently and without reliance upon the Agent, any other Lender or the
directors, officers, agents, employees or attorneys of the Agent or of any other
Lender, and instead in reliance upon information supplied to it by or on behalf
of Borrower and upon such other information as it has deemed appropriate, made
its own independent credit analysis and decision to enter into this Agreement.
Each Lender also agrees that it shall, independently and without reliance upon
the Agent, any other Lender or the directors, officers, agents, employees or
attorneys of the Agent or of any other Lender, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
11.5 ACTION BY AGENT.
(1) Absent actual knowledge of the Agent of the existence of an
Unmatured Event of Default or Event of Default, the Agent may assume that no
Unmatured Event of Default or Event of Default has occurred and is continuing,
unless the Agent (or the Lender that is then the Agent) has received notice from
Borrower stating the nature of the Unmatured Event of Default or Event of
Default or has received notice from a Lender stating the nature of the Unmatured
Event of Default or the Event of Default and that such Lender considers the
Unmatured Event Default or Event of Default to have occurred and to be
continuing.
(2) The Agent has only those obligations under the Loan Documents as
are expressly set forth therein.
(3) EXCEPT for any obligation expressly set forth in the Loan
Documents and as long as the Agent may assume that no Event of Default has
occurred and is continuing, the Agent may, but shall not be required to,
exercise its discretion to act or not act, EXCEPT that the Agent shall be
required to act or not act upon the instructions of the Requisite Lenders (or of
all the Lenders, to the extent required by Section 12.4) and those instructions
shall be binding upon the Agent and all the Lenders, PROVIDED that the Agent
shall not be required to act or not act if to do so would be contrary to any
Loan Document or to applicable Law or would result, in the reasonable judgment
of the Agent, in substantial risk of liability to the Agent.
(4) If the Agent has received a notice specified in clause (a), the
Agent shall immediately give notice thereof to the Lenders and shall act or not
act upon the instructions of the Requisite Lenders (or of all the Lenders, to
the extent required by Section 12.4), PROVIDED that the Agent shall not be
required to act or not act if to do so would be contrary to any Loan Document or
to applicable Law or would result, in the
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reasonable judgment of the Agent, in substantial risk of liability to the
Agent, and EXCEPT that if the Requisite Lenders (or all the Lenders, if
required under Section 12.4) fail, for five (5) Banking Days after the
receipt of notice from the Agent, to instruct the Agent, then the Agent, in
its sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.
(5) The Agent shall have no liability to any Lender for acting, or
not acting, as instructed by the Requisite Lenders (or all the Lenders, if
required under Section 12.4), notwithstanding any other provision hereof.
11.6 LIABILITY OF AGENT. Neither the Agent nor any of its directors,
officers, agents, employees or attorneys shall be liable for any action taken or
not taken by them under or in connection with the Loan Documents, EXCEPT for
their own gross negligence or willful misconduct. Without limitation on the
foregoing, the Agent and its directors, officers, agents, employees and
attorneys:
(1) May treat the payee of any Note as the holder thereof until the
Agent receives notice of the assignment or transfer thereof, in form
satisfactory to the Agent, signed by the payee, and may treat each Lender as the
owner of that Lender's interest in the Obligations for all purposes of this
Agreement until the Agent receives notice of the assignment or transfer thereof,
in form satisfactory to the Agent, signed by that Lender;
(2) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for Borrower and/or their Subsidiaries or the Lenders,
and shall not be liable for any action taken or not taken by it in good faith in
accordance with any advice of such legal counsel, accountants or other
professionals or experts;
(3) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents;
(4) EXCEPT to the extent expressly set forth in the Loan Documents,
shall have no duty to ask or inquire as to the performance or observance by
Borrower or its Subsidiaries of any of the terms, conditions or covenants of any
of the Loan Documents or to inspect any collateral or any Property, books or
records of Borrower or its Subsidiaries;
(5) Will not be responsible to any Lender for the
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due execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection therewith,
or any collateral;
(6) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed in good faith by it to be genuine and
signed or sent by the proper party or parties; and
(7) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Borrower or any Subsidiary or Affiliate
thereof or paid or payable to or received or receivable from any Lender under
any Loan Document, INCLUDING, without limitation, principal, interest,
commitment fees, Advances and other amounts; PROVIDED that, promptly upon
discovery of such an error in computation, the Agent, the Lenders and (to the
extent applicable) Borrower and/or its Subsidiaries or Affiliates shall make
such adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
11.7 INDEMNIFICATION. Each Lender shall, ratably in accordance with its
Pro Rata Share of the Commitment (if the Commitment is then in effect) or in
accordance with its proportion of the aggregate indebtedness then evidenced by
the Notes (if the Commitment has then been terminated), indemnify and hold the
Agent and its directors, officers, agents, employees and attorneys harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (INCLUDING reasonable attorneys' fees and disbursements and
allocated costs of attorneys employed by the Agent) that may be imposed on,
incurred by or asserted against it or them in any way relating to or arising out
of the Loan Documents (other than losses incurred by reason of the failure of
Borrower to pay the indebtedness represented by the Notes) or any action taken
or not taken by it as Agent thereunder, EXCEPT such as result from its own gross
negligence or willful misconduct. Without limitation on the foregoing, each
Lender shall reimburse the Agent upon demand for that Lender's Pro Rata Share of
any out-of-pocket cost or expense incurred by the Agent in connection with the
negotiation, preparation, execution, delivery, amendment, waiver, restructuring,
reorganization (INCLUDING a bankruptcy reorganization), enforcement or attempted
enforcement of the Loan Documents, to the extent that Borrower or any other
Party is required by Section 12.1 to pay that cost or expense but fails to do so
upon demand. Nothing in this Section 11.7 shall entitle the Agent or any
indemnitee referred to above to recover any amount from the Lenders if and to
the extent that such amount has theretofore been recovered
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from Borrower or any of its Subsidiaries. To the extent that the Agent or
any indemnitee referred to above is later reimbursed such amount by Borrower
or any of its Subsidiaries, it shall return the amounts paid to it by the
Lenders in respect of such amount.
11.8 SUCCESSOR AGENT. The Agent may, and at the request of all Lenders
(other than Agent) shall, resign as Agent upon reasonable notice to the Lenders
and Borrower effective upon acceptance of appointment by a successor Agent. If
the Agent shall resign as Agent under this Agreement, the Requisite Lenders
shall appoint from among the Lenders a successor Agent for the Lenders, which
successor Agent shall be approved by Borrower (and such approval shall not be
unreasonably withheld or delayed). 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 Lenders and Borrower, a successor Agent from among the
Lenders. Upon the acceptance of its 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 be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this ARTICLE 11, and Sections 12.1 and 12.2, shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement. Notwithstanding the foregoing, if (a) the Agent has not been paid
its agency fees under this Agreement or has not been reimbursed for any expense
reimbursable to it under Section 12.1, in either case for a period of at least
one (1) year and (b) no successor Agent has accepted appointment as Agent by the
date which is thirty (30) days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the Agent
hereunder until such time, if any, as the Requisite Lenders appoint a successor
Agent as provided for above.
11.9 NO OBLIGATIONS OF BORROWER. Nothing contained in this Article 11
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Agent of its obligations to the Lenders under any
provision of this Agreement, and Borrower shall have no liability to the Agent
or any of the Lenders in respect of any failure by the Agent or any Lender to
perform any of its obligations to the Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the Agent for
the account of the Lenders, Borrower's obligations to the Lenders in respect of
such payments shall be deemed to be satisfied upon the making of
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such payments to the Agent in the manner provided by this Agreement. In
addition, Borrower may rely on a written statement by the Agent to the effect
that it has obtained the written consent of the Requisite Lenders or all of
the Lenders, as applicable under Section 12.4, in connection with a waiver,
amendment, consent, approval or other action by the Lenders hereunder, and
shall have no obligation to verify or confirm the same.
11.10 DISBURSEMENTS OF ADVANCES.
(1) Promptly, but in any event not later than 5:00 p.m.
(San Francisco time) on the same Business Day on which Agent receives a Notice
of Borrowing, Agent shall send a copy thereof by facsimile to each other Lender
and shall otherwise notify each Lender of the proposed Advance and the Funding
Date. Each Lender shall make available to Agent (or the funding bank or entity
designated by Agent), the amount of such Lender's Pro Rata Share of such Advance
in immediately available funds not later than the times designated in
SECTION 11.10(b). Unless Agent shall have been notified by any Lender not later
than the close of business (San Francisco time) on the Business Day immediately
preceding the Funding Date in respect of any Advance that such Lender does not
intend to make available to Agent such Lender's Pro Rata Share of such Advance,
Agent may assume that such Lender shall make such amount available to Agent. If
any Lender does not notify Agent of its intention not to make available its Pro
Rata Share of such Advance as described above, but does not for any reason make
available to Agent such Lender's Pro Rata Share of such Advance, such Lender
shall pay to Agent forthwith on demand such amount, together with interest
thereon at the Federal Funds Rate. In any case where a Lender does not for any
reason make available to Agent such Lender's Pro Rata Share of such Advance,
Agent, in its sole discretion, may, but shall not be obligated to, fund to
Borrower such Lender's Pro Rata Share of such Advance. If Agent funds to
Borrower such Lender's Pro Rata Share of such Advance and if such Lender
subsequently pays to Agent such corresponding amount, such amount so paid shall
constitute such Lender's Pro Rata Share of such Advance. Nothing in this
SECTION 11.10(a) shall alter the respective rights and obligations of the
parties hereunder in respect of a Defaulting Lender or a Non-Pro Rata Advance.
(2) Requests by Agent for funding by Lenders of Advances will be made
by telecopy. Each Lender shall make the amount of its Advance available to
Agent in Dollars and in immediately available funds, to such bank and account,
in El Segundo, California as Agent may designate, not later than 9:00 A.M.
(San Francisco time) on the Funding Date designated in the Notice of Borrowing
with respect to such Advance, but in no event earlier than two (2) Business Days
following such Lender's receipt of the applicable Notice of Borrowing.
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(3) Nothing in this SECTION 11.10 shall be deemed to relieve any
Lender of its obligation hereunder to make its Pro Rata Share of any Advance on
the applicable Funding Date, nor shall any Lender be responsible for the failure
of any other Lender to perform its obligations to make any Advance hereunder,
and the Pro Rata Share of any Lender shall not be increased or decreased as a
result of the failure by any other Lender to perform its obligation to make an
Advance.
11.11 DISTRIBUTION AND APPORTIONMENT OF PAYMENTS.
(1) Subject to SECTION 11.11(b), payments actually received by Agent
for the account of Lenders shall be paid to them promptly after receipt thereof
by Agent, but in any event within one (1) Business Day, PROVIDED that Agent
shall pay to Lenders interest thereon, at the Federal Funds Rate, from the
Business Day following receipt of such funds by Agent until such funds are paid
in immediately available funds to Lenders. Subject to SECTION 11.11(b), all
payments of principal and interest in respect of outstanding Advances, all
payments of the fees described in this Agreement, and all payments in respect of
any other Obligations shall be allocated among such Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Agent shall promptly distribute, but in any event within one
(1) Business Day after it receives the same, to each Lender at its primary
address set forth on the appropriate signature page hereof or on the Assignment
and Assumption, or at such other address as a Lender may request in writing,
such funds as it may be entitled to receive; PROVIDED that Agent shall in any
event not be bound to inquire into or determine the validity, scope or priority
of any interest or entitlement of any Lender and may suspend all payments and
seek appropriate relief (including, without limitation, instructions from
Requisite Lenders or all Lenders, as applicable, or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby. The order of priority herein is set forth
solely to determine the rights and priorities of Lenders as among themselves and
may at any time or from time to time be changed by Lenders as they may elect, in
writing in accordance with SECTION 12.4, without necessity of notice to or
consent of or approval by Borrower or any other Person. All payments or other
sums received by Agent for the account of Lenders (including, without
limitation, principal and interest payments) shall not constitute property or
assets of the Agent and shall be held by Agent, solely in its capacity as agent
for itself and the other Lenders, subject to the Loan Documents.
(2) Notwithstanding any provision hereof to the contrary, until such
time as a Defaulting Lender has funded its Pro Rata Share of any Advance which
was previously a Non-Pro
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Rata Advance, or all other Lenders have received payment in full (whether by
repayment or prepayment) of the principal and interest due in respect of such
Non-Pro Rata Advance, all of the Obligations owing to such Defaulting Lender
hereunder shall be subordinated in right of payment, as provided in the
following sentence, to the prior payment in full of all principal, interest
and fees in respect of all Non-Pro Rata Advances in which the Defaulting
Lender has not funded its Pro Rata Share (such principal, interest and fees
being referred to as "Senior Loans"). All amounts paid by Borrower and
otherwise due to be applied to the Obligations owing to the Defaulting Lender
pursuant to the terms hereof shall be distributed by Agent to the other
Lenders in accordance with their respective Pro Rata Shares (recalculated for
purposes hereof to exclude the Defaulting Lender's Pro Rata Share of the
Commitment), until all Senior Loans have been paid in full. This provision
governs only the relationship among Agent, each Defaulting Lender and the
other Lenders; nothing hereunder shall limit the obligation of Borrower to
repay all Advances in accordance with the terms of this Agreement, nor create
an Event of Default if payments are not made to a Defaulting Lender. The
provisions of this Section shall apply and be effective regardless of whether
an Event of Default occurs and is then continuing, and notwithstanding (i)
any other provision of this Agreement to the contrary, (ii) any instruction
of Borrower as to its desired application of payments or (iii) the suspension
of such Defaulting Lender's right to vote on matters which are subject to the
consent or approval of Requisite Lenders or all Lenders. No Unused Facility
Fee shall accrue in favor of, or be payable to, such Defaulting Lender from
the date of any failure to fund Advances or reimburse Agent for any
Liabilities and Costs as herein provided until such failure has been cured,
and Agent shall be entitled to (A) withhold or setoff, and to apply to the
payment of the defaulted amount and any related interest, any amounts to be
paid to such Defaulting Lender under this Agreement, and (B) bring an action
or suit against such Defaulting Lender in a court of competent jurisdiction
to recover the defaulted amount and any related interest. In addition, the
Defaulting Lender shall indemnify, defend and hold Agent and each of the
other Lenders harmless from and against any and all Liabilities and Costs,
plus interest thereon at a default rate of interest which is five percent
(5%) per annum in excess of the Base Rate, which they may sustain or incur by
reason of or as a direct consequence of the Defaulting Lender's failure or
refusal to abide by its obligations under this Agreement.
11.12 CONSENT AND APPROVALS.
(1) Agent may at any time request instructions from Requisite Lenders
with respect to any actions or approvals which, by the terms of this Agreement
or of any of the Loan Documents, Agent is permitted or required to take or to
grant
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without instructions from any Lenders and if such instructions are promptly
requested, Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from taking any action or withholding
any approval under any of the Loan Documents until it shall have received
such instructions from Requisite Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against Agent as a result of
Agent acting or refraining from acting under this Agreement, or any of the
other Loan Documents in accordance with the instructions of Requisite Lenders
or, where applicable, all Lenders. Agent shall promptly notify each Lender
at any time that the Requisite Lenders have instructed Agent to act or
refrain from acting pursuant hereto.
(2) Each Lender agrees that any action taken by Agent at the
direction or with the consent of Requisite Lenders in accordance with the
provisions of this Agreement or any Loan Document, and the exercise by Agent at
the direction or with the consent of Requisite Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all Lenders, except for actions
specifically requiring the approval of all Lenders. All communications from
Agent to Lenders requesting Lenders' determination, consent, approval or
disapproval (i) shall be given in the form of a written notice to each Lender,
(ii) shall be accompanied by a description of the matter or thing as to which
such determination, approval, consent or disapproval is requested, or shall
advise each Lender where such matter or thing may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
Agent by Borrower in respect of the matter or issue to be resolved, and
(iv) shall include Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within
ten (10) Business Days (the "Lender Reply Period"). Unless a Lender shall give
written notice to Agent that it objects to the recommendation or determination
of Agent (together with a written explanation of the reasons behind such
objection) within the Lender Reply Period, such Lender shall be deemed to have
approved of or consented to such recommendation or determination and Borrower
and each other Lender may rely on such approval as if given. With respect to
decisions requiring the approval of Requisite Lenders or all Lenders, Agent
shall submit its recommendation or determination for approval of or consent to
such recommendation or determination to all Lenders and upon receiving the
required approval or consent shall follow the course of action or determination
recommended to Lenders by Agent or such other course of action recommended by
Requisite Lenders, and each non-responding Lender shall be deemed to have
concurred with
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such recommended course of action.
11.13 CERTAIN AGENCY PROVISIONS RELATING TO ENFORCEMENT. Should Agent
(i) employ counsel for advice or other representation (whether or not any suit
has been or shall be filed) with respect to any of the Loan Documents, or
(ii) commence any proceeding or in any way seek to enforce its rights or
remedies under the Loan Documents, each Lender, upon demand therefor from time
to time, shall contribute its share (based on its Pro Rata Share) of the
reasonable costs and/or expenses of any such advice or other representation or
enforcement, including, but not limited to, court costs, title company charges,
filing and recording fees, appraisers' fees and fees and expenses of attorneys
to the extent not otherwise reimbursed by Borrower. Any loss of principal
and/or interest resulting from any Event of Default shall be shared by Lenders
in accordance with their respective Pro Rata Shares. It is understood and
agreed that in the event Agent determines it is necessary to engage counsel for
Lenders from and after the occurrence of an Event of Default, said counsel shall
be selected by Agent.
11.14 RATABLE SHARING. Subject to SECTIONS 11.10 and 11.11, Lenders agree
among themselves that (i) with respect to all amounts received by them which are
applicable to the payment of the Obligations, equitable adjustment will be made
so that, in effect, all such amounts will be shared among them ratably in
accordance with their Pro Rata Shares, whether received by voluntary payment, by
counterclaim or cross action or by the enforcement of any or all of the
Obligations, (ii) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim or otherwise, receive payment of a proportion of
the aggregate amount of the Obligations held by it which is greater than its Pro
Rata Share of the payments on account of the Obligations, the one receiving such
excess payment shall purchase, without recourse or warranty, an undivided
interest and participation (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; PROVIDED, that if all or part of such
excess payment received by the purchasing party is thereafter recovered from it,
those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to that party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this SECTION 11.14 may, to the fullest extent permitted by law,
exercise all its rights of payment with respect to such participation as fully
as if such Lender were the direct creditor of Borrower in the amount of
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such participation. No Lender shall exercise any setoff, banker's lien or
other similar right in respect to any Obligations without the prior written
approval by Agent.
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ARTICLE 12
MISCELLANEOUS
12.1 EXPENSES.
(1) GENERALLY. Borrower agrees to pay, or reimburse Agent for,
within seven (7) days after receipt of written demand, all of Agent's reasonable
external audit, legal, appraisal, valuation and investigation expenses and for
all other reasonable costs and expenses of every type and nature (including,
without limitation, the fees and charges of outside appraisers and reasonable
fees, expenses and disbursements of Agent's internal appraisers, environmental
advisors or legal counsel) incurred by Agent at any time (whether prior to, on
or after the date of this Agreement) in connection with (i) its own audit and
investigation of Borrower and the Consolidated Entities; (ii) the negotiation,
preparation and execution of this Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any of the conditions set forth in
ARTICLE 3), and the other Loan Documents and the making of the Advances;
(iii) review and investigation of Real Property which is proposed for inclusion
within the Unencumbered Pool and Unencumbered Assets within the Unencumbered
Pool; (iv) administration of this Agreement, the other Loan Documents and the
Advances, including, without limitation, consultation with attorneys in
connection therewith; (v) syndication of, assignments of and participations in
this Agreement and the other Loan Documents; and (vi) the protection, collection
or enforcement of any of the Obligations.
(2) AFTER EVENT OF DEFAULT. Borrower further agrees to pay, or
reimburse Agent and Lenders, on demand for all reasonable out-of-pocket costs
and expenses, including, without limitation, the reasonable attorneys' fees and
disbursements incurred by Agent or Lenders after the occurrence and during the
continuance of an Event of Default (i) in enforcing any Obligation or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; (ii) in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or in
any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to Borrower and related to
or arising out of the transactions contemplated hereby (other than suit or legal
proceedings solely between two or more Lenders and/or Agent); or (iv) in taking
any other action in or with respect to any suit or proceeding (whether in
bankruptcy or otherwise) (other than suit or legal proceedings solely between
two or more Lenders and/or Agent).
12.2 INDEMNITY. Borrower further agrees to defend,
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protect, indemnify and hold harmless Agent, each and all of the Lenders, each
of their respective Affiliates and each of the respective officers,
directors, employees, agents, attorneys and consultants (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth in ARTICLE 3) of each of the
foregoing (collectively called the "Indemnitees") from and against any and
all Liabilities and Costs imposed on, incurred by, or asserted against such
Indemnitees (whether based on any federal or state laws or other statutory
regulations, including, without limitation, securities and commercial laws
and regulations, under common law or in equity, and based upon contract or
otherwise, including any liability and costs arising as a result of a
"prohibited transaction" under ERISA to the extent arising from or in
connection with the past, present or future operations of the Borrower or its
predecessors in interest) in any manner relating to or arising out of this
Agreement or the other Loan Documents, or any act, event or transaction
related or attendant thereto, the making of and participation in the Advances
and the management of the Advances, or the use or intended use of the
proceeds of the Advances (collectively, the "Indemnified Matters"); PROVIDED,
HOWEVER, that Borrower shall have no obligation to an Indemnitee hereunder
with respect to Indemnified Matters to the extent caused by or resulting from
the willful misconduct or gross negligence of that Indemnitee, as determined
by a court of competent jurisdiction. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Borrower
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all Indemnified
Matters incurred by the Indemnitees.
12.3 CHANGE IN ACCOUNTING PRINCIPLES AND "FUNDS FROM OPERATIONS"
DEFINITION. Except as otherwise provided herein, if any changes in accounting
principles from those used in the preparation of the most recent financial
statements delivered to Agent pursuant to the terms hereof are hereafter
required or permitted by the rules, regulations, pronouncements and opinions of
the Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Borrower with the agreement of its Accountants and such
changes result in a change in the method of calculation of any of the financial
covenants, standards or terms found herein, the parties hereto agree to enter
into negotiations in order to amend such provisions so as to equitably reflect
such changes with the desired result that the criteria for evaluating the
financial condition of the Borrower and the Consolidated Entities shall be the
same after such changes as if such changes had not been made; PROVIDED, HOWEVER,
that no change in GAAP that would affect the method of
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calculation of any of the financial covenants, standards or terms shall be
given effect in such calculations until such provisions are amended, in a
manner satisfactory to Requisite Lenders, to so reflect such change in
accounting principles. The definition of "Funds from Operations" set forth
in Article 1 is based upon the definition of "Funds From Operations"
promulgated by the National Association of Real Estate Investment Trusts and
effective as of January 1, 1996 (the "NAREIT Definition"). If the NAREIT
Definition is modified after the date of this Agreement, the parties hereto
agree to enter into negotiations if any party so requests in order to amend
the definition of "Funds from Operations" set forth in this Agreement to make
it consistent with the modified NAREIT Definition; PROVIDED, HOWEVER, that no
change in such definition of "Funds from Operations" shall be given effect
until such definition is amended, in a manner satisfactory to Requisite
Lenders, to so reflect such modification in the NAREIT Definition of "Funds
From Operations"; and PROVIDED FURTHER, HOWEVER, that if the effect of such
change in the definition of "Funds from Operations" is to restrict the amount
of distributions permitted under this Agreement to amounts less than what are
required to maintain the Borrower's status as a real estate investment trust
under the Code, then Borrower shall be permitted to make such distribution
which would have been permitted under the "Funds from Operations" definition
in effect as of the Closing Date.
12.4 AMENDMENTS AND CONSENTS. (a) No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder (unless otherwise specifically
provided to the contrary), and no consent to any departure by Borrower
therefrom, may in any event be effective without the written agreement of
Requisite Lenders (after notice to all Lenders) and Borrower, which Requisite
Lenders shall have the right to grant or withhold at their sole discretion,
EXCEPT THAT the following amendments, modifications, supplements, extensions,
terminations or waivers shall require the written consent of all Lenders:
(1) increasing the Commitment and/or any Lender's Pro Rata Share
of the Commitment;
(2) changing the principal amount or final maturity of the
Advances or otherwise changing the Maturity Date;
(3) amending or otherwise modifying the interest rates applicable
to the Advances;
(4) reducing the rates on which fees payable pursuant hereto are
determined;
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(5) forgiving or delaying any amount payable or receivable under
ARTICLE 2 (other than late fees in accordance with SECTION 2.4(e));
(6) changing the definition of "Requisite Lenders", "Pro Rata
Shares", "Tangible Net Worth", "Total Liabilities", "Gross Asset Value", or
"Unencumbered Asset Pool Value";
(7) changing any provision contained in this SECTION 12.4;
(8) releasing any obligor under any Loan Document, unless such
release is otherwise required or permitted by the terms of this Agreement;
(9) amending or otherwise modifying any Guaranty;
(10) amending or otherwise modifying SECTION 8.1, SECTION 8.2
and/or SECTION 8.3;
(11) consenting to assignment by Borrower of all of its duties
and Obligations hereunder pursuant to SECTION 12.14; or
(12) amending or otherwise modifying any provision of this
Agreement that expressly requires the consent or approval of all the
Lenders.
No amendment, modification, termination or waiver of any provision of ARTICLE 11
or any other provision referring to Agent shall be effective without the written
concurrence of Agent, but only if such amendment, modification, termination or
waiver alters the obligations or rights of Agent. Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on Borrower in any case shall
entitle Borrower to any other further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this SECTION 12.4 shall be binding on each assignee,
transferee or recipient of Agent's or any Lender's Pro Rata Share of the
Commitment under this Agreement or the Advances at the time outstanding.
Borrower shall be entitled to rely on any amendment or waiver executed by the
Agent on behalf of the Lenders provided that Agent certifies to Borrower that
Agent obtained the approvals or consents required under this Agreement of
Requisite Lenders or all Lenders, as the case may be.
12.5 INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be
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permitted by an exception to, or be otherwise within the limitations of,
another covenant shall not avoid the occurrence of an Event of Default or
Unmatured Event of Default if such action is taken or condition exists, and
if a particular action or condition is expressly permitted under any
covenant, unless expressly limited to such covenant, the fact that it would
not be permitted under the general provisions of another covenant shall not
constitute an Event of Default or Unmatured Event of Default if such action
is taken or condition exists.
12.6 NOTICES AND DELIVERY. Unless otherwise specifically provided herein,
any consent, notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied or sent by
courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a telecopy (or
on the next Business Day if such telecopy is received on a non-Business Day or
after 5:00 p.m. on a Business Day) or four (4) Business Days after deposit in
the United States mail (registered or certified, with postage prepaid and
properly addressed). Notices to Agent pursuant to ARTICLE 2 shall not be
effective until received by Agent. For the purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered as provided in
this SECTION 12.6) shall be as set forth below each party's name on the
signature pages hereof, or, as to each party, at such other address as may be
designated by such party in a written notice to all of the other parties. All
deliveries to be made to Agent for distribution to the Lenders shall be made to
Agent at the address specified for notice on the signature page hereto and in
addition, a sufficient number of copies of each such delivery shall be delivered
to Agent for delivery to each Lender at the address specified for deliveries on
the signature page hereto or such other address as may be designated by Agent in
a written notice.
12.7 SURVIVAL OF WARRANTIES, INDEMNITIES AND AGREEMENTS. All agreements,
representations, warranties and indemnities made or given herein shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making and repayment of the Advances hereunder and such indemnities shall
survive termination hereof.
12.8 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of Agent or any Lender in the exercise of any power, right or
privilege under any of the Loan Documents shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing under the Loan Documents are
cumulative to and not exclusive of any rights or remedies
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otherwise available.
12.9 PAYMENTS SET ASIDE. To the extent that Borrower makes a payment or
payments to Agent or the Lenders, or Agent or the Lenders exercise their rights
of setoff, and such payment or payments or the proceeds of such setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligation or part
thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred.
12.10 SEVERABILITY. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby, PROVIDED,
HOWEVER, that if the rates of interest or any other amount payable hereunder, or
the collectibility thereof, are declared to be or become invalid, illegal or
unenforceable, Lenders' obligations to make Advances shall not be enforceable.
12.11 HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
12.12 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
12.13 LIMITATION OF LIABILITY. To the extent permitted by applicable law,
no claim may be made by Borrower, any Lender or any other Person against Agent
or any Lender, or the affiliates, directors, officers, employees, attorneys or
agents of any of them, for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
Borrower and each Lender hereby waive, release and agree not to sue upon any
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
12.14 SUCCESSORS AND ASSIGNS. This Agreement and the other Loan Documents
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to
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the benefit of the parties hereto and the successors and permitted assigns of
Agent and Lenders. The terms and provisions of this Agreement shall inure to
the benefit of any permitted assignee or transferee of the Advances and the
Pro Rata Shares of the Commitment of the Lenders under this Agreement, and in
the event of such transfer or assignment, the rights and privileges herein
conferred upon Agent and Lenders shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions
hereof. Borrower's rights and interests hereunder and under the other Loan
Documents, and Borrower's duties and Obligations hereunder and under the
other Loan Documents, shall not be assigned or otherwise transferred without
the consent of all Lenders.
12.15 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY
TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE, AND ALL JUDICIAL PROCEEDINGS
BROUGHT BY BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
SHALL BE, BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION HAVING
SITUS WITHIN THE BOUNDARIES OF THE FEDERAL COURT DISTRICT OF THE SOUTHERN
DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
BORROWER ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY FROM WHICH NO APPEAL
HAS BEEN TAKEN OR IS AVAILABLE. BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO ITS NOTICE ADDRESS SPECIFIED ON THE SIGNATURE PAGES HEREOF. BORROWER, AGENT
AND LENDERS IRREVOCABLY WAIVE (A) TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND (B) ANY OBJECTION
(INCLUDING WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION.
12.16 COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement and
any amendments, waivers, consents or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which, taken together, shall constitute but one and the
same instrument. This Agreement shall become effective when (i) Borrower, the
initial Lenders and Agent have duly executed and delivered signature pages of
this Agreement to each other
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<PAGE>
(delivery by Borrower to Lenders and by any Lender to Borrower and any other
Lender being deemed to have been made by delivery to Agent) and (ii) Agent
has received all fees due under its separate agreement with Borrower. Agent
shall send written confirmation of the Closing Date to Borrower and each
other Lender promptly following the occurrence thereof. This Agreement and
each of the other Loan Documents shall be construed to the extent reasonable
to be consistent one with the other, but to the extent that the terms and
conditions of this Agreement are actually and directly inconsistent with the
terms and conditions of any other Loan Document, this Agreement shall govern.
12.17 PERFORMANCE OF OBLIGATIONS. Borrower agrees that Agent may, but
shall have no obligation to, make any payment or perform any act required of
Borrower under any Loan Document which Borrower has failed to make or do.
12.18 CONSTRUCTION. The parties to this Agreement acknowledge that each
party and its counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any amendments or exhibits hereto.
12.19 ENTIRE AGREEMENT. This Agreement, taken together with all of the
other Loan Documents and all certificates and other documents delivered by
Borrower to Agent, embodies the entire agreement and supersede all prior
agreements, written and oral, relating to the subject matter hereof.
12.20 ASSIGNMENTS AND PARTICIPATIONS.
(1) After first obtaining the approval of Agent and Borrower (other
than upon the occurrence and during the continuance of any Event of Default),
which approval shall not be unreasonably withheld, each Lender may assign to one
or more banks or financial institutions, all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Pro Rata Share of the Commitment and the Advances owing to it)
and the other Loan Documents; PROVIDED, HOWEVER, that (i) each such assignment
shall be of a constant, and not a varying, percentage of the assigning Lender's
rights and obligations under this Agreement and the other Loan Documents, and
such percentage of the assigning Lender's rights and obligations shall be the
same percentage with respect to both such Lender's Pro Rata Share of the
Commitment and Advances, (ii) the aggregate amount of the Pro Rata Share of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Assumption with
respect to such assignment) shall in no event be less than Ten Million Dollars
($10,000,000) and shall be an integral multiple of One Million
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<PAGE>
Dollars ($1,000,000), (iii) the parties to each such assignment shall execute
and deliver to Agent, for its approval and acceptance, an Assignment and
Assumption, and (iv) Agent shall receive from the assignor a processing fee
of Three Thousand Dollars ($3,000). Without restricting the right of
Borrower or Agent to reasonably object to any bank or financial institution
becoming an assignee of an interest of a Lender hereunder, each proposed
assignee must be an existing Lender or a bank or financial institution which
(A) has (or, in the case of a bank which is a subsidiary, such bank's parent
has) a rating of its senior unsecured debt obligations of not less than Baa-2
by Moody's Investors Service, Inc. or a comparable rating by a rating agency
acceptable to Agent and (B) has total assets in excess of Ten Billion Dollars
($10,000,000,000). Unless Agent or Borrower gives written notice to the
assigning Lender that it objects to the proposed assignment (together with a
written explanation of the reasons behind such objection) within ten (10)
Business Days following receipt of the assigning Lender's written request for
approval of the proposed assignment, Agent or Borrower, as the case may be,
shall be deemed to have approved such assignment. Upon such execution,
delivery, approval and acceptance, and upon the effective date specified in
the applicable Assignment and Assumption, (X) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Assumption, have the
rights and obligations of a Lender hereunder, and (Y) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Assumption, relinquish
its rights and be released from its obligations under this Agreement.
(2) By executing and delivering an Assignment and Assumption, the
assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Assumption, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document or any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of their respective obligations
under any Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
ARTICLE 4 or delivered pursuant to ARTICLE 5 to the date of such assignment and
such other Loan Documents and
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<PAGE>
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Assumption;
(iv) such assignee will, independently and without reliance upon Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v)
such assignee appoints and authorizes Agent to take such action as Agent on
its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(3) Agent shall maintain, at its address referred to on the
counterpart signature pages hereof, a copy of each Assignment and Assumption
delivered to and accepted by it and shall record in the Loan Account the names
and addresses of each Lender and the Pro Rata Share of the Commitment of, and
principal amount of the Advances owing to, such Lender from time to time.
Borrower, Agent and Lenders may treat each Person whose name is recorded in the
Loan Account as a Lender hereunder for all purposes of this Agreement.
(4) Upon its receipt of an Assignment and Assumption executed by an
assigning Lender and an assignee approved by Agent and Borrower as provided in
SECTION 12.20(a), Agent shall, if such Assignment and Assumption has been
properly completed and is in substantially the form of EXHIBIT A, (i) accept
such Assignment and Assumption, (ii) record the information contained therein in
the Loan Account, and (iii) give prompt notice thereof to Borrower. Upon
request, Borrower will execute and deliver to Agent an appropriate replacement
promissory note or replacement promissory notes in favor of each assignee (and
assignor, if such assignor is retaining a portion of its Pro Rata Share of the
Commitment and Advances) reflecting such assignee's (and assignor's) Pro Rata
Share of the Commitment. Upon execution and delivery of such replacement
promissory note(s) the original promissory note or notes evidencing all or a
portion of the Pro Rata Share of the Commitment and Advances being assigned
shall be canceled and returned to Borrower.
(5) Each Lender may sell participations to one or more banks or other
financial institutions in or to all or a portion of its rights and obligations
under this Agreement without the consent of any other party to this Agreement
(including, without limitation, all or a portion of its Pro Rata Share of the
Commitment and the Advances owing to it) and the other Loan Documents; PROVIDED,
HOWEVER, that (i) such
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Lender's obligations under this Agreement (including, without limitation, its
obligation to fund its Pro Rata Share of the Commitment to Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other financial institutions
shall not be a Lender hereunder for any purpose, (iv) Borrower, Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
with regard to any and all payments to be made under this Agreement, (v) the
participation interest shall be expressed as a percentage of the granting
Lender's Pro Rata Share of the Commitment as it then exists and shall not
restrict an increase in the Commitment, or in the granting Lender's Pro Rata
Share of the Commitment, so long as the amount of the participation interest
is not affected thereby and (vi) the consent of the holder of such
participation interest shall not be required for amendments or waivers of
provisions of the Loan Documents and the holder of any such participation
shall not be entitled to voting rights under their participation agreement
except for voting rights with respect to (A) extensions of the Maturity Date;
or (B) decreases in the interest rates or fees described in this Agreement.
(6) Borrower will use reasonable efforts to cooperate with Agent and
Lenders in connection with the assignment of interests under this Agreement or
the sale of participations herein.
(7) Anything in this Agreement to the contrary notwithstanding, and
without the need to comply with any of the formal or procedural requirements of
this Agreement, including SECTION 12.20, any Lender may at any time and from
time to time pledge and assign all or any portion of its rights under all or any
of the Loan Documents to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment shall release such Lender from its obligations thereunder. To
facilitate any such pledge or assignment, Agent shall, at the request of such
Lender, enter into a letter agreement with the Federal Reserve Bank in
substantially the form of the exhibit to Appendix C to the Federal Reserve Bank
of New York Operating Circular No. 12.
(8) Anything in this Agreement to the contrary notwithstanding, any
Lender may assign all or any portion of its rights and obligations under this
Agreement to another branch or Affiliate of such Lender without first obtaining
the approval of Agent and Borrower, PROVIDED that (i) at the time of such
assignment such Lender is not a Defaulting Lender, (ii) such Lender gives Agent
and Borrower at least fifteen (15) days' prior written notice of any such
assignment, (iii) the parties to each such assignment execute and deliver to
Agent an Assignment and Assumption, and (iv) Agent receives from
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assignor a processing fee of Three Thousand Dollars ($3,000).
(9) No assignee of any rights and obligations under this Agreement
shall be permitted to subassign such rights and obligations.
(10) No Lender shall be permitted to assign or sell all or any portion
of its rights and obligations under this Agreement to Borrower or any Affiliate
of Borrower.
(11) The dissemination or disclosure by any Lender to any prospective
assignee or participant of any confidential information obtained by Agent or the
Lenders pursuant to this Agreement or in connection with the Advances is subject
to the terms of SECTION 5.3.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date set forth above.
BORROWER: PRICE ENTERPRISES, INC.,
a Maryland corporation
By /s/ Jack McGrory
------------------------------
Jack McGrory
Its President and Chief
Executive Officer
By /s/ Gary Nielson
------------------------------
Gary W. Nielson
Its Executive Vice President
and Chief Financial Officer
ADDRESS FOR NOTICE AND DELIVERY:
Price Enterprises, Inc.
4649 Morena Boulevard
San Diego, California 92117
Attention: Gary W. Nielson
Tel: (619) 581-5430
Fax: (619) 581-4965
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<PAGE>
AGENT: WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Agent
By /s/ Jeffrey Reed
-------------------------------
Jeffrey Reed
Its Senior Vice President
By /s/ Susan Rosenblatt
-------------------------------
Susan Rosenblatt
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Wells Fargo Bank, N.A.
401 B Street, Suite 304
San Diego, California 92101
Attention: Manager
Tel: (619) 699-3174
Fax: (619) 699-3105
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<PAGE>
LENDERS: WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ Jeffrey Reed
-------------------------------
Jeffrey Reed
Its Senior Vice President
By /s/ Susan Rosenblatt
-------------------------------
Susan Rosenblatt
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Wells Fargo Bank, N.A.
Real Estate Group
401 B Street, Suite 304
San Diego, California 92101
Attention: Manager
Tel: (619) 699-3174
Fax: (619) 699-3105
LIBOR OFFICE:
Real Estate Group Disbursement Center
2120 East Park Place, Suite 100
El Segundo, California 90245
Attention: Ms. Angela Meick
Tel: (310) 335-9458
Fax: (310) 615-1014
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<PAGE>
Exhibit 10.10
PROMISSORY NOTE
$____________ December __, 1998
FOR VALUE RECEIVED, PRICE ENTERPRISES, INC., a Maryland corporation
("Borrower"), hereby promises to pay to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Lender") the principal sum of __________________ dollars
($_____________) or such lesser aggregate unpaid amount of all Advances made by
Lender under the Commitment pursuant to the Credit Agreement, together with
interest on the unpaid principal balance hereof at the rate (or rates)
determined in accordance with the Credit Agreement from the date such principal
is advanced until it is paid in full. It is contemplated that there will be
advances and payments under this Promissory Note from time to time, but no
advances or payments under this Promissory Note (including payment in full of
the unpaid balance of principal hereof prior to maturity) shall affect or impair
the validity or enforceability of this Promissory Note as to future advances
hereunder.
Reference is made to the Revolving Credit Agreement dated as of the
same date as this Promissory Note by and among Borrower, the Lenders named
therein, and Wells Fargo Bank, National Association, as Agent (as amended,
supplemented or modified from time to time, the "Credit Agreement").
Capitalized terms defined in the Credit Agreement and not otherwise defined
in this Promissory Note are used in this Promissory Note with the meanings
given the terms in the Credit Agreement. This Promissory Note is one of the
Notes referred to in and governed by the Credit Agreement, which Credit
Agreement, among other things, contains provisions for the acceleration of
the maturity hereof and for the payment of certain additional sums to Lender
upon the happening of certain stated events.
The principal amount of this Promissory Note, if not sooner paid as
required pursuant to the Credit Agreement, will be due and payable, together
with all accrued and unpaid interest and other amounts due and unpaid under
the Credit Agreement, on the Maturity Date.
Interest on the Advances is payable in arrears on the first
Business Day of each month during the term of the
EXHIBIT E
---------
Page 1 of 3
<PAGE>
Credit Agreement, commencing with the first Business Day of the first
calendar month to begin after the date of this Promissory Note. Interest
will be computed on the basis of the actual number of days elapsed in the
period during which interest accrues and a year of three hundred sixty (360)
days. The Credit Agreement provides for the payment by Borrower of various
other charges and fees, in addition to the interest charges described in the
Credit Agreement, as set forth more fully in the Credit Agreement.
All payments of any amount becoming due under this Promissory Note
shall be made in the manner provided in the Credit Agreement, in Dollars.
Upon and after the occurrence of an Event of Default, unless such
Event of Default is waived as provided in the Credit Agreement, this
Promissory Note may, at the option of Requisite Lenders and without demand,
notice or legal process of any kind, be declared by Agent, and in such case
immediately shall become, due and payable. Upon and after the occurrence of
certain Events of Default, this Promissory Note shall, as provided in the
Credit Agreement, without any action by Lenders and without demand, notice or
legal process of any kind, automatically and immediately become due and
payable.
Demand for payment, presentment, protest, dishonor and notice of
nonpayment and protest, notice of intention to accelerate maturity, notice of
acceleration of maturity and notice of dishonor are hereby waived by Borrower.
This Promissory Note has been delivered and accepted at San Diego,
California. This Promissory Note shall be interpreted in accordance with,
and the rights and liabilities of the parties hereto shall be determined and
governed by, the laws of the State of California.
In no contingency or event whatsoever shall interest charged in
respect of the Advances evidenced hereby, however such interest may be
characterized or computed, exceed the highest rate permissible under any law
that a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. If such a court determines that Lender has received
interest hereunder in excess of the highest rate applicable hereto, Lender
shall,
EXHIBIT E
---------
Page 2 of 3
<PAGE>
at Lender's election, either (a) promptly refund such excess interest to
Borrower or (b) credit such excess to the principal balance of the outstanding
Advances held by that Lender. This provision shall control over every other
provision of all agreements between Borrower and Lender.
Whenever possible each provision of this Promissory Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Promissory Note shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Promissory Note.
PRICE ENTERPRISES, INC.,
a Maryland corporation
By /s/ Jack McGrory
---------------------------------------
Jack McGrory
Its President and Chief
Executive Officer
By /s/ Gary W. Nielson
---------------------------------------
Gary W. Nielson
Its Executive Vice President
and Chief Financial Officer
EXHIBIT E
---------
Page 3 of 3
<PAGE>
Schedule of Promissory Notes Signed
- -----------------------------------
<TABLE>
<CAPTION>
Lender Date Signed Amount
- ------ ----------- ------
<S> <C> <C>
Bank One, Arizona, NA December 28, 1998 $25,000,000
AmSouth Bank December 28, 1998 25,000,000
Wells Fargo Bank, December 3, 1998 50,000,000
National Association
ALL LENDERS $100,000,000
</TABLE>
<PAGE>
Exhibit 10.11
FORM OF GUARANTY
THIS GUARANTY ("Guaranty") is made as of ____________, ____, by
____________________, a _____________________ ("Guarantor"), in favor of WELLS
FARGO BANK, NATIONAL ASSOCIATION ("Agent"), as agent for itself and the other
"Lenders" referred to in the Credit Agreement (defined in Recital A below).
Capitalized terms used in this Guaranty and not otherwise defined shall have the
meanings set forth for such terms in the Credit Agreement.
R E C I T A L S
---------------
A. Pursuant to the terms of that certain Revolving Credit
Agreement dated as of December 3, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among Price
Enterprises, Inc., a Maryland corporation ("Borrower"), the Lenders named
therein, and Agent, Lenders have agreed to loan to Borrower the principal sum
of FIFTY MILLION AND NO/100THS DOLLARS ($50,000,000.00) ("Loan") for the
purposes specified in the Credit Agreement.
B. The Credit Agreement provides that the Loan shall be evidenced
by those certain Notes executed by Borrower payable to the order of Lenders.
The term "Loan Documents" for purposes of this Guaranty shall mean the Credit
Agreement, the Notes and those other documents described in the Credit
Agreement as Loan Documents.
THEREFORE, to induce Lenders to enter into the Credit Agreement and
to make the Loan, and in consideration thereof, Guarantor unconditionally
guarantees and agrees as follows:
1. GUARANTY. Guarantor hereby guarantees and promises to pay to
Lenders or order, on demand, in lawful money of the United States, in
immediately available funds, the principal sum of FIFTY MILLION AND NO/100THS
DOLLARS ($50,000,000.00) or so much thereof as may be due and owing under the
Notes or any of the other Loan Documents together with interest and any other
sums payable under the Notes or any of the other Loan Documents.
2. REMEDIES. If Guarantor fails to promptly perform its
obligations under this Guaranty, Lenders may from time to time, and without
first requiring performance by Borrower, bring any action at law or in equity
or both to compel Guarantor to perform its obligations hereunder, and to
collect in any such action compensation for all loss, cost,
EXHIBIT D
---------
Page 1 of 9
<PAGE>
damage, injury and expense sustained or incurred by Lenders as a direct or
indirect consequence of the failure of Guarantor to perform its obligations
hereunder, together with interest thereon at the rate of interest applicable
to the principal balance of the Notes.
3. RIGHTS OF LENDERS. Guarantor authorizes Lenders, without
giving notice to Guarantor or obtaining Guarantor's consent and without
affecting the liability of Guarantor, from time to time to: (a) renew or
extend all or any portion of Borrower's obligations under the Notes or any of
the other Loan Documents; (b) declare all sums owing to Lenders under the
Notes and the other Loan Documents due and payable upon the occurrence of an
Event of Default (as defined in the Credit Agreement) under the Loan
Documents; (c) make non-material changes in the dates specified for payments
of any sums payable in periodic installments under the Notes or any of the
other Loan Documents; (d) otherwise modify the terms of any of the Loan
Documents, except for (i) increases in the principal amount of the Notes or
changes in the manner by which interest rates, fees or charges are calculated
under the Notes and the other Loan Documents (Guarantor acknowledges that if
the Notes or other Loan Documents so provide, said interest rates, fees and
charges may vary from time to time) or (ii) advancement of the Maturity Date
of the Notes where no Event of Default has occurred under the Loan Documents;
(e) take and hold security for the performance of Borrower's obligations
under the Notes or the other Loan Documents and exchange, enforce, waive and
release any such security; (f) apply such security and direct the order or
manner of sale thereof as Lenders in their discretion may determine; (g)
release, substitute or add any one or more endorsers of the Notes or
guarantors of Borrower's obligations under the Notes or the other Loan
Documents; (h) apply payments received by Lenders from Borrower to any
obligations of Borrower to Lenders, in such order as Lenders shall determine
in their sole discretion, whether or not any such obligations are covered by
this Guaranty; and (i) assign this Guaranty in whole or in part.
4. GUARANTOR'S WAIVERS. Guarantor waives: (a) any defense based
upon any legal disability or other defense of Borrower, any other guarantor
or other person, or by reason of the cessation or limitation of the liability
of Borrower from any cause other than full payment of all sums payable under
the Notes or any of the other Loan Documents; (b) any defense based upon any
lack of authority of the officers, directors, partners or agents acting or
purporting to act on behalf of Borrower or any principal of Borrower or any
defect in the formation of Borrower or any principal of Borrower; (c) any
defense based upon the application by Borrower of the proceeds of the Loan
for purposes other than the purposes represented by Borrower to Lenders or
intended or understood by Lenders or Guarantor;
EXHIBIT D
---------
Page 2 of 9
<PAGE>
(d) any defense of Guarantor based upon Lenders' election of any remedy
against Guarantor or Borrower or both; (e) any defense based upon Lenders'
failure to disclose to Guarantor any information concerning Borrower's
financial condition or any other circumstances bearing on Borrower's ability
to pay all sums payable under the Notes or any of the other Loan Documents;
(f) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in any other
respects more burdensome than that of a principal; (g) any defense based upon
Lenders' election, in any proceeding instituted under the Federal Bankruptcy
Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code
or any successor statute; (h) any defense based upon any borrowing or any
grant of a security interest under Section 364 of the Federal Bankruptcy
Code; (i) any right of subrogation, any right to enforce any remedy which
Lenders may have against Borrower and any right to participate in, or benefit
from, any security for the Notes or the other Loan Documents now or hereafter
held by Lenders; (j) presentment, demand, protest and notice of any kind; and
(k) the benefit of any statute of limitations affecting the liability of
Guarantor hereunder or the enforcement hereof. Guarantor agrees that the
payment of all sums payable under the Notes or any of the other Loan
Documents or any part thereof or other act which tolls any statute of
limitations applicable to the Notes or the other Loan Documents shall
similarly operate to toll the statute of limitations applicable to
Guarantor's liability hereunder. Without limiting the generality of the
foregoing or any other provision hereof, Guarantor expressly waives any and
all benefits which might otherwise be available to Guarantor under California
Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433,
or any of such sections.
5. GUARANTOR'S WARRANTIES. Guarantor warrants and acknowledges
that: (a) Lenders would not make the Loan but for this Guaranty; (b) there
are no conditions precedent to the effectiveness of this Guaranty and this
Guaranty shall be in full force and effect and binding on Guarantor
regardless of whether Lenders obtain other collateral or any guaranties from
others or takes any other action contemplated by Guarantor; (c) Guarantor has
established adequate means of obtaining from sources other than Lenders, on a
continuing basis, financial and other information pertaining to Borrower's
financial condition, and the status of Borrower's performance of obligations
imposed by the Loan Documents, and Guarantor agrees to keep adequately
informed from such means of any facts, events or circumstances which might in
any way affect Guarantor's risks hereunder and Lenders have made no
representation to Guarantor as to any such matters; (d) the most recent
financial statements of Guarantor previously delivered to Lenders are true
and correct in all respects, have been prepared in accordance with generally
accepted accounting
EXHIBIT D
---------
Page 3 of 9
<PAGE>
principles consistently applied (or other principles acceptable to Lenders)
and fairly present the financial condition of Guarantor as of the respective
dates thereof, and no material adverse change has occurred in the financial
condition of Guarantor since the respective dates thereof; and (e) Guarantor
has not and will not, without the prior written consent of Lenders (such
consent not to be unreasonably withheld), sell, lease, assign, encumber,
hypothecate, transfer or otherwise dispose of all or substantially all of
Guarantor's assets, or any interest therein, other than in the ordinary
course of Guarantor's business.
6. SUBORDINATION. Guarantor subordinates all present and future
indebtedness owing by Borrower to Guarantor to the obligations at any time
owing by Borrower to Lenders under the Notes and the other Loan Documents.
Guarantor assigns all such indebtedness to Lenders as security for this
Guaranty, the Notes and the other Loan Documents. Guarantor agrees to make
no claim for such indebtedness until all obligations of Borrower under the
Notes and the other Loan Documents have been fully discharged. Guarantor
further agrees not to assign all or any part of such indebtedness unless
Lenders are given prior notice and such assignment is expressly made subject
to the terms of this Guaranty. If Requisite Lenders so request, (a) all
instruments evidencing such indebtedness shall be duly endorsed and delivered
to Agent for the benefit of Lenders, (b) all security for such indebtedness
shall be duly assigned and delivered to Agent for the benefit of Lenders, (c)
such indebtedness shall be enforced, collected and held by Guarantor as
trustee for Lenders and shall be paid over to Agent for the benefit of
Lenders on account of the Loan but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this
Guaranty, and (d) Guarantor shall execute, file and record such documents and
instruments and take such other action as Requisite Lenders deem necessary or
appropriate to perfect, preserve and enforce Lenders' rights in and to such
indebtedness and any security therefor. If Guarantor fails to take any such
action, Agent for the benefit of Lenders, as attorney-in-fact for Guarantor,
is hereby authorized to do so in the name of Guarantor. The foregoing power
of attorney is coupled with an interest and cannot be revoked.
7. BANKRUPTCY OF BORROWER. In any bankruptcy or other proceeding
in which the filing of claims is required by law, Guarantor shall file all
claims which Guarantor may have against Borrower relating to any indebtedness
of Borrower to Guarantor and shall assign to Lenders all rights of Guarantor
thereunder. If Guarantor does not file any such claim, Agent for the benefit
of Lenders, as attorney-in-fact for Guarantor, is hereby authorized to do so
in the name of Guarantor or, in Lenders' discretion, to assign the claim to a
nominee and to cause proof of claim to be filed in the name of Lenders'
EXHIBIT D
---------
Page 4 of 9
<PAGE>
nominee. The foregoing power of attorney is coupled with an interest and
cannot be revoked. Lenders or their nominee shall have the right, in their
or its reasonable discretion, to accept or reject any plan proposed in such
proceeding and to take any other action which a party filing a claim is
entitled to do. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to
Agent for the benefit of Lenders the amount payable on such claim and, to the
full extent necessary for that purpose, Guarantor hereby assigns to Lenders
all of Guarantor's rights to any such payments or distributions; PROVIDED,
HOWEVER, Guarantor's obligations hereunder shall not be satisfied except to
the extent that Lenders receive cash by reason of any such payment or
distribution. If Lenders receive anything hereunder other than cash, the
same shall be held as collateral for amounts due under this Guaranty. If all
or any portion of the obligations guaranteed hereunder are paid or performed,
the obligations of Guarantor hereunder shall continue and shall remain in
full force and effect in the event that all or any part of such payment or
performance is avoided or recovered directly or indirectly from any Lender as
a preference, fraudulent transfer or otherwise under the Bankruptcy Code or
other similar laws, irrespective of (a) any notice of revocation given by
Guarantor prior to such avoidance or recovery, or (b) full payment and
performance of all of the indebtedness and obligations evidenced and secured
by the Loan Documents.
8. LOAN SALES AND PARTICIPATIONS; DISCLOSURE OF INFORMATION.
Guarantor agrees that each of the Lenders may elect, at any time, to sell,
assign, or grant participations in all or any portion of its rights and
obligations under the Loan Documents and this Guaranty, subject to the
provisions of Section 12.20 of the Credit Agreement. Guarantor further
agrees that each Lender may disseminate to any such actual or potential
purchaser(s), assignee(s) or participant(s) all documents and information
(including, without limitation, all financial information) which has been or
is hereafter provided to or known to Lender with respect to: (a) any Real
Property; (b) any Person connected with the Loan (including, without
limitation, the Guarantor and the Borrower,); and/or (c) any lending
relationship other than the Loan which such Lender may have with any Person
connected with the Loan, provided that such purchaser(s), assignee(s) or
participant(s) agree to be bound by Section 5.3 of the Credit Agreement. In
the event of any such sale, assignment or participation, Lenders and the
parties to such transaction shall share in the rights and obligations of
Lender as set forth in the Loan Documents only as and to the extent they
agree among themselves. In connection with any such sale, assignment or
participation, Guarantor further agrees that this Guaranty shall be
sufficient evidence of the obligations of Guarantor to each purchaser,
assignee, or participant, and upon written request by Agent,
EXHIBIT D
---------
Page 5 of 9
<PAGE>
Guarantor shall consent to such amendments or modifications to the Loan
Documents as may be reasonably required in order to evidence any such sale,
assignment or participation.
9. ADDITIONAL, INDEPENDENT AND UNSECURED OBLIGATIONS. This is a
Guaranty of payment and not of collection and the obligations hereunder of
Guarantor shall be in addition to and shall not limit or in any way affect
the obligations of Guarantor under any other existing or future guaranties
unless said other guaranties are expressly modified or revoked in writing.
This Guaranty is independent of the obligations of Borrower under the Notes
and the other Loan Documents. Lenders may bring a separate action to enforce
the provisions hereof against Guarantor without taking action against
Borrower, any other guarantor or any other Person or joining Borrower, any
other guarantor or any other Person as a party to such action. Except as
otherwise provided in this Guaranty, this Guaranty is not secured and shall
not be deemed to be secured by any security instrument unless such security
instrument expressly recites that it secures this Guaranty.
10. ATTORNEYS' FEES; ENFORCEMENT. Subject to Section 12.1 of the
Credit Agreement, if any attorney is engaged by Agent or Lenders to enforce
or defend any provision of this Guaranty, or any of the other Loan Documents,
or as a consequence of any Event of Default under the Loan Documents, with or
without the filing of any legal action or proceeding, Guarantor shall pay to
Agent and/or Lenders, immediately upon demand all attorneys' fees and costs
incurred by Agent and/or Lenders in connection therewith, together with
interest thereon from the date of such demand until paid at the rate of
interest applicable to the principal balance of the Notes as specified
therein.
11. RULES OF CONSTRUCTION. The word "Borrower" as used herein
shall include both the named Borrower and any other Person at any time
assuming or otherwise becoming primarily liable for all or any part of the
obligations of the named Borrower under the Notes and the other Loan
Documents. When the context and construction so require, all words used in
the singular herein shall be deemed to have been used in the plural and vice
versa. All headings appearing in this Guaranty are for convenience only and
shall be disregarded in construing this Guaranty.
12. CREDIT REPORTS. Each legal entity and individual obligated on
this Guaranty hereby authorizes Lenders to order and obtain, from a credit
reporting agency of Lenders' choice, a third party credit report on such
legal entity and individual.
13. GOVERNING LAW. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of
EXHIBIT D
---------
Page 6 of 9
<PAGE>
California, except to the extent preempted by Federal laws. Guarantor and
all Persons in any manner obligated to Lenders under this Guaranty consent to
the jurisdiction of any Federal or State Court within the State of California
having proper venue and also consent to service of process by any means
authorized by California or Federal law.
14. MISCELLANEOUS. The provisions of this Guaranty will bind and
benefit the heirs, executors, administrators, legal representatives,
nominees, successors and assigns of Guarantor, Agent and Lenders. The
liability of all Persons who are in any manner obligated hereunder shall be
joint and several. If any provision of this Guaranty shall be determined by a
court of competent jurisdiction to be invalid, illegal or unenforceable, that
portion shall be deemed severed from this Guaranty and the remaining parts
shall remain in full force as though the invalid, illegal or unenforceable
portion had never been part of this Guaranty.
15. ENFORCEABILITY. Guarantor hereby acknowledges that: (a) the
obligations undertaken by Guarantor in this Guaranty are complex in nature,
and (b) numerous possible defenses to the enforceability of these obligations
may presently exist and/or may arise hereafter, and (c) as part of Lenders'
consideration for entering into this transaction, Lenders have specifically
bargained for the waiver and relinquishment by Guarantor of all such
defenses, and (d) Guarantor has had the opportunity to seek and receive legal
advice from skilled legal counsel in the area of financial transactions of
the type contemplated herein. Given all of the above, Guarantor does hereby
represent and confirm to Lenders that Guarantor is fully informed regarding,
and that Guarantor does thoroughly understand: (i) the nature of all such
possible defenses, and (ii) the circumstances under which such defenses may
arise, and (iii) the benefits which such defenses might confer upon
Guarantor, and (iv) the legal consequences to such Guarantor of waiving such
defenses. Guarantor acknowledges that Guarantor makes this Guaranty with the
intent that this Guaranty and all of the informed waivers herein shall each
and all be fully enforceable by Agent and/or Lenders, and that Lenders are
induced to enter into this transaction in material reliance upon the presumed
full enforceability thereof.
16. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS GUARANTY
AND, BY ITS ACCEPTANCE HEREOF, LENDERS, HEREBY EXPRESSLY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING
UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
EXHIBIT D
---------
Page 7 of 9
<PAGE>
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY AND LENDERS HEREBY AGREE AND CONSENT THAT ANY PARTY TO THIS
GUARANTY AND LENDERS MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO AND LENDERS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
17. YEAR 2000 COVENANT. Guarantor shall ensure that the following
are Year 2000 Compliant in a timely manner, but in no event later than
December 31, 1999: (a) Guarantor itself and (b) any major commercial
properties and entities in which Guarantor holds a controlling interest.
Guarantor shall further make reasonable inquiries of and request reasonable
validation that each of the following are similarly Year 2000 Compliant: (x)
all major tenants or other entities from which Guarantor receives payments;
and (y) all major contractors, suppliers, service providers and vendors of
Guarantor. As used in this paragraph, "major" shall mean properties or
entities the failure of which to be Year 2000 Compliant would have a material
adverse economic impact upon Guarantor. The term "Year 2000 Compliant" shall
mean, in regard to any property or entity, that all software, hardware,
equipment, goods or systems utilized by or material to the physical
operations, business operations or financial reporting of such property or
entity (collectively, the "systems") will properly perform date sensitive
functions before, during and after the year 2000. In furtherance of this
covenant, Guarantor shall, in addition to any other necessary actions perform
a comprehensive review and assessment of all systems of Guarantor, and shall
adopt a detailed plan, with itemized budget, for the testing, remediation,
and monitoring of such systems. Guarantor shall, within thirty business days
of Agent's written request, provide to Agent such certifications or other
evidence of Guarantor's
EXHIBIT D
---------
Page 8 of 9
<PAGE>
compliance with the terms of this Section as Agent may from time to time
reasonably require.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the
date appearing on the first page of this Guaranty.
"GUARANTOR"
------------------------------
a ----------------------------
By
------------------------------
Its
--------------------------
By
------------------------------
Its
--------------------------
EXHIBIT D
---------
Page 9 of 9
<PAGE>
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"), WELLS FARGO
BANK, NATIONAL ASSOCIATION, as a Lender (the "Original Lender"), BANK ONE,
ARIZONA, NA ("Bank One"), AMSOUTH BANK ("AmSouth"), and WELLS 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 "Wells Fargo Note"). As of the date of this Amendment,
Advances under the
-1-
<PAGE>
Wells 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:
-2-
<PAGE>
"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:
<TABLE>
<CAPTION>
APPLICABLE
PRICING LEVEL MARGIN
------------- ------
<S> <C>
I 110.00
II 120.00
III 125.00
IV 130.00
V 135.00
VI 140.00
VII 145.00
</TABLE>
(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 Wells 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.
-3-
<PAGE>
(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:
-4-
<PAGE>
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,
-5-
<PAGE>
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
-6-
<PAGE>
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;
-7-
<PAGE>
(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
-8-
<PAGE>
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.
-9-
<PAGE>
17. CONFIRMATION. In all other respects, the terms of the Credit
Agreement and the other Loan Documents are hereby confirmed.
-10-
<PAGE>
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/ Jack McGrory
-------------------------------
Jack McGrory
Its President and Chief
Executive Officer
By /s/ Gary W. Nielson
-------------------------------
Gary W. Nielson
Its Executive Vice President
and Chief Financial Officer
ADDRESS FOR NOTICE AND DELIVERY:
Price Enterprises, Inc.
4649 Morena Boulevard
San Diego, California 92117
Attention: Gary W. Nielson
Tel: (619) 581-5430
Fax: (619) 581-4965
-11-
<PAGE>
AGENT: WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Agent
By /s/ Jeffrey Reed
--------------------------------
Jeffrey Reed
Its Senior Vice President
By /s/ Susan Rosenblatt
--------------------------------
Susan Rosenblatt
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Wells Fargo Bank, N.A.
401 B Street, Suite 304
San Diego, California 92101
Attention: Manager
Tel: (619) 699-3174
Fax: (619) 699-3105
-12-
<PAGE>
LENDERS: WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ Jeffrey Reed
--------------------------------
Jeffrey Reed
Its Senior Vice President
By /s/ Susan Rosenblatt
--------------------------------
Susan Rosenblatt
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Wells Fargo Bank, N.A.
Real Estate Group
401 B Street, Suite 304
San Diego, California 92101
Attention: Manager
Tel: (619) 699-3174
Fax: (619) 699-3105
LIBOR OFFICE:
Wells Fargo Bank, N.A.
Real Estate Group Disbursement
Center
2120 East Park Place, Suite 100
El Segundo, California 90245
Attention: Ms. Angela Meick
Tel: (310) 335-9458
Fax: (310) 615-1014
-13-
<PAGE>
BANK ONE, ARIZONA, NA
By /s/ R Williams
----------------------------
Rhonda R. Williams
Its Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Bank One, Arizona, NA
201 North Central
19th Floor
Phoenix, AZ 85004
Attention: AZ1-1321
Tel: (602) 221-1783
Fax: (602) 221-4435
LIBOR OFFICE:
Bank One, Arizona, NA
201 North Central
14th Floor
Phoenix, AZ 85004
Attention: AZ1-1009
Tel: (602) 221-2971
Fax: (602) 221-1615
-14-
<PAGE>
AMSOUTH BANK
By /s/ Steven R. Chester
----------------------------
Steven R. Chester
Its Assistant Vice President
ADDRESS FOR NOTICE AND DELIVERY:
AmSouth Bank
Commercial Real Estate Lending
1900 Fifth Avenue North
Birmingham, AL 35203
Attention: Steve Chester
Tel: (205) 326-4869
Fax: (205) 326-4075
LIBOR OFFICE:
AmSouth Bank
Commercial Real Estate
1900 Fifth Avenue North
Birmingham, AL 35203
Attention: Todd Harris
Tel: (205) 581-7985
Fax: (205) 326-4075
-15-
<PAGE>
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/ Jack McGrory
--------------------------------
Its CEO
---------------------------
By /s/ Gary W. Nielson
--------------------------------
Its Vice President
---------------------------
-16-
<PAGE>
EXHIBIT 10.13
SCHEDULE 1.1
PRO RATA SHARES OF LENDERS
<TABLE>
<CAPTION>
Lender Pro Rata Share Amount
- ------ -------------- ------------
<S> <C> <C>
Bank One, Arizona, NA 25.00000000% $25,000,000
AmSouth Bank 25.00000000% 25,000,000
Wells Fargo Bank, 50.00000000% 50,000,000
National Association
ALL LENDERS 100.00000000% $100,000,000
</TABLE>
<PAGE>
EXHIBIT 10.14
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement ("Amendment") is made and entered
into as of February 2, 1999, by and between Price Enterprises, Inc., a
Maryland Corporation ("Employer") and Jack McGrory ("Executive").
RECITALS
A. On June 18, 1997, an Employment Agreement was made and entered into by and
between Executive and Employer, which was amended by Amendment dated August
26, 1997.
B. Section 2.5 of the Employment Agreement provides as follows:
"2.5 STOCK OPTION PLAN. Employer has adopted The Price Enterprises 1995
Combined Stock Grant and Stock Option Plan (the "Stock Plan"). As of the
twenty-sixth (26th) day of trading on the Nasdaq National Market, after the
aforementioned spin-off of the merchandise businesses (said twenty-sixth
[26th] day hereafter referred to as the "Effective Date of Grant"),
Executive will receive a grant of options to purchase shares of Employer's
Common Stock, the number of such options equating to one percent (1%) of
Employer's then-issued and outstanding shares of such Common Stock. Said
options will be exercisable at a price equal to the fair market value of
Employer's Common Stock as of the Effective Date of Grant, which shall be
deemed to be the average of the per share closing sales price for
Employer's Common Stock for the twenty days (20) days commending on the
sixth (6th) day after the effective date of the spin-off. Such options
shall vest at the rate of twenty percent (20%) per year over a period of
five (5) years and expiring six (6) years from the effective date of grant.
Said grant of options shall provide, among other things, that in the event
of any merger, consolidation or reorganization of Employer with any other
entity or entities not affiliated with Employer, where Employer is not the
surviving entity, occurring within three (3) years of the commencement of
the Employment Term, sixty percent (60%) of the total options granted shall
be deemed vested and the remaining forty percent (40%) shall be deemed
cancelled. In addition, such options shall otherwise be granted in
accordance with and subject to all other terms, conditions and restrictions
set forth in the Stock Plan."
C. The parties wish to amend Section 2.5 of the Employment Agreement so that
it conforms to Article 6(d) of The Price Enterprises 1995 Combined Stock
Grant and Stock Option Plan, and the Executive's Non-Qualified Stock Option
Agreement.
Page 1 of 1
<PAGE>
NOW, THEREFORE, the parties agree as follows:
Section 2.5 of the Employment Agreement is amended in its entirety to read as
follows:
"2.5 STOCK OPTION PLAN. Employer has adopted The Price Enterprises 1995
Combined Stock Grant and Stock Option Plan (the "Stock Plan"). As of the
twenty-sixth (26th) day of trading on the Nasdaq National Market, after the
aforementioned spin-off of the merchandise businesses (said twenty-sixth
[26th] day hereafter referred to as the "Effective Date of Grant"),
Executive will receive a grant of options to purchase shares of Employer's
Common Stock, the number of such options equating to one percent (1%) of
Employer's then-issued and outstanding shares of such Common Stock. Said
options will be exercisable at a price equal to the fair market value of
Employer's Common Stock as of the Effective Date of Grant, which shall be
deemed to be the average of the per share closing sales price for
Employer's Common Stock for the twenty (20) days commencing on the sixth
(6th) day after the effective date of the spin-off. Such options shall vest
at the rate of twenty percent (20%) per year over a period of five (5)
years and expiring six (6) years from the Effective Date of Grant." In
addition, such options shall otherwise be granted in accordance with and
subject to all other terms, conditions and restrictions set forth in the
Stock Plan.
Date: 3/2/99
----------
EXECUTIVE EMPLOYER
- --------- --------
PRICE ENTERPRISES, INC.
JACK MCGRORY
By: /s/ Robert E. Price
----------------------------
/s/ Jack McGrory Name: Robert E. Price
- ----------------------------- --------------------------
Title: Chairman
--------------------------
Page 2 of 2
<PAGE>
EXHIBIT 12.1
PRICE ENTERPRISES, INC.
COMPUTATION OF RATIOS
(in thousands, except ratios)
<TABLE>
<CAPTION>
Year Ended
December 31,
------------
1998
------------
<S> <C>
EARNINGS
Income from continuing operations before income taxes $29,429
Add: fixed charges 3,111
Less: capitalized interest (300)
------------
Income as adjusted $32,240
------------
------------
FIXED CHARGES AND PREFERRED DIVIDENDS:
Fixed charges:
Interest costs $2,811
Capitalized interest 300
------------
Total fixed charges 3,111
Preferred stock dividends 8,316
------------
Total fixed charges and preferred dividends $11,417
------------
------------
Ratio of earnings to fixed charges 10.36
------------
------------
Ratio of earnings to combined fixed charges and preferred stock
dividends 2.82
------------
------------
</TABLE>
For periods prior to the one ending December 31, 1998, this calculation is not
applicable for our Company
<PAGE>
Exhibit 21.1
SUBSIDIARIES OF PRICE ENTERPRISES, INC.
NAME OF SUBSIDIARY (STATE OF INCORPORATION)
Price Self Storage, Inc. (Delaware)
Price Enterprises - TX, Inc. (Delaware)
Price Enterprises - Texas, LP (Delaware)
<PAGE>
EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-60999) pertaining to the Price Enterprises 1995 Combined Stock Grant
and Stock Option Plan and the Price Enterprises Directors' 1995 Stock Option
Plan of our report dated January 19, 1999, (except for Note 12, as to which the
date is January 22, 1999) with respect to the consolidated financial statements
and schedule of Price Enterprises, Inc. included in the Annual Report (Form
10-K) for the year ended December 31, 1998.
/s/ ERNST & YOUNG LLP
San Diego, California
March 24, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 3,691
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 475,873
<DEPRECIATION> (57,366)
<TOTAL-ASSETS> 457,352
<CURRENT-LIABILITIES> 112,541
<BONDS> 0
0
353,404
<COMMON> 1
<OTHER-SE> (8,594)
<TOTAL-LIABILITY-AND-EQUITY> 457,352
<SALES> 0
<TOTAL-REVENUES> 62,485
<CGS> 0
<TOTAL-COSTS> 31,092
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,811
<INCOME-PRETAX> 29,429
<INCOME-TAX> 0
<INCOME-CONTINUING> 29,429
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 29,429
<EPS-PRIMARY> .97
<EPS-DILUTED> .96
</TABLE>
