CREDIT AGREEMENT. (ii) Borrower and Lender shall enter into an Amendment to Credit Agreement in the form attached hereto as Exhibit "C";

Transcription

1 CREDIT AGREEMENT This Agreement dated as of May 1, 2008, is between Bank of America, N.A. (the "Bank") and the Redevelopment Agency of the City of Santa Monica, a public body corporate and politic (the "Borrower''). 1. LINE OF CREDIT; AMOUNT AND TERMS 1.1 Line of Credit. (a) During the availability period described below, the Bank will provide a line of credit (the "Line of Credit") to the Borrower. The amount of the Line of Credit ("Commitment") is Fifty Million Dollars ($50,000,000.00). (b) At any time during the availability period, Borrower may request that the initial Commitment be increased to a total Commitment of up to $75,000,000, which is the maximum commitment amount under this Agreement. Such request of the Borrower must be in the form attached hereto as Exhibit "B" and must be accompanied by the most recent financial information of Borrower set forth in Sections 8.2(a) and (b). Within thirty (30) days following the receipt of such request and accompanying information, and receipt of such other information as the Bank may reasonably request, the Bank shall send written notice to Borrower of its election to increase or not increase the Commitment; provided, that if the Bank fails to send such notice, the Bank shall be deemed to have denied the requested increase. Any increase to the Commitment is subject to, but not limited to, the conditions that (i) On or before the date the increased Commitment becomes available, Borrower shall pay an additional loan fee equal to.05% of the amount of the increase to the Commitment; (ii) Borrower and Lender shall enter into an Amendment to Credit Agreement in the form attached hereto as Exhibit "C"; (iii) No Event of Default (as defined in Section 9 of this Agreement) or event which with the passage of time, the giving of notice or both, would constitute an Event of Default has occurred and is continuing under this Agreement; (iv) No Material Adverse Change has occurred; and (v) No litigation or governmental action that purports to have a Material Adverse Change shall have occurred and be continuing. For purposes of this Agreement, the terms "Material Adverse Change" and "Material Adverse Effect" have the following meanings:

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29 EXHIBIT "A" ADVANCE REQUEST Bank of America, N.A. Loan Servicing, California 101 South Marengo Ave, 5th floor Pasadena, CA Attention: Or Linda Escamilla Telephone No.: (626) Facsimile No.: (626) Michael Towman Telephone No.: (626) Facsimile No.: (626) With a copy to: Paul F. Sutherlen Telephone No.: (213) Facsimile No.: (213) /3607 Re: Credit Agreement dated as of May 1, 2008 between the Redevelopment Agency of the City of Santa Monica and Bank of America, N.A. Ladies and Gentlemen: The undersigned, Redevelopment Agency of the City of Santa Monica (the "Borrower''), refers to the Credit Agreement, dated as of May 1, 2008 (as amended frorn time to time, the "Agreement"; the terms defined therein being used herein as therein defined}, between the undersigned and Bank of America, N.A. ("Bank"}, and hereby gives you notice, pursuant to Sections 5.1 (b) and 5.2 of the Agreement, that the undersigned hereby desires an Advance under the Credit Agreement as follows: (i) The date of the Advance is, 200_ [insert a date that is (x) no earlier the third Business Day following the date of this notice if the Advance is to bear interest initially calculated by reference to the LIBOR Rate or (y) no earlier than the next Business Day following the date of this notice if such Advance is to bear interest initially at the Prime Rate or IBOR Rate]. (ii) The principal amount of the Advance is $ [insert an amount not less than $500,000 if the Advance is to bear interest with reference to the L/BOR Rate]. (iii) The Advance shall initially bear interest calculated by reference to [insert one of the following rates: Prime Rate, IBOR Rate or LIBOR Rate] /13/08

30 (iv) If the Advance is to bear interest initially calculated by reference to the LIBOR Rate, the initial Interest Period is months [insert one of the following: one week, one month, three months or six months. (v). If the Advance is to bear interest initially calculated by reference to the IBOR Rate, the initial Interest Period is months [insert one of the following: one day, one week, one month, three months or six months. The Borrower hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Advance before and after giving effect to the requested Advance: (A} The purpose of this Advance is which constitutes a part of the Project. (B) All representations and warranties contained in the Agreement and the other related documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof or the date of the Advance, as the case may be; and (C) No Event of Default or event which with the passage of time, the giving of notice, or both, would constitute an Event of Default has occurred and is continuing. (D) The amount of the Advance requested plus all amounts currently outstanding under the Line of Credit are equal to or less than the Annual Principal Cap set forth in the certificate of Borrower delivered pursuant to Section 8.2(d} on the March 1 5 ' immediately preceding the date of this request. Very truly yours, REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA By: Name:. Title:. By:. Name: Title: -29-5/13/08

31 EXHIBIT "8" REQUEST FOR INCREASE TO COMMITMENT Bank of America, N.A. CA South Hope Street, 13'h Floor Los Angeles, California Attention: Paul F. Sutherlen Telephone No.: (213) Facsimile No.: (213) /3607 Re: Credit Agreement dated as of May 1, 2008 between the Redevelopment Agency of the City of Santa Monica and Bank of America, N.A. Ladies and Gentlemen: The undersigned, Redevelopment Agency of the City of Santa Monica (the "Borrower"), refers to the Credit Agreement, dated as of May 1, 2008 (as amended from time to time, the "Agreement"; the terms defined therein being used herein as therein defined), between the undersigned and Bank of America, N.A. ("Bank"). Borrower hereby requests that the Commitment be increased to$[ insert amount not to exceed $75,000,000 ]. Borrower has delivered or is delivering with this request Borrower's most recent audited financial statements and monthly cash flow projections for the Borrower for the next succeeding 12-month period. Borrower understands that the Bank may request additional information prior to making a decision regarding this request. Borrower hereby represents and warrants as follows: (i) There exists no Event of Default as defined in the Credit Agreement, nor any condition, act or event which with the giving of notice or the passage of time or both would constitute any such Event of Default; (ii) No Material Adverse Change has occurred with respect to the Borrower; and -30-5/13/08

32 (iii) No litigation or governmental action that could have a Material Adverse Effect on the Borrower or any transaction contemplated by the Credit Agreement or the ability of Borrower to perform its obligations under the Credit Agreement has occurred and is continuing. Very truly yours, REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA Nam By: e_: Title: By: Nam e_: Title: -31-5/13/08

33 EXHIBIT "C" FIRST AMENDMENT TO CREDIT AGREEMENT THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into as of --::---:-:-::=-:-:-=-:--:-:-::-:' 200_, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA, a public body corporate and politic (the "Borrower") and BANK OF AMERICA, N.A., a national banking association (the "Bank"). RECITALS AGREEMENT For good and valuable consideration, receipt of which is hereby acknowledged, the Borrower, the Authority and the Bank agree as follows: 1. Commitment Amount. Upon the execution of this Amendment and satisfaction of the conditions to the Effective Date set forth below, the Commitment shall be increased to $, and from and after the Effective Date, all references to the "Commitment" in the Credit Agreement shall mean the Commitment, as increased pursuant to this Amendment. 2. Miscellaneous. (a) Effective Date. This Amendment shall be effective and the Effective Date shall occur on the date on which all of the following conditions have been satisfied by Borrower or waived by Lender: (i) Execution of Documents. This Amendment shall be fully executed and delivered to the Bank; (ii) Additional Loan Fee. Borrower shall have paid an additional loan fee equal to.05% of the amount of the increase to the Commitment; and (ii) Costs and Expenses. Borrower shall have paid all costs and expenses incurred by the Bank in connection with this transaction, including without limitation reasonable attorneys' fees in the amount of$ (b) Effect of Amendment. Except as specifically provided herein, all terms and conditions of the Original Credit Agreement remain in full force and effect, without waiver or modification. This Amendment and the Original Credit Agreement shall be read together, as one document. (c) Representations and Warranties. The Borrower hereby remakes all representations and warranties contained in the Original Credit Agreement and reaffirms all covenants set forth therein. The Borrower further certifies that as of the date of this Amendment: -32-5/13/08

34 (i) There exists no Event of Default as defined in the Original Credit Agreement, nor any condition, act or event which with the giving of notice or the passage of time or both would constitute any such Event of Default; (ii) No Material Adverse Change has occurred with respect to the Borrower; and (iii) No litigation or governmental action that could have a Material Adverse Effect on the Borrower or any transaction contemplated by the Original Credit Agreement, as amended by this Amendment, or the ability of Borrower to perform its obligations under the Original Credit Agreement, as amended by this Amendment, has occurred and is continuing. (d) Successors. This Amendment shall inure to the benefit of the parties hereto and their respective successors and assigns. (e) Amendments. No modification, waiver, amendment, discharge or change of this Amendment shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver or amendment, discharge or change is or may be sought. (f) Counterparts. This Amendment may be simultaneously executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument /13/08

35 IN WITNESS WHEREOF. this Amendment has been executed as of the date first set forth above. REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA By: Name: Title: By: Nam_e_: Title: BANK OF AMERICA, N.A. By: 7N~a_m_e_:~P~a-u 7 1~F-.S~u~t~he-r 7 1e_n Title: Senior Vice President -34-5/13/08

36 EXHIBIT "D" CONVERSION NOTICE Bank of America, N.A. Loan Servicing, California 101 South Marengo Ave, 5 1 h floor Pasadena, CA Attention: Or Linda Escamilla Telephone No.: (626) Facsimile No.: (626) Michael Towman Telephone No.: (626) Facsimile No.: (626) With a copy to: Paul F. Sutherlen Telephone No.: (213) Facsimile No.: (213) /3607 Re: Credit Agreement dated as of May 1, 2008 between the Redevelopment Agency of the City of Santa Monica and Bank of America, N.A. Ladies and Gentlemen: The undersigned, Redevelopment Agency of the City of Santa Monica (the "Borrower''), refers to the Credit Agreement, dated as of May 1, 2008 (as amended from time to time, the "Agreement"; the terms defined therein being used herein as therein defined), between the undersigned and Bank of America, N.A. ("Bank"), hereby gives you notice, pursuant to Section 1.5(b)(ii)(C) of the Agreement, that the undersigned desires to convert a portion of the outstanding principal of the Line of Credit to a Term Loan as follows: (i) The principal amount to be converted is $. [[insert an amount equal to at least $5,000, 000]. (ii) The Conversion Date is, 20_jif any of the principal to be converted then bears interest at the LIBOR Rate or the IBOR, the Conversion Date must be the last day of the Interest Period(s) applicable to such Portion(s) or the principal must bear interest at the Prime Rate on the Conversion Date]. Interest Rates: (a) Borrower hereby requests a quote from the Bank for a tax-exempt interest rate and agrees that if such interest rate is accepted, Borrower will deliver an opinion of bond counsel in form and substance satisfactory to Bank regarding the tax-exempt status of the Term Loan that bears interest at the tax-exempt rate /13/08

37 OR {b) The Advance shall initially bear interest calculated by reference to [insert one of the following rates: Prime Rate, IBOR or LIB OR Rate]. (i) If the Advance is to bear interest initially calculated by reference to the LIBOR Rate, the initial Interest Period is months [insert one of the following: one week, one month, three months or six months. (ii) If the Advance is to bear interest initially calculated by reference to the IBOR Rate, the initial Interest Period is months [insert one of the following: one day, one week, one month, three months or six months. The Borrower hereby certifies that the following statements are true on the date hereof, and will be true as of the Conversion Date: {A) All representations and warranties contained in the Agreement and the other related documents are true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof or the Conversion Date, as the case may be; and (B) No Event of Default or event which with the passage of time, the giving of notice, or both, would constitute an Event of Default has occurred and is continuing. Very truly yours, REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA By: Name: Title: Nam By: e_: Title: -36-5/13/08

38 EXHIBIT"E" LIST OF DUE DILIGENCE MATERIALS PROVIDED TO BANK -37-5/13/08