MODIFICATION AGREEMENT
DATE: June 13, 1997
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PARTIES: Borrower: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
------------------ Delaware limited partnership
Administrative BANK ONE, ARIZONA, NA,
Agent for the a national banking association, as
Banks: Administrative Agent
RECITALS:
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A. The Banks have committed to extend to Borrower credit ("Loans") in
the aggregate principal amount of not to exceed $225,000,000.00 pursuant to that
Credit Agreement, dated as of September 24, 1996 ("Credit Agreement"), among the
Borrower, the Banks named therein, Administrative Agent and Bank of America
National Trust and Savings Association and Xxxxx Fargo Bank, National
Association, as Co-Agents. The Loans are evidenced by the Notes. The unpaid
principal of the Loans as of June 13, 1997 is $44,000,000.00. All undefined
capitalized terms used herein shall have the meaning given them in the Credit
Agreement.
B. The Notes, the Credit Agreement, and all other agreements,
documents, and instruments otherwise relating to the Loans are sometimes
referred to individually and collectively as the "Loan Documents."
C. An Unconditional Guarantee of Payment of even date with the Notes
guaranteeing repayment of the Loans (the "Guarantee Agreement") was executed and
delivered to the Administrative Agent by Xxxxx Xxxxxxxxxx Residential, Inc., a
Maryland corporation (hereinafter called "Guarantor").
D. Borrower has requested that the Administrative Agent and the Banks
modify the Loan Documents as provided herein. The Banks are willing to do so,
subject to the terms and conditions herein.
AGREEMENT:
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For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower, the Banks and the Administrative Agent
agree as follows:
SECTION 1. ACCURACY OF RECITALS.
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Borrower acknowledges the accuracy of the Recitals.
2
SECTION 2. MODIFICATION OF LOAN DOCUMENTS; OTHER AGREEMENTS.
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2.1 Effective as of June 13, 1997, except as otherwise provided, the
Credit Agreement is hereby restated in its entirety, without modification or
amendment except as follows:
2.1.1 The following definitions in Section 1.1 of the Credit
Agreement are hereby amended to read as follows:
"Adjusted Asset Value" of a Person shall mean, on any
date of determination, such Person's EBITDA divided by 9.0%, where
EBITDA shall be based on (i) with respect to any Project with at least
four quarters of operations by the Borrower as a Stabilized Project,
the most recent four quarter results, (ii) with respect to any Project
with less than four quarters of operations by the Borrower as a
Stabilized Project, the results from the first date on which such
Project became a Stabilized Project to such date of determination,
annualized, and (iii) with respect to any Project acquired by the
Borrower during the most recent four quarters, the results of
operations from the date such Project was acquired by the Borrower (or,
if, later, the first date on which such Project became a Stabilized
Project) to such date of determination, annualized. EBITDA may also
include the operating results of up to two Projects that are Exchange
Assets whose Aggregate Value does not exceed $30,000,000.00, where
"Aggregate Value" shall mean the value of such Projects calculated in
accordance with the definition of Aggregate Value, disregarding for
this purpose the requirement that the Projects be Unencumbered Assets.
"Applicable Margin" shall mean on any date commencing
on or after the Modification Date, with respect to Eurodollar Loans,
the applicable spreads set forth below based upon the ratings
applicable on such date to the Borrower's or the General Partner's
Index Debt from at least two of the Rating Agencies, one of which shall
be S&P or Xxxxx'x, or if no Index Debt is then outstanding, the
indicative ratings established by the respective rating agencies in
respect of the Borrower or the General Partner on its notional senior
unsecured long-term indebtedness:
Eurodollar
Loan Spread
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(basis points)
CATEGORY 1
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Rating
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A- or above by S&P 80 b.p.
A3 or above by Xxxxx'x
Equivalent by another Rating Agency
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CATEGORY 2
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Rating
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BBB+ by S&P or above 90 b.p.
Baa1 by Xxxxx'x or above
Equivalent by another Rating Agency
CATEGORY 3
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Rating
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BBB by S&P or above 100 b.p.
Baa2 by Xxxxx'x or above
Equivalent by another Rating Agency
CATEGORY 4
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Rating
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BBB- by S&P or above 115 b.p.
Baa3 by Xxxxx'x or above
Equivalent by another Rating Agency
CATEGORY 5
Rating
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BB+ or below by S&P or not rated 125 b.p.
Ba1 or below by Xxxxx'x or not rated
Equivalent by another Rating Agency
For purposes of the foregoing, (i) unless the ratings for Index Debt
established or deemed to have been established by the two Rating
Agencies with the highest such ratings, one which shall be S&P or
Xxxxx'x, shall fall within a single Category, the Applicable Margin
shall be determined by reference to the lower rating; (ii) if no two
Rating Agencies shall have in effect a rating for Index Debt or
established an indicative rating in respect of the Borrower or the
General Partner or its notional senior unsecured long-term
indebtedness, then the Applicable Margin shall be determined by
reference to Category 5; and (iii) if any rating for Index Debt
established or deemed to have been established by a Rating Agency shall
be changed (other than as a result of a change in the rating system of
such Rating Agency), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each
change in the Applicable Margin shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If
the rating system of a Rating Agency shall change, or if no Rating
Agency shall any longer have in effect a rating for Index Debt or
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established an indicative rating in respect of the Borrower or the
General Partner or its notional senior unsecured long-term
indebtedness, and clause (ii) above shall not be applicable, the
Borrower and the Banks, acting through the Administrative Agent, shall
negotiate in good faith to amend the references to specific ratings in
this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency.
"Fee Letter" shall mean that letter agreement
between the Borrower and BOAZ as the Administrative Agent and the
Issuing Bank, as it may be amended from time to time, with respect to
the payment of Administration Fees hereunder.
"Gross Asset Value" of a Person shall mean the sum
of such Person's Adjusted Asset Value as hereinafter adjusted, cash and
cash equivalents, the book value of construction in process and land
held for development, excluding without limitation restricted cash, but
including any cash or cash equivalents that are Exchange Assets;
provided that for purposes of calculating Gross Asset Value, Adjusted
Asset Value shall not include any positive EBITDA generated by any
construction in process.
"Maximum Commitment" shall mean $150,000,000.00.
2.1.2 The definition of Aggregate Value in Section 1.1 is
hereby amended by the addition of the following at the end of the definition:
provided, further, however, that:
(i) not more than two Unencumbered Assets that are
Exchange Assets may be included above; and
(ii) the amount of Aggregate Value based on
Exchange Assets may not exceed $30,000,000.00.
2.1.3 Section 1.1 of the Credit Agreement is hereby amended by
the addition of the following definitions:
"Credit Balance" shall mean at any time the then
outstanding aggregate principal balance of all Loans made by all Banks
plus the Letter of Credit Balance.
"Exchange Asset" shall mean either cash or cash
equivalents or a Project held by a trustee or escrow agent under a
Qualified Agreement. A "Qualified Agreement" shall mean an agreement
with customary terms and provisions for purposes of accomplishing an
exchange qualifying under Code
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Section 1031 with respect to which either (i) Borrower or an Affiliate
of the Borrower shall be the sole beneficiary of the trust or escrow,
or (ii) shall not have been disapproved by the Required Banks within
five (5) Business Days of their receipt thereof.
"Issuing Bank" shall mean the Administrative Agent.
"Letter of Credit" shall mean a letter of credit
issued by the Issuing Bank for the account of the Borrower pursuant to
Article II.
"Letter of Credit Balance" shall mean at any time
the sum of (a) the aggregate undrawn amount of all Letters of Credit
outstanding at such time plus (b) the aggregate amount which has been
drawn under Letters of Credit, but for which the Issuing Bank or the
Banks, as the case may be, have not been reimbursed by the Borrower.
"Letter of Credit Disbursement" shall mean any
payment or disbursement made by the Issuing Bank under or pursuant to a
Letter of Credit.
"Letter of Credit Maximum Balance" shall mean
$50,000,000.00.
"Modification Date" shall mean June 13, 1997.
2.1.4 Section 2.1 of the Credit Agreement is hereby amended to
read as follows:
Section 2.1 . Subject to the terms and conditions
herein set forth, each Bank agrees, severally and not jointly, to make
Loans to the Borrower, at any time and from time to time on and after
the date hereof and until the Maturity Date, in an aggregate principal
amount at any time outstanding not to exceed such Bank's Commitment,
subject, however, to the conditions that (a) at no time shall (i) the
Credit Balance exceed (ii) the lesser of the Available Commitment or
the Total Commitment and (b) at all times the outstanding aggregate
principal amount of all Loans made by each Bank shall equal the product
of (i) the percentage which its Commitment represents of the Total
Commitment times (ii) the outstanding aggregate principal amount of all
Loans. Each Bank's Commitment is set forth opposite its respective name
in Schedule 2.1. Such Commitments may be terminated or reduced from
time to time pursuant to Sections 2.10 and 2.20.
Within the foregoing limits, the Borrower may
borrow, pay or prepay and reborrow hereunder, on and after the date
hereof and prior to the Maturity Date, subject to the terms, conditions
and limitations set forth herein.
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2.1.5 Section 2.3 of the Credit Agreement is hereby amended to
read as follows:
SECTION 2.3 Notice of Borrowings. In order to
request a Borrowing, the Borrower shall give to the Administrative
Agent written or telecopy notice (or telephone notice promptly
confirmed in writing or by telecopy in the form of Exhibit "A") (a
"Borrowing Notice") (a) in the case of a Eurodollar Loan Borrowing, not
later than 9:30 a.m., Arizona time, three Business Days before a
proposed Borrowing, and (b) in the case of a Variable Loan Borrowing,
not later than 9:30 a.m., Arizona time, two Business Days before a
proposed Borrowing. Such notice shall be irrevocable and shall in each
case (i) specify whether any Loan then being requested is to be a
Eurodollar Loan or a Variable Loan; (ii) specify the date of such
Borrowing (which shall be a Business Day) and the amount thereof; (iii)
if any Loan is to be a Eurodollar Loan, specify the Interest Period
with respect thereto; and (iv) certify that, after giving effect to the
Borrowing, to the knowledge of Borrower, the Credit Balance will not
exceed the Available Commitment. If no election as to the Type of Loan
is specified in any such notice, then the requested Loan shall be a
Variable Loan. If no Interest Period with respect to any Eurodollar
Loan is specified in any such notice, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration.
2.1.6 Section 2.4 of the Credit Agreement is hereby amended to
read as follows:
SECTION 2.4 Excess Balance Repayment. There shall
be due and payable from Borrower to the Banks, and Borrower shall repay
to the Banks upon five (5) days notice from the Administrative Agent,
from time to time, any amount by which the Credit Balance exceeds the
lesser of the Available Commitment or the Total Commitment. The notice
from the Administrative Agent shall include evidence and calculations
reasonably necessary for it to have made the repayment determination.
2.1.7 Section 2.5(b) and Section 2.5(d) of the Credit
Agreement are hereby amended to read as follows:
(b) The Borrower agrees (i) to pay to each Bank,
through the Administrative Agent, quarterly in arrears for the calendar
quarter ending each March 31, June 30, September 30 and December 31 on
a date not later than three Business Days after such calendar quarter
has ended, and (ii) to pay to each Bank, through the Administrative
Agent, on the date on which the Commitment of such Bank shall be
terminated as provided herein, in each case a fee (a "Facility Fee") at
a rate per annum equal to the Facility Fee Percentage from time to time
in effect on the daily unused amount of (i) the Commitment of such Bank
less (ii) such
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Bank's pro-rata share of the Letter of Credit Balance, for each day
during the preceding calendar quarter (or shorter period commencing
with the date hereof or ending with the Maturity Date or any date on
which the Commitment of such Bank shall be terminated). All Facility
Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fee due to each Bank shall
commence to accrue on the date hereof and shall cease to accrue on the
earlier of the Maturity Date and the termination of the Commitment of
such Bank as provided herein.
(d) The Borrower agrees to pay the Administrative
Agent and the Issuing Bank, for their own respective accounts, the fees
(collectively, the "Administration Fees") provided for in the Fee
Letter at the times provided therein.
2.1.8 Article II of the Credit Agreement is hereby amended by
the addition of the following Sections 2.22 through 2.25:
SECTION 2.22 Letters of Credit.
(a) Provided that the Borrower has satisfied the
conditions precedent contained in Section 2.22(b) hereof, the Issuing
Bank agrees, from time to time, to issue and/or renew Letters of Credit
on behalf of the Borrower so long as (i) upon such issuance or renewal,
to the extent applicable, an Administration Fee is paid by Borrower to
the Issuing Bank, (ii) the Credit Balance, after giving effect to such
Letter of Credit, will not exceed the lesser of the Available
Commitment or the Total Commitment, and (iii) the Letter of Credit
Balance, after giving effect to such Letter of Credit, will not exceed
the Letter of Credit Maximum Balance.
(b) The obligation of the Issuing Bank to issue
and/or renew any Letters of Credit on behalf of the Borrower shall be
subject to the following conditions precedent on the date of issuance
or renewal of each such Letter of Credit:
(i) The Borrower shall execute and deliver
to the Issuing Bank an application for letter of credit,
specifying the amount of the requested Letter of Credit, the
requested term thereof, which term may not exceed a date that
is thirty (30) days prior to the Maturity Date, and the
beneficiary thereof; and
(ii) No Event of Default shall exist and no
event or condition shall exist that after notice or lapse of
time, or both would constitute an Event of Default.
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SECTION 2.23 Notice. The Issuing Bank shall give
the Administrative Agent which shall in turn give to each Bank prompt
written or telecopy advice of any notice received from the Borrower
pursuant to this paragraph.
SECTION 2.24 Letter of Credit Participations.
(a) By the issuance of a Letter of Credit and
without any further action on the part of the Issuing Bank or the Banks
in respect thereof, the Issuing Bank hereby grants to each Bank, and
each Bank hereby acquires from the Issuing Bank, a participation in
such Letter of Credit equal to such Bank's Commitment percentage of the
Total Commitment, based upon the Commitments in effect at the time of
any drawing thereunder (or, if the Commitments shall have been
terminated pursuant to Article VII, the Commitments in effect
immediately prior to such termination), of the face amount of such
Letter of Credit, effective upon the issuance of such Letter of Credit;
provided, however, that no Bank shall be required to acquire
participations in Letters of Credit that would result in its pro rata
percentage, based upon its Commitment, of the Letter of Credit Balance
exceeding its Commitment. In consideration and in furtherance of the
foregoing, each Bank hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank,
in accordance with Section 2.25 below, such Bank's pro rata percentage
of each unreimbursed Letter of Credit Disbursement made by the Issuing
Bank.
(b) Each Bank acknowledges and agrees that its
acquisition of participations pursuant to paragraph (a) above in
respect of Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without
limitation the occurrence and continuance of any Event of Default
hereunder, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever; provided that nothing
herein shall constitute a waiver of any rights a Bank may have by
reason of the gross negligence or wilful misconduct of the Issuing
Bank.
SECTION 2.25 Disbursement and Reimbursement.
(a) Promptly after it shall have ascertained that
any draft and any accompanying documents presented under a Letter of
Credit appear to be in strict conformity with the terms and conditions
of such Letter of Credit, the Issuing Bank shall give telephone and
telecopy notice to the Borrower and the Administrative Agent of the
receipt and amount of such draft and the date on which payment thereon
will be made; upon receipt thereof, the Administrative Agent shall
provide to each Bank a copy of such notice by telecopy. If the
Administrative Agent shall not have received from the Borrower the
payment required pursuant to paragraph (b) below before 9:30 a.m.,
Arizona time, on the
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second Business Day (the "Payment Date") immediately following the date
of payment of a draft presented under any Letter of Credit, the
Administrative Agent shall, prior to 11:00 a.m., Arizona time, on the
Payment Date, so notify the Issuing Bank and each Bank, specifying in
the notice to each Bank such Bank's pro rata percentage, based upon the
Commitments, of such Letter of Credit Disbursement. Each Bank shall pay
to the Administrative Agent, not later than 11:00 a.m., Arizona time,
on the Business Day immediately following the Payment Date, such Bank's
percentage of such Letter of Credit Disbursement, which the
Administrative Agent shall promptly pay to the Issuing Bank. The
Administrative Agent will remit to each Bank such Bank's percentage of
any amounts subsequently received by the Administrative Agent from the
Borrower in respect of such Letter of Credit Disbursement in accordance
with the requirements contained in Section 8.3(d) with respect to other
distributions by the Administrative Agent to the Banks; provided that
(i) amounts so received for the account of any Bank prior to payment by
such Bank of amounts required to be paid by it hereunder in respect of
any Letter of Credit Disbursement and (ii) amounts representing
interest on any Letter of Credit Disbursement for the period prior to
the payment by such Bank of such amounts shall in each case be remitted
to the Issuing Bank.
(b) If the Issuing Bank shall pay any draft
presented under a Letter of Credit, the Borrower shall pay to the
Issuing Bank or to the Administrative Agent for the account of the
Issuing Bank or, if the Administrative Agent shall have received the
payments provided in paragraph (a) above with respect to such drawing,
for the accounts of the Banks, an amount equal to the amount of such
draft before 9:30 a.m., Arizona time, on the second Business Day
immediately following the date of payment of such draft, together with
interest on such amount at a rate per annum equal to the interest rate
in effect for Variable Rate Loans from (and including) the date of
payment of such draft to (but excluding) the date of such payment by
the Borrower. The obligation of the Borrower to pay the amounts
referred to above in this paragraph (b) shall be absolute,
unconditional and irrevocable and shall be satisfied strictly in
accordance with their terms irrespective of:
(i) any lack of validity or enforceability
of any Letter of Credit;
(ii) the existence of any claim, setoff,
defense or other right which the Borrower or any other Person
may at any time have against the beneficiary under any Letter
of Credit, the Administrative Agent, any Issuing Bank or any
Bank (other than the defense of payment in accordance with the
terms of this Credit Agreement or a defense based on the gross
negligence or wilful misconduct of the Issuing Bank) or any
other Person in connection
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with this Credit Agreement or any other transaction;
(iii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue
or inaccurate in any respect; provided that payment by the
Issuing Bank under such Letter of Credit against presentation
of such draft or document shall not have constituted gross
negligence or wilful misconduct;
(iv) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other
document which does not comply in any immaterial respect with
the terms of such Letter of Credit; provided that such payment
shall not have constituted gross negligence or wilful
misconduct; or
(v) any other circumstance or event
whatsoever, whether or not similar to any of the foregoing;
provided that such other circumstance or event shall not have
been the result of gross negligence or wilful misconduct of
the Issuing Bank.
It is understood that in making any payment under a
Letter of Credit (1) the Issuing Bank's exclusive reliance on the
documents presented to it under such Letter of Credit as to any and all
matters set forth therein, including without limitation, reliance on
the amount of any draft presented under such Letter of Credit, whether
or not the amount due to the beneficiary equals the amount of such
draft and whether or not any document presented pursuant to such Letter
of Credit proves to be forged, fraudulent or invalid in any respect, if
such document on its face appears to be in order, and whether or not
any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement
therein proves to be inaccurate or untrue in any respect whatsoever,
and (2) any noncompliance in any immaterial respect of the documents
presented under a Letter of Credit with the terms thereof shall, in
either case, not be deemed wilful misconduct or gross negligence of the
Issuing Bank.
2.1.9 Section 7.2 of the Credit Agreement is hereby modified
by the addition of the following paragraph (f):
(f) require that the Borrower deposit cash with the
Administrative Agent in an amount equal to the Letter of Credit Balance
as collateral (under its sole dominion and control) for the repayment
of Letter of Credit Disbursements;
2.1.10 Section 9.1(b) of the Credit Agreement is hereby
amended to read as
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follows:
(b) If to the Administrative Agent, to it at Xxxx
Xxxxxx Xxx 00000, Xxxxxxx, Xxxxxxx 00000, Attention: Western Region
Real Estate Finance, Dept. AZ1-1319, Xxxxxxx X. Xxxx; and
2.1.11 Exhibit A of the Letter Agreement is hereby amended to
read as attached hereto as Exhibit "A".
2.1.12 Schedule 2.1 to the Credit Agreement is hereby amended
to read as attached hereto.
2.2 The Commitment of each Bank is amended as shown on the amended
Schedule 2.1 to the Credit Agreement and shall be evidenced by a new Note dated
of even date herewith, amending and restating that Note dated September 24, 1996
delivered by Borrower to said Bank.
2.3 Each of the Loan Documents is modified to provide that it shall be
a default or an event of default thereunder if Borrower shall fail to comply
with any of the covenants of Borrower herein or if any representation or
warranty by Borrower herein or by any guarantor in any related Consent and
Agreement of Guarantor is materially incomplete, incorrect, or misleading as of
the date hereof.
2.4 Each reference in the Loan Documents to any of the Loan Documents
is hereby amended to be a reference to such document as modified herein.
SECTION 3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
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The Loan Documents are ratified and affirmed by Borrower and shall
remain in full force and effect as modified herein.
SECTION 4. BORROWER REPRESENTATIONS AND WARRANTIES.
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Borrower represents and warrants to the Banks:
4.1 No Default or Event of Default under any of the Loan Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a Default or an Event of Default under the Loan
Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the financial
condition of Borrower or any other person whose financial statement has been
delivered to the Administrative Agent in connection with the Loans from the most
recent financial statement received by the Administrative Agent.
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4.3 Each and all representations and warranties of Borrower in the Loan
Documents are accurate on the date hereof.
4.4 To its knowledge, Borrower has no claims, counterclaims, defenses,
or set-offs with respect to the Loans or the Loan Documents as modified herein.
4.5 The Loan Documents as modified herein are the legal, valid, and
binding obligation of Borrower, enforceable against Borrower in accordance with
their terms.
4.6 Borrower is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Loan Documents as modified herein.
The execution and delivery of this Agreement and the performance of the Loan
Documents as modified herein have been duly authorized by all requisite action
by or on behalf of Borrower. This Agreement has been duly executed and delivered
on behalf of Borrower.
SECTION 5. BORROWER COVENANTS.
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Borrower covenants with the Banks:
5.1 Borrower shall execute, deliver, and provide to the Administrative
Agent such additional agreements, documents, and instruments as reasonably
required by the Administrative Agent and the Banks to effectuate the intent of
this Agreement.
5.2 Borrower fully, finally, and absolutely and forever releases and
discharges the Administrative Agent and the Banks and their present and former
directors, shareholders, officers, employees, agents, representatives,
successors and assigns, and their separate and respective heirs, personal
representatives, successors and assigns, from any and all actions, causes of
action, claims, debts, damages, demands, liabilities, obligations, and suits, of
whatever kind or nature, in law or equity, of Borrower, and now known to
Borrower, and whether contingent or matured, in respect of the Loans, the Loan
Documents, or the actions or omissions of the Administrative Agent and the Banks
in respect of the Loans or the Loan Documents that arise from events occurring
prior to the date of this Agreement.
SECTION 6. CONDITIONS PRECEDENT.
---------------------
The agreements of the Administrative Agent and the Banks and the
modifications contained herein shall not be binding upon the Administrative
Agent and the Banks until the Administrative Agent has executed and delivered
this Agreement and the Administrative Agent has received, at Borrower's expense,
all of the following, all of which shall be in form and content satisfactory to
the Administrative Agent and shall be subject to approval by the Administrative
Agent:
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6.1 An original of this Agreement fully executed by the Borrower and
the Guarantor.
6.2 The written consent of all the Banks and a Co-Bank Agreement fully
executed by the Banks.
6.3 An amendment to the Fee Letter fully executed by the Borrower.
6.4 Amended and restated Notes fully executed by the Borrower.
6.5 Payment of all the external costs and expenses incurred by the
Administrative Agent in connection with this Agreement (including, without
limitation, outside attorneys, expenses, and fees).
SECTION 7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR
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WAIVER.
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The Loan Documents as modified herein contain the complete
understanding and agreement of Borrower and the Administrative Agent and the
Banks in respect of the Loans and supersede all prior representations,
warranties, agreements, arrangements, understandings, and negotiations. No
provision of the Loan Documents as modified herein may be changed, discharged,
supplemented, terminated, or waived except in a writing signed by the parties
thereto.
SECTION 8. BINDING EFFECT.
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The Loan Documents as modified herein shall be binding upon and shall
inure to the benefit of Borrower and the Administrative Agent and the Banks and
their successors and assigns and the executors, legal administrators, personal
representatives, heirs, devisees, and beneficiaries of Borrower, provided,
however, Borrower may not assign any of its right or delegate any of its
obligation under the Loan Documents and any purported assignment or delegation
shall be void.
SECTION 9. CHOICE OF LAW.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona, without giving effect to conflicts of law
principles.
SECTION 10. COUNTERPART EXECUTION.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
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DATED as of the date first above stated.
XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
BY: XXXXX XXXXXXXXXX RESIDENTIAL,
INC., a Maryland corporation, its General
Partner
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Senior Vice President and Chief Financial
Officer
BORROWER
BANK ONE, ARIZONA, NA, a national banking
association
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Vice President
ADMINISTRATIVE AGENT
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CONSENT AND AGREEMENT OF GUARANTOR
----------------------------------
With respect to the Modification Agreement, dated June 13, 1997
("Agreement"), between XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a Delaware limited
partnership ("Borrower") and BANK ONE, ARIZONA, NA, a national banking
association ("Administrative Agent") as Administrative Agent for the Banks, the
undersigned (individually and, if more than one, collectively "Guarantor")
agrees for the benefit of the Administrative Agent and the Banks as follows:
1. Guarantor acknowledges (i) receiving a copy of and reading the
Agreement, (ii) the accuracy of the Recitals in the Agreement, and (iii) the
effectiveness of (A) the Guarantee Agreement as modified herein, and (B) any
other agreements, documents, or instruments securing or otherwise relating to
the Guarantee Agreement (including, without limitation, any arbitration
resolution previously executed and delivered by the undersigned), as modified
herein. The Guarantee Agreement and such other agreements, documents, and
instruments, as modified herein, are referred to individually and collectively
as the "Guarantor Documents."
2. Guarantor consents to the modification of the Loan Documents and all
other matters in the Agreement.
3. Guarantor fully, finally, and forever releases and discharges the
Administrative Agent and the Banks and their successors, assigns, directors,
officers, employees, agents, and representatives from any and all actions,
causes of action, claims, debts, demands, liabilities, obligations, and suits of
whatever kind or nature, in law or equity, that Guarantor has, (i) in respect of
the Loans, the Loan Documents, the Guarantor Documents, or the actions or
omissions of the Administrative Agent and the Banks in respect of the Loans, the
Loan Documents, or the Guarantor Documents and (ii) arising from events
occurring prior to the date hereof.
4. Guarantor agrees that all references, if any, to the Notes, the Credit
Agreement, and the Loan Documents in the Guarantor Documents shall be deemed to
refer to such agreements, documents, and instruments as modified by the
Agreement.
5. Guarantor reaffirms the Guarantor Documents and agrees that the
Guarantor Documents continue in full force and effect and remain unchanged,
except as specifically modified by this Consent and Agreement of Guarantor.
6. Guarantor agrees that the Loan Documents, as modified by the Agreement,
and the Guarantor Documents, as modified by this Consent and Agreement of
Guarantor, are the legal, valid, and binding obligations of Borrower and the
undersigned, respectively, enforceable in accordance with their terms against
Borrower and the undersigned, respectively.
7. Guarantor agrees that Guarantor has no claims, counterclaims, defenses,
or offsets with respect to the enforcement against Guarantor of the Guarantor
Documents.
-16-
8. Guarantor represents and warrants that there has been no material
adverse change in the financial condition of any Guarantor from the most recent
financial statement received by the Administrative Agent.
DATED as of the date of the Agreement.
XXXXX XXXXXXXXXX RESIDENTIAL, INC., a
Maryland corporation,
its General Partner
By: /s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Senior Vice President and Chief Financial Officer
GUARANTOR
-17-
CONSENT OF THE BANKS
Re: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
The following:
(a) is a Bank named in that Credit Agreement dated September
24, 1996 among Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), the Banks named therein, Bank One, Arizona, NA, as
Administrative Agent for the Banks, and Bank of America National Trust and
Savings Association and Xxxxx Fargo Bank, N.A., as Co-Agents; and
(b) consents to that Modification Agreement dated June 13,
1997 entered into between the Borrower and the Administrative Agent.
BANK ONE, ARIZONA, NA, a national banking
association
By: /s/ Xxxxxxx X. Xxxx
-------------------
Xxxxxxx X. Xxxx
Vice President
"Bank"
CONSENT OF THE BANKS
Re: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
The following:
(a) is a Bank named in that Credit Agreement dated September
24, 1996 among Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), the Banks named therein, Bank One, Arizona, NA, as
Administrative Agent for the Banks, and Bank of America National Trust and
Savings Association and Xxxxx Fargo Bank, N.A., as Co-Agents; and
(b) consents to that Modification Agreement dated June 13,
1997 entered into between the Borrower and the Administrative Agent.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /S/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
Vice President
"Bank"
CONSENT OF THE BANKS
Re: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
The following:
(a) is a Bank named in that Credit Agreement dated September
24, 1996 among Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), the Banks named therein, Bank One, Arizona, NA, as
Administrative Agent for the Banks, and Bank of America National Trust and
Savings Association and Xxxxx Fargo Bank, N.A., as Co-Agents; and
(b) consents to that Modification Agreement dated June 13,
1997 entered into between the Borrower and the Administrative Agent.
DRESDNER BANK AG, New York Branch and
Grand Cayman Branch
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Assistant Treasurer
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
"Bank"
CONSENT OF THE BANKS
Re: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
The following:
(a) is a Bank named in that Credit Agreement dated September
24, 1996 among Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), the Banks named therein, Bank One, Arizona, NA, as
Administrative Agent for the Banks, and Bank of America National Trust and
Savings Association and Xxxxx Fargo Bank, N.A., as Co-Agents; and
(b) consents to that Modification Agreement dated June 13,
1997 entered into between the Borrower and the Administrative Agent.
FLEET NATIONAL BANK
By:/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx
Vice President
"Bank"
CONSENT OF THE BANKS
Re: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
The following:
(a) is a Bank named in that Credit Agreement dated September
24, 1996 among Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), the Banks named therein, Bank One, Arizona, NA, as
Administrative Agent for the Banks, and Bank of America National Trust and
Savings Association and Xxxxx Fargo Bank, N.A., as Co-Agents; and
(b) consents to that Modification Agreement dated June 13,
1997 entered into between the Borrower and the Administrative Agent.
NORWEST BANK ARIZONA, N.A.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx
Vice President
"Bank"
CONSENT OF THE BANKS
Re: XXXXX XXXXXXXXXX RESIDENTIAL, L.P., a
Delaware limited partnership
The following:
(a) is a Bank named in that Credit Agreement dated September
24, 1996 among Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), the Banks named therein, Bank One, Arizona, NA, as
Administrative Agent for the Banks, and Bank of America National Trust and
Savings Association and Xxxxx Fargo Bank, N.A., as Co-Agents; and
(b) consents to that Modification Agreement dated June 13,
1997 entered into between the Borrower and the Administrative Agent.
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Brisbane
---------------------
Xxxxx X. Brisbane
Vice President
"Bank"
EXHIBIT "A"
FORM OF BORROWING NOTICE
------------------------
BANK ONE, ARIZONA, NA, as Administrative
Agent for the Banks referred to below
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Date ___________
Dear Sirs:
The undersigned, Xxxxx Xxxxxxxxxx Residential, L.P., a Delaware limited
partnership (the "Borrower"), refers to the Credit Agreement dated as of
September 24, 1996 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, the
Banks named therein, Bank One, Arizona, NA, as Administrative Agent for the
Banks and Bank of America National Trust and Savings Association and Xxxxx Fargo
Bank, National Association, as Co-Agents. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.3
of the Credit Agreement that it requests a Borrowing under the Credit Agreement,
and in that connection sets forth below the terms of which such Borrowing is
requested to be made:
(A) Date of Borrowing
(which is a Business Day) __________________
(B) Principal Amount of
Borrowing __________________
(C) Interest rate basis __________________
(D) Interest Period and last
day, thereof __________________
(E) Refinance Election
Identity __________________
Amount __________________
Upon acceptance of any or all of the Loans made by the Banks in
response to this request, the Borrower, and where appropriate the Guarantor
shall be deemed to have represented and warranted that:
(i) the conditions to lending specified in Sections 4.1(b) and
(c) of the Credit Agreement have been satisfied;
(ii) to the best of its knowledge, no Event of Default or
Default has occurred and is continuing and all Financial Covenants are
being complied with; and
(iii) after giving effect to the Borrowing, to the best of its
knowledge, the Credit Balance will not exceed the Available Commitment.
Very truly yours,
XXXXX XXXXXXXXXX RESIDENTIAL,L.P.,
a Delaware limited partnership
BY: XXXXX WITHYCOMBERESIDENTIAL,
INC., a Maryland corporation, its General
Partner
By
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Name
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Title
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