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EXHIBIT 10.3
FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
is dated as of December 18, 1998 (this "Amendment"), and is among MHC OPERATING
LIMITED PARTNERSHIP, an Illinois limited partnership ("Borrower"), MANUFACTURED
HOME COMMUNITIES, INC., a Maryland corporation (the "REIT"), each of the
undersigned "Lenders", XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its capacity
as "Agent", "Swingline lender" and "Issuing Lender", BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, in its capacity as "Syndication Agent", and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as "Documentation Agent". Capitalized
terms used herein and not defined herein shall have the meanings ascribed to
them in the Credit Agreement referenced below.
WHEREAS, the parties hereto have previously entered into that certain
Second Amended and Restated Credit Agreement dated as of April 28, 1998 (the
"Credit Agreement"); and
WHEREAS, the parties hereto now desire to (i) increase the amount of
the Facility from One Hundred Fifty Million Dollars ($150,000,000) to One
Hundred Seventy-Five Million Dollars ($175,000,000), and (ii) add LASALLE
NATIONAL BANK ("LNB") as a "Lender" under the Credit Agreement. The Lenders who
are original parties to the Credit Agreement are herein referred to as the
"Existing Lenders."
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereto agree as follows:
1. Facility Amount. The amount of the Facility is hereby increased
from One Hundred Fifty Million Dollars ($150,000,000) to One Hundred
Seventy-Five Million Dollars ($175,000,000). The amount by which the Facility is
increased is referred to herein as the "Facility Increase Amount."
2. Assignment and Assumption. Each Existing Lender hereby assigns to
LNB that portion of its Commitment equal to its Pro Rata Share of the Facility
Increase Amount. LNB hereby accepts and assumes such portions of the Commitments
of the Existing Lenders, and shall hereafter constitute a "Lender" under the
Credit Agreement with a Commitment as described in Section 3 hereof. Each
Existing Lender hereby represents and warrants that it is not in default of any
of its obligations under the Credit Agreement.
3. Commitments. As of the date hereof, the Commitment of each of the
undersigned Lenders shall be in the amount set out under such Lender's name
under the heading "Commitment" on the counterpart signature pages attached to
this Amendment.
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4. Conditions to Effectiveness. The effectiveness of this Agreement is
subject to satisfaction of each of the following conditions precedent:
(a) Borrower shall have executed and delivered to Agent for the
benefit of LNB a Loan Note in favor of LNB in the amount of Twenty-Five
Million Dollars ($25,000,000) and substantially in the form attached hereto
as Exhibit A;
(b) Borrower shall have delivered to Agent for the benefit of the
Existing Lenders and LNB the following corporate and partnership
documents:
(i) With respect to Borrower: a certified copy of Borrower's
limited partnership agreement; a certified copy of Borrower's
Certificate of Limited Partnership; a certificate of existence for
Borrower from the State of Illinois; and a certificate of Borrower's
Secretary or an officer comparable thereto (a "Secretary's
Certificate") with respect to Borrower and pertaining to
authorization, incumbency and by-laws, if any; and
(ii) With respect to the REIT: certified copies of the REIT's
certificate of incorporation and by-laws; a good standing certificate
of the REIT from the State of Maryland; and a Secretary's Certificate
with respect to the REIT pertaining to authorization, incumbency and
by-laws; and
(c) Borrower shall have delivered to Agent for the benefit of the
Existing Lenders and LNB a favorable opinion of counsel for Borrower and
the REIT in form and substance reasonably satisfactory to Agent and its
counsel.
5. LNB Acknowledgments. LNB hereby represents and warrants to each of
the Existing Lenders as follows:
(a) LNB has made and shall continue to make its own independent
investigation of the financial condition, affairs and creditworthiness of
Borrower and any other person or entity obligated under the Loan Documents.
(b) LNB has received copies of the Loan Documents and such other
documents, financial statements and information as it has deemed
appropriate to make its own credit analysis and decision to become a Lender
under the Credit Agreement.
6. No Existing Lender Responsibility. No Existing Lender makes any
representation or warranty regarding, or assumes any responsibility to LNB for:
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(a) The execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of the Loan Documents or any
representations, warranties, recitals or statements made in the Loan
Documents or in any financial or other written or oral statement,
instrument, report, certificate or any other documents furnished or made
available to LNB with respect to the Facility, Borrower or the REIT;
(b) The performance or observance of any of the terms, covenants or
agreements contained in any of the Loan Documents or as to the existence or
possible existence of any Unmatured Event of Default or Event of Default
under the Loan Documents;
(c) The accuracy or completeness of any information furnished or made
available to LNB with respect to the Facility, Borrower or the REIT; or
(d) Any investigation of the financial condition, affairs or
creditworthiness of Borrower or the REIT, or to provide LNB with any credit
or other information with respect thereto.
7. LNB Bound by Credit Agreement. Effective on the date hereof, LNB
(a) shall be deemed to be a party to the Credit Agreement, (b) agrees to be
bound by the Credit Agreement to the same extent as it would have been if it had
been an original Lender thereunder, and (c) agrees to perform in accordance with
their respective terms all of the obligations which are required under the Loan
Documents to be performed by it as a Lender which first arise on or after the
date hereof. LNB appoints and authorizes Agent to take such actions as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to Agent by the terms thereof, together with such powers as are reasonably
incidental thereto. Without limitation of the foregoing, LNB agrees to be bound
by the provisions of Section 12.23 of the Credit Agreement.
8. Consent of Borrower and the REIT.
(a) Borrower hereby consents to the assignment and assumption set
forth in Section 2 hereof, and the inclusion of LNB as a Lender under the
Loan Documents as provided herein.
(b) The REIT hereby consents to the terms of this Amendment and agrees
that the REIT Guaranty remains valid and enforceable and that the REIT has
no defenses or offsets to enforcement against the REIT under the REIT
Guaranty. The REIT hereby confirms that the REIT Guaranty remains effective
with respect to the Loans, the maximum principal amount of which is
increased by the increase in the amount of the Facility as provided herein.
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9. Representations and Warranties. Borrower hereby represents and
warrants as follows:
(a) All of the representations and warranties contained in the Credit
Agreement and in the other Loan Documents are true and correct in all
material respects on and as of the date hereof except to the extent such
representation and warranty is made as of a specified date, in which case
such representation and warranty is true and correct as of such specified
date.
(b) No Event of Default or Unmatured Event of Default exists as of the
date hereof.
10. Effect on Credit Agreement. The Credit Agreement and all other
Loan Documents (each as amended, supplemented or otherwise modified hereby)
shall remain in full force and effect and are hereby ratified and confirmed in
all respects. Except as expressly provided herein or pursuant hereto, the
execution, delivery, performance and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent or any Lender under
the Loan Documents, nor constitute a waiver of any provisions of any of the Loan
Documents.
11. Miscellaneous
(a) Execution in Counterparts. This Amendment may be executed in any
number of counterparts, and each such counterpart, when so executed and
delivered, shall be deemed to be an original and binding upon the party
signing such counterpart; all such counterparts taken together shall
constitute one and the same instrument.
(b) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
(c) Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(d) Entire Agreement. This Amendment is the entire agreement among the
parties with respect to the matters addressed herein, and may not be
modified except by written modification signed by all parties hereto.
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(e) Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, personal representatives and assigns (as permitted under the
Credit Agreement).
(f) Fees and Expenses. Simultaneously herewith, Borrower has paid a
loan fee to LNB and an amendment fee to the Existing Lenders in amounts
previously agreed among Borrower and LNB and Borrower and the Existing
Lenders, as the case may be. Pursuant to Section 12.01(a) of the Credit
Agreement, Borrower hereby agrees to promptly pay all reasonable attorneys'
fees and expenses or other costs or expenses incurred by Agent in
connection with this Amendment and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date set forth above.
MHC OPERATING LIMITED PARTNERSHIP, an
Illinois limited partnership
By: MANUFACTURED HOME
COMMUNITIES, INC., a Maryland corporation, as
General Partner
By: /s/ Xxxxx Xxxxxxxx
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Name: XXXXX XXXXXXXX
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Title: EXECUTIVE VICE PRESIDENT & GENERAL COUNSEL
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MANUFACTURED HOME COMMUNITIES, INC., a
Maryland corporation
By: /s/ Xxxxx Xxxxxxxx
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Name: XXXXX XXXXXXXX
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Title: EXECUTIVE VICE PRESIDENT & GENERAL COUNSEL
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Agent, Swingline Lender, Issuing Lender and a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Name: XXXXXX X. XXXXXX
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Title: VICE PRESIDENT
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Commitment: $50,000,000
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Syndication Agent and a
Lender
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
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Title: Vice President
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Commitment: $33,333,333.33
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XXXXXX XXXXXXXX TRUST COMPANY OF NEW
YORK, as Documentation Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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Commitment: $33,333,333.33
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COMMERZBANK AKTIENGESELLSCHAFT, Chicago
Branch, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxxxx Xxxxxxxxx Xxxxx
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Title: Vice President Assistant Treasurer
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Commitment: $33,333,333.33
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LASALLE NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Commercial Banking Officer
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Commitment: $25,000,000
Address:
LaSalle National Bank
000 Xxxxx XxXxxxx
0xx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopy: 000-000-0000
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