EXHIBIT 10.38
AGREEMENT AND AMENDMENT NO. 1
TO A CREDIT FACILITY AGREEMENT
This Agreement and Amendment No. 1 ("Amendment 1") to an existing
Credit Facility Agreement is made December 11, 1998, by and between HOME
PROPERTIES OF NEW YORK, L.P. ("Borrower"), HOME PROPERTIES OF NEW YORK,
INC. ("Guarantor") and MANUFACTURERS AND TRADERS TRUST COMPANY ("Bank").
RECITALS
A. On or about July 6, 1998, Bank and Borrower entered into a Credit
Facility Agreement ("Agreement").
B. Pursuant to the terms of the Agreement, Guarantor executed and
delivered to Bank a continuing guaranty of payment of all obligations of
Borrower to Bank, whenever arising, under the Agreement and under
all other Loan Documents ("Guaranty").
C. Borrower has requested that Bank amend Section 6.02(b) of the
Agreement as specified below, which Bank is willing to do, on the terms
and conditions specified below.
NOW THEREFORE, in consideration of any prior extension of credit by
Bank to Borrower, and/or in consideration of Bank having entered into the
Agreement with Borrower, and/or in consideration of the mutual promises
set forth below, Borrower, Guarantor and Bank hereby agree as follows:
1. Unless otherwise defined in this Amendment 1, capitalized terms used in
this Amendment 1 have the definitions given to them in the Agreement.
2. On the date this Amendment 1 is executed by Borrower, Guarantor and Bank
("Amendment Date"), Section 6.02(b) of the Agreement shall be deemed
amended by deleting the number "15%" in the second line of Section 6.02(b)
and replacing it with the number "20%".
3. Except as amended above, all terms and conditions of the
Agreement remain the same.
4. Guarantor hereby consents to the amendment to Section 6.02(b) of
the Agreement, as specified in "2" above. Guarantor acknowledges
to Bank that the Guaranty constitutes Guarantor's valid and
binding obligation, enforceable against Guarantor by Bank
according to its terms, without offset against or defense thereto
of any nature or kind.
5. Borrower acknowledges to Bank that the Agreement, as amended by
this Amendment 1, and the Note and all other Loan Documents
executed by Borrower, each constitute Borrower's valid and
binding obligation, enforceable against Borrower by Bank
according to its respective terms, without offset against or
defense thereto of any nature or kind.
6. Borrower represents and warrants to Bank that as of the Amendment
Date, all Representations and Warranties contained in Article III
of the Agreement are true and correct, that Borrower is in
compliance with all the Affirmative Covenants contained in
Article V of the Agreement, that Borrower has not violated any of
the Negative Covenants contained in Article VI of the Agreement
and that no Event of Default has occurred under Article VII of
the Agreement.
7. Borrower shall pay all Bank's attorneys' fees plus expenses and
disbursements incurred and to be incurred in connection with the
preparation, negotiation and execution of this Amendment 1.
8. This Amendment 1 is governed by New York law and may not be
amended or terminated orally. Any litigation involving this
Amendment 1 and/or the Agreement, and/or the Note, and/or any
other Loan Document shall, at Bank's sole option, be triable only
in a court located in Monroe County or Erie County, New York.
BORROWER, GUARANTOR AND BANK WAIVE THE RIGHT TO A JURY TRIAL IN
ANY LITIGATION IN WHICH BORROWER AND/OR GUARANTOR, AND BANK ARE
PARTIES. No other Person is a third party beneficiary of this
jury trial waiver.
IN WITNESS WHEREOF, Borrower, Guarantor and Bank have executed
and unconditionally delivered this Amendment 1 to the others on
December 11, 1998.
HOME PROPERTIES OF NEW YORK, L.P.
By:Home Properties of New York, Inc.,
General Partner
By: /S/ XXX X. XXXX
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Xxx X. Xxxx
Executive Vice President
HOME PROPERITES OF NEW YORK, INC.
By:/S/ XXX X. XXXX
----------------------------
Xxx X. Xxxx
Executive Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
Vice President
STATE OF NEW YORK)
COUNTY OF MONROE ) SS:
On December 11, 1998, before me personally appeared XXX X. XXXX,
to me known, who, being duly sworn, did depose and say that she
is the Executive Vice President of Home Properties of New York,
Inc. ("General Partner"), which is the sole General Partner of
HOME PROPERTIES OF NEW YORK, L.P. ("Borrower"), the limited
partnership which executed this Agreement and she acknowledged to
me that she executed this Agreement at the direction of the Board
of Directors of the General Partner, and on behalf of Borrower,
as the sole General Partner of the Borrower.
/s/ Xxx X. XxXxxxxxx
------------------------
Notary Public
STATE OF NEW YORK)
COUNTY OF MONROE ) SS:
On December 11, 1998, before me, the subscriber, personally
appeared XXX X. XXXX, to me known, who, being by me duly sworn,
did depose and say that she resides in Rochester, New York, that
she is the Executive Vice President of HOME PROPERTIES OF NEW
YORK, INC., the corporation described in, and which executed the
within Instrument, and that she signed her name thereto by order
of the Board of Directors.
/s/ Xxx X. XxXxxxxxx
----------------------
Notary Public
STATE OF NEW YORK)
COUNTY OF MONROE ) SS:
On December 14, 1998, before me, the subscriber, personally
appeared XXXX XXXXXXX, to me known, who, being by me duly sworn,
did depose and say that she resides in Rochester, New York, that
she is a Vice President of MANUFACTURERS AND TRADERS TRUST
COMPANY, the corporation described in, and which executed the
within Instrument, and that she signed her name thereto by order
of the Board of Directors.
/s/ Xxxxx X. Xxxxx
-----------------------
Notary Public
