EXHIBIT 10.2
AGREEMENT AND FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS AGREEMENT and First Amendment to Credit Agreement, hereinafter
referred to as this "Amendment", dated as of September 21, 2001, is made and
entered into by and among ARCHSTONE COMMUNITIES TRUST, a Maryland real estate
investment trust (the "Borrower"), the financial institutions (including Chase,
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the Syndication Agent and the Documentation Agent, the "Lenders") which are now
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or may hereafter become signatories hereto, THE CHASE MANHATTAN BANK, a New York
banking corporation ("Chase"), as administrative agent for Lenders (in such
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capacity, "Agent"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as syndication agent
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for Lenders (in such capacity, "Syndication Agent"), and BANK OF AMERICA, N.A.,
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as documentation agent for the Lenders (in such capacity, "Documentation
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Agent").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Agent, the Syndication Agent, the
Documentation Agent and the Lenders have entered into a Credit Agreement dated
as of December 20, 2000 (the "Credit Agreement"); and
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WHEREAS, the Borrower intends to effect a business reorganization
whereby the Borrower will reorganize into an umbrella partnership real estate
investment trust (the "Reorganization"); and
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WHEREAS, shortly following the completion of the Reorganization, the
Borrower intends to effect a business combination transaction with Xxxxxxx X.
Xxxxx Residential Realty L.P., a Delaware limited partnership ("Xxxxx
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Residential L.P."), whereby Xxxxx Residential L.P. will merge with and into the
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Borrower, with the Borrower as the surviving entity and such surviving entity
will thereafter operate under the name "Archstone-Xxxxx Operating Trust," such
business combination transaction being referred to herein as the "Subsidiary
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Merger"; and
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WHEREAS, substantially contemporaneously with the Subsidiary Merger,
Archstone-Xxxxx Trust, a Maryland real estate investment trust
("Archstone-Xxxxx") intends to effect a business combination transaction with
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Xxxxxxx X. Xxxxx Residential Realty, Inc., a Maryland corporation ("Xxxxx
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Residential Inc."), whereby Xxxxx Residential Inc. will merge with and into
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Archstone-Xxxxx, with Archstone-Xxxxx as the surviving entity and such surviving
entity will continue under the name "Archstone-Xxxxx Trust," such business
combination transaction being referred to herein as the "Parent Merger" and
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together with the Subsidiary Merger the "Mergers"; and
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WHEREAS, as a result of the Reorganization, Archstone-Xxxxx Trust will
become the parent company of Archstone-Xxxxx Operating Trust; and
WHEREAS, the Borrower, the Agent, the Syndication Agent, the
Documentation Agent and the Lenders desire to amend the Credit Agreement in
certain respects in contemplation of the Reorganization and the Mergers;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and for other good
and valuable consideration, the Borrower, the Agent, the Syndication Agent, the
Documentation Agent and the Lenders do hereby agree as follows:
Section 1. Capitalized terms used herein that are defined in the Credit
Agreement shall have the same meanings when used herein unless otherwise defined
herein.
Section 2. The definition of "Pool Value" in the Credit Agreement is
hereby amended to be and read as follows:
Pool Value shall mean the Value of the Pool.
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Section 3. After the Merger, for the purposes of the definitions of
Coverage Ratio, Debt to Total Asset Value Ratio, Fixed Charge Coverage Ratio and
Secured Debt, references to "Indebtedness" and to "Interest Expense" shall be
deemed to include the Parent's Indebtedness and the Parent's Interest Expense.
Section 4. The following definitions are added to the Credit Agreement
to be inserted in alphabetical order:
(a) DC Holdings Entities shall mean Metropolitan Acquisition
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Finance LP, Xxxxx Property Holdings Xxxxxx'x Landing LP, Xxxxx
Property Holdings Xxxxxxx xxxxxx LP, Xxxxx Property Holdings One LP,
Xxxxx Property Holdings Two LP, Xxxxx Property Holdings Three LP, Xxxxx
Property Holdings Four LP, Xxxxx Property Holdings Five LP, Xxxxx
Property Holdings Six LP, Xxxxx Property Holdings Seven LP, Xxxxx
Property Holdings Xxxxx Xxxxxx LLC, First Xxxxxxx Associates LP, Xxxxx
Property Holdings One (DC) LP, Xxxxx Property Holdings Two (DC) LP,
Xxxxx Property Holdings Three (DC) LP, Xxxxx Property Holdings Kenmore
LP, Xxxxx Property Holdings Five (DC) LP, Xxxxx Property Holdings Six
(DC) LP, Xxxxx Property Holdings Van Ness LP, Xxxxx Property Holdings
Consulate LLC and Xxxxx Property Holdings Columbia Road, Xxxxx Property
Holdings Aventura A LLC, Xxxxx Property Holdings Aventura B LLC, Xxxxx
Property Holdings Aventura C LLC, Xxxxx Property Sunset Pointe West LLC
and any Person formed solely for the purpose of owning Real Property in
the District of Columbia.
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(b) Merger shall mean the merger of Archstone Communities Trust and
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Xxxxxxx X. Xxxxx Residential Realty L.P. as described in the consent
solicitation statement-prospectus of Archstone Communities Trust,
Archstone-Xxxxx Trust and Xxxxxxx X. Xxxxx Residential Realty L.P.
dated September 20, 2001.
(c) Parent shall mean Archstone-Xxxxx Trust, a Maryland real estate
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investment trust which will become the parent company of
Archstone-Xxxxx Operating Trust (formerly known as Archstone
Communities Trust) after the Reorganization.
(d) QRS Entities shall mean Xxxxx One, Inc., Xxxxx Two, Inc., Xxxxx
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Three, Inc., Xxxxx Four, Inc., Xxxxx Five, Inc., Xxxxx Six, Inc. and
Xxxxx Seven, Inc.
(e) Reorganization shall mean the reorganization of Archstone
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Communities Trust into an umbrella real estate investment trust as
described in the consent solicitation statement-prospectus of Archstone
Communities Trust, Archstone-Xxxxx Trust and Xxxxxxx X. Xxxxx
Residential Realty L.P. dated September 20, 2001.
Section 5. Section 4.8 of the Credit Agreement is hereby deleted and
replaced with the term "Intentionally Omitted" and the numbering of the sections
shall not change.
Section 6. Sections 5.2(a), (b), (d), (e) and (f) of the Credit
Agreement are each hereby amended to apply to and require the information
described therein from the Parent after the Reorganization, as well as from the
Borrower. Information provided pursuant to Sections 5.2(a) and (b) will be based
on the Parent's fiscal year. Whenever the Credit Agreement requires the Borrower
to provide an Officer's Certificate, the Parent will execute the Officer's
Certificate also.
Section 7. Section 5.3(d) of the Credit Agreement is hereby amended to
be and read as follows:
(d) a Tangible Net Worth of at least One Billion Eight Hundred
Fifty-Five Million Dollars ($1,855,000,000.00) before the Merger, and
at least Three Billion Five Hundred Million Dollars ($3,500,000,000.00)
after the Merger.
Section 8. Section 5.11(b) of the Credit Agreement is hereby amended to
be and read as follows:
(b) Prior to the Reorganization the Borrower, and after the
Reorganization the Parent, will comply with all Legal Requirements to
maintain, and will at all times elect, qualify as and maintain, its
status as a real estate investment trust under Section 856(c)(1) of the
Code.
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Section 9. Effective on the date of the Reorganization, Section
5.11(c) of the Credit Agreement is hereby amended to be and read as follows:
(c) The Parent will (i) maintain at least one class of common shares of
the Parent having trading privileges on the New York Stock Exchange or
the American Stock Exchange, or which is listed on The NASDAQ Stock
Market's National Market; (ii) own, directly or indirectly, at least
fifty-one percent (51%) of (1) the shares of beneficial interest of the
Borrower, and (2) the Class A-2 Common Units of the Borrower and any
other class of security issued by the Borrower with the power to elect
the Trustees of the Borrower; (iii) maintain management and control of
the Borrower; and (iv) not sell, transfer or convey any of the shares
of beneficial interest of the Borrower owned by the Parent, except (A)
in payment of the purchase price of Property (including mergers with
and acquisitions of Persons) acquired by the Borrower, (B) upon
conversion or redemption of securities of the Borrower in accordance
with their terms or (C) upon any repurchase by the Borrower of the
Borrower's securities from the Parent in connection with a repurchase
by the Parent of the Parent's securities.
Section 10. The Credit Agreement is hereby amended by adding thereto
the following sections:
6.6 DC Holdings. After the Merger the Borrower shall maintain at least
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99.5% aggregate ownership of the indicia of ownership of each DC
Holdings Entity, and shall maintain management and control of each DC
Holdings Entity.
6.7 Parent Negative Covenants. After the Merger the Parent will not (a)
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have any Subsidiary that is a "qualified REIT subsidiary" under Section
856 of the Code other than the QRS Entities; (b) own any Property other
than the ownership interests of the Borrower, and the Parent's
ownership interests as of the date of the Merger in the QRS Entities;
(c) give or allow any Lien on any of its Property including the
ownership interests of the Borrower; and (d) create, incur, suffer or
permit to exist, or assume or guarantee, directly or indirectly,
contingently or otherwise, or become or remain liable with respect to
(i) any Indebtedness if the aggregate of such Indebtedness and the
Indebtedness of the Borrower would violate Sections 5.3(a), (b), (c) or
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(e) if such aggregate Indebtedness is treated as the Borrower's
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Indebtedness, and (ii) any Indebtedness of a Person other than the
Parent.
Section 11. Exhibit A to the Credit Agreement is deleted and replaced
with Exhibit A attached hereto and hereby made a part hereof.
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Section 12. Borrower plans to effectuate the Reorganization and the
Mergers on or about October 31, 2001. After the Reorganization and the Mergers,
the Parent will hold all of its
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assets and conduct all of its operations through Borrower, the existing QRS
Entities and one or more of Borrower's Subsidiaries. The Agent and the Lenders
hereby consent to the Mergers and the Reorganization as described in this
Amendment, conditioned upon Borrower providing the Agent with copies of the
documentation effectuating the Merger and Reorganization, and conditioned upon
full payment and termination of all unsecured debt facilities of Xxxxx
Residential L.P. From and after the Mergers and the Reorganization all
references to Borrower shall be deemed to be references to Archstone-Xxxxx
Operating Trust. The Organizational Documents of Archstone-Xxxxx Operating Trust
will be subject to the Agent's review and consent in accordance with the Credit
Agreement. Immediately after the Mergers and the Reorganization are completed,
Parent and Borrower will execute all agreements and amendments to the Credit
Documents as the Agent may reasonably request in order to reflect the terms of
the Mergers and the Reorganization, including agreement by Parent to the terms
of Sections 5.2(a), (b), (d), (e) and (f), 5.11(b) and (c), and 6.7 of the
Credit Agreement, as amended by this Amendment.
Section 13. Borrower represents and warrants that the representations and
warranties contained in Section 4 of the Credit Agreement, as modified by this
Amendment, are true and correct in all material respects on and as of the date
hereof as though made on and as of such date. Borrower hereby certifies that no
event has occurred and is continuing which constitutes an Event of Default under
the Credit Agreement or which upon the giving of notice or the lapse of time or
both would constitute such an Event of Default.
Section 14. Except as expressly amended hereby, the Credit Agreement and
the other Credit Documents shall remain in full force and effect. The Credit
Agreement, as hereby amended, and all rights and powers created thereby or
thereunder and under the other Credit Documents are in all respects ratified and
confirmed and remain in full force and effect.
Section 15. The term "Credit Agreement" as used in the Credit Agreement,
the other Credit Documents or any other instrument, document or writing
furnished to the Agent or the Lenders by the Borrower shall mean the Credit
Agreement as hereby amended.
Section 16. Guarantor hereby joins in this Amendment to evidence
Guarantor's consent to execution by the Borrower of this Amendment, to confirm
that the Guaranty applies and shall continue to apply to the Credit Agreement as
modified by this Amendment and to acknowledge that without such consent and
confirmation, the Agent and the Lenders would not execute this Amendment or
otherwise consent to such modification.
Section 17. This Amendment (a) shall be binding upon the Borrower, the
Guarantor, the Agent and the Lenders and their respective successors and assigns
(provided, however, no party may assign its rights hereunder except in
accordance with the Credit Agreement); (b) may be modified or amended only in
accordance with the Credit Agreement; (c) shall be governed by and construed in
accordance with the laws of the State of Texas and the United States of America;
(d) may be executed in several counterparts, and by the parties hereto on
separate counterparts, and each counterpart, when so executed and delivered,
shall constitute an original agreement, and
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all such separate counterparts shall constitute but one and the same agreement;
and (e) embodies the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective duly authorized officers, effective as of the date
first set forth herein.
ARCHSTONE COMMUNITIES TRUST
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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PTR-CALIFORNIA HOLDINGS (3)
INCORPORATED
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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SCA-NORTH CAROLINA LIMITED
PARTNERSHIP
BY: SCA-North Carolina (1) Incorporated,
General Partner
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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SCA-NORTH CAROLINA (1) INCORPORATED
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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SCA-NORTH CAROLINA (2) INCORPORATED
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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SCA-1 INCORPORATED
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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ATLANTIC MULTIFAMILY LIMITED
PARTNERSHIP-1
BY: SCA-1 Incoporated,
General Partner
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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ASN MASSACHUSETTS HOLDINGS (3)
INCORPORATED
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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ARCHSTONE COMMUNITIES LIMITED
PARTNERSHIP II
BY: Archstone Communities Trust,
General Partner
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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ASN NORTHGATE, L.L.C.
By: Archstone Communities Trust,
Sole Member
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Senior Vice President
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THE CHASE MANHATTAN BANK,
as Agent and as a Lender
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Senior Vice President
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XXXXXXXX XXXXX XXXXXXX, INC.
By: /s/ Xxxxxxx Chilopak
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Name: Xxxxxxx Chilopak
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Title: VP Citicorp North America, Inc.
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
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Title: Vice President
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxx X. XxXxxxx
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Name: Xxxx X. XxXxxxx
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Title: Vice President
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XXXXXXXXXXX XX, XXX XXXX
AND GRAND CAYMAN BRANCHES
By: /s/ [Illegible]
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Name:
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Title:
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By: /s/ [Illegible]
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Name:
---------------------------------------------
Title:
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BANK HAPOALIM B.M.
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Vice President
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By: /s/ Xxxxx Xxxx Xxxxx
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Name: Xxxxx Xxxx Xxxxx
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Title: Senior Vice President & Corporate Manager
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WACHOVIA BANK, N.A.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Managing Director
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MELLON BANK, N.A.
By: /s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
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Title: Vice President
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SOUTHTRUST BANK
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Group Vice President
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SUNTRUST BANK
By: /s/ Xxxxxxx X. Herstman
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Name: Xxxxxxx X. Herstman
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Title: Senior Vice President
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BANK ONE, NA
By: /s/ Dell X. XxXxx
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Name: Dell X. XxXxx
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Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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KEY BANK
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: V.P.
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FLEET NATIONAL BANK, successor by merger to
Summit Bank
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Vice President
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CITIZENS BANK OF RHODE ISLAND
By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxx
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Title: Vice President
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OFFICER'S CERTIFICATE
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Archstone-Xxxxx Operating Trust, formerly known as Archstone
Communities Trust (the "Borrower"), The Chase Manhattan Bank ("Chase"), Xxxxx
Fargo Bank, N.A. and Bank of America, N.A., as Agents (the "Agents") and certain
other Lenders (the "Lenders") entered into that certain Credit Agreement (the
"Agreement") dated as of December 20, 2000, as the same has been amended. Any
term used herein and not otherwise defined shall have the meaning ascribed to it
in the Agreement.
The undersigned hereby certifies that:
I. I am a Vice President of the Borrower and a Vice President of the
Parent, and I make these certifications on behalf of the Borrower or
the Parent, as applicable.
II. The Parent's financial statements as of _________ as filed with the
Securities and Exchange Commission ("SEC"), and the Borrower's
financial statements as of _____________ delivered to Chase, were
prepared in conformity with generally accepted accounting principles
consistently applied and present fairly the financial position of the
Parent and of the Borrower, respectively, as of the date thereof and
the results of its operations for the period covered thereby subject to
normal year-end adjustments.
III. Borrower hereby certifies the following as of the end of the period
covered by the financial statements described above:
1. Maximum Debt to Total Asset Value Calculation
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(Section 5.3 (e))
(A) Indebtedness
Total Unsecured Debt (per GAAP) $__________
Total Secured Debt (per GAAP) $__________
Guarantees, Endorsements and Other Contingent Obligations $__________
Obligations under Hedging Agreements, as defined $__________
Equity Percentage of Indebtedness of Unconsolidated Affiliates $__________
Equity Percentage of Indebtedness of Ameriton $__________
Other (pursuant to the Agreement) $__________
Total Indebtedness, as defined $__________
(B) Total Asset Value:
Aggregated Net Operating Income from Stabilized Properties
Divided by 8.65% $__________
Historical Value of Pre-Stabilized Properties $__________
Historical Value of Properties Under Construction $__________
Historical Value of Undeveloped Land $__________
EXHIBIT A
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Page 1 of 7 Pages
Other Assets (excluding intangibles as defined by GAAP) $__________
Total Asset Value of Unconsolidated Affiliates $__________
Contribution from Ameriton $__________
Total Asset Value, as defined $__________
(C) Maximum Debt to Total Asset Value (Ratio of 1(A) to 1(B))
Required: Maximum:
55%
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2. Maximum Secured Debt Calculation
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(Section 5.3 (a))
(A) Secured Debt, as defined $__________
(B) Total Asset Value, as defined $__________
(C) Maximum Secured Debt to Total Asset Value
(Ratio of 2(A) to 2(B)) __________
Required:Maximum: 40%
__________
3. Coverage Ratio Calculation
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(Section 5.3 (b))
(A) Borrower's EBITDA:
Net Income (per GAAP) $__________
Plus:
Depreciation and Amortization (per GAAP) $__________
Interest Expense, as defined $__________
Income Taxes (per GAAP) $__________
Extraordinary Gains/Losses (per GAAP) $__________
Payments on Borrower's Preferred Stock (to
the extent included in net income) $__________
Equity Percentage of EBITDA for $__________
Unconsolidated Affiliates $__________
Equity Percentage of Ameriton's Funds from Operations $__________
Other (pursuant to the Agreement) $__________
Borrower's EBITDA, as defined $__________
(B) Dividends and Distributions Paid with Respect to Disqualified
Stock $__________
(C) Interest Expense, as defined $__________
(D) Sum of 3(B) and 3(C) $__________
(E) Coverage Ratio (Ratio of 3(A) to 3(D)) : 1.0
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Required: Minimum of 2.0 to 1.0
EXHIBIT A
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Page 2 of 7 Pages
4. Fixed Charge Coverage Ratio Calculation
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(Section 5.3(c))
(A) Borrower's EBITDA, as defined $_________
(B) Unit Capital Expenditures $_________
(C) EBITDA minus Unit Capital Expenditures $_________
(D) Interest Expense, as defined $_________
(E) Payments and Payables on Disqualified Stock $_________
(F) Regularly Scheduled Principal Paid and Payable $_________
(G) Sum of 4(D), 4(E) and 4(F) $_________
(H) Fixed Charge Coverage Ratio (Ratio of 4(C) to 4(G)) 1.0
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Required: Minimum of 1.75 to 1.0
5. Tangible Net Worth
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(Section 5.3(d))
Assets $_________
Liabilities $_________
Tangible Net Worth, as defined $_________
Required: Minimum of $3.500 billion
6. Maximum Recourse Indebtedness Calculation
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(Section 6.1)
(A) Indebtedness with a Final Maturity of Five Years or less $_________
(B) Investment Grade Debt included in 6(A) $_________
(C) Non-recourse Debt included in 6(A), excluded from 6(B) $_________
(D) Amortizing Debt included in 6(A) excluded from 6(B) or 6(C) $_________
(E) Credit Enhancement included in 6(A), excluded from 6(B)
or 6(C) or 6(D) $_________
(F) Acquisition Indebtedness included in 6(A), excluded from 6(B)
or 6(C) or 6(D) or 6(E) $_________
(G) Recourse Indebtedness as Calculated: 6(A) less 6(B), 6(C), 6(D),
6(E) and 6(F) (may not exceed $100,000,000) $_________
7. Property Pool
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(Section 5.15)
(A) Sum of the Aggregate Net Operating Income for Pool Real Estate
That Has Reached the Stabilization Date Divided by 8.65% and the
Aggregate Historical Value for Pool Real Estate That Has Not
EXHIBIT A
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Page 3 of 7 Pages
Reached the Stabilization Date $_________
(B) Outstanding Unsecured Indebtedness $_________
(C) Pool Value Divided by Outstanding Unsecured
Indebtedness (7(A) divided by 7(B)) _________%
Required: Minimum of 175%
(D) Pool Value attributable to unimproved land (Maximum-5%) $_________
(E) Pool Value attributable to unimproved land and land under
construction or development (Maximum-20%) $_________
(F) Pool Value attributable to improved property that is not
multifamily residential (Maximum-7-1/2%) $_________
8. Specified Permitted Holdings
(Section 6.4)
(A) Securities Received in Settlement Liabilities Created in the
Ordinary Course of Business __________
(Maximum - 5%)
(B) Unconsolidated Affiliates Engaged in Permitted Businesses __________
(Maximum - 10%)
(C) Investment in Ameriton __________
(Maximum - 15%)
(D) Loans to Unaffiliated Persons __________
(Maximum - 10%)
(E) Other Securities __________
(Maximum - 10%)
(F) Income Producing Properties That Are Not Multifamily
Residential __________
(Maximum - 10%)
(G) Unimproved Land __________
(Maximum - 7.5%)
(H) Unrelated, Non-Incidental Investments __________
(Maximum - 5%)
(I) Aggregate Value of the specified Permitted Holdings (sum of 8(A)
through 8(H)) __________
(Maximum - 30%)
IV. A review of the activities of the Borrower during the period covered by
the financial statements has been made under my supervision and with a
view to determining whether during such period the Borrower has kept,
observed, performed and fulfilled all of its obligations under the
Agreement.
EXHIBIT A
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Page 4 of 7 Pages
The Parent has made available its financial statements and related
footnotes for the most recent period ended _________, as filed with the
SEC and can be accessed at xxxx://xxx.xxx.xxx/. The Borrower has
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delivered to Chase its financial statements and related footnotes for
the most recent period ended ____________. The Parent's and the
Borrower's earnings press releases and supplemental information for
such period have been posted to the Parent's website
(___________________________). The financial statements were prepared
in conformity with generally accepted accounting principles
consistently applied (except for the omission of footnote disclosures
and appropriately disclosed consistency exceptions) and present fairly
the financial position of the Parent and the Borrower, respectively, as
of the date thereof and the results of its operations for the period
covered thereby subject to normal year-end adjustments.
V. (Check either (A) or (B))
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[ ] (A) The Borrower has kept, observed, performed and fulfilled
each and every one of its obligations under the Agreement
during the period covered by the applicable financial
statements.
[ ] (B) The Borrower has kept, observed, performed and fulfilled
each and every one of its obligations under the Agreement
during the period covered by the applicable financial
statements except for the following matters: [Describe all
such defaults, specifying the nature, duration and status
thereof and what action the Borrower has taken or proposes to
take with respect thereto].
VI. With regard to Section 1004 of the Indenture dated as of February 1,
1994 between the Borrower and Xxxxxx Guaranty Trust Company of New
York, as Trustee (and using the terms defined therein), a certificate
required thereunder showing compliance with Section 1004 is attached
(only required for the fourth quarter Officer's Certificate), for the
most recent period ended ____________:
1. (A) Sum of Total Assets, Aggregate Purchase Price of Real
Estate Assets, or Mortgages Receivable Acquired, and
Securities Offering Proceeds Received to Purchase
said Assets $_____________
(B) Maximum amount of Debt $_____________
(C) Debt $_____________
2. (A) Consolidated Income Available for Debt Service $_____________
(B) Annual Service Charge $_____________
(C) Ratio of Consolidated Income Available for Debt
Service to Annual Service Charge ______________
EXHIBIT A
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Page 5 of 7 Pages
3. (A) Total Assets $_____________
(B) Maximum Secured Debt $_____________
(C) Secured Debt $_____________
VII. The Parent hereby certifies the following as to itself as of the end
of the period covered by the financial statements dated
______________ as filed with the SEC:
1. Indebtedness $_____________
2. Interest Expense $_____________
VIII. Check either (A) or (B)
[_] (A) The Parent has kept, observed, performed and fulfilled
each and every one of its obligations under the Agreement
during the period covered by the applicable financial
statements.
[_] (B) The Parent has kept, observed, performed and fulfilled
each and every one of its obligations under the Agreement
during the period covered by the applicable financial
statements except for the following matters: [Describe all
such defaults, specifying the nature, duration and status
thereof and what action the Parent has taken or proposes to
take with respect thereto].
Date:______________________ Name:__________________________________
[Vice President Name]
(A manually signed Officer's Certificate is available at the request of any
Agent or Lender.)
EXHIBIT A
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Page 6 of 7 Pages
POOL PROPERTY LIST
List each property separately showing the Historical Value and the
components, the city, the state, the occupancy level for the past three months,
the number of units, the age of the property and net operating income.
EXHIBIT A
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Page 7 of 7 Pages
