LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT (this "Agreement") is made this
10th day of April, 2000 by and among THE TOWN AND COUNTRY TRUST, a real
estate investment trust organized and existing under the laws of the State of
Maryland (the "Trust"); THE TC OPERATING LIMITED PARTNERSHIP, a limited
partnership organized and existing under the laws of the State of Maryland
(the "Operating Partnership"); and THE TC PROPERTY COMPANY II, a general
partnership organized and existing under the laws of the State of Maryland
(the "Property Company"; the Trust, the Operating Partnership and the
Property Company being hereinafter sometimes referred to individually as a
"Borrower" and collectively as the "Borrowers"); and ALLFIRST BANK, formerly
known as THE FIRST NATIONAL BANK OF MARYLAND, its successors and assigns,
(the "Lender").
INTRODUCTORY STATEMENT
A. Pursuant to the terms of a Financing Agreement dated September
25, 1998 executed by and among the Borrowers and the Lender (such Financing
Agreement, together with all modifications thereto, extensions or renewals
thereof and substitutions therefor being hereinafter referred to as the
"Financing Agreement"), the Borrowers became indebted unto the Lender for a
Credit Facility in the original principal amount of up to $50,000,000 (the
"Credit Facility"), the proceeds of which were to be used by the Borrowers to
finance the acquisition by the Borrowers, and/or entities related to or
affiliated with the Borrowers, of multi-family apartment properties located
within the continental United States, on the terms and subject to the
conditions therein more particularly set forth.
B. The Credit Facility is evidenced by a Promissory Note dated of
even date with the Financing Agreement executed by the Borrowers, as makers,
in favor of the Lender, as payee, in the original principal amount of
$50,000,000 (such Promissory Note, together with all modifications thereto,
extensions or renewals thereof and substitutions therefor being hereinafter
referred to as the "Note").
C. The Borrowers have now requested that the Lender modify the
terms of the Credit Facility in order to (i) allow for a portion of the
Credit Facility, in an amount not to exceed at any one time outstanding the
sum of $10,000,000, to be utilized by the Borrowers and by The TC Property
Company, a Maryland general partnership and an affiliated entity of the
Borrowers, ("TCP") for working capital purposes, and (ii) provide the
Borrowers with an option to extend the maturity of the Credit Facility.
D. In order to reflect the understandings of the parties with
respect to the foregoing, the parties hereto have agreed to execute and
deliver this Agreement to modify the terms of the Credit Facility as
hereinafter more particularly set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for the sum of
One Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, the parties hereto, for
themselves, their respective successors and assigns do hereby mutually
covenant and agree as follows:
1. INCORPORATION OF RECITALS. The parties hereto acknowledge and
agree that the recitals hereinabove set forth are true and correct in all
respects and that the same are incorporated herein and made a part hereof.
2. OUTSTANDING OBLIGATIONS. The parties hereto acknowledge and
agree (a) that the outstanding principal balance of the Credit Facility as of
the date hereof is $16,250,000, (b) that interest on the unpaid principal
balance of the Note has been paid through March 31, 2000, and (c) that the
unpaid principal balance of the Credit Facility, together with accrued and
unpaid interest thereon, is due and owing subject to the terms of repayment
hereinafter set forth, without defense or offset.
3. CONTINUATION OF CREDIT FACILITY TERMS. Except as otherwise
expressly set forth below, the outstanding principal balance of the Credit
Facility shall continue to be advanced, to bear interest and to be repaid on
the terms and subject to the conditions set forth in the Financing Agreement,
the Note and each of the other documents evidencing and securing the Credit
Facility (this Agreement, the Financing Agreement, the Note, the FILM Note
(as hereinafter defined) and all such other documents, whether currently
existing or hereafter executed, and all modifications thereto, extensions or
renewals thereof and substitutions therefor being hereinafter collectively
referred to as the "Financing Documents"). All capitalized terms used but not
defined in this Agreement shall have the meaning given to such terms in the
Financing Agreement.
4. EXTENSION OPTION. Notwithstanding anything contained in the
Note or the Financing Agreement to the contrary, the Borrowers shall have one
(1) option to extend the maturity of the Credit Facility for a period of
twelve (12) months, upon the express condition for the exercise of such
extension option that each and all of the following conditions precedent
shall have been fulfilled or complied with to the complete satisfaction of
the Lender:
(a) The Borrowers shall have given to the Lender at least
thirty (30) days prior written notice of their intention to extend the Credit
Facility;
(b) No default or event of default shall have occurred
hereunder or under any of the other Financing Documents which remains uncured
beyond any applicable grace and/or cure period provided therefor; and
(c) The Borrowers shall have paid to the Lender, at the time
the notice required by subparagraph (a) above is given, an extension fee in
the amount of $50,000.
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Upon the exercise by the Borrowers of the foregoing extension option in
accordance with the terms hereof, the Credit Facility shall mature and the
entire principal balance of the Note, together with all accrued and unpaid
interest thereon, shall be due and payable on October 1, 2002.
5. ESTABLISHMENT OF FILM LINE. From and as of the date hereof, a
portion of the Credit Facility, in an amount not to exceed at any one time
outstanding the sum of $10,000,000 (such portion of the Credit Facility being
hereinafter referred to as the "FILM Line"), shall be segregated by the
Lender from the balance of the Credit Facility and shall be made available by
the Lender to the Borrowers and TCP for working capital purposes in
accordance with, and subject to the terms and conditions contained in, the
FILM/Cash Solutions Promissory Note dated of even date herewith executed by
the Borrowers and TCP in favor of the Lender, a copy of which is attached
hereto as Exhibit A and made a part hereof, (such FILM/Cash Solutions
Promissory Note, together with all modifications thereto, extensions or
renewals thereof and substitutions therefor being hereinafter referred to as
the "FILM Note"). Notwithstanding anything contained in the Financing
Agreement or the Note to the contrary, so long as the FILM Line shall be in
existence, the outstanding principal amount of the Note, and the aggregate
principal amount of all Advances (as defined in the Financing Agreement),
shall not exceed at any one time outstanding the difference between (a)
$50,000,000, and (b) the principal amount of the FILM Note. Unless earlier
terminated by the Lender in accordance with the terms of the FILM Note, the
FILM Line shall remain available to the Borrowers until the earlier to occur
of (a) demand of the FILM Line by the Lender in accordance with the terms of
the FILM Note, (b) the maturity of the Credit Facility in accordance with the
terms of the Financing Documents or (c) the voluntary termination of the FILM
Line by the Borrowers and TCP upon ten (10) days prior written notice to the
Lender. Notwithstanding anything contained herein or in the FILM Note to the
contrary, the Borrowers shall have the right, upon not less than ten (10)
days prior written notice to the Lender, to reduce the amount of the FILM
Line. Any such reduction of the FILM Line shall be made in increments of not
less than $2,000,000. In addition, after any such reduction of the FILM Line,
the Borrowers shall have the right, upon not less than ten (10) days prior
written notice to the Lender, to increase the amount of the FILM Line up to
its original principal amount. Any such restoration of the FILM Line shall
also be made in increments of not less than $2,000,000 and, in no event,
shall the principal amount of the FILM Line be increased above $10,000,000.
At the time of any such reduction or increase of the FILM Line, the Borrowers
and TCP shall execute and deliver to the Lender such documentation in
connection therewith as the Lender may reasonably require, including without
limitation, if deemed necessary by the Lender, a substitute FILM Note
reflecting the new principal amount of the FILM Line, substantially in the
form of the FILM Note attached hereto as Exhibit A and made a part hereof.
6. INTEREST UNDER THE FILM LINE. During the term of the FILM
Line, interest on the outstanding principal balance of the FILM Line shall
accrue and be payable at a fluctuating rate which is at all times equal to
the Libor Daily Rate (as hereinafter defined) plus one hundred twenty (120)
basis points per annum. For the purposes hereof, the term "Libor Daily Rate"
shall be defined as the per annum fluctuating rate of interest equal to the
one month rate of interest (rounded upwards, if necessary to the nearest
1/100 of 1%) appearing on Telerate Page 3750 as the one month London
interbank offered rate for deposits in U.S. Dollars at approximately 11:00
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a.m. (London time) on the second preceding Business Day (as hereinafter
defined). "Telerate Page 3750" means the British Bankers Association Libor
Rates (determined as of 11:00 a.m. London time) that are published by Bridge
Information Systems, Inc. "Business Day" means a day on which the Lender is
open for the conduct of substantially all of its banking business (excluding
Saturdays and Sundays) and a day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits in London,
England). If for any reason such rate is not available, the Lender shall have
the right to select a successor publication or reporting service as a source
of the Libor Daily Rate. Interest shall be computed for the actual number of
days which have elapsed from the date of each advance under the FILM Line
calculated on the basis of a 360-day year.
7. FEES AND EXPENSES. In consideration of the Lender's agreement
to modify the Credit Facility and in addition to the payments of principal
and interest required thereunder, the Borrowers shall pay to the Lender the
following fees, charges and expenses, at the times and in the manner
hereinafter more particularly set forth:
(a) Contemporaneously with the execution and delivery of this
Agreement, the Borrowers shall pay to the Lender a non-refundable facility
fee in the amount of $10,000. In addition, at the time of the execution and
delivery of this Agreement, the Borrowers shall pay all other fees, costs,
charges and expenses incurred by the Lender in connection with the
preparation of this Agreement, including without limitation, the Lender's
reasonable attorneys fees.
(b) Finally, the Borrowers shall pay to the Lender an
availability fee on the unused portion of the Credit Facility (computed on
the basis of a year consisting of 360 days and the actual number of days
elapsed) in an amount equal to ten (10) basis points per annum on the
difference between $50,000,000 and the sum of (i) the average daily principal
balance outstanding under the Note and (ii) the average daily principal
balance outstanding under the FILM Note (the "Availability Fee"). The
Availability Fee shall commence to accrue as of the date hereof, shall be
computed on a calendar quarterly basis (the calendar quarterly period is
hereinafter referred to as the "Fee Period"), and shall be payable on the
first day of each April, July, October and January for the preceding calendar
quarter (pro-rated for the number of days elapsed in the Fee Period in
question) until the Credit Facility shall be terminated and all sums due
thereunder shall be paid in full. The Borrowers also agree to pay to the
Lender on the date of the termination of the Credit Facility (whether by
maturity, acceleration or otherwise), any unpaid portion of the Availability
Fee calculated with respect to the period then ending, pro-rated for the
number of days elapsed in the Fee Period in question.
8. ADDITIONAL EVENTS OF DEFAULT. In addition to those events of
default specifically enumerated in the Financing Agreement and/or any of the
other Financing Documents, the occurrence of any of the following events
shall constitute an event of default and shall entitle the Lender to exercise
all rights and remedies provided in the Financing Documents as a result of
the occurrence of the same:
(a) The Borrowers shall fail to comply with the terms of any
covenant or agreement contained herein; or
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(b) Any information contained in any financial statement,
schedule, report or any other document heretofore or hereafter delivered by
the Borrowers or any other party or parties to the Lender in connection
herewith proves at any time to be not in all material respects true and
accurate, or the Borrowers or any such other party or parties shall have
failed to state any material fact or any fact necessary to make such
information not misleading, or any representation or warranty contained
herein, in any of the Financing Documents, or in any other document,
certificate or opinion heretofore or hereafter delivered to the Lender in
connection with the Credit Facility, proves at any time to be incorrect or
misleading in any material respect; or
(c) Any default or event of default (as described or defined
therein) shall occur under the FILM Note or under any other document or
instrument now or hereafter executed and delivered in connection with the
FILM Line, which remains uncured beyond any applicable grace and/or cure
period provided therefor.
9. RELEASE OF CLAIMS. The Borrowers, for themselves and for each
of their respective successors and assigns, hereby release and waive all
claims and/or defenses they now or hereafter may have against the Lender and
its successors and assigns on account of any occurrence relating to the
Credit Facility and/or any of the Financing Documents which accrued prior to
the date hereof, including, but not limited to, any claim that the Lender (a)
breached any obligation to the Borrowers in connection with the Credit
Facility, (b) was or is in any way involved with the Borrowers as a partner,
joint venturer, or in any other capacity whatsoever other than as a lender,
(c) failed to fund any portion of the Credit Facility or any other sums as
required under any document or agreement in reference thereto, or (d) failed
to timely respond to any offers to cure any defaults under any document or
agreement executed by the Borrowers or any third party or parties in favor of
the Lender. This release and waiver shall be effective as of the date of this
Agreement and shall be binding upon the Borrowers and each of their
respective successors and assigns, and shall inure to the benefit of the
Lender and its successors and assigns. The term "Lender" as used herein shall
include, but shall not be limited to, its present and former officers,
directors, employees, agents and attorneys.
10. CONTINUING AGREEMENTS; NOVATION. Except as expressly modified
hereby, the parties hereto ratify and confirm each and every provision of the
Financing Agreement and each of the other Financing Documents as if the same
were set forth herein. In the event that any of the terms and conditions in
the Financing Agreement or in any of the other Financing Documents conflict
in any way with the terms and provisions hereof, the terms and provisions
hereof shall prevail. The parties hereto covenant and agree that the
execution of this Agreement is not intended to and shall not cause or result
in a novation with regard to the Financing Agreement, the Note and/or the
other Financing Documents and that the existing indebtedness of the Borrowers
to the Lender evidenced by the Note is continuing, without interruption, and
has not been discharged by a new agreement.
11. CONFIRMATION OF LIENS, ETC. The Borrowers hereby acknowledge
and agree that the Collateral is and shall remain in all respects subject to
the lien, charge and encumbrance of the Financing Documents, and nothing
herein contained, and nothing done pursuant hereto, shall adversely affect or
be construed to adversely affect the lien, charge or encumbrance of, or
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warranty of title in, or conveyance effected by the Financing Documents, or
the priority thereof over other liens, charges, encumbrances or conveyances,
or to release or adversely affect the liability of any party or parties
whomsoever who may now or hereafter be liable under or on account of the
Credit Facility or any of the Financing Documents, nor shall anything herein
contained or done in pursuance hereof adversely affect or be construed to
adversely affect any other security or instrument held by the Lender as
security for or evidence of the indebtedness evidenced and secured thereby.
12. ENTIRE AGREEMENT. NO STATEMENTS, AGREEMENTS OR
REPRESENTATIONS, ORAL OR WRITTEN, WHICH MAY HAVE BEEN MADE TO ANY OF THE
BORROWERS OR TO ANY EMPLOYEE OR AGENT OF ANY OF THE BORROWERS, EITHER BY THE
LENDER OR BY ANY EMPLOYEE, AGENT OR BROKER ACTING ON THE LENDER'S BEHALF,
WITH RESPECT TO THE MODIFICATION OF THE CREDIT FACILITY, SHALL BE OF ANY
FORCE OR EFFECT, EXCEPT TO THE EXTENT STATED IN THIS AGREEMENT AND IN THE
OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED IN CONNECTION HEREWITH,
AND ALL PRIOR AGREEMENTS AND REPRESENTATIONS WITH RESPECT TO THE MODIFICATION
OF THE CREDIT FACILITY ARE MERGED HEREIN AND THEREIN.
13. CAPTIONS. The captions herein set forth are for convenience
only and shall not be deemed to define, limit or describe the scope or intent
of this Agreement.
14. GOVERNING LAW. The provisions of this Agreement shall be
construed, interpreted and enforced in accordance with the laws of the State
of Maryland as the same may be in effect from time to time.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original. It
shall not be necessary that the signature of, or on behalf of, each party, or
that the signatures of the persons required to bind any party, appear on more
than one counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date first above written.
WITNESS OR ATTEST: THE TOWN AND COUNTRY TRUST
/s/ Xxxxxxx Xxxxx By /s/ Xxxxxx Xxxxxxxxx (SEAL)
------------------------- ----------------------
Xxxxxx Xxxxxxxxx
President
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WITNESS OR ATTEST: THE TC OPERATING LIMITED PARTNERSHIP
By: The Town and Country Trust
Managing General Partner
/s/ Xxxxxxx Xxxxx By /s/ Xxxxxx Xxxxxxxxx (SEAL)
------------------------- ----------------------
Xxxxxx Xxxxxxxxx
President
WITNESS OR ATTEST: THE TC PROPERTY COMPANY II
By: The TC Operating Limited
Partnership Managing General
Partner
By: The Town and Country Trust
Managing General Partner
/s/ Xxxxxxx Xxxxx By /s/ Xxxxxx Xxxxxxxxx (SEAL)
------------------------- --------------------
Xxxxxx Xxxxxxxxx
President
WITNESS: ALLFIRST BANK
/s/ Xxxxxxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx (SEAL)
------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX, XXXXXX XX XXXXXX, TO WIT:
I HEREBY CERTIFY, that on this 13th day of April, 2000, before me,
the undersigned Notary Public of said State, personally appeared Xxxxxx
Xxxxxxxxx, who acknowledged himself to be the President of The Town and
Country Trust, a real estate investment trust organized and existing under
the laws of the State of Maryland, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein contained as
the duly authorized President of said real estate investment trust by signing
the name of the real estate investment trust by himself as President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx Xxxxxxx Xxxxx
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Notary Public
My Commission Expires: 5/31/00
STATE OF NEW YORK, COUNTY OF QUEENS, TO WIT:
I HEREBY CERTIFY, that on this 13th day of April, 2000,
before me, the undersigned Notary Public of said State, personally appeared
Xxxxxx Xxxxxxxxx, who acknowledged himself to be the President of The Town
and Country Trust, a real estate investment trust organized and existing
under the laws of the State of Maryland, and general partner of The TC
Operating Limited Partnership, a Maryland limited partnership, known to me
(or satisfactorily proven) to be the person whose name is subscribed to the
within instrument, and acknowledged that he executed the same for the
purposes therein contained as the duly authorized President of said real
estate investment trust by signing the name of the real estate investment
trust by himself as President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx Xxxxxxx Xxxxx
-----------------------------
Notary Public
My Commission Expires: 5/31/00
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STATE OF NEW YORK, COUNTY OF QUEENS, TO WIT:
I HEREBY CERTIFY, that on this 13th day of April, 2000, before me,
the undersigned Notary Public of said State, personally appeared Xxxxxx
Xxxxxxxxx, who acknowledged himself to be the President of The Town and
Country Trust, a real estate investment trust organized and existing under
the laws of the State of Maryland, and general partner of The TC Operating
Limited Partnership, a Maryland limited partnership and managing general
partner of The TC Property Company II, a Maryland general partnership, known
to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the same for the
purposes therein contained as the duly authorized President of said real
estate investment trust by signing the name of the real estate investment
trust by himself as President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx Xxxxxxx Xxxxx
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Notary Public
My Commission Expires: 5/31/00
STATE OF MARYLAND, COUNTY OF HARFORD, TO WIT:
I HEREBY CERTIFY, that on this 17th day of April, 2000, before me,
the undersigned Notary Public of said State, personally appeared Xxxxxxx X.
Xxxxxxx, who acknowledged himself/herself to be a Vice President of Allfirst
Bank, a Maryland banking corporation, known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and
acknowledged that he/she executed the same for the purposes therein contained
as the duly authorized Vice President of said Bank by signing the name of the
Bank by himself/herself as Vice President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx X. XxXxxxx
-----------------------------
Notary Public
My Commission Expires: 3/1/03
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