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SEVENTH AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
ASSOCIATED ESTATES REALTY CORPORATION,
Borrower,
NATIONAL CITY BANK,
as Agent
AND
THE BANKS IDENTIFIED ON SCHEDULE 1
Dated: as of November 12, 1997
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EXHIBIT 4.8 d
SEVENTH AMENDMENT TO
CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") is made as of November 12, 1997, by and among
ASSOCIATED ESTATES REALTY CORPORATION, an Ohio corporation
("Borrower"), the banks and lending institutions identified on
Schedule 1, attached hereto and made a part hereof by this
reference (the "Banks"), and NATIONAL CITY BANK, a national
banking association, in its capacity as agent for the Banks under
the Credit Agreement defined in the recitals below (in such
capacity, the "Agent").
R E C I T A L S
A. Pursuant to that certain credit agreement, dated as of
March 30, 1994, by and among Borrower, the Banks identified on
Schedule 1.1 thereto and the Agent, such Banks agreed to advance
certain Loans to Borrower, on the terms and subject to the
conditions set forth therein, and Borrower agreed to repay such
Loans, with interest thereon, as provided therein.
B. The aforementioned credit agreement has been amended
(1) by a First Amendment to Credit Agreement, dated as of May 17,
1994; (2) by a Second Amendment to Credit Agreement, dated as of
February 24, 1995, pursuant to which the aforementioned credit
agreement was amended and restated in its entirety; (3) by a
Third Amendment to Credit Agreement, dated as of September 26,
1995, pursuant to which such credit agreement was again amended
and restated pursuant to a Second Amended and Restated Credit
Agreement dated as of September 26, 1995; (4) by a Fourth
Amendment to Credit Agreement, dated as of March 26, 1996; (5) by
a Fifth Amendment to Credit Agreement, dated as of November 27,
1996 and (6) by a Sixth Amendment to Credit Agreement, dated as
of April 22, 1997. As amended, and amended and restated as
aforesaid, such credit agreement is referred to as the "Credit
Agreement".
C. Borrower, the Banks and the Agent have agreed further
to amend the Credit Agreement in order to reflect the parties'
understandings regarding the increase in the Maximum Commitment
from Seventy-Five Million Dollars ($75,000,000) to One Hundred
Million Dollars ($100,000,000), the adjustment of the Banks'
respective Participation Percentages and other mutually
acceptable changes to the Credit Agreement, upon and subject to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, for Ten Dollars ($10.00) and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Defined Terms. Capitalized terms which are used
in this Amendment without being defined herein shall have the
meanings ascribed to them in the Amended Credit Agreement
(defined below).
2. Amendment of the Credit Agreement. The parties
agree that the Credit Agreement shall be further amended,
effective as of the Effective Date (as hereinafter defined), so
that from and after the Effective Date the Credit Agreement shall
be completely amended and restated as set forth in Annex 1 to
this Amendment. As so amended and restated, the Credit Agreement
is referred to herein as the "Amended Credit Agreement". The
parties acknowledge that certain of the exhibits and schedules to
the Amended Credit Agreement have been omitted therefrom. Each
exhibit and schedule so omitted remains identical to the
corresponding version thereof which was appended to the Credit
Agreement; all such exhibits and schedules shall be deemed to be
incorporated in the Amended Credit Agreement by this reference.
3. Conditions Precedent to this Amendment. On or
prior to the Effective Date, each of the following conditions
precedent shall have been satisfied:
(a) Proof of Corporate Authority. The Agent
shall have received from Borrower copies,
certified by a duly authorized officer of Borrower
to be true and complete on and as of the Effective
Date, of records of all corporate action taken by
Borrower to authorize (i) the execution and
delivery of this Amendment, the Competitive Bid
Notes and the Substitute Notes (as such terms are
hereinafter defined); (ii) the making by Borrower
of the borrowings contemplated by the Amended
Credit Agreement, as amended hereby; and (iii) the
performance of its other obligations and
agreements hereunder, under the Amended Credit
Agreement and under the Substitute Notes and the
Competitive Bid Note;
(b) Incumbency Certificate. The Agent shall have
received from Borrower an incumbency certificate,
dated as of the Effective Date, signed by a duly
authorized officer and giving the name and bearing
a specimen signature of each individual who shall
be authorized to sign, in the name and on behalf
of Borrower, this Amendment and each of the
Substitute Notes and Competitive Bid Note to be
executed and delivered by Borrower as provided in
the Third Amended and Restated Credit Agreement.
(c) Officers' Certificate. The Agent shall have
received from Borrower a certificate dated as of
the Effective Date, signed by a duly authorized
officer of Borrower and certifying on terms
acceptable to the Agent that each of the
representations and warranties of Borrower in the
Credit Agreement was true and correct when made
and is deemed to be repeated and remains true and
correct in all material respects on and as of the
Effective Date.
(d) Loan Documents. (i) Borrower shall have
executed and delivered to the Agent (x) substitute
promissory notes (the "Substitute Notes") for each
Bank, in the amount of such Bank's respective
Credit Commitment, in the form attached hereto as
Exhibit A and made a part hereof by this
reference; and (y) Competitive Bid Notes for each
Bank, in the amount of such Bank's Credit
Commitment, in the form attached hereto as
Exhibit B and made a part hereof by this reference
(the "Competitive Bid Notes"; the Substitute Notes
and the Competitive Bid Notes are sometimes
collectively referred to as the "Notes"); (ii)
this Amendment and each Note shall have been duly
and properly authorized, executed and delivered by
Borrower, and shall be in full force and effect on
and as of the Effective Date; and (iii) executed
originals of each of the Notes shall have been
delivered to the respective Banks.
(e) Legality of Transactions. No change in
applicable law shall have occurred as a
consequence of which it shall have become and
continue to be unlawful (i) for the Agent or any
Bank to perform any of its agreements or
obligations under the Amended Credit Agreement or
any other Loan Document on or as of the Effective
Date; or (ii) for Borrower to perform any of its
agreements or obligations under the Amended Credit
Agreement or any Loan Document.
(f) Performance, Etc. Borrower shall have duly
and properly performed, complied with and
observed, in all material respects, each of its
covenants, agreements and obligations contained in
each of the Loan Documents to which Borrower is a
party or by which Borrower is bound. No event
shall have occurred on or prior to the Effective
Date, and no condition shall then exist, which
constitutes or would (with the delivery of notice
or the passing of time, or both) constitute a
Default or an Event of Default under the Amended
Credit Agreement or under any other Loan
Agreement.
(g) Compliance with Laws. Each of the borrowings
made and each Letter of Credit issued under the
Credit Agreement is, and each borrowing to be made
and each Letter of Credit to be issued under the
Amended Credit Agreement shall be, in compliance
with the requirements of all applicable laws,
regulations, rules and orders, including without
limitation the Environmental Laws and the
requirements imposed by the SEC or by the Board of
Governors of the Federal Reserve System under
Regulations U, G and X.
(h) Payment of Loan Fee and Certain Expenses.
Borrower shall have (i) paid to the Agent, for the
benefit of the Banks as hereinafter provided, a
Loan Fee (the "Loan Fee") in the amount of Fifty
Thousand Dollars ($50,000); and (ii) reimbursed
the Agent for all reasonable out-of-pocket costs
and expenses, including, without limitation, all
fees and disbursements of legal counsel to the
Agent which shall have been incurred by Agent in
connection with the negotiation and preparation of
this Amendment and the documents and instruments
described or referred to herein.
(i) Changes: None Adverse. From the date of the
most recent balance sheets referred to in
Section 4.5 of the Amended Credit Agreement or
delivered in accordance with the requirements of
the Amended Credit Agreement, in either case
through and including the Effective Date, no
changes shall have occurred in the assets,
liabilities, financial condition, business,
operations or prospects of Borrower or Borrower's
Consolidated Subsidiaries which, individually or
in the aggregate, are material and adverse to
Borrower and its Consolidated Subsidiaries.
(j) Compliance Certificate. The Agent shall have
received a Compliance Certificate, the required
calculations under which shall demonstrate
Borrower's compliance with the covenants set forth
in the Credit Agreement.
(k) Borrower's Counsel's Opinion. The Agent and
each Bank shall have received a written legal
opinion from Borrower's legal counsel, addressed
to the Agent and each Bank and dated as of the
Effective Date, substantially in the form attached
hereto as Exhibit C and made a part hereof by this
reference.
(l) Other Approvals. The Agent shall have
received such other approvals, opinions,
certificates, instruments and documents with
respect to the transactions described herein as it
may request.
(m) Representations and Warranties. Each of the
representations and warranties made by or on
behalf of Borrower in the Credit Agreement or in
any other Loan Document (giving effect to the
Amendatory Loan Documents) shall be true, correct
and complete in all material respects as of the
Effective Date.
5. Ratification. Except as specifically modified and
amended by this Amendment, the Credit Agreement is unchanged and
remains in full force and effect. Borrower, the Banks and the
Agent each hereby ratifies and affirms the Credit Agreement and
every term and condition thereof, as the same are amended and
restated as provided herein.
6. Binding Effect. This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
7. Effective Date. The amendments contemplated by
this Amendment shall be effective, as of the date first set forth
above (the "Effective Date"), upon (i) the execution of this
instrument by each of Borrower, the Banks and the Agent; and (ii)
the satisfaction of each of the conditions precedent set forth in
Section 4 of this Amendment, including without limitation the
execution and delivery of the Substitute Notes and the
Competitive Bid Notes as therein provided. Promptly after the
Effective Date, each Bank shall return the original Note
previously delivered to it, legended to reflect the replacement
of such Note by the appropriate Substitute Note as hereinabove
described, or shall otherwise indicate, on the face of its
original Note and in a manner reasonably acceptable to Borrower,
that its Substitute Note was issued in replacement of and in
substitution for such original Note.
8. Payment and Disbursement of the Loan Fee. On the
Effective Date, Borrower shall, and hereby covenants and agrees
to, pay the Loan Fee to the Agent. Upon or promptly after the
Effective Date, the Agent shall disburse to the Banks their
respective shares of the Loan Fee, which shall be determined in
each respect of each Bank by multiplying the Loan Fee by a
fraction having a denominator of $25,000,000 and a numerator
equal to the difference between such Bank's Credit Commitment as
shown on the attached Schedule 1 and its Credit Commitment
immediately prior to the Effective Date.
9. Regarding Borrower's Debt Ratings. Borrower
represents that as of the Effective Date, Borrower's Debt Ratings
are as follows:
Xxxxx'x: BBB-; and
S&P: Baa3
10. Certain Outstanding Obligations. Each of the
parties acknowledges that certain Loans [and Letters of Credit]
are presently outstanding under the Credit Agreement, and that
the Banks' respective Participation Percentages in all such
outstanding items have been established in accordance with their
Credit Commitments in effect prior to the Effective Date. The
Banks and the Agent agree, and Borrower acknowledges, that the
amendments effected pursuant to this Amendment shall not affect
the Banks' respective Participation Percentages in, or with
respect to, any such outstanding item, but shall govern all
Ratable Loans and all Letters of Credit to be made or issued on
or after the Effective Date.
11. Counterparts. This Amendment may be executed in
multiple counterparts, and signature pages from any counterpart
may be appended to any other counterpart. All such counterparts
shall constitute a single, unified instrument.
IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered by or on behalf of each of the parties as
of the date first set forth above.
BORROWER:
ASSOCIATED ESTATES REALTY
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Vice President
AGENT:
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Vice President
THE BANKS:
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Vice President
BANK ONE, CLEVELAND, N.A.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Banking Officer
COMERICA BANK
By: /s/ Xxxxx X. Xxxxxxxx
Vice President
XXXXXX TRUST & SAVINGS BANK
By: /s/ Xxxxxxx X. Bins
Xxxxxxx X. Bins
Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Vice President
HUNTINGTON BANK-CLEVELAND, N.A.
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Vice President
SCHEDULE 1
Participation
Bank Credit Commitment Percentage
National City Bank 20,000,000 20%
Bank One, Cleveland, NA 14,000,000 14%
Manufacturers and
Traders Trust Company 14,000,000 14%
Comerica Bank 11,000,000 11%
Xxxxxx Trust & Savings
Bank 16,000,000 16%
The First National Bank
of Chicago 16,000,000 16%
Huntington Bank-
Cleveland, N.A. 9,000,000 9%
