EXHIBIT 99.1
FOURTH LOAN MODIFICATION AGREEMENT
THIS FOURTH LOAN MODIFICATION AGREEMENT (this "Agreement") is made as
of the 1st day of October, 2004 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 MANUFACTURERS AND TRADERS TRUST COMPANY, a New York
banking corporation, successor-in-interest to Allfirst Bank, a Maryland banking
corporation, formerly known as FMB Bank, a Maryland banking corporation, and
successor-by-merger to The First National Bank of Maryland, a national banking
association, its successors and assigns, (the "Lender").
INTRODUCTORY STATEMENT
A. The Borrowers and the Lender are currently parties to a Credit
Facility in the original principal amount of up to $50,000,000 (the "Credit
Facility") pursuant to the terms of a Financing Agreement dated September 25,
1998 executed by and among the Borrowers and the Lender, as modified by the
terms of (i) a Loan Modification Agreement dated April 10, 2000 executed by and
between the Borrowers and the Lender, (ii) a Second Loan Modification Agreement
dated August 29, 2001 executed by and between the Borrowers and the Lender,
(iii) a Third Loan Modification Agreement dated January 16, 2003 executed by and
between the Borrowers and the Lender, and (iv) a Note Substitution Agreement
dated April 15, 2003 executed by and between, among others, the Borrowers and
the Lender (such Financing Agreement, as modified by the foregoing, Loan
Modification Agreement, Second Loan Modification Agreement, Third Loan
Modification Agreement and Fourth Loan Modification Agreement, together with all
further modifications thereto, extensions or renewals thereof and substitutions
therefor being hereinafter referred to collectively as the "Financing
Agreement"). The proceeds of the Credit Facility have been, and continue to be,
utilized 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 more particularly set forth in the Financing
Agreement. In addition, a portion of the Credit Facility, in an amount not to
exceed the sum of $10,000,000, is currently being made available by the Lender
to the Borrowers and The TC Property Company, a Maryland general partnership and
an affiliated entity of the Borrowers ("TCP"), for working capital purposes
(such portion of the Credit Facility being hereinafter referred to as the "FILM
Line").
B. The Credit Facility is currently evidenced by the terms of a
Promissory Note dated April 15, 2003 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
collectively as the "Facility Note"), and the FILM Line is currently evidenced
by a FILM/Cash Solutions Promissory Note dated August 29, 2001 executed by the
Borrowers and TCP, as makers, in favor of the Lender, as payee (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").
C. The Borrowers have now requested that the Lender further modify the
Credit Facility in order to, among other things, modify certain of the
conditions for advances under the Credit Facility and to provide the Borrowers
with additional options to extend the maturity thereof, and the parties hereto
have agreed to execute and deliver this Agreement in order to reflect the
understandings of the parties with respect thereto.
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, exclusive of
sums outstanding under the FILM Line, as of the date hereof is $0.00, (b) that
the outstanding principal balance of the FILM Line as of the date hereof is
$0.00, (c) that interest on the unpaid principal balance of the Facility Note
has been paid through September 30, 2004, (d) that interest on the unpaid
principal balance of the FILM Note has been paid through September 30, 2004, and
(e) that the unpaid principal balance of the Credit Facility, together with all
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 and each of the
other documents evidencing and securing the Credit Facility (this Agreement, the
Financing Agreement, the Facility Note, the FILM Note, 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. Maturity and Additional Extension Options. Notwithstanding anything
contained in the Financing Agreement or any of the other Financing Documents to
the contrary, the parties hereto hereby acknowledge and agree that the maturity
of the Credit Facility is hereby extended to October 1, 2005. In addition, the
Lender hereby grants to the Borrowers two (2) additional options to further
extend the maturity of the Credit Facility, for a period of twelve (12) months
each (through October 1, 2007), upon the express condition for the exercise of
each 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.
Upon the exercise by the Borrowers of the first of the foregoing extension
options in accordance with the terms hereof, the Credit Facility shall mature
and the entire principal balance thereof, together with all accrued and unpaid
interest thereon, shall be due and payable on October 1, 2006. Upon the exercise
by the Borrowers of the second such extension option in accordance with the
terms hereof, the Credit Facility shall mature and the entire principal balance
thereof, together with all accrued and unpaid interest thereon, shall be due and
payable on October 1, 2007.
5. Amendment of Certain Conditions for Advances. (a) Notwithstanding
anything contained in Article III of the Financing Agreement to the contrary,
including without limitation, the terms of Section 3.3 thereof, the Lender has
agreed to no longer reserve the right to obtain an appraisal of an Apartment
Property at the time of an Advance by the Lender of any portion of the proceeds
of the Credit Facility relating to the acquisition or refinancing of such
Apartment Property. Accordingly, Section 3.3 of the Financing Agreement is
hereby deleted in its entirety.
(b) In addition, notwithstanding anything contained in Article III of
the Financing Agreement to the contrary, including without limitation, the terms
of Section 3.2 thereof, the Lender hereby agrees not to record the original Deed
of Trust, the original Assignment of Leases and/or any UCC-1 Financing
Statements with respect to any Apartment Property acquired or refinanced after
the date hereof until the earliest to occur of (a) the occurrence of any Default
or Event of Default under the terms of the Financing Agreement, (b) the
occurrence of any other event under the Financing Agreement which would entitle
the Lender to terminate the Borrowers' right to obtain any further advances
under the Credit Facility, or (c) the occurrence of a material adverse change in
the financial condition of any of the Borrowers and/or of any Property Owner. In
consideration of the foregoing, the Borrowers shall deliver or cause to be
delivered to the Lender, at the time of each Advance made by the Lender
subsequent to the date hereof relating to the acquisition or refinancing of any
Apartment Property, an original Pledge and Assignment Agreement and related
Financing Statements, in form and substance satisfactory to the Lender in all
respects, pursuant to which the Lender shall be afforded a first lien pledge and
assignment of, and security interest in, all of the interests in the Property
Owner acquiring title to, or owning, such Apartment Property as additional
security for the payment and performance of the Obligations.
6. Fees and Expenses. In consideration of the Lender's agreements set
forth herein and in addition to the payments of principal, interest and other
fees required under the Credit Facility, the Borrowers shall pay to the Lender,
contemporaneously with the execution and delivery of this Agreement, all fees,
costs, charges and expenses incurred by the Lender in connection with the
preparation of this Agreement and the other documents referenced herein,
including without limitation, the Lender's reasonable attorneys' fees.
7. 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.
8. 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 Credit Facility, the Financing Agreement and/or any of the other
Financing Documents and that the existing indebtedness of the Borrowers to the
Lender under the Credit Facility is continuing, without interruption, and has
not been discharged by a new agreement.
9. 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.
10. 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.
11. 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.
12. 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 X. XxXxxxx By /s/ Xxxx X. Xxxxxx (SEAL)
---------------------- -------------------------
Xxxx X. Xxxxxx
Senior Vice President
WITNESS OR ATTEST: THE TC OPERATING LIMITED PARTNERSHIP
By: The Town and Country Trust
Managing General Partner
/s/ Xxxxxxx X. XxXxxxx By /s/ Xxxx X. Xxxxxx (SEAL)
---------------------- ------------------------
Xxxx X. Xxxxxx
Senior Vice 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 X. XxXxxxx By /s/ Xxxx X. Xxxxxx (SEAL)
---------------------- ------------------
Xxxx X. Xxxxxx
Senior Vice President
WITNESS: MANUFACTURERS AND TRADERS TRUST COMPANY
/s/ Xxxxxxx X. XxXxxxx By /s/ Xxxxxxx Xxxx (SEAL)
---------------------- ------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
STATE OF NEW YORK, COUNTY OF NEW YORK, TO WIT:
I HEREBY CERTIFY, that on this 4th day of October, 2004, before me, the
undersigned Notary Public of said State, personally appeared Xxxx X. Xxxxxx, who
acknowledged himself to be a Senior Vice 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
Senior Vice President of said real estate investment trust by signing the name
of the real estate investment trust by himself as Senior Vice President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx X. XxXxxxx
----------------------
Notary Public
My Commission Expires:
STATE OF NEW YORK, COUNTY OF NEW YORK, TO WIT:
I HEREBY CERTIFY, that on this 4th day of October, 2004, before me, the
undersigned Notary Public of said State, personally appeared Xxxx X. Xxxxxx, who
acknowledged himself to be a Senior Vice 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 Senior Vice President of said real estate investment trust by
signing the name of the real estate investment trust by himself as Senior Vice
President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx X. XxXxxxx
-------------------------
Notary Public
My Commission Expires:
STATE OF NEW YORK, COUNTY OF NEW YORK, TO WIT:
I HEREBY CERTIFY, that on this 4th day of October, 2004, before me,
before me, the undersigned Notary Public of said State, personally appeared Xxxx
X. Xxxxxx, who acknowledged himself to be a Senior Vice 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 Senior Vice President of said real estate
investment trust by signing the name of the real estate investment trust by
himself as Senior Vice President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxxxx X. XxXxxxx
----------------------
Notary Public
My Commission Expires:
STATE OF MARYLAND, CITY OF BALTIMORE, TO WIT:
I HEREBY CERTIFY, that on this 4th day of October, 2004, before me, the
undersigned Notary Public of said State, personally appeared Xxxxxxx Xxxx, who
acknowledged himself/herself to be a Vice President of Manufacturers and Traders
Trust Company, a New York 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:
