FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of August 19, 2013, by and among HOME PROPERTIES, L.P., a New York limited partnership (the “Borrower”), HOME PROPERTIES, INC., a Maryland corporation (the “Company”), EACH OF THE LENDERS PARTY HERETO, and MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent (the “Administrative Agent”) for the Lenders.
WHEREAS, the Borrower, the Company, the Lenders and the Administrative Agent have entered into that certain Amended and Restated Credit Agreement dated as of December 9, 2011 (as amended and in effect immediately prior to the effectiveness of this Amendment, the “Credit Agreement”); and
WHEREAS, the Borrower, the Lenders and the Administrative Agent have agreed to amend certain provisions of the Credit Agreement, including increasing the aggregate amount of the Revolving Commitments from $275,000,000 to $450,000,000, extending the Revolving Commitment Termination Date and extending the Term Loan Maturity Date, in each case, on the terms and conditions contained herein;
Section 1. Specific Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 2 below, the parties hereto agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by adding the following definition of “First Amendment Effective Date” in Section 1.01 in the correct alphabetical order:
“FIRST AMENDMENT EFFECTIVE DATE” means August 19, 2013.
(b) The Credit Agreement is amended by restating the definitions of “Commitment”, “Revolving Commitment”, “Revolving Commitment Termination Date” and “Term Loan Maturity Date” in Section 1.01 in their entireties as follows:
“COMMITMENT” means, with respect to each Lender, such Lender’s (i) Revolving Commitment and (ii) Term Loan Commitment.
“REVOLVING COMMITMENT” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrower and to acquire participations in Letters of Credit in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule 2.01 as its “Revolving Commitment”, or in the case of a Person becoming a Lender after the First Amendment Effective Date through an assignment of an existing Revolving Commitment, the amount of the assigned “Revolving Commitment” as
provided in the Assignment and Acceptance or joinder agreement, as applicable, executed by such Person, in each case as such commitment may be (i) reduced from time to time pursuant to Section 2.07 and (ii) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. As of the First Amendment Effective Date, the aggregate amount of the Lenders’ Revolving Commitments is $450,000,000.
“REVOLVING COMMITMENT TERMINATION DATE” means the earlier of (i) August 18, 2017 (the “Initial Maturity Date”), and (ii) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise); provided however that if (i) the Borrower advises the Administrative Agent on or before May 18, 2017 (but in any event not prior to February 17, 2017) in writing of its desire to extend the Revolving Commitment Termination Date, (ii) pays the Administrative Agent for the account of each Lender an extension fee (the “Extension Fee”) equal to 0.20% of each Lender’s Revolving Commitment, (iii) on the date such notice is delivered and on the Initial Maturity Date no Default or Event of Default has occurred and is continuing and (iv) on the date such notice is delivered and on the Initial Maturity Date all representations and warranties under the Loan Documents are true and correct in all material respects except to the extent such representation or warranty expressly relates to an earlier date (in which case such representation and warranty shall be true and correct as of such date), then the “Maturity Date” shall mean August 18, 2018. Upon payment, the Extension Fee shall be fully earned and nonrefundable.
“TERM LOAN MATURITY DATE” means the earlier of (i) August 18, 2018, and (ii) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable (whether by acceleration or otherwise).
(c) The Credit Agreement is amended by replacing Schedule 2.01 attached to the Credit Agreement with the Schedule 2.01 attached to this Amendment.
(a) Receipt by the Administrative Agent of counterparts of this Amendment duly executed by the Borrower, the Administrative Agent and the Lenders;
(b) Receipt by the Administrative Agent of (i) replacement Revolving Notes duly executed by the Borrower payable to the order of each Revolving Credit Lender whose Revolving Commitment has changed pursuant to this Amendment, and (ii) replacement Term Loan Notes duly executed by the Borrower payable to the order of each Term Loan Lender the principal amount of whose Term Loans has changed pursuant to this Amendment, in each case,
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in a principal amount equal to the amount of its Revolving Commitment or Term Loans as set forth on Schedule 2.01 attached hereto;
(c) Receipt by Administrative Agent of the Reaffirmation of Obligations attached to this Amendment duly executed by each existing Guarantor;
(d) Receipt by the Administrative Agent of a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the First Amendment Effective Date) of Xxxxx Xxxxxxx LLP, counsel for the Borrower and the Company, substantially in the form of Exhibit E attached to the Credit Agreement, and covering such other matters relating to the Borrower, the Company, the Guarantors, and the Amendment as the Lenders shall reasonably request;
(e) Receipt by the Administrative Agent of a certificate of each of the Borrower, the Company and each Guarantor signed by an authorized officer of such Person as of the date hereof certifying as to the following:
(i) A true and accurate copy or recitation of actions taken by such Person to authorize the execution and delivery of this Amendment and performance of this Amendment and the Credit Agreement, as amended by this Amendment, and the other Loan Documents, including the Reaffirmation of Obligations attached hereto;
(ii) The incumbency, names and signatures of the officers of such Person authorized to execute and deliver this Amendment and the other Loan Documents and, with respect to the Borrower, the officers of the Borrower then authorized to deliver Borrowing Requests and to request the issuance of Letters of Credit;
(iii) True and accurate copies of the articles of incorporation, certificate of limited partnership, certificate of formation, or comparable organizational document, as applicable, of such Person, with all amendments thereto, which in the case of the Borrower and the Company are also certified as of a recent date by the Secretary of State of the state of formation of such Person;
(iv) True and accurate copies of the bylaws, partnership agreement or operating agreement, as applicable, of such Person with all amendments thereto; and
(v) A certificate of good standing or certificate of similar meaning with respect to each such Person issued as of a recent date by the Secretary of State of the state of formation of each such Person;
(f) Receipt by the Administrative Agent of satisfactory evidence that simultaneously with this Amendment becoming effective, that certain Loan Agreement dated as of June 28, 2013, by and among the Borrower, the Company and Manufacturers and Traders Trust Company shall be terminated, and all loans thereunder paid in full;
(g) Receipt by the Administrative Agent of a certificate, dated the First Amendment
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Effective Date and signed by the President, an Executive Vice President or a Financial Officer of the General Partner, (i) stating that no Default or Event of Default shall have occurred and be continuing prior to or will be caused by or result from the amendments to the Credit Agreement provided in this Amendment, and (ii) reaffirming that representations and warranties of the Company and the Borrower set forth in the Credit Agreement shall be true and correct on and as of the date of this Amendment;
(h) Receipt of a Quarterly Compliance Certificate for June 30, 2013, calculated on a pro forma basis giving effect to any Borrowing or issuance Letters of Credit made after the quarter ended June 30, 2013, including any Borrowing or issuance of a Letter of Credit made on the date of this First Amendment Effective Date;
(i) Receipt by the Administrative Agent of all fees and other amounts due on the date of this Amendment, including, without limitation, the expenses, the Amendment Fee and the Commitment Fee set forth in Section 7 hereof and all other fees set forth in writing by the Borrower and the Administrative Agent in that certain Engagement Letter dated July 10, 2013 that are due and payable on the date of this Amendment; and
(j) Receipt by the Administrative Agent of such other documents, instruments and agreements as the Administrative Agent or the Lenders may reasonably request.
The Administrative Agent, the Borrower and each Lender confirm that the amounts of each Lender’s Revolving Commitment to be effective, and the outstanding principal amount of
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Term Loans to be held by each Lender, in each case, on the date this Amendment becomes effective, are as set forth on Schedule 2.01 attached hereto.
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Section 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
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HOME PROPERTIES, L.P.
By: Home Properties, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
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HOME PROPERTIES, INC.
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By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
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ADMINISTRATIVE AGENT AND LENDERS:
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MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent and as a Lender
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By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION, as a Lender
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By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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BANK OF AMERICA, N.A., as a Lender
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By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
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By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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RBC CITIZENS, N.A., as a Lender
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By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Senior Vice President
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CAPITAL ONE, N.A., as a Lender
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By: /s/ Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxx X. Xxxxxxx
Title: Senior Vice President
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JPMORGAN CHASE BANK, N.A., as a Lender
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By: /s/ Xxxx Xxx
Name: Xxxx Xxx
Title: Senior Credit Banker
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ROYAL BANK OF CANADA, as a Lender
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By: /s/ Xxx XxXxxx
Name: Xxx XxXxxx
Title: Authorized Signatory
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FIRST NIAGARA BANK, N.A., as a Lender
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By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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BRANCH BANKING AND TRUST COMPANY,
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as a Lender
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By: /s/ Ahaz Xxxxxxxxx
Name: Ahaz Xxxxxxxxx
Title: Assistant Vice President
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
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as a Lender
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By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Schedule 2.01
Schedule of Lenders, Revolving Commitments and Term Loans
Lender
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Revolving Commitment
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Term Loan Held
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Aggregate Amount of Revolving Commitment and Term Loan Held
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Manufacturers and Traders Trust Company
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$ | 67,499,999.99 | $ | 37,500,000.01 | $ | 105,000,000.00 | ||||||
U.S. Bank National Association
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$ | 54,642,857.14 | $ | 30,357,142.86 | $ | 85,000,000.00 | ||||||
RBS Citizens, N.A. d/b/a Charter One
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$ | 54,642,857.14 | $ | 30,357,142.86 | $ | 85,000,000.00 | ||||||
Bank of America, N.A.
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$ | 41,785,714.29 | $ | 23,214,285.71 | $ | 65,000,000.00 | ||||||
Capital One, N.A.
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$ | 41,785,714.29 | $ | 23,214,285.71 | $ | 65,000,000.00 | ||||||
PNC Bank, N.A.
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$ | 41,785,714.29 | $ | 23,214,285.71 | $ | 65,000,000.00 | ||||||
JPMorgan Chase Bank, N.A.
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$ | 41,785,714.29 | $ | 23,214,285.71 | $ | 65,000,000.00 | ||||||
Royal Bank of Canada
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$ | 28,928,571.43 | $ | 16,071,428.57 | $ | 45,000,000.00 | ||||||
Xxxxx Fargo Bank, National Association
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$ | 28,928,571.43 | $ | 16,071,428.57 | $ | 45,000,000.00 | ||||||
Branch Banking & Trust Company
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$ | 25,714,285.71 | $ | 14,285,714.29 | $ | 40,000,000.00 | ||||||
First Niagara Bank, N.A.
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$ | 22,500,000.00 | $ | 12,500,000.00 | $ | 35,000,000.00 | ||||||
Total:
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$ | 450,000,000 | $ | 250,000,000.00 | $ | 700,000,000.00 |
REAFFIRMATION OF OBLIGATIONS
Each of the undersigned (each a “Guarantor” and collectively the “Guarantors”) hereby (a) reaffirms its continuing obligations owing under the Amended and Restated Guaranty dated as of December 9, 2011, executed and delivered by the Guarantors (the “Guaranty”) and (b) agrees that the First Amendment to Amended and Restated Credit Agreement dated the date hereof (the “Amendment”) amending the Amended and Restated Credit Agreement dated as of December 9, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement Agreement”), by and among HOME PROPERTIES, L.P., a New York limited partnership (the “Borrower”), HOME PROPERTIES, INC., a Maryland corporation (the “Company”), each of the Lenders party hereto, and MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent (the “Administrative Agent”) for the Lenders, and the transactions contemplated by the Amendment, do not in any way affect the validity and enforceability of the Guaranty, or reduce, impair or discharge the obligations of such Guarantor thereunder.
Each of the Guarantors represents and warrants to the Administrative Agent and the Lenders that the execution, delivery, and performance of this Reaffirmation of Obligations has been authorized by all requisite action on the part of such Guarantor and will not violate such Guarantor’s organizational or governing document.
Each of the Guarantors further agrees that references to the Credit Agreement contained in any Loan Document (as defined in the Credit Agreement) shall be deemed to be references to the Credit Agreement, as amended by the Amendment.
In consideration of Amendment and the direct and indirect benefits thereof to each Guarantor, each Guarantor hereby waives and releases the Administrative Agent and each Lender from any and all claims and defenses, whether known or unknown, with respect to the Credit Agreement and the other Loan Documents and the transactions contemplated thereby.
This Reaffirmation of Obligations shall be construed in accordance with and be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed, and to be fully performed, in such State.
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HOME PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
HOME PROPERTIES WOODLEAF, LLC
By: Home Properties, L.P., as Member and Manager
By: Home Properties, Inc., General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
HOME PROPERTIES GATEWAY VILLAGE LIMITED PARTNERSHIP
By: Home Properties, L.P., as General Partner
By: Home Properties, Inc., General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
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[Signature page to Reaffirmation of Obligations]
BARRINGTON GARDENS, L.L.C.
HACKENSACK GARDENS APARTMENTS, LLC
HOME PROPERTIES 1200 EAST WEST, LLC
HOME PROPERTIES BAYVIEW COLONIAL, LLC
HOME PROPERTIES XXXXXXX, LLC
HOME PROPERTIES BLACKHAWK, LLC
HOME PROPERTIES XXXXXXXX XXX, LLC
HOME PROPERTIES BROADLAWN, LLC
HOME PROPERTIES CAMBRIDGE COURT, LLC
HOME PROPERTIES CAMBRIDGE VILLAGE, LLC
HOME PROPERTIES CANTERBURY NO. 1, LLC
HOME PROPERTIES CANTERBURY NO. 2, LLC
HOME PROPERTIES CANTERBURY NO. 3, LLC
HOME PROPERTIES CANTERBURY NO. 4, LLC
HOME PROPERTIES CHANNEL TOWNHOMES, LLC
HOME PROPERTIES COBBLESTONE, LLC
HOME PROPERTIES COLONIES, LLC
HOME PROPERTIES COURTYARD VILLAGE, LLC
HOME PROPERTIES COVE TOWNHOMES, LLC
HOME PROPERTIES CRESCENT CLUB, LLC
HOME PROPERTIES DEER GROVE, LLC
HOME PROPERTIES DULLES, LLC
HOME PROPERTIES GARDENCREST, LLC
HOME PROPERTIES XXXXXX FARM, LLC
HOME PROPERTIES HERITAGE SQUARE, LLC
HOME PROPERTIES HOLIDAY SQUARE, LLC
HOME PROPERTIES XXXXXX CROSSING, LLC
HOME PROPERTIES HUNTERS XXXX, LLC
HOME PROPERTIES HUNTINGTON METRO, LLC
By: Home Properties, L.P., as sole Member and Manager
By: Home Properties, Inc., General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
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[Signature page to Reaffirmation of Obligations]
HOME PROPERTIES LAKE GROVE, LLC
HOME PROPERTIES LAKEVIEW TOWNHOMES, LLC
HOME PROPERTIES LIBERTY COMMONS, LLC
HOME PROPERTIES LIBERTY PLACE, LLC
HOME PROPERTIES LIGHTHOUSE TOWNHOMES, LLC
HOME PROPERTIES MANSION HOUSE, LLC
HOME PROPERTIES MARSHFIELD, LLC
HOME PROPERTIES MIDDLEBROOKE, LLC
HOME PROPERTIES MORNINGSIDE HEIGHTS, LLC
HOME PROPERTIES MORNINGSIDE NORTH, LLC
HOME PROPERTIES MORNINGSIDE SIX, LLC
HOME PROPERTIES MOUNT XXXXXX, LLC
HOME PROPERTIES NEWPORT VILLAGE, LLC
HOME PROPERTIES PLEASURE BAY, LLC
HOME PROPERTIES POTOMAC FALLS, LLC
HOME PROPERTIES SEMINARY HILLS, LLC
HOME PROPERTIES SHERWOOD GARDENS, LLC
HOME PROPERTIES SOMERSET PARK, LLC
HOME PROPERTIES WATERVIEW, LLC
HOME PROPERTIES WESTBROOKE, LLC
HOME PROPERTIES WESTWOODS, LLC
HOME PROPERTIES WINDSOR, LLC
HOME PROPERTIES WMF I, LLC
HOME PROPERTIES WOODWAY, LLC
HOME PROPERTIES YORKSHIRE VILLAGE, LLC
XXXXX XXXX VILLAGE, L.L.C.
THE COLONY OF HOME PROPERTIES, LLC
By: Home Properties, L.P., as sole Member and Manager
By: Home Properties, Inc., General Partner
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
[Signature page to Reaffirmation of Obligations]