EXHIBIT 99.4
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CREDIT AGREEMENT
Dated
December 20, 2000
among
ARCHSTONE COMMUNITIES TRUST
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
XXXXX FARGO BANK, N.A.,
as Syndication Agent
and
BANK OF AMERICA, N.A.,
as Documentation Agent
and
the Lenders Party Hereto
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CHASE SECURITIES INC.,
as Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
1. Definitions........................................................................................ 1
2. The Loans.......................................................................................... 18
2.1 Advances................................................................................. 18
2.2 Letters of Credit........................................................................ 20
2.3 Payments................................................................................. 24
2.4 Pro Rata Treatment....................................................................... 27
2.5 Non-Receipt of Funds by the Agent........................................................ 27
2.6 Sharing of Payments, Etc................................................................. 27
2.7 Fees..................................................................................... 28
2.8 Money Market Borrowings.................................................................. 29
2.9 Reduction of Commitment.................................................................. 34
3. Conditions......................................................................................... 34
3.1 All Loans................................................................................ 34
3.2 First Loan............................................................................... 35
3.3 Options Available........................................................................ 35
3.4 Designation and Conversion............................................................... 35
3.5 Special Provisions Applicable to Eurodollar Rate Borrowings and Money Market Loans....... 36
3.6 Funding Offices; Adjustments Automatic................................................... 39
3.7 Funding Sources, Payment Obligations..................................................... 39
3.8 Mitigation, Non-Discrimination........................................................... 40
4. Representations and Warranties..................................................................... 41
4.1 Organization............................................................................. 41
4.2 Financial Statements..................................................................... 41
4.3 Enforceable Obligations; Authorization................................................... 41
4.4 Other Debt............................................................................... 41
4.5 Litigation............................................................................... 42
4.6 Taxes.................................................................................... 42
4.7 Regulation U............................................................................. 42
4.8 Subsidiaries............................................................................. 42
4.9 Securities Act of 1933................................................................... 42
4.10 No Contractual or Corporate Restrictions................................................ 42
4.11 Investment Company Act Not Applicable................................................... 42
4.12 Public Utility Holding Company Act Not Applicable....................................... 42
4.13 ERISA Not Applicable.................................................................... 43
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5. Affirmative Covenants............................................................... 43
5.1 Taxes, Insurance, Existence, Regulations, Property, etc................... 43
5.2 Financial Statements and Information...................................... 43
5.3 Financial Tests........................................................... 44
5.4 Inspection................................................................ 44
5.5 Further Assurances........................................................ 44
5.6 Books and Records......................................................... 44
5.7 Insurance................................................................. 44
5.8 Notice of Certain Matters................................................. 45
5.9 Use of Proceeds........................................................... 45
5.10 Expenses of and Claims Against the Agent and the Lenders................. 45
5.11 Legal Compliance; Indemnification........................................ 45
5.12 Borrower's Performance................................................... 46
5.13 Professional Services.................................................... 47
5.14 Capital Adequacy......................................................... 47
5.15 Property Pool............................................................ 48
6. Negative Covenants.................................................................. 49
6.1 Indebtedness.............................................................. 49
6.2 Mergers, Consolidations and Acquisitions of Assets........................ 50
6.3 Redemption................................................................ 50
6.4 Nature of Business........................................................ 50
6.5 Transactions with Related Parties......................................... 51
7. Events of Default and Remedies...................................................... 51
7.1 Events of Default......................................................... 51
7.2 Remedies Cumulative....................................................... 53
7.3 Guaranty Proceeds......................................................... 53
8. The Agent........................................................................... 54
8.1 Appointment, Powers and Immunities........................................ 54
8.2 Reliance.................................................................. 56
8.3 Defaults.................................................................. 57
8.4 Rights as a Lender........................................................ 57
8.5 Indemnification........................................................... 57
8.6 Non-Reliance on Agent and Other Lenders................................... 58
8.7 Failure to Act............................................................ 58
8.8 Resignation of Agent...................................................... 58
8.9 No Partnership............................................................ 59
9. Renewal and Extension............................................................... 59
9.1 Procedure for Renewal and Extension....................................... 64
9.2 Conditions to Renewal and Extension....................................... 59
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10. Miscellaneous............................................................... 60
10.1 No Waiver, Amendments............................................. 60
10.2 Notices........................................................... 60
10.3 Venue............................................................. 60
10.4 Choice of Law..................................................... 61
10.5 Survival; Parties Bound; Successors and Assigns................... 61
10.6 Counterparts...................................................... 64
10.7 Usury Not Intended; Refund of Any Excess Payments................. 64
10.8 Captions.......................................................... 64
10.9 Severability...................................................... 64
10.10 Disclosures...................................................... 65
10.11 No Novation...................................................... 65
10.12 Limitation of Liability.......................................... 65
10.13 Entire Agreement................................................. 65
EXHIBITS:
A - Officer's Certificate
B - Request for Loan
C - Note
C-1- Swing Loan Note
D - Legal Opinion
E - Money Market Quote Request
F - Invitation for Money Market Quotes
G - Money Market Quote
H - Designation Agreement
I - Form of Guaranty
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT (the "Agreement") is made and entered into as of
December 20, 2000, by and among ARCHSTONE COMMUNITIES TRUST, a Maryland real
estate investment trust (the "Borrower"), the financial institutions (including
Chase, the Syndication Agent and the Documentation Agent, the "Lenders") which
are now or may hereafter become signatories hereto, THE CHASE MANHATTAN BANK, a
New York banking corporation ("Chase"), as administrative agent for Lenders (in
such capacity, "Agent"), XXXXX FARGO BANK, N.A., a national banking association,
as syndication agent for Lenders (in such capacity, "Syndication Agent"), and
BANK OF AMERICA, N.A., a national banking association, as documentation agent
for Lenders (in such capacity, "Documentation Agent").
1. Definitions.
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Unless a particular word or phrase is otherwise defined or the context
otherwise requires, capitalized words and phrases used in Credit Documents have
the meanings provided below.
Absolute Rate Auction shall mean a solicitation of Money Market Quotes
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setting forth Money Market Absolute Rates pursuant to Section 2.8.
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Acceptable Credit Rating shall mean a Credit Rating from two of Standard &
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Poor's Rating Services, Xxxxx'x Investors Service, Inc., or Fitch (one of which
must be an S&P Rating or a Xxxxx'x Rating) equal to a Credit Rating from Fitch,
or an S&P Rating of BBB- or better, or a Xxxxx'x Rating of Baa3 or better.
Accounts, Equipment and Inventory shall have the respective meanings
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assigned to them in the Texas Business and Commerce Code in force on the date
the document using such term was executed.
Affiliate shall mean any Person controlling, controlled by or under common
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control with any other Person. For purposes of this definition, "control"
(including "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
Ameriton shall mean Ameriton Properties Incorporated.
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Ameriton Funds From Operations shall mean net income of Ameriton, plus
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depreciation, amortization and income taxes, all determined in accordance with
Generally Accepted Accounting Principles; provided, that there shall not be
included in such calculation any events characterized as "extraordinary items"
in accordance with Generally
Accepted Accounting Principles. Ameriton Funds From Operations will be
calculated, on an annualized basis, on the four (4) calendar quarters
immediately preceding the date of the calculation.
Ameriton Limit shall have the meaning ascribed to it in the definition of
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Total Asset Value.
Ameriton Percentage shall mean the amount resulting from (a) the difference
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between the total book value of the Borrower's investment in Ameriton and the
Ameriton Limit, divided by (b) the total book value of the Borrower's investment
in Ameriton.
Annual Audited Financial Statements shall mean the annual financial
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statements of a Person, including all notes thereto, which statements shall
include a balance sheet as of the end of such fiscal year and an income
statement and a statement of cash flows, all setting forth in comparative form
the corresponding figures from the previous fiscal year, all prepared in
conformity with Generally Accepted Accounting Principles and accompanied by a
report and opinion of independent certified public accountants satisfactory to
the Agent, which shall state that such financial statements, in the opinion of
such accountants, present fairly the financial position of such Person as of the
date thereof and the results of its operations for the period covered thereby in
conformity with Generally Accepted Accounting Principles. Such statements shall
be accompanied by a certificate of such accountants that in making the
appropriate audit and/or investigation in connection with such report and
opinion, such accountants did not become aware of any Default or, if in the
opinion of such accountant any such Default exists, a description of the nature
and status thereof. The Annual Audited Financial Statements shall be prepared
on a consolidated basis in accordance with Generally Accepted Accounting
Principles.
Applicable Margin shall mean (a) if a Credit Rating is obtained from more
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than one agency, and one of the two highest Credit Ratings is an S&P Rating or a
Xxxxx'x Rating, the following percentage based on the corresponding Credit
Rating which is the second highest, or (b) if the one of the two highest Credit
Ratings in clause (a) above is not an S&P Rating or a Xxxxx'x Rating, the
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following percentage based on the corresponding S&P Rating or Xxxxx'x Rating
which is the highest, or (c) if only one Credit Rating is obtained, which must
be an S&P Rating or a Xxxxx'x Rating, the following percentage based on the
corresponding S&P Rating or Xxxxx'x Rating:
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APPLICABLE MARGIN
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APPLICABLE
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CREDIT RATING EURODOLLAR RATE BASE RATE
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BORROWING BORROWING
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A/A2 or better 0.500% 0
A-/A3 0.600% 0
BBB+/Baa1 0.650% 0
BBB/Baa2 0.750% 0
BBB-/Baa3 0.900% 0
Worse than BBB-/Baa3 1.250% .25%
or no Credit Rating
Each Applicable Margin shall be in effect whenever and for so long as the
corresponding Credit Rating or no Credit Rating is in effect.
Base Rate shall mean for any day a rate per annum equal to the Applicable
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Margin on that day plus the greater on a daily basis of (a) the Prime Rate for
that day, or (b) the Federal Funds Effective Rate for that day plus one-half of
one percent (1/2%).
Base Rate Borrowing shall mean that portion of the principal balance of the
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Loans at any time bearing interest at the Base Rate.
Business Day shall mean a day other than (a) a day when the main office of
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the Agent is not open for business, or (b) a day that is a federal banking
holiday in the United States of America.
Calculation Date shall mean the beginning of the first full calendar
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quarter after the Stabilization Date.
Capital Lease Obligations of any Person means the obligations of such
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Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under Generally Accepted Accunting
Principles, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with Generally Accepted Accounting Principles.
Ceiling Rate shall mean, on any day, the maximum nonusurious rate of
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interest permitted for that day by whichever of applicable federal or Texas laws
permits the higher interest rate, stated as a rate per annum. On each day, if
any, that Texas law establishes the Ceiling Rate, the Ceiling Rate shall be the
"weekly ceiling" (as defined in Chapter 303 of
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the Texas Finance Code, as amended (the "Texas Finance Code")) for that day. The
Agent may from time to time, as to current and future balances, implement any
other ceiling under the Texas Finance Code by notice to the Borrower, if and to
the extent permitted by the Texas Finance Code. Without notice to the Borrower
or any other person or entity, the Ceiling Rate shall automatically fluctuate
upward and downward as and in the amount by which such maximum nonusurious rate
of interest permitted by applicable law fluctuates.
Code shall mean the Internal Revenue Code of 1986, as amended, as now or
----
hereafter in effect, together with all regulations, rulings and interpretations
thereof or thereunder by the Internal Revenue Service.
Commitment shall mean the commitment of the Lenders to lend funds under
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Section 2.1 of this Agreement, other than Swing Loans.
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Committed Loan shall mean Loans other than Money Market Loans.
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Construction Interest shall mean Borrower's interest expense for the
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construction of projects, which is capitalized in accordance with Generally
Accepted Accounting Principles.
Coverage Ratio shall mean the ratio of (a) the Borrower's EBITDA for the
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immediately preceding four (4) calendar quarters, to (b) dividends or other
distributions of any kind or character paid or payable with respect to any
Disqualified Stock plus all of the Borrower's Interest Expense, in each case for
the period used to calculate EBITDA.
Credit Documents shall mean this Agreement, the Notes, any Guaranty, all
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instruments, certificates and agreements now or hereafter executed or delivered
to the Agent or the Lenders pursuant to any of the foregoing, and all
amendments, modifications, renewals, extensions, increases and rearrangements
of, and substitutions for, any of the foregoing.
Credit Rating shall mean the S&P Rating, the Xxxxx'x Rating, or the rating
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assigned by Fitch to Borrower's senior unsecured indebtedness.
Debt to Total Asset Value Ratio shall mean the ratio (expressed as a
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percentage) of Indebtedness to Total Asset Value.
Designated Lender shall mean a special purpose corporation that (a) shall
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have become a party to this Agreement pursuant to Section 10.5(g), and (b) is
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not otherwise a Lender.
Designated Lender Notes shall mean promissory notes of the Borrower,
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substantially in the form of Exhibit C hereto, evidencing the obligation of the
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Borrower to
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repay Money Market Loans made by Designated Lenders, and Designated Lender Note
means any one of such promissory notes issued under Section 10.5(g).
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Designating Lender shall have the meaning set forth in Section 10.5(g).
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Designation Agreement shall mean a designation agreement in substantially
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the form of Exhibit H attached hereto, entered into by a Lender and a Designated
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Lender and accepted by the Agent.
Disqualified Stock shall mean any of the Borrower's capital stock which by
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its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable) (a) matures or is subject to mandatory
redemption, pursuant to a sinking fund obligation or otherwise, (b) is
convertible into or exchangeable or exercisable for Indebtedness or
Disqualified Stock, (c) is redeemable at the option of the holder of such stock,
or (d) otherwise requires any payments by Borrower, in each case on or before
the Maturity Date.
EBITDA means an amount derived from the sum of (A) (a) net income, plus (b)
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to the extent included in the determination of net income, depreciation,
amortization, Interest Expense, income taxes, deferred taxes and other non-cash
charges, minority interest, extraordinary losses, and payments made on
Borrower's preferred stock, minus (c) to the extent included in the
determination of net income, any extraordinary gains, in each case, as
determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles, including (without duplication) the Equity Percentage of
EBITDA for the Borrower's Unconsolidated Affiliates, and excluding from this
calculation the effect of Ameriton; plus (B) the amount of the Borrower's Equity
Percentage of Ameriton Funds From Operations.
Eligible Institution shall mean a commercial bank or a finance company,
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insurance company or other financial institution which is regularly engaged in
making, purchasing or investing in loans and which has base capital of at least
$500,000,000.00, but shall not include any Person which is an Affiliate of the
Borrower.
Equity Percentage shall mean the aggregate ownership interest of Borrower
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in each Unconsolidated Affiliate or in Ameriton, which shall be calculated as
Borrower's economic ownership interest in such Person, reflecting Borrower's
share of income and expenses of such Person.
Eurodollar Business Day shall mean a Business Day on which transactions in
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United States dollar deposits between banks may be carried on in the London
interbank dollar market.
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Eurodollar Interbank Rate shall mean, for each Interest Period, the rate of
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interest per annum, rounded, if necessary, to the next highest whole multiple of
one-sixteenth percent (1/16%), quoted by Agent at or before 11:00 a.m., London
time (or as soon thereafter as practicable), on the date two (2) Eurodollar
Business Days before the first day of such Interest Period, to be the arithmetic
average of the prevailing rates per annum at the time of determination and in
accordance with the then existing practice in the London interbank dollar
market, for the offering to Agent by one or more prime banks selected by Agent
in its sole discretion, in the London interbank dollar market, of deposits in
United States dollars for delivery on the first day of such Interest Period and
having a maturity equal to the length of such Interest Period and in an amount
equal (or as nearly equal as may be) to the Eurodollar Rate Borrowing to which
such Interest Period relates. Each determination by Agent of the Eurodollar
Interbank Rate shall be prima facie evidence thereof.
Eurodollar Rate shall mean for any day a rate per annum equal to the sum of
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the Applicable Margin for that day plus the Eurodollar Interbank Rate in effect
on the first day of the Interest Period for the applicable Eurodollar Rate
Borrowing. Each Eurodollar Rate is subject to adjustments for reserves,
insurance assessments and other matters as provided for in Section 3.5 hereof.
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Eurodollar Rate Borrowing shall mean that portion of the principal balance
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of the Loans at any time bearing interest at a Eurodollar Rate.
Eurodollar Reserve Requirement shall mean, on any day, the cost incurred by
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a Lender as a reserve requirement (including, without limitation, basic,
supplemental, marginal and emergency reserves) applicable to "Eurocurrency
liabilities," as currently defined in Regulation D, all as specified by any
Governmental Authority, including but not limited to those imposed under
Regulation D, because of that Lender making a Eurodollar Rate Borrowing or a
Money Market LIBOR Loan available to the Borrower.
Event of Default shall mean any of the events specified as an event of
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default in Section 7 of this Agreement, and Default shall mean any of such
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events, whether or not any requirement for notice, grace or cure has been
satisfied.
Federal Funds Effective Rate shall to the extent necessary be determined by
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the Agent separately for each day and shall for each such day be a rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for each such day (or if any such day is not a
Business Day, for the next immediately preceding Business Day) by the Federal
Reserve Bank of New York, or if the weighted average of such rates is not so
published for any such day which is a Business Day, the average of the
quotations for any such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent.
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Fee shall mean, collectively, the fee described in Section 2.7.
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Fitch shall mean Fitch IBCA Inc.
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Fixed Charge Coverage Ratio shall mean the ratio of (a) the Borrower's
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EBITDA for the immediately preceding four (4) calendar quarters, less Unit
Capital Expenditures, to (b) dividends of any kind or character or other
proceeds paid or payable with respect to any Disqualified Stock, plus all of the
Borrower's Interest Expense, plus all of the principal payable and principal
paid on the Borrower's Indebtedness other than (i) any final scheduled principal
payment on any Indebtedness which pays such Indebtedness in full, to the extent
the amount of such scheduled principal payment is greater than the scheduled
principal payment immediately preceding such final scheduled principal payment
and (ii) scheduled principal payments on the Borrower's Indebtedness incurred
prior to December 20, 2000 which has an Acceptable Credit Rating at the time of
issuance, in each case for the period used to calculate EBITDA.
Funding Loss shall mean, with respect to (a) Borrower's payment or
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prepayment of principal of a Eurodollar Rate Borrowing or a Money Market Loan on
a day other than the last day of the applicable Interest Period; (b) Borrower's
failure to borrow a Eurodollar Rate Borrowing or a Money Market Loan on the date
specified by Borrower; (c) Borrower's failure to make any prepayment of the
Loans (other than Base Rate Borrowings) on the date specified by Borrower, or
(d) any cessation of a Eurodollar Rate to apply to the Loans or any part thereof
pursuant to Section 3.5, in each case whether voluntary or involuntary, any
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direct loss, expense, penalty, premium or liability incurred by any Lender
(including but not limited to any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by a Lender to
fund or maintain a Loan).
Generally Accepted Accounting Principles shall mean, as to a particular
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Person, such accounting practice as, in the opinion of the independent
accountants of recognized national standing regularly retained by such Person
and acceptable to the Agent, conforms at the time to generally accepted
accounting principles, consistently applied. Generally Accepted Accounting
Principles means those principles and practices (a) which are recognized as such
by the Financial Accounting Standards Board, (b) which are applied for all
periods after the date hereof in a manner consistent with the manner in which
such principles and practices were applied to the most recent audited financial
statements of the relevant Person furnished to the Lenders or where a change
therein has been concurred in by such Person's independent auditors, and (c)
which are consistently applied for all periods after the date hereof so as to
reflect properly the financial condition, and results of operations and changes
in financial position, of such Person. If there is a change in such accounting
practice as to the Borrower that could affect the Borrower's ability to comply
with the terms of this Agreement, the parties hereto agree to review and discuss
such changes in accounting practice and the terms of this Agreement for a period
of no more
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than thirty (30) days with a view to amending this Agreement so that the
financial measures of the Borrower's operating performance and financial
condition are substantially the same after such change as they were immediately
before such change.
Governmental Authority shall mean any foreign governmental authority, the
----------------------
United States of America, any State of the United States and any political
subdivision of any of the foregoing, and any agency, department, commission,
board, bureau, court or other tribunal having jurisdiction over the Agent, any
Lender or the Borrower or their respective Property.
Guarantor shall mean each Subsidiary of Borrower that executes a Guaranty
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as required by Section 5.15 hereof.
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Guaranty (whether one or more) shall mean a Guaranty in the form of Exhibit
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I attached hereto and made a part hereof.
-
Hedging Agreements shall mean any interest rate protection agreement,
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foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging agreement.
Historical Value shall mean the purchase price of Real Property (including
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improvements) and ordinary related purchase transaction costs, plus the cost of
subsequent capital improvements made by the Borrower, less any provision for
losses, all determined in accordance with Generally Accepted Accounting
Principles. If the Real Property is purchased as a part of a group of
properties, the Historical Value shall be calculated based upon a reasonable
allocation of the aggregate purchase price by the Borrower, and consistent with
Generally Accepted Accounting Principles.
Indebtedness shall mean and include, without duplication (1) all
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obligations for borrowed money, (2) all obligations evidenced by bonds,
debentures, notes or other similar agreements, (3) all obligations to pay the
deferred purchase price of Property or services, except accrued expenses and
trade accounts payable arising in the ordinary course of business (unless
included in (6) below), (4) all guaranties and endorsements and other contingent
obligations in respect of, or any obligations to purchase or otherwise acquire,
Indebtedness of others, (5) all Indebtedness secured by any Lien existing on any
interest of the Person with respect to which Indebtedness is being determined in
Property owned subject to such Lien whether or not the Indebtedness secured
thereby shall have been assumed, (6) accounts payable, dividends of any kind or
character or other proceeds payable with respect to any stock and accrued
expenses which in the aggregate are in excess of five percent (5%) of the
undepreciated value of the assets of the Borrower, (7) payments received in
consideration for sale of Borrower's stock when the amount of the stock so sold
is determined, and the date of delivery is, more than one (1) month after
receipt of such payment and only to the extent that the obligation to deliver
stock is not
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payable solely in stock of the Borrower, (8) all obligations under Hedging
Agreements (calculated on a xxxx-to-market basis as of the reporting date) other
than Hedging Agreements related to interest rates on identified outstanding
borrowed money Indebtedness, (9) all Capital Lease Obligations of such Person,
and (10) if the Borrower's investment in Ameriton exceeds the Ameriton Limit, an
amount equal to the Ameriton Percentage multiplied by Ameriton's Indebtedness
(excluding Indebtedness owed to the Borrower), multiplied by the Borrower's
Equity Percentage of Ameriton. Indebtedness shall be calculated on a
consolidated basis in accordance with Generally Accepted Accounting Principles,
including (without duplication) the Equity Percentage of Indebtedness for the
Borrower's Unconsolidated Affiliates, and excluding (except as provided in
clause (10) above) the effect of Ameriton.
Interest Expense shall mean all of a Person's paid, accrued or capitalized
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interest expense on such Person's Indebtedness (whether direct, indirect or
contingent, and including, without limitation, interest on all convertible
debt), but excluding Construction Interest.
Interest Options shall mean the Base Rate and the Eurodollar Rate, and
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"Interest Option" means either of them.
Interest Payment Dates shall mean (a) the first (1st) day of each calendar
----------------------
month and the Maturity Date, for Base Rate Borrowings and Eurodollar Rate
Borrowings; and (b) for Money Market Loans, the last day of each Interest Period
and the maturity date of the Money Market Loans
Interest Period shall mean:
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(1) For each Eurodollar Rate Borrowing, a period commencing on the
date such Eurodollar Rate Borrowing was made and ending on the numerically
corresponding day which is, subject to availability, (a) one (1), two (2),
three (3) or six (6) months thereafter, or (b) seven (7), fourteen (14) or
twenty-one (21) days thereafter for no more than four (4) time periods
(provided that the first Eurodollar Rate Borrowing under this Agreement
with an Interest Period of seven (7) days shall not count against the four
time maximum) each calendar year in connection with payments of the Loans
because of debt and/or equity sales by the Borrower, changes in the Lender
Commitments, sales of major assets by the Borrower, or other similar
reasons specifically approved by the Agent and all of the Lenders; provided
that, (v) any Interest Period which would otherwise end on a day which is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day, unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Eurodollar Business Day; (w) any Interest Period which
begins on the last Eurodollar Business Day of a calendar month (or on a day
for which there is no
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numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Eurodollar Business Day of the
appropriate calendar month; (x) no Interest Period shall ever extend beyond
the Maturity Date; and (y) Interest Periods shall be selected by Borrower
in such a manner that the Interest Period with respect to any portion of
the Loans which shall become due shall not extend beyond such due date.
(2) For each Money Market LIBOR Loan, the period commencing on the
date such Money Market LIBOR Loan was made and ending one (1), two (2),
three (3) or six (6) months thereafter, as the Borrower may elect in the
applicable Notice of Money Market Borrowing in accordance with Section 2.8;
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provided that such Interest Period shall be limited as provided in clauses
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(1)(v) through (y) above.
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(3) With respect to each Money Market Absolute Rate Loan, the period
commencing on the date such Money Market Absolute Rate was made and ending
such number of days thereafter (but not less than 14 days) as the Borrower
may elect in accordance with Section 2.8; provided that such Interest
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Period shall be limited as provided in clauses (1)(x) and (y) above.
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Issuing Bank (whether one or more) means The Chase Manhattan Bank and up to
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two (2) other Lenders, in their capacity as the issuer of Letters of Credit
hereunder, and their successors in such capacity as provided in Section 2.2(i).
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The Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
LC Disbursement means a payment made by the Issuing Bank pursuant to a
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Letter of Credit.
LC Exposure means, at any time, the sum of (a) the aggregate undrawn amount
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of all outstanding Letters of Credit at such time plus (b) the aggregate amount
of all LC Disbursements that have not yet been reimbursed by or on behalf of the
Borrower at such time. The LC Exposure of any Lender at any time shall be its
Percentage of the total LC Exposure at such time.
Legal Requirement shall mean any law, statute, ordinance, decree,
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requirement, order, judgment, rule, regulation (or interpretation of any of the
foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority.
Lender Commitment means, for any Lender, the amount set forth opposite such
-----------------
Lender's name on its signature page of this Agreement, or as may hereafter
become a
10
signatory hereto, as adjusted to reflect assignments or amendments made
in accordance with this Agreement.
Letter of Credit means any letter of credit issued pursuant to this
----------------
Agreement.
LIBOR Auction shall mean a solicitation of Money Market Quotes setting
-------------
forth Money Market Margins based on the Eurodollar Interbank Rate pursuant to
Section 2.8.
-----------
Lien shall mean any mortgage, pledge, charge, encumbrance, security
----
interest, collateral assignment or other lien or restriction of any kind,
whether based on common law, constitutional provision, statute or contract, and
shall include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions.
Loans shall mean the Loans described in Sections 2.1, 2.2 and 2.8 hereof.
----- ------------ --- ---
Loan shall mean any such Loan.
Majority Lenders shall mean the Lenders with an aggregate amount in excess
----------------
of fifty percent (50%) of the amount of the Commitment then outstanding, and
after the Commitment has expired or terminated, shall mean Lenders with an
aggregate amount in excess of fifty percent (50%) of the unpaid principal
balance of the Revolving Credit Exposures.
Material Adverse Change shall mean a change which could reasonably be
-----------------------
expected to have a Material Adverse Effect.
Material Adverse Effect means a material adverse effect on (a) the
-----------------------
financial condition, or results of operations of Borrower and its Subsidiaries
taken as a whole, (b) the ability of Borrower to perform its material
obligations under the Credit Documents to which it is a party taken as a whole,
(c) the validity or enforceability of such Credit Documents taken as a whole, or
(d) the material rights and remedies of Lenders and Agent under the Credit
Documents taken as a whole.
Maturity Date shall mean three (3) years after the date hereof, unless
-------------
extended pursuant to Section 9.
---------
Money Market Absolute Rate has the meaning set forth in Section 2.8.
-------------------------- -----------
Money Market Absolute Rate Loan shall mean a loan to be made by a Lender
-------------------------------
pursuant to an Absolute Rate Auction.
Money Market LIBOR Loan shall mean a loan to be made by a Lender pursuant
-----------------------
to a LIBOR Auction.
11
Money Market Loan shall mean a Money Market LIBOR Loan or a Money Market
-----------------
Absolute Rate Loan, as the context may require or allow.
Money Market Margin has the meaning set forth in Section 2.8.
------------------- -----------
Money Market Quote shall mean an offer by a Lender to make a Money Market
------------------
Loan in accordance with Section 2.8.
-----------
Xxxxx'x Rating shall mean the senior unsecured debt rating from time to
--------------
time received by the Borrower from Xxxxx'x Investors Service, Inc.
Net Operating Income shall mean, for any income producing operating
--------------------
properties, the difference between (a) any cash rentals, proceeds and other
income received from such Property (but excluding security or other deposits, or
other income of an extraordinary and non-recurring nature) during the
determination period, less (b) all cash costs and expenses (excluding interest
expense and any expenditures that are capitalized in accordance with Generally
Accepted Accounting Principles) incurred as a result of, or in connection with,
or properly allocated to, the operation or leasing of such Property during the
determination period. Net Operating Income shall be calculated on a consolidated
basis in accordance with Generally Accepted Accounting Principles, and including
(without duplication) the Equity Percentage of Net Operating Income for the
Borrower's Unconsolidated Affiliates.
Non-recourse Debt shall mean any Indebtedness the payment of which the
-----------------
Borrower or any of its Subsidiaries is not obligated to make other than to the
extent of any security therefor.
Notes shall mean the promissory notes of the Borrower described in Section
----- -------
2.1 hereof, including the Swing Loan Note, any and all renewals, extensions,
---
modifications, rearrangements and replacements thereof and any and all
substitutions therefor, and Note shall mean any one of them.
Obligations shall mean, as at any date of determination thereof, the sum of
-----------
(a) the aggregate Revolving Credit Exposures plus (b) all other liabilities,
obligations and Indebtedness of any Parties under any Credit Document.
Officer's Certificate shall mean a certificate in the form attached hereto
---------------------
as Exhibit A.
---------
Organizational Documents shall mean, with respect to a corporation, the
------------------------
certificate of incorporation, articles of incorporation and bylaws of such
corporation; with respect to a partnership, the partnership agreement
establishing such partnership; with respect to a joint venture, the joint
venture agreement establishing such joint venture, and with respect to a trust,
the instrument establishing such trust; in each case including any and all
modifications thereof as of the date of the Credit Document referring to such
12
Organizational Document and any and all future modifications thereof which are
consented to by the Lenders.
Opinion Letters shall mean the opinion letters of independent counsel for
---------------
the Borrower, each in Proper Form.
Parties shall mean all Persons other than the Agent, the Syndication Agent,
-------
the Documentation Agent or any Lender executing any Credit Document.
Past Due Rate shall mean, on any day, a rate per annum equal to the Base
-------------
Rate plus an additional three percent (3%) per annum, but in any event not to
exceed the Ceiling Rate.
Percentage shall mean the amount, expressed as a percentage, of each Lender
----------
Commitment as compared to the Commitment, set forth opposite the Lender's name
on its signature page of this Agreement, or as may hereafter become signatory
hereto, as adjusted or amended in accordance with this Agreement. If the
Commitment has terminated or expired, the Percentage shall be determined based
on the Revolving Credit Exposure most recently in effect, giving effect to any
assignments.
Permitted Encumbrances shall mean (a) encumbrances consisting of zoning
----------------------
restrictions, easements, or other restrictions on the use of Real Property,
provided that such items do not materially impair the use of such property for
the purposes intended and none of which is violated in any material respect by
existing or proposed structures or land use; (b) the following: (i) Liens for
taxes not yet due and payable, or being diligently contested in good faith, or
where no Material Adverse Effect could reasonably be expected to result from
such nonpayment or the imposition of such Lien; or (ii) materialmen's,
mechanic's, warehousemen's and other like Liens arising in the ordinary course
of business, securing payment of Indebtedness whose payment is not yet due, or
that are being contested in good faith by appropriate proceedings diligently
conducted, and for or against which the Borrower has established adequate
reserves in accordance with Generally Accepted Accounting Principles; (c) Liens
for taxes, assessments and governmental charges or assessments that are being
contested in good faith by appropriate proceedings diligently conducted, and for
or against which the Borrower has established adequate reserves in accordance
with Generally Accepted Accounting Principles; (d) Liens on Real Property which
are insured around or against by title insurance; (e) Liens securing assessments
or charges payable to a property owner association or similar entity which
assessments are not yet due and payable or are being diligently contested in
good faith; and (f) Liens securing this Agreement and Indebtedness hereunder.
Person shall mean any individual, corporation, trust, unincorporated
------
organization, Governmental Authority or any other form of entity.
13
Pool Value shall mean the lesser of (a) the Historical Value of the Pool,
----------
and (b) the Value of the Pool.
Prime Rate shall mean, as of a particular date, the prime rate of interest
----------
per annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York, New York; each change in the Prime
Rate shall be effective on the date such change is determined; which Prime Rate
may not necessarily represent the Agent's lowest or best rate actually charged
to a customer.
Proper Form shall mean in form and substance reasonably satisfactory to the
-----------
Agent and the Majority Lenders.
Property shall mean any interest in any kind of property or asset, whether
--------
real, personal or mixed, tangible or intangible.
Quarterly Unaudited Financial Statements shall mean the quarterly financial
----------------------------------------
statements of a Person, including all notes thereto, which statements shall
include a balance sheet as of the end of such quarter and an income statement
for such fiscal quarter, and for the fiscal year to date, a statement of cash
flows for such quarter and for the fiscal year to date, subject to normal year-
end adjustments, and a detailed listing of the Borrower's Property and the
Historical Value thereof, all setting forth in comparative form the
corresponding figures for the corresponding fiscal period of the preceding year
(or, in the case of the balance sheet, the end of the preceding fiscal year),
prepared in accordance with Generally Accepted Accounting Principles except that
the Quarterly Unaudited Financial Statements may contain condensed footnotes as
permitted by regulations of the United States Securities and Exchange
Commission, and certified as true and correct by a managing director, senior
vice president, controller, co-controller or vice president of Borrower. The
Quarterly Unaudited Financial Statements shall be prepared on a consolidated
basis in accordance with Generally Accepted Accounting Principles.
Rate Designation Date shall mean 1:00 p.m., New York, New York time, on the
---------------------
date three (3) Eurodollar Business Days preceding the first day of any proposed
Interest Period.
Real Property means, collectively, all interest in any land and
-------------
improvements located thereon, together with all equipment, furniture, materials,
supplies and personal property now or hereafter located at or used in connection
with the land and all appurtenances, additions, improvements, renewals,
substitutions and replacements thereof now or hereafter acquired by any Person.
Regulation D shall mean Regulation D of the Board of Governors of the
------------
Federal Reserve System from time to time in effect and shall include any
successor or other
14
regulation relating to reserve requirements applicable to member lenders of the
Federal Reserve System.
Request for Loan shall mean a written request for a Committed Loan
----------------
substantially in the form of Exhibit B.
---------
Revolving Credit Exposure means, with respect to any Lender at any time,
-------------------------
the sum of the outstanding principal amount of such Lender's Loans, the Swing
Loans, and its LC Exposure at such time.
S&P Rating shall mean the senior unsecured debt rating from time to time
----------
received by the Borrower from Standard & Poor's Rating Services.
Secured Debt means the Indebtedness of the Borrower secured by a Lien, and
------------
any Indebtedness of any of the Borrower's Subsidiaries and Unconsolidated
Affiliates owed to a Person not an Affiliate of the Borrower or such Subsidiary.
Secured Debt to Total Asset Value Ratio means the ratio (expressed as a
---------------------------------------
percentage) of Secured Debt to Total Asset Value.
Stabilization Date shall mean, with respect to a property, the earlier of
------------------
(a) twelve (12) months from the date of acquisition of an income producing
property by the Borrower or twelve (12) months after substantial completion of
construction or development of a new construction or development property, and
(b) the date on which the occupancy level is at least ninety-three percent
(93%).
Stated Rate shall, on any day, mean whichever of the Base Rate, the
-----------
Eurodollar Rate, or a rate applicable to Money Market Loans has been designated
and provided pursuant to this Agreement; provided that, if on any day such rate
shall exceed the Ceiling Rate for that day, the Stated Rate shall be fixed at
the Ceiling Rate on that day and on each day thereafter until the total amount
of interest accrued at the Stated Rate on the unpaid principal balance of the
Notes equals the total amount of interest which would have accrued if there had
been no Ceiling Rate. If the Notes mature (or are prepaid) before such equality
is achieved, then, in addition to the unpaid principal and accrued interest then
owing pursuant to the other provisions of the Credit Documents, Borrower
promises to pay on demand to the order of the holders of the Notes interest in
an amount equal to the excess (if any) of (a) the lesser of (i) the total
interest which would have accrued on the Notes if the Stated Rate had been
defined as equal to the Ceiling Rate from time to time in effect and (ii) the
total interest which would have accrued on the Notes if the Stated Rate were not
so prohibited from exceeding the Ceiling Rate, over (b) the total interest
actually accrued on the Notes to such maturity (or prepayment) date.
15
Subsidiary shall mean, as to a particular parent entity, any entity of
----------
which more than fifty percent (50%) of the indicia of voting equity or ownership
rights (whether outstanding capital stock or otherwise) is at the time directly
or indirectly owned by, such parent entity, or by one or more of its other
Subsidiaries.
Super-Majority Lenders shall mean the Lenders with an aggregate amount of
----------------------
sixty-six and sixty-seven hundredths percent (66.67%) or more of the amount of
the Commitment then outstanding, and after the Commitment has expired or
terminated, shall mean Lenders with an aggregate amount of sixty-six and sixty-
seven hundredths percent (66.67%) or more of the unpaid balance of the Revolving
Credit Exposures.
Swing Loan shall mean a Loan made pursuant to Section 2.1(c) hereof.
---------- --------------
Swing Loan Note shall mean that certain promissory note dated of even date
---------------
herewith in the original principal amount of $100,000,000.00 executed by the
Borrower payable to the order of Chase.
Tangible Net Worth shall mean total assets (without deduction for
------------------
accumulated depreciation) less (1) all intangibles and (2) all liabilities
(including contingent and indirect liabilities), all determined in accordance
with Generally Accepted Accounting Principles. The term "intangibles" shall
include, without limitation, (i) deferred charges, and (ii) the aggregate of all
amounts appearing on the assets side of any such balance sheet for franchises,
licenses, permits, patents, patent applications, copyrights, trademarks, trade
names, goodwill, treasury stock, experimental or organizational expenses and
other like intangibles. The term "liabilities" shall include, without
limitation, (i) Indebtedness secured by Liens on Property of the Person with
respect to which Tangible Net Worth is being computed whether or not such Person
is liable for the payment thereof, (ii) deferred liabilities, and (iii)
obligations under leases which have been capitalized. Tangible Net Worth shall
be calculated on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
Taxes shall mean any tax, levy, impost, duty, charge or fee.
-----
Total Asset Value shall mean the sum of (without duplication) (a) the
-----------------
aggregate Value of all of the Real Property owned by the Borrower and its
Subsidiaries on a consolidated basis plus (b) the amount of the Borrower's cash
and cash equivalents, excluding tenant security and other restricted deposits,
plus (c) the total book value of all of the Borrower's other assets not
described in (a) or (b) above, excluding all intangibles and all equity
investments in Unconsolidated Affiliates and in Ameriton, plus (d) the Value of
the Real Property, and cash and other assets of the type permitted, and as
valued, in clauses (b) and (c) of this definition, owned by each of the
----------- ---
Borrower's Unconsolidated Affiliates, multiplied by the Equity Percentage for
that Unconsolidated Affiliate, plus (e) the total book value of the Borrower's
investment in Ameriton up to an amount (the
16
"Ameriton Limit") equal to the lesser of (i) $400,000,000 and (ii) ten percent
(10%) of the Total Asset Value after giving effect to such investment, plus (f)
if the Borrower's investment in Ameriton exceeds the Ameriton Limit, an amount
equal to the Ameriton Percentage multiplied by the Value of the Real Property
and cash and other assets of the type permitted, and as valued, in clauses (b)
and (c) of this definition, owned by Ameriton, multiplied by the Borrower's
Equity Percentage of Ameriton. Total Asset Value shall be calculated on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
Unconsolidated Affiliate shall mean, in respect of any Person, any other
------------------------
Person that is an Affiliate of such Person and in whom such Person holds a
voting equity or other ownership interest and whose financial results would not
be consolidated under Generally Accepted Accounting Principles with the
financial results of such other Person on the consolidated financial statements
of such first mentioned Person. For the purpose of this Agreement Ameriton is
not an Unconsolidated Affiliate.
Unit Capital Expenditure shall mean, on an annual basis, an amount equal to
------------------------
the sum of (a) the result of (i) the number of apartment units contained in each
completed, operating Real Property owned by Borrower and any Subsidiary as of
the last day of each of the immediately preceding four (4) calendar quarters,
divided by four (4), and multiplied by (ii) $200.00; plus (b) for Unconsolidated
Affiliates and Ameriton, the result of (i) the amount in clause (a) above for
----------
Unconsolidated Affiliates and Ameriton, multiplied by (ii) the Equity Percentage
for each Unconsolidated Affiliate and for Ameriton.
Value means the sum of the following:
-----
(a) for Real Property that has reached the Calculation Date and that the
Person has owned for the full determination period, the result of dividing (i)
the aggregate Net Operating Income of the subject property ((i) beginning with
the Calculation Date until the end of the third full calendar quarter after the
Stabilization Date, based on the annualized Net Operating Income from the
Calculation Date until the time of measurement, and (ii) beginning with the
fourth full calendar quarter after the Stabilization Date, based on the
immediately preceding four (4) calendar quarter period), by (ii) eight and
sixty-five one hundredths percent (8.65%); plus
(b) for Real Property that is completed but has not reached the
Calculation Date or that has not been owned by Borrower for the full
determination period, the Historical Value of the subject property; plus
(c) for Real Property that is under construction or development, or that
is undeveloped land, the Historical Value of the subject property.
17
2. The Loans.
----------
2.1 Advances. (a) Subject to the terms and conditions of this Agreement,
--------
each Lender severally agrees to make Committed Loans (other than Swing Loans)
prior to the Maturity Date to the Borrower not to exceed an amount (in the
aggregate, the "Commitment") at any one time outstanding equal to the difference
between the Lender's Lender Commitment and the Lender's Revolving Credit
Exposure. Each such request for a Committed Loan by Borrower shall be deemed a
request for a Committed Loan from each Lender equal to such Lender's Percentage
of the aggregate amount so requested, and such aggregate amount shall be in an
amount at least equal to $1,000,000.00 and equal to a multiple of $100,000.00,
or the difference between the Commitment and the aggregate Revolving Credit
Exposures, whichever is less. Each repayment of the Committed Loans shall be
deemed a repayment of each Lender's Committed Loan equal to such Lender's
Percentage of the amount so repaid. The obligations of the Lenders hereunder are
several and not joint, and the preceding two sentences will give rise to certain
inappropriate results if special provisions are not made to accommodate the
failure of a Lender to fund a Committed Loan as and when required by this
Agreement; therefore, notwithstanding anything herein to the contrary, (A) no
Lender shall be required to make Committed Loans at any one time outstanding in
excess of such Lender's Percentage of the Commitment, and (B) if a Lender fails
to make a Committed Loan as and when required hereunder and Borrower
subsequently makes a repayment on the Committed Loans, such repayment shall be
split among the non-defaulting Lenders ratably in accordance with their
respective Percentages until each Lender has its Percentage of all of the
outstanding Committed Loans, and the balance of such repayment shall be divided
among all of the Lenders in accordance with their respective Percentages.
Notwithstanding the foregoing, borrowings and payments of Swing Loans shall be
for Chase's own account. The Loans (other than Swing Loans) shall be evidenced
by the Notes substantially in the form of Exhibit C attached hereto. The
---------
Borrower, the Agent and the Lenders agree that Chapter 346 of the Texas Finance
Code shall not apply to this Agreement, the Notes or any Loan.
(b) The Borrower shall give the Agent notice of each borrowing of a
Committed Loan to be made hereunder as provided in Section 3.1, and the Agent
-----------
shall deliver same to each Lender promptly thereafter. Not later than 12:00
noon, New York, New York time, on the date specified for each such borrowing of
a Committed Loan hereunder other than Swing Loans, each Lender shall make
available the amount of the Loan, if any, to be made by it on such date to the
Agent at the Agent's principal office in New York, New York, in immediately
available funds, for the account of the Borrower. Such amounts received by the
Agent will be held in Agent's general ledger account. The amounts so received by
the Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by wiring or otherwise transferring, in immediately
available funds not later than 1:00 p.m., New York, New York time, such amount
to an account designated by the Borrower and maintained with Chase in El Paso,
Texas or any other account or accounts which the Borrower may from time to time
18
designate to the Agent by a written notice as the account or accounts to which
borrowings hereunder are to be wired or otherwise transferred. Chase shall make
available the amount of each Swing Loan by depositing the same in immediately
available funds, in the foregoing account by 3:00 p.m., New York, New York time,
on the date of the borrowing.
(c) Subject to the terms and conditions hereof, if necessary to meet the
Borrower's funding deadlines, Chase agrees to make Swing Loans to the Borrower
at any time on or prior to the Maturity Date, not to exceed an amount at any one
time outstanding equal to the lesser of (i) $100,000,000.00, or (ii) the
difference between the Commitment and the aggregate Revolving Credit Exposures.
Swing Loans shall constitute "Loans" for all purposes hereunder. Notwithstanding
the foregoing, the aggregate amount of all Loans (including, without limitation,
all Swing Loans) shall not at any time exceed the difference between the
Commitment and the LC Exposure. Each request for a Swing Loan shall be in an
amount at least equal to $1,000,000.00 and equal to a multiple of $100,000.00.
If necessary to meet the Borrower's funding deadlines, the Agent may treat any
Request for Loan as a request for a Swing Loan from Chase and Chase may fund it
as a Swing Loan. Within two (2) Business Days after each Swing Loan is funded,
Chase shall request that each Lender, and each Lender shall, on the first
Business Day after such request is made, purchase a portion of any one or more
Swing Loans in an amount equal to that Lender's Percentage of such Swing Loans
by funding under such Lender's Note, such purchase to be made in accordance with
the terms of Section 2.1(b) just as if the Lender were funding directly to the
-------------
Borrower under its Note (such that all Lenders other than Chase shall fund only
under their respective Note and not under the Swing Loan Note). Unless the Agent
knew or should have known when Chase funded a Swing Loan that the Borrower had
not satisfied the conditions in this Agreement to obtain a Loan, each Lender's
obligation to purchase an interest in the Swing Loans shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender or any other Person may have against Chase or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or
Event of Default or the termination of any Lender Commitment; (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any of its
Subsidiaries; (iv) any breach of this Agreement or any other Credit Documents by
the Borrower, any of its Subsidiaries, the Agent or any other Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. Any portion of a Swing Loan not so purchased and converted may
be treated by Chase as a Committed Loan which was not funded by the non-
purchasing Lenders as contemplated in Section 2.1(a), and as a funding by Chase
--------------
under the Commitment in excess of Chase's Percentage. Each Swing Loan, once so
sold, shall cease to be a Swing Loan for the purposes of this Agreement, but
shall be a Committed Loan made under the Commitment and each Lender's Lender
Commitment. The Swing Loans shall be evidenced by the Swing Loan Note
substantially in the form of Exhibit C-1 attached hereto.
-----------
19
(d) So long as the Borrower is not then in Default and so long as the
Borrower has not reduced the Commitment pursuant to Section 2.9, the Borrower
-----------
may on two (2) occasions prior to December 20, 2003, request that the aggregate
Commitment be increased, so long as (i) the aggregate Commitment does not exceed
$700,000,000.00 (the "Maximum Commitment"), and (ii) each increase is a minimum
of $50,000,000. If the Borrower requests that the aggregate Commitment be
increased, the Agent shall use its best efforts to obtain increased or
additional commitments up to the Maximum Commitment, and to do so the Agent may
obtain additional lenders of its choice (and approved by Borrower, such approval
not to be unreasonably withheld or delayed), and without the necessity of
approval from any of the Lenders. The Borrower and each Guarantor shall execute
an amendment to this Agreement, additional Notes and other documents as the
Agent may reasonably require to evidence the increase of the Commitment, and the
admission of additional Persons as Lenders, if necessary.
2.2 Letters of Credit.
-----------------
(a) Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Agent and the Issuing Bank, at any time and
from time to time before the Maturity Date. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or facsimile (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $100,000,000.00 and (ii) the
total Revolving Credit Exposures shall not exceed the total Commitment. Copies
of all Letters
20
of Credit and amendments, extensions and cancellations related thereto, must be
delivered to the Agent and the other Lenders by the Issuing Bank.
(c) Each Letter of Credit shall expire at or prior to the close of
business on the date that is five (5) Business Days prior to the Maturity Date.
(d) By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part
of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from the Issuing Bank, a participation
in such Letter of Credit equal to such Lender's Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and
in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Agent, for the account of the Issuing Bank,
such Lender's Percentage of each LC Disbursement made by the Issuing Bank and
not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction of
the Commitment, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to
the Agent an amount equal to such LC Disbursement not later than 1:00 p.m., New
York, New York time, on the date that such LC Disbursement is made if the
Borrower shall have received notice of such LC Disbursement prior to 11:00 a.m.,
New York, New York time, on such date, or, if such notice has not been received
by the Borrower prior to such time on such date, then not later than 1:00 p.m.,
New York, New York time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 11:00 a.m., New York, New York time,
on the day of receipt, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, if such notice is not received prior to
such time on the day of receipt; provided that the Borrower may, subject to the
--------
conditions to borrowing set forth herein, request in accordance with Section 2.1
-----------
that such payment be financed with a Base Rate Borrowing in an equivalent amount
and, to the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting Base Rate Borrowing. If the
Borrower fails to make such payment when due, the Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Agent its Percentage of the
payment then due from the Borrower, in the same manner as provided in Section
-------
2.1(a) with respect to Loans made by such Lender (and Section 2.1(a) shall
------ --------------
apply,
21
mutatis mutandis, to the payment obligations of the Lenders), and the Agent
------- --------
shall promptly pay to the Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Agent of any payment from the
Borrower pursuant to this paragraph, the Agent shall distribute such payment to
the Issuing Bank or, to the extent that Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of Base Rate Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) The Borrower's obligation to reimburse LC Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any
term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Agent, the Lenders nor the Issuing
Bank shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure
to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of
22
Credit, the Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g) The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall promptly notify the Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
--------
relieve the Borrower of its obligation to reimburse the Issuing Bank and the
Lenders with respect to any such LC Disbursement.
(h) If the Issuing Bank shall make any LC Disbursement, then, unless the
Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding
the date that the Borrower reimburses such LC Disbursement, at the rate per
annum then applicable to Base Rate Loans; provided that, if the Borrower fails
--------
to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
-------------
Section, then the unpaid amount thereof shall bear interest from the date
reimbursement was due until the date payment is made at the Past Due Rate.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) The Issuing Bank may be replaced at any time by written agreement
among the Borrower, the Agent, the replaced Issuing Bank and the successor
Issuing Bank. The Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.7(c). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) If any Event of Default shall occur and be continuing, on the Business
Day that the Borrower receives notice from the Agent or the Majority Lenders
23
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Agent, in the name of the Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the
--------
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article 7. Such
---------- --- ---------
deposit shall be held by the Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion of
the Agent and at the Borrower's risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the Agent to reimburse
the Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
2.3 Payments.
--------
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower hereunder,
under the Notes and under the other Credit Documents shall be made in
immediately available funds to the Agent at its principal office in New York,
New York (or in the case of a successor Agent, at the principal office of such
successor Agent in the United States), not later than 1:00 p.m., New York, New
York time on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) The Borrower may, at the time of making each payment hereunder,
under any Note or under any other Credit Document, specify to the Agent the
Loans or other amounts payable by the Borrower hereunder or thereunder to which
such payment is to be applied (and in the event that it fails so to specify,
such payment shall be applied to the Loans (first to the Swing Loans) or, if no
Loans are outstanding, to other amounts then due and payable, provided that if
no Loans or other amounts are then due and payable or an Event of Default has
occurred and is continuing, the Agent may apply such payment to the Obligations
in such order as it may elect in its sole discretion, but subject to the other
terms and conditions of this Agreement, including without limitation Section 2.4
-----------
hereof). Each
24
payment received by the Agent hereunder, under any Note or under any other
Credit Document for the account of a Lender shall be paid promptly to such
Lender, in immediately available funds. If the Agent receives a payment for the
account of a Lender prior to 1:00 p.m., New York, New York time, such payment
must be delivered to the Lender on that same day and if it is not so delivered
due to the fault of the Agent, the Agent shall pay to the Lender entitled to the
payment the interest accrued on the amount of the payment pursuant to said
Lender's Note from the date the Agent receives the payment to the date the
Lender received the payment. The Agent may apply payments received from the
Borrower to pay any unpaid principal and interest on the Swing Loans before
making payment to each Lender of amounts due under the Notes other than the
Swing Loan Note. Loans may be prepaid only if the accompanying Funding Loss, if
any, is also paid.
(c) If the due date of any payment hereunder or under any Note falls
on a day which is not a Business Day or a Eurodollar Business Day, as the case
may be, the due date for such payments shall be extended to the next succeeding
Business Day or Eurodollar Business Day, respectively, and interest shall be
payable for any principal so extended for the period of such extension;
provided, however, that with respect to Eurodollar Rate Borrowings and Money
Market LIBOR Loans if such extension would cause the Eurodollar Business Day of
payment to fall in another calendar month, the payment shall be due on the
Eurodollar Business Day next preceding the due date of the payment.
(d) The Borrower shall give the Agent at least one (1) Business Day's
prior written notice of the Borrower's intent to make any payment of principal
or interest under the Credit Documents not scheduled to be paid under the Credit
Documents. Any such notification of payment shall be irrevocable after it is
made by the Borrower. Upon receipt by the Agent of such notification of payment,
it shall deliver same to the other Lenders.
(e) All payments by the Borrower hereunder or under any other Credit
Documents shall be made free and clear of and without deduction for or on
account of any Taxes, including withholding and other charges of any nature
whatsoever imposed by any taxing authority excluding in the case of each Lender
taxes imposed on or measured by its net income or franchise taxes imposed in
lieu of net income taxes by the jurisdiction in which it is organized or through
which it acts for purposes of this Agreement. If any withholding or deduction
from any payment to be made to, or for the account of, a Lender by the Borrower
hereunder or under any other Credit Document is required in respect of any Taxes
pursuant to any applicable law, rule, or regulation, then the Borrower will (i)
pay to the relevant authority the full amount required to be so withheld or
deducted; (ii) to the extent available, promptly forward to the Agent an
official receipt or other documentation satisfactory to the Agent evidencing
such payment to such authority; and (iii) pay to the Agent, for the account of
each affected Lender, such additional amount or
25
amounts as are necessary to ensure that the net amount actually received by such
Lender will equal the full amount such Lender would have received had no such
withholding or deduction been required. Each Lender shall determine such
additional amount or amounts payable to it (which determination shall, in the
absence of manifest error, be conclusive and binding on the Borrower). If a
Lender becomes aware that any such withholding or deduction from any payment to
be made by the Borrower hereunder or under any other Credit Document is
required, then such Lender shall promptly notify the Agent and the Borrower
thereof stating the reasons therefor and the additional amount required to be
paid under this Section. Each Lender shall execute and deliver to the Agent and
Borrower such forms as it may be required to execute and deliver pursuant to
subsection (f) below. To the extent that any such withholding or deduction
--------------
results from the failure of a Lender to provide a form required by subsection
----------
(f) below (unless such failure is due to some prohibition under applicable Legal
---
Requirements), the Borrower shall have no obligation to pay the additional
amount required by clause (iii) above. Anything in this Section notwithstanding,
------------
if any Lender elects to require payment by the Borrower of any material amount
under this Section, the Borrower may, within 60 days after the date of receiving
notice thereof and so long as no Default shall have occurred and be continuing,
elect to terminate such Lender as a party to this Agreement; provided that,
concurrently with such termination the Borrower shall (1) if the Agent and each
of the other Lenders shall consent, pay that Lender all principal, interest and
fees and other amounts owed to such Lender through such date of termination or
(2) have arranged for another Eligible Institution approved by the Agent (such
approval not to be unreasonably withheld) as of such date, to become a
substitute Lender for all purposes under this Agreement in the manner provided
in Section 10.5; provided further that, prior to substitution for any Lender,
------------
the Borrower shall have given written notice to the Agent of such intention and
the Lenders shall have the option, but no obligation, for a period of 60 days
after receipt of such notice, to increase their Commitments pro rata based on
their Lender Commitments in order to replace the affected Lender in lieu of such
substitution.
(f) With respect to each Lender which is organized under the laws of
a jurisdiction outside the United States, on the day of the initial borrowing
from each such Lender hereunder and from time to time thereafter if requested by
the Borrower or the Agent, such Lender shall provide the Agent and the Borrower
with the forms prescribed by the Internal Revenue Service of the United States
certifying as to such Lender's status for purposes of determining exemption from
United States withholding taxes with respect to all payments to be made to such
Lender hereunder or other documents satisfactory to such Lender and the Agent
indicating that all payments to be made to such Lender hereunder are not subject
to United States withholding tax or are subject to such tax at a rate reduced by
an applicable tax treaty. Unless the Borrower and the Agent shall have received
such forms or such documents indicating that payments hereunder are not subject
to United States withholding tax or are subject to such tax at a rate reduced by
an applicable tax treaty, the Borrower or the Agent shall withhold taxes from
such payments at the
26
applicable statutory rate in the case of payments to or for any Lender organized
under the laws of a jurisdiction outside the United States.
2.4 Pro Rata Treatment. Except to the extent otherwise provided herein:
------------------
(a) each borrowing from the Lenders under Section 2.1(a) hereof shall be made
--------------
ratably from the Lenders on the basis of their respective Percentages, except as
provided in Section 2.7(c)(ii) each payment of the Fee (hereinafter defined)
------------------
shall be made for the account of the Lenders, and shall be applied, pro rata,
according to the Lenders' respective Lender Commitment; and (b) each payment by
the Borrower of principal or interest on the Committed Loans other than the
Swing Loans, of any other sums advanced by the Lenders pursuant to the Credit
Documents, and of any other amount owed to the Lenders other than the Fee,
payments of Swing Loans, or any other sums designated by this Agreement as being
owed to a particular Lender, shall be made to the Agent for the account of the
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Committed Loans (other than Swing Loans) held by the Lenders. Payments of
Swing Loans shall be for Chase's own account.
2.5 Non-Receipt of Funds by the Agent. Unless the Agent shall have been
---------------------------------
notified by a Lender or the Borrower (the "Payor") prior to the date on which
such Lender is to make payment to the Agent of the proceeds of a Loan (or
purchase of a portion of a Swing Loan) to be made by it hereunder or the
Borrower is to make a payment to the Agent for the account of one or more of the
Lenders, as the case may be (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to the Agent, the Agent may assume that the
Required Payment has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available to the intended
recipient on such date and, if the Payor has not in fact made the Required
Payment to the Agent, the recipient of such payment shall, on demand, pay to the
Agent the amount made available by the Agent together with interest thereon in
respect of the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (a) the Past Due Rate for such period if the recipient returning a
Required Payment is the Borrower, or (b) the Federal Funds Effective Rate for
such period if the recipient returning a Required Payment is the Agent or a
Lender.
2.6 Sharing of Payments, Etc. The Borrower agrees that, in addition to
------------------------
(and without limitation of) any right of set-off, bankers' lien or counterclaim
a Lender may otherwise have, each Lender shall be entitled, at its option, to
offset balances held by it for the account of the Borrower at any of its
offices, against any principal of or interest on any of such Lender's Loans to
the Borrower hereunder, or other Obligations of the Borrower hereunder, which is
not paid (regardless of whether such balances are then due to the Borrower), in
which case it shall promptly notify the Borrower and the Agent thereof, provided
that such Lender's failure to give such notice shall not affect the validity
thereof.
27
If a Lender shall obtain payment of any principal of or interest on any
Committed Loan made by it under this Agreement (other than Swing Loans made by
Chase), or other Obligation then due to such Lender hereunder, through the
exercise of any right of set-off, banker's lien, counterclaim or similar right,
or otherwise, it shall promptly purchase from the other Lenders portions of the
Loans made or other Obligations held (other than Swing Loans made by Chase), by
the other Lenders in such amounts, and make such other adjustments from time to
time as shall be equitable to the end that all the Lenders shall share the
benefit of such payment (net of any expenses which may be incurred by such
Lender in obtaining or preserving such benefit) pro rata in accordance with the
unpaid principal and interest on the Obligations then due to each of them. To
such end all the Lenders shall make appropriate adjustments among themselves (by
the resale of participations sold or otherwise) if such payment is rescinded or
must otherwise be restored. Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
2.7 Fees. The Borrower shall pay fees equal to the following:
----
(a) An amount payable as a facility fee by the Borrower to the Agent
for the account of each Lender equal to the following percentage per annum
multiplied by the Commitment (and after the Commitment terminates or expires,
the aggregate Revolving Credit Exposures), which will be in effect whenever and
for so long as the Borrower has received the corresponding Credit Rating (the
method of determining the Credit Rating based on multiple ratings to be the same
as set forth and used to determine the Credit Rating for the definition of
Applicable Margin):
CREDIT RATING FACILITY FEE
------------- ------------
A/A2 or better 0.125%
A-/A3 0.125%
BBB+/Baa1 0.150%
BBB/Baa2 0.150%
BBB-/Baa3 0.200%
If the Credit Rating is worse than BBB-/Baa3, or if there is no Credit Rating,
then for that calendar quarter and for so long thereafter as the Credit Rating
is worse than BBB-/Baa3 or if there is no Credit Rating, the facility fee will
be equal to the daily unused amount of the Commitment (Swing Loans shall be
deemed to be a utilization of the Commitment solely for the purposes of this
Section 2.7(a)) multiplied by 0.250% per annum. The facility fee is payable in
--------------
arrears on or before the tenth (10th) day of each January, April, July and
October prior to termination or expiration of the Commitment, and on demand
thereafter.
28
(b) If the Maturity Date is extended pursuant to Section 9 of this
---------
Agreement, an amount payable as an extension fee by the Borrower to the Agent
for the account of each Lender equal to 0.200% of each Lender's Lender
Commitment at that time payable on the first day of the extension.
(c) (i) to the Agent for the account of each Lender a particpation
fee with respect to its participations in Letters of Credit, which shall accrue
at the Applicable Margin provided for Eurodollar Rate Borrowings on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the date of
this Agreement to but excluding the later of the date of termination of the
Commitment and the date on which there ceases to be any LC Exposure, and (ii) to
the Issuing Bank a nonrefundable fronting fee which shall accrue at the rate of
0.125% per annum on the face amount of each Letter of Credit, as well as the
Issuing Bank's standard fees (not to exceed $200.00 per transaction) with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the tenth (10/th/) day following such
last day, commencing on the first such date to occur after the date of this
Agreement; provided that all such fees shall be payable on the date on which the
--------
Commitment terminates and any such fees accruing after the date on which the
Commitment terminates shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within ten (10) days
after demand. All participation fees and fronting fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
The Fee shall not be refundable (except as required by Section 3.1(c) of
--------------
this Agreement). Any portion of the Fee which is not paid by the Borrower when
due shall bear interest at the Past Due Rate from the date due until the date
paid by the Borrower. The Fee shall be calculated on the actual number of days
elapsed in a year deemed to consist of 360 days.
2.8 Money Market Borrowings.
-----------------------
(a) The Borrower may, as set forth in this Section, whenever at the
time of the request therefor the Borrower has received an Acceptable Credit
Rating request the Lenders prior to the Maturity Date to make offers to make
Money Market Loans to the Borrower, not to exceed, at such time, the lesser of
(i) the difference between the Commitment and the aggregate Revolving Credit
Exposures, and (ii) fifty percent (50%) of the Commitment. The Lenders may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section. The Borrower shall pay the Agent a fee of $2,500.00 for each Money
29
Market Quote Request provided below, payable monthly based on the requests for
the previous month.
(b) When the Borrower wishes to request offers to make Money Market
Loans under this Section, it shall transmit to the Agent (in care of Xx. Xxxxx
Xxxxxxxx, Loan and Agency Services, Xxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Facsimile No. 000-000-0000, telephone number 000-000-0000) by
facsimile transmission a Money Market Quote Request ("Money Market Quote
Request") substantially in the form of Exhibit E hereto so as to be received no
---------
later than 12:00 noon, New York, New York time on (i) the fourth Eurodollar
Business Day prior to the date of borrowing proposed therein, in the case of a
LIBOR Auction or (ii) the Business Day next preceding the date of borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Agent shall have mutually agreed
and shall have notified to the Lenders not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective) specifying:
(x) the proposed date of borrowing, which shall be a Eurodollar
Business Day in the case of a LIBOR Auction or a Business Day in the
case of an Absolute Rate Auction, and
(y) the aggregate amount of such borrowing, which shall be
$20,000,000.00 or a larger multiple of $1,000,000.00.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five (5) Eurodollar Business Days (or such other
number of days as the Borrower and the Agent may agree in writing ) of any other
Money Market Quote Request.
(c) Promptly upon receipt of a Money Market Quote Request, the Agent
shall send to the Lenders by telex or facsimile transmission an Invitation for
Money Market Quotes substantially in the form of Exhibit F hereto, which shall
---------
constitute an invitation by the Borrower to each Lender to submit Money Market
Quotes offering to make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) (i) Each Lender may submit a Money Market Quote containing an
offer or offers to make Money Market Loans in response to any Invitation for
Money Market Quotes. Each Money Market Quote must comply with the requirements
of this subsection (d) and must be received by the Agent by telex or facsimile
--------------
transmission not later than (x) 9:30 a.m. New York, New York time on the third
Eurodollar Business Day
30
prior to the proposed date of borrowing, in the case of a LIBOR Auction or (y)
10:30 a.m. New York, New York time on the proposed date of borrowing, in the
case of an Absolute Rate Auction; provided that Money Market Quotes submitted by
the Agent (or any affiliate of the Agent or its Designated Lender) in the
capacity of a Lender may be submitted, and may only be submitted, if the Agent
or such affiliate notifies the Borrower of the terms of the offer or offers
contained therein not later than thirty (30) minutes prior to the applicable
deadline for the other Lenders. Any Money Market Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of the Borrower. If, and only if, the Borrower elected in the
applicable Money Market Quote Request to permit the Lenders to designate
Designated Lenders to fund such Money Market Loans, such Money Market Loans may
be funded by such Lender's Designated Lender (if any) as provided in Section
-------
10.5(g), however such Lender shall not be required to specify in its Money
-------
Market Quote whether such Money Market Loans will be funded by such Designated
Lender.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit G hereto and shall in any case specify:
---------
(1) the principal amount of the Money Market Loan for which
each offer is being made, which principal amount (w) may be greater than or
less than the Lender Commitment of the quoting Lender, (x) must be
$5,000,000.00 or a larger multiple of $500,000.00, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested, and
(z) may be subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting Lender may
be accepted,
(2) in the case of a LIBOR Auction, the margin (the "Money
Market Margin") above or below the applicable Eurodollar Interbank Rate )
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such applicable rate, and
(3) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the "Money
Market Absolute Rate") offered for each such Money Market Loan.
A Money Market Quote may set forth up to five (5) separate offers by the quoting
Lender with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(1) is not substantially in conformity with Exhibit G hereto or
---------
does not specify all of the information required by subsection (d)(ii)
------------------
above;
31
(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(4) arrives after the time set forth in subsection (d)(i) above.
-----------------
(e) The Agent shall promptly notify the Borrower (i) of the terms of
each proper Money Market Quote and the identity of the Lender submitting such
Money Market Quote, and (ii) of any Money Market Quote that amends, modifies or
is otherwise inconsistent with a previous Money Market Quote submitted by such
Lender with respect to the same Money Market Quote Request. Any such subsequent
Money Market Quote shall be disregarded by the Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Borrower shall specify (1)
the aggregate principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money Market Quote
Request, (2) the respective principal amounts and Money Market Margins or Money
Market Absolute Rates, as the case may be, so offered, and (3) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Not later than 10:30 a.m. New York, New York time on (i) the
third Eurodollar Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction, or (ii) the proposed date of borrowing, in the case of
an Absolute Rate Auction, the Borrower shall notify the Agent of its acceptance
or non-acceptance of the offers so notified to it pursuant to subsection (e)
--------------
above. In the case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(1) the aggregate principal amount of each borrowing may not
exceed the applicable amount set forth in the related Money Market Quote
Request;
(2) the principal amount of each borrowing must be $5,000,000.00
or a larger multiple of $500,000.00;
(3) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be; and
(4) the Borrower may not accept any offer that is described in
subsection (d)(iii) above or that otherwise fails to comply with the
-------------------
requirements of this Agreement.
32
(g) If offers are made by two or more Lenders with the same Money
Market Margins or Money Market Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be allocated by the
Agent among such Lenders as nearly as possible (in multiples of $500,000.00, as
the Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. The Agent shall promptly (and in any event within one (1)
Business Day after such offers are accepted) notify the Borrower and each such
Lender in writing of any such allocation of Money Market Loans. Determinations
by the Agent of the allocation of Money Market Loans shall be conclusive in the
absence of manifest error.
(h) Upon receipt of the Borrower's Notice of Money Market Borrowing,
the Agent shall, on the date such Notice of Money Market Borrowing is received
by the Agent, promptly notify each Lender of the principal amount of the Money
Market Loans accepted by the Borrower and of such Lender's share (if any) of
such Money Market Loans and such Notice of Money Market Borrowing shall not
thereafter be revocable by the Borrower. Any Lender so notified shall fund such
Money Market Loans at the times provided in Section 2.1(b). A Lender that is
--------------
notified that it has been selected to make a Money Market Loan may designate its
Designated Lender (if any) to fund such Money Market Loan on its behalf, as
described in Section 10.5(g). Any Designated Lender which funds a Money Market
---------------
Loan shall on and after the time of such funding become the obligee under such
Money Market Loan and be entitled to receive payment thereof when due. No
Lender shall be relieved of its obligation to fund a Money Market Loan, and no
Designed Lender shall assume such obligation, prior to the time the applicable
Money Market Loan is funded.
(i) Notwithstanding anything to the contrary contained herein, each
Lender shall be required to fund its Percentage of each Committed Loan in
accordance with Section 2.1 despite the fact that any Lender's Lender Commitment
-----------
may have been or may be exceeded as a result of such Lender's making of Money
Market Loans.
(j) Each Money Market LIBOR Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Eurodollar Interbank Rate
for such Interest Period plus (or minus) the Money Market Margin quoted by the
Lender making such Loan in accordance with Section 2.8. Each Money Market
-----------
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Lender making such Loan in
accordance with Section 2.8. Such interest shall be payable on each Interest
-----------
Payment Date.
33
2.9 Reduction of Commitment.
-----------------------
(a) Unless previously terminated, the Commitment shall terminate on
the Maturity Date.
(b) The Borrower may on three (3) occasions reduce the Commitment;
provided that (i) each reduction in the Commitment shall be a minimum of
--------
$50,000,000, (ii) the total Commitment may not be reduced to less than
$200,000,000, (iii) after any reduction in the Commitment, the Borrower's option
to increase the Commitment provided in Section 2.1(d) shall terminate, and (iv)
--------------
no reduction in the Commitment will be allowed if a Default is then in
existence.
(c) The Borrower shall notify the Agent of any election to reduce the
Commitment under Section 2.9(b) at least three (3) Business Days prior to the
--------------
effective date of such reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Agent shall advise
the Lenders of the contents thereof. Each notice delivered pursuant to this
Section shall be irrevocable. Any reduction of the Commitment shall be
permanent. Each reduction in the Commitment shall be made ratably among the
Lenders in accordance with their respective Lender Commitments.
3. Conditions.
-----------
3.1 All Loans. The obligation of any Lender to make any Loan, or to
---------
issue, renew or extend any Letter of Credit, is subject to the accuracy of all
representations and warranties of the Borrower on the date of such Loan, or
issuance, renewal or extension of such Letter of Credit, to the performance by
the Borrower of its obligations under the Credit Documents and to the
satisfaction of the following further conditions: (a) the Agent shall have
received the following, all of which shall be duly executed and in Proper Form:
(1) for Committed Loans, a Request for Loan (i) by 12:00 noon, New York, New
York time, one (1) Business Day before the date (which shall also be a Business
Day) of the proposed Loan which is to be a Base Rate Borrowing (other than Swing
Loans or Base Rate Borrowings to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.2(e) hereof), (ii) by 12:00 noon, New York, New
--------------
York time, on the same Business Day of any proposed Swing Loan or Base Rate
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.2(e) hereof, provided that by 12:00 noon, New York, New York time on
--------------
the date of the proposed Loan, Borrower shall also have notified Chase by
telephone of its request for a Loan, or (iii) by the Rate Designation Date of
the proposed Loan which is to be a Eurodollar Rate Borrowing; (2) for Money
Market Loans the information required by Section 2.8; (3) for Letters of Credit
-----------
the documents required by Section 2.2 hereof; and (4) such other documents as
-----------
the Agent may reasonably require to satisfy itself or the request of any Lender;
(b) no Default or Event of Default shall have occurred and be continuing; (c)
the making of the Loan or issuance, renewal or extension of such Letter of
Credit, shall not be
34
prohibited by any Legal Requirement (in which event the applicable portion of
the Fee will not be charged to the Borrower); (d) the Borrower shall have paid
all legal fees and expenses of the type described in Section 5.10 hereof through
------------
the date of such Loan; (e) in the case of a Committed Loan other than a Swing
Loan, all Swing Loans then outstanding shall have been paid or shall be paid
with the proceeds of such Loan and (f) the Agent shall have received an
Officer's Certificate certifying the information set forth therein as of the end
of the immediately preceding fiscal quarter.
3.2 First Loan. In addition to the matters described in Section 3.1
---------- -----------
hereof, the obligation of the Lenders to make the first Loan under this
Agreement is subject to the receipt by the Lenders of each of the following, in
Proper Form: (a) the Notes, executed by the Borrower; (b) a certificate executed
by the Secretary of the Borrower dated as of the date hereof; (c) a certificate
from the Secretary of State or other appropriate public official of Maryland as
to the continued existence and good standing of the Borrower; (d) a certificate
from the appropriate public official of Maryland as to the due qualification and
good standing of the Borrower; (e) a legal opinion from independent counsel for
the Borrower as to the matters set forth on Exhibit D acceptable to the Lenders;
---------
(f) policies of insurance addressed to the Agent reflecting the insurance
required by Section 5.7 hereof; (g) an Officer's Certificate in the form of
-----------
Exhibit A as of the end of the immediately preceding fiscal quarter; (h) a
---------
certificate from Borrower setting forth the pro forma calculations of Secured
Debt to Total Asset Value Ratio, Coverage Ratio, Fixed Charge Coverage Ratio,
Tangible Net Worth, Debt to Total Asset Value Ratio, and the Pool pursuant to
Section 5.15 (which include actual figures as of September 30, 2000); and (i)
------------
any Guaranty required by Section 5.15 together with such Guarantors'
------------
organizational documents and certificates of existence and good standing from
the state of its organization; and to the further condition that, at the time of
the initial Loan, all legal matters incident to the transactions herein
contemplated shall be satisfactory to Xxxxx Xxxxxxx & Xxxx LLP, counsel for the
Agent.
3.3 Options Available. The outstanding principal balance of the Notes
-----------------
shall bear interest at the Base Rate; provided, that (1) all past due amounts,
both principal and accrued interest, shall bear interest at the Past Due Rate,
and (2) subject to the provisions hereof, Borrower shall have the option of
having all or any portion of the principal balance of the Notes, other than the
Swing Loan Note, from time to time outstanding bear interest at a Eurodollar
Rate. The records of the Lenders with respect to Interest Options, Interest
Periods and the amounts of Loans to which they are applicable shall be prima
facie evidence thereof. Interest on the Loans shall be calculated at the Base
Rate except where it is expressly provided pursuant to this Agreement that a
Eurodollar Rate is to apply.
3.4 Designation and Conversion. Borrower shall have the right to
--------------------------
designate or convert its Interest Options in accordance with the provisions
hereof. Provided no Event of Default has occurred and is continuing and subject
to the provisions of Section 3.5, Borrower may elect to have a Eurodollar Rate
-----------
apply or continue to apply to all or any
35
portion of the principal balance of the Notes, other than the Swing Loan Note.
Each change in Interest Options shall be a conversion of the rate of interest
applicable to the specified portion of the Loans, but such conversion shall not
change the respective outstanding principal balance of the Notes. The Interest
Options shall be designated or converted in the manner provided below:
(a) Borrower shall give Agent a Request for Loan. Each such written
notice shall specify the amount of Loan which is the subject of the designation,
if any; the amount of borrowings into which such borrowings are to be converted
or for which an Interest Option is designated; the proposed date for the
designation or conversion and the Interest Period, if any, selected by Borrower.
The Request for Loan shall be irrevocable and shall be given to Agent no later
than the applicable Rate Designation Date. The Agent shall promptly deliver the
Request for Loan to the Lenders.
(b) No more than twelve (12) Eurodollar Rate Borrowings with twelve
(12) Interest Periods shall be in effect at any time.
(c) Each designation or conversion of a Eurodollar Rate Borrowing
shall occur on a Eurodollar Business Day.
(d) Except as provided in Section 3.5 hereof, no Eurodollar Rate
-----------
Borrowing shall be converted on any day other than the last day of the
applicable Interest Period.
(e) Unless a Request for Loan to the contrary is received as provided
in this Agreement, each Eurodollar Rate Borrowing will convert to a Base Rate
Borrowing after the expiration of the Interest Period.
3.5 Special Provisions Applicable to Eurodollar Rate Borrowings and Money
---------------------------------------------------------------------
Market Loans.
------------
(a) If the adoption of any applicable Legal Requirement or any change
in any applicable Legal Requirement or in the interpretation or administration
thereof by any Governmental Authority or compliance by the Lenders with any
request or directive (whether or not having the force of law) of any central
bank or other Governmental Authority shall at any time make it unlawful or
impossible for any Lender to permit the establishment of or to maintain any
Eurodollar Rate Borrowing or a Money Market Loan, or to increase the cost to
such Lender of participating in or maintaining any Letter of Credit, the
commitment of the Lenders to establish or maintain such Eurodollar Rate
Borrowing or a Money Market Loan, or to issue or participate in Letters of
Credit shall forthwith be suspended until such condition shall cease to exist
and Borrower shall forthwith, upon demand by Agent to Borrower, (1) convert the
Eurodollar Rate Borrowing with respect to which such demand was made to a Base
Rate Borrowing; (2) convert the
36
Money Market LIBOR Loan with respect to which such demand was made to a Loan
bearing interest at the Base Rate; (3) pay all accrued and unpaid interest to
date on the amount so converted; and (4) pay any amounts required to compensate
the Lenders for any additional cost or expense which the Lenders may incur as a
result of such adoption of or change in such Legal Requirement or in the
interpretation or administration thereof and any Funding Loss which the Lenders
may incur as a result of such conversion. If, when Agent so notifies Borrower,
Borrower has given a Request for Loan specifying a Eurodollar Rate Borrowing or
a Notice of Money Market Borrowing but the selected Interest Period has not yet
begun, such Request for Loan or a Notice of Money Market Borrowing shall be
deemed to be of no force and effect, as if never made, and the balance of the
Loans specified in such Request for Loan shall bear interest at the Base Rate
until a different available Interest Option shall be designated in accordance
herewith.
(b) If the adoption of any applicable Legal Requirement or any change
in any applicable Legal Requirement or in the interpretation or administration
thereof by any Governmental Authority or compliance by any Lender with any
request or directive of general applicability (whether or not having the force
of law) of any central bank or Governmental Authority shall at any time as a
result of any portion of the principal balance of the Notes being maintained on
the basis of a Eurodollar Rate or as a Money Market Loan, or as a result of any
Lender issuing or participating in Letters of Credit:
(1) subject any Lender (or make it apparent that any Lender is
subject) to any Taxes, or any deduction or withholding for any
Taxes, on or from any payment due under any Eurodollar Rate
Borrowing, Money Market Loan or other amount due hereunder, other
than income and franchise taxes of the United States and its
political subdivisions; or
(2) change the basis of taxation of payments due from Borrower to any
Lender under any Eurodollar Rate Borrowing or Money Market Loan
(otherwise than by a change in the rate of taxation of the
overall net income of a Lender); or
(3) impose, modify, increase or deem applicable any reserve
requirement (excluding that portion of any reserve requirement
included in the calculation of the applicable interest rate),
special deposit requirement or similar requirement (including,
but not limited to, state law requirements and Regulation D)
imposed, modified, increased or deemed applicable by any
Governmental Authority against assets held by any Lender, or
against deposits or accounts in or for the account of any Lender,
or against loans made by any Lender, or against any other funds,
obligations or other property owned or held by any Lender; or
37
(4) impose on any Lender any other condition regarding any Eurodollar
Rate Borrowing, Money Market Loan or Letter of Credit;
and the result of any of the foregoing is to increase the cost to any Lender of
agreeing to make or of making, renewing or maintaining such Eurodollar Rate
Borrowing or Money Market Loan, or issuing or participating in Letters of
Credit, or reduce the amount of principal or interest received by any Lender,
then, upon demand by Agent, Borrower shall pay to such Lender, from time to time
as specified by such Lender, additional amounts which shall compensate such
Lender for such increased cost or reduced amount. Agent will promptly notify
Borrower in writing of any event which will entitle any Lender to additional
amounts pursuant to this paragraph. A Lender's determination of the amount of
any such increased cost, increased reserve requirement or reduced amount shall
be prima facie evidence thereof. Borrower shall have the right, if it receives
from Agent any notice referred to in this paragraph, upon three Business Days'
notice to Agent, either (i) to repay in full (but not in part) any borrowing
with respect to which such notice was given, together with any accrued interest
thereon, or (ii) to convert the Eurodollar Rate Borrowing which is the subject
of the notice to a Base Rate Borrowing or to convert the Money Market LIBOR Loan
which is the subject of the notice to a Loan bearing interest at the Base Rate;
provided, that any such repayment or conversion shall be accompanied by payment
of (x) the amount required to compensate a Lender for the increased cost or
reduced amount referred to in the preceding paragraph; (y) all accrued and
unpaid interest to date on the amount so repaid or converted, and (z) any
Funding Loss which any Lender may incur as a result of such repayment or
conversion.
(c) If for any reason with respect to any Interest Period Agent shall
have determined (which determination shall be prima facie evidence thereof)
that:
(1) Agent is unable through its customary general practices to
determine any applicable Eurodollar Rate, or
(2) by reason of circumstances affecting the applicable market
generally, Agent is not being offered deposits in United States
dollars in such market, for the applicable Interest Period and in an
amount equal to the amount of any applicable Eurodollar Rate Borrowing
requested by Borrower, or
(3) any applicable Eurodollar Rate will not adequately and fairly
reflect the cost to the Lenders of making and maintaining such
Eurodollar Rate Borrowing hereunder for any proposed Interest Period,
then Agent shall give Borrower notice thereof and thereupon, (A) any
Request for Loan previously given by Borrower designating the
applicable Eurodollar Rate Borrowing which has not commenced as of the
date of such
38
notice from Agent shall be deemed for all purposes hereof to be of no
force and effect, as if never given, and (B) until Agent shall notify
Borrower that the circumstances giving rise to such notice from Agent
no longer exist, each Request for Loan requesting the applicable
Eurodollar Rate shall be deemed a request for a Base Rate Borrowing,
and any applicable Eurodollar Rate Borrowing then outstanding shall be
converted, without any notice to or from Borrower, upon the
termination of the Interest Period then in effect with respect to it,
to a Base Rate Borrowing.
(d) Borrower shall indemnify the Agent and each Lender against and
hold the Agent and each Lender harmless from any Funding Loss. This agreement
shall survive the payment of the Notes. A certificate as to any additional
amounts payable pursuant to this subsection and setting forth the reasons for
the Funding Loss submitted by Agent to Borrower shall be prima facie evidence
thereof.
(e) The Borrower shall pay to the Agent or a Lender the Eurodollar
Reserve Requirement incurred by that Lender within thirty (30) days after
written demand by Agent to the Borrower. The demand setting forth the Eurodollar
Reserve Requirement shall be prima facie evidence thereof.
3.6 Funding Offices; Adjustments Automatic. Any Lender may, if it so
--------------------------------------
elects, fulfill its obligation as to any Eurodollar Rate Borrowing or Money
Market Loan by causing a branch or affiliate of such Lender to make such Loan
and may transfer and carry such Loan at, to, or for the account of, any branch
office or affiliate of such Lender; provided, that in such event for the
purposes of this Agreement such Loan shall be deemed to have been made by such
Lender and the obligation of Borrower to repay such Loan shall nevertheless be
to such Lender and shall be deemed held by it for the account of such branch or
affiliate. Without notice to Borrower or any other person or entity, each rate
required to be calculated or determined under this Agreement shall automatically
fluctuate upward and downward in accordance with the provisions of this
Agreement.
3.7 Funding Sources, Payment Obligations. Notwithstanding any provision
------------------------------------
of this Agreement to the contrary, each Lender shall be entitled to fund and
maintain its funding of all or any part of the Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if each Lender had actually funded and
maintained each Eurodollar Rate Borrowing and Money Market LIBOR Loan during
each Interest Period through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest rate equal to the
interest rate for such Interest Period. Notwithstanding the foregoing, Funding
Losses, increased costs and other obligations relating to Eurodollar Rate
Borrowings and Money Market Loans described in Section 3.5 of this Agreement
-----------
will only be paid by the Borrower as and when actually incurred by the Lenders.
39
3.8 Mitigation, Non-Discrimination.
------------------------------
(a) Each Lender will notify the Borrower through the Agent of any
event occurring after the date of this Agreement which will require or enable
such Lender to take the actions described in Sections 3.5(a) or (b) of this
--------------- ---
Agreement as promptly as practicable after it obtains knowledge thereof and
determines to request such action, and (if so requested by the Borrower through
the Agent) will designate a different lending office of such Lender for the
applicable Eurodollar Rate Borrowing or Money Market Loan or will take such
other action as the Borrower reasonably requests if such designation or action
is consistent with the internal policy of such Lender and legal and regulatory
restrictions, can be undertaken at no additional cost, will avoid the need for,
or reduce the amount of, such action and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender (provided that such Lender will have
no obligation to designate a different lending office which is located in the
United States of America).
(b) None of the Lenders shall be able to pass through to the Borrower
changes and costs under Section 3.5 of this Agreement on a discriminating basis,
-----------
such that such changes and costs are not also passed through by each Lender to
other customers of such Lender similarly situated where such customer is subject
to documents providing for such pass through.
(c) If any Lender elects under Section 3.5 of this Agreement to
-----------
suspend or terminate the availability of Eurodollar Rate Borrowings for any
material period of time, and the event giving rise to such election is not
generally applicable to all of the Lenders, the Borrower may within sixty (60)
days after notification of such Lender's election, and so long as no Event of
Default is then in existence, either (i) demand that such Lender, and upon such
demand, such Lender shall promptly, assign its Lender Commitment to another
financial institution subject to and in accordance with the provisions of
Section 10.5 of this Agreement for a purchase price equal to the unpaid balance
------------
of principal, accrued interest, the unpaid balance of the Fee and expenses owing
to such Lender pursuant to this Agreement, or (ii) pay such Lender the unpaid
balance of principal, accrued interest, the unpaid balance of the Fee and
expenses owing to such Lender pursuant to this Agreement, whereupon, such Lender
shall no longer be a party to this Agreement or have any rights or obligations
hereunder or under any other Credit Documents, and the Commitment shall
immediately and permanently be reduced by an amount equal to the Lender
Commitment of such Lender.
40
4. Representations and Warranties.
------------------------------
To induce the Lenders to enter into this Agreement and to make the Loans,
the Borrower represents and warrants to the Agent and the Lenders as follows:
4.1 Organization. The Borrower is duly organized, validly existing and in
------------
good standing as a real estate investment trust under the laws of the state of
Maryland; has all power and authority to conduct its business as presently
conducted; and is duly qualified to do business and in good standing in every
state where the location of its Property requires it to be qualified to do
business, unless the failure to be so qualified would not reasonably be expected
to have a Material Adverse Effect.
4.2 Financial Statements. The financial statements delivered to the Agent
--------------------
fairly present, in accordance with Generally Accepted Accounting Principles
(provided, however, that the Quarterly Unaudited Financial Statements are
subject to normal year-end adjustments and may contain condensed footnotes as
permitted by regulations of the United States Securities and Exchange
Commission), the financial condition and the results of operations of the
Borrower as at the dates and for the periods indicated. No Material Adverse
Change has occurred since the dates of such financial statements. The Borrower
is not subject to any instrument or agreement which would materially prevent it
from conducting its business as it is now conducted or as it is contemplated to
be conducted.
4.3 Enforceable Obligations; Authorization. The Credit Documents are
--------------------------------------
legal, valid and binding obligations of the Parties, enforceable in accordance
with their respective terms, except as may be limited by bankruptcy, insolvency
and other laws affecting creditors' rights generally and by general equitable
principles. The execution, delivery and performance of the Credit Documents
have all been duly authorized by all necessary action; are within the power and
authority of the Parties; do not and will not contravene or violate any Legal
Requirement or the Organizational Documents of the Parties; do not and will not
result in the breach of, or constitute a default under, any agreement or
instrument by which the Parties or any of their respective Property may be bound
or affected, except where such breach or default could not reasonably be
expected to have a Material Adverse Effect; and do not and will not result in
the creation of any Lien upon any Property of any of the Parties except as
expressly contemplated therein. All necessary permits, registrations and
consents for such making and performance have been obtained except where the
lack thereof would not reasonably be expected to have a Material Adverse Effect.
4.4 Other Debt. The Borrower is not in default in the payment of any
----------
other Indebtedness or under any agreement, mortgage, deed of trust, security
agreement or lease to which it is a party which default would reasonably be
expected to have a Material Adverse Effect.
41
4.5 Litigation. There is no litigation or administrative proceeding
----------
pending or, to the knowledge of the Borrower, threatened against, or any
outstanding judgment, order or decree affecting, the Borrower before or by any
Governmental Authority which is not adequately covered by insurance or which, if
determined adversely to the Borrower could reasonably be expected to have a
Material Adverse Effect. The Borrower is not in default with respect to any
judgment, order or decree of any Governmental Authority which default could
reasonably be expected to have a Material Adverse Effect.
4.6 Taxes. The Borrower has filed all tax returns required to have been
-----
filed and paid all taxes shown thereon to be due, except those for which
extensions have been obtained, those which are being contested in good faith and
those for which the Borrower's failure to file a return or pay could not
reasonably be expected to have a Material Adverse Effect.
4.7 Regulation U. None of the proceeds of any Loan or Letter of Credit
------------
will be used for the purpose of purchasing or carrying directly or indirectly
any margin stock or for any other purpose that would constitute this transaction
a "purpose credit" within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System.
4.8 Subsidiaries. Each of the Borrower's Subsidiaries is a "qualified
------------
REIT subsidiary" under Section 856 of the Code.
4.9 Securities Act of 1933. Other than the Agent's efforts in syndicating
----------------------
the Loans (for which the Agent is responsible) neither the Borrower nor any
agent acting for it has offered the Notes or any similar obligation of the
Borrower for sale to or solicited any offers to buy the Notes or any similar
obligation of the Borrower from any Person other than the Agent or any Lender,
and neither the Borrower nor any agent acting for it will take any action which
would subject the sale of the Note to the provisions of Section 5 of the
Securities Act of 1933, as amended.
4.10 No Contractual or Corporate Restrictions. The Borrower is not a party
----------------------------------------
to, or bound by, any contract, agreement or charter or other corporate
restriction materially and adversely affecting its business, Property, assets,
operations or condition, financial or otherwise.
4.11 Investment Company Act Not Applicable. The Borrower is not an
-------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
4.12 Public Utility Holding Company Act Not Applicable. The Borrower is
-------------------------------------------------
not a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company", or an affiliate of a "subsidiary company" of
a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
42
4.13 ERISA Not Applicable. The Borrower is not subject to any requirements
--------------------
of the Employee Retirement Income Security Act of 1974 as amended from time to
time, or any rules, regulations, rulings or interpretations adopted by the
Internal Revenue Service or the Department of Labor thereunder.
5. Affirmative Covenants.
---------------------
The Borrower covenants and agrees with the Agent and the Lenders that prior
to the termination of this Agreement it will do, and if necessary cause to be
done, each and all of the following:
5.1 Taxes, Insurance, Existence, Regulations, Property, etc. At all times
-------------------------------------------------------
(a) pay when due all taxes and governmental charges of every kind upon it or
against its income, profits or Property, unless and only to the extent that the
same shall be contested in good faith and reserves which are adequate under
Generally Accepted Accounting Principles have been established therefor, or
unless such failure to pay could not reasonably be expected to have a Material
Adverse Effect; (b) do all things necessary to preserve its existence,
qualifications, rights and franchises in all States where such qualification is
necessary or desirable, except where failure to obtain the same could not
reasonably be expected to have a Material Adverse Effect; (c) comply with all
applicable Legal Requirements in respect of the conduct of its business and the
ownership of its Property except where failure to so comply could not reasonably
be expected to have a Material Adverse Effect; and (d) cause its Property to be
protected, maintained and kept in good repair (reasonable wear and tear
excepted) and make all replacements and additions to its Property as may be
reasonably necessary to conduct its business.
5.2 Financial Statements and Information. Furnish (which may be by
------------------------------------
electronic access) to the Agent each of the following: (a) as soon as available
and in any event within 90 days after the end of each fiscal year of the
Borrower, Annual Audited Financial Statements of the Borrower; (b) as soon as
available and in any event within 50 days after the end of each quarter (except
the last quarter) of each fiscal year of the Borrower, Quarterly Unaudited
Financial Statements of the Borrower; (c) concurrently with the financial
statements provided for in Sections 5.2(a) and (b) hereof, an Officer's
--------------- ---
Certificate, together with such schedules, computations and other information
(including, without limitation, if provided to Borrower information as to
Unconsolidated Affiliates of the Borrower and as to Ameriton), in reasonable
detail, as may be required by the Agent to demonstrate compliance with the
covenants set forth herein or reflecting any non-compliance therewith as of the
applicable date, all certified as true, correct and complete by a managing
director, vice president, senior vice president, controller, a co-controller of
Borrower; (d) promptly after the filing thereof, all reports to or filings made
by the Borrower or any of its Subsidiaries with the Securities and Exchange
Commission, including, without limitation, registration statements and reports
on Forms 10-K, 10-Q and 8-K (or their equivalents); (e) within two (2) Business
Days after the receipt thereof, a
43
copy of the notification to the Borrower of the Borrower's Credit Rating, or
change therein, and (f) such other information relating to the financial
condition and affairs of the Borrower as from time to time may be reasonably
requested by any Lender. The Agent will send to each Lender the information
received by the Agent pursuant to this Section 5.2 promptly after the receipt
-----------
thereof by Agent. The financial calculations for Sections 5.3, 5.15 and 6.4
------------ ---- ---
shall be made (1) on the date of each Loan or issuance, renewal or extension of
a Letter of Credit using the best information available to the Borrower, and (2)
on the last day of each of the Borrower's fiscal quarters.
5.3 Financial Tests. Have and maintain on a consolidated basis in
---------------
accordance with Generally Accepted Accounting Principles:
(a) a Secured Debt to Total Asset Value Ratio no greater than forty
percent (40%);
(b) a Coverage Ratio of not less than 2.0:1.0;
(c) a Fixed Charge Coverage Ratio of not less than 1.75:1.00;
(d) a Tangible Net Worth of at least One Billion Eight Hundred Fifty-
Five Million Dollars ($1,855,000,000.00); and
(e) a Debt to Total Asset Value Ratio no greater than fifty-five
percent (55%).
5.4 Inspection. In order to permit the Agent to ascertain compliance with
----------
the Credit Documents, during normal business hours permit the Agent to inspect
its Property, to examine its files, books and records and make and take away
copies thereof, and to discuss its affairs with its officers and accountants,
all at such times and intervals and to such extent as a Lender may reasonably
desire.
5.5 Further Assurances. Promptly execute and deliver any and all other
------------------
and further instruments which may be requested by the Agent to cure any defect
in the execution and delivery of any Credit Document or more fully to describe
particular aspects of the Borrower's agreements set forth in the Credit
Documents or so intended to be.
5.6 Books and Records. Maintain books of record and account in accordance
-----------------
with Generally Accepted Accounting Principles.
5.7 Insurance. Maintain insurance with such insurers, on such of its
---------
properties, in such amounts and against such risks as is consistent with
insurance maintained by businesses of comparable type and size in the industry,
and furnish the Agent satisfactory evidence thereof promptly upon request.
44
5.8 Notice of Certain Matters. Notify the Agent promptly upon acquiring
-------------------------
knowledge of the occurrence of any of the following: the institution or
threatened institution of any lawsuit or administrative proceeding affecting the
Borrower in which the claim exceeds $10,000,000.00 and if determined adversely
could have a Material Adverse Effect; when the Borrower believes that there has
been a Material Adverse Change; or the occurrence of any Event of Default or any
Default. The Borrower will notify the Agent in writing at least thirty (30)
Business Days prior to the date that the Borrower changes its name or the
location of its chief executive office or principal place of business or the
place where it keeps its books and records.
5.9 Use of Proceeds. The proceeds of the Loans will be used for general
---------------
business purposes, including (without limitation) for acquisition of multifamily
real estate properties, for the development and enhancement of multifamily real
estate properties, for the costs of construction of multifamily real estate
projects owned or to be acquired by the Borrower, for repurchase of the
Borrower's stock, or for other investments permitted by this Agreement.
Notwithstanding the foregoing, none of the proceeds of the Loans will be used to
finance, fund or complete any hostile acquisition of any Person.
5.10 Expenses of and Claims Against the Agent and the Lenders. To the
--------------------------------------------------------
extent not prohibited by applicable law, the Borrower will pay all reasonable
costs and expenses incurred to third parties and reimburse the Agent and each
Lender, as the case may be, for any and all reasonable expenditures of every
character incurred or expended from time to time, in connection with (a)
regardless of whether a Default or Event of Default shall have occurred, the
Agent's preparation, negotiation and completion of the Credit Documents, and (b)
during the continuance of an Event of Default, all costs and expenses relating
to the Agent's and such Lender's exercising any of its rights and remedies under
this or any other Credit Document, including, without limitation, attorneys'
fees, legal expenses, and court costs; provided, that no rights or option
granted by the Borrower to the Agent or any Lender or otherwise arising pursuant
to any provision of this or any other instrument shall be deemed to impose or
admit a duty on the Agent or any Lender to supervise, monitor or control any
aspect of the character or condition of any property or any operations conducted
in connection with it for the benefit of the Borrower or any other person or
entity other than the Agent or such Lender. Notwithstanding the foregoing, the
Borrower shall not be charged with any cost or expense incurred by the Agent or
any Lender relating to disputes or claims among or between the Agent, the
Lenders, or any of them unless during the continuance of an Event of Default and
related to details of enforcement of the Lenders' rights under the Credit
Documents.
5.11 Legal Compliance; Indemnification.
---------------------------------
(a) The Borrower shall operate its Property and businesses in full
compliance with all Legal Requirements. It shall not constitute an Event of
Default if there is a failure to comply with any Legal Requirement which failure
could not reasonably be
45
expected to have a Material Adverse Effect. The Borrower shall indemnify the
Agent and each Lender, their directors, officers, employees and shareholders
(the "Indemnified Parties") for and defend and hold the Indemnified Parties
harmless against any and all claims, demands, liabilities, causes of action,
penalties, obligations, damages, judgments, deficiencies, losses, costs or
expenses (including, without limitation, interest, penalties, attorneys' fees,
and amounts paid in settlement) threatened or incurred by reason of, arising out
of or in any way related to (i) any failure of the Borrower to so comply with
the provisions of any Legal Requirement, this Agreement or the other Credit
Documents, or (ii) the Agent or any Lender's making of the Loans, issuing or
participating in any Letters of Credit, or any other acts or omissions taken or
made in connection with the Loans or Letters of Credit (including any refusal by
the Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of the Letter of Credit), and any and all matters arising out of any
act, omission, event or circumstance, regardless of whether the act, omission,
event or circumstance constituted a violation of any such Legal Requirement,
this Agreement or the other Credit Documents at the time of its existence or
occurrence. THE BORROWER SHALL INDEMNIFY THE AGENT AND EACH LENDER PURSUANT TO
THIS SECTION REGARDLESS OF WHETHER THE ACT, OMISSION, FACTS, CIRCUMSTANCES OR
CONDITIONS GIVING RISE TO SUCH INDEMNIFICATION WERE CAUSED IN WHOLE OR IN PART
BY THE AGENT'S OR SUCH LENDER'S NEGLIGENCE (SIMPLE, BUT NOT GROSS NEGLIGENCE).
(b) The Borrower 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.
(c) The Borrower will maintain at least one class of common shares of
the Borrower 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.
5.12 Borrower's Performance. If the Borrower should fail to comply with
----------------------
any of the agreements, covenants or obligations of the Borrower under this
Agreement or any other Credit Document which requires the payment of money, then
the Agent (in the Borrower's name or in Agent's name) may, if such payment has
not been made within ten (10) days after written request from Agent, perform or
cause to be performed such agreement, covenant or obligation, for the account of
the Borrower and at the Borrower's sole expense, but shall not be obligated to
do so. Any and all reasonable expenses thus incurred or paid by the Agent and
by any Lender shall be the Borrower's demand obligations to the Agent or such
Lender and shall bear interest from the date of demand therefor until the date
that the Borrower repays it to the Agent or the applicable Lender at the Past
Due Rate. Upon making any such payment or incurring any such expense, the Agent
or the applicable Lender shall be fully subrogated to all of the rights of the
Person receiving such payment. Any amounts owing by the Borrower to the Agent
or any Lender
46
pursuant to this provision or any other provision of this Agreement shall
automatically and without notice be secured by any collateral provided by the
Credit Documents. The amount and nature of any such expense and the time when
paid shall, absent manifest error, be fully established by the affidavit of the
Agent or the applicable Lender or any of the Agent's or the applicable Lender's
officers or agents.
5.13 Professional Services. Promptly upon the Agent's request to satisfy
---------------------
itself or the request of any Lender, the Borrower shall: (a) allow an
inspection and/or appraisal of the Borrower's Property to be made by a Person
approved by the Agent in its sole discretion; and (b) if the Agent believes that
an Event of Default has occurred or is about to occur, cause to be conducted or
prepared any other written report, summary, opinion, inspection, review, survey,
audit or other professional service relating to the Borrower's Property or any
operations in connection with it (all as designated in the Agent's request),
including, without limitation, any accounting, auctioneering, architectural,
consulting, engineering, design, legal, management, pest control, surveying,
title abstracting or other technical, managerial or professional service
relating to such property or its operations. So long as no Event of Default has
occurred and is continuing, the foregoing shall not be at the Borrower's
expense.
5.14 Capital Adequacy.
----------------
(a) If after the date of this Agreement, the Agent or any Lender shall
have determined that the adoption or effectiveness of any applicable law, rule
or regulation regarding capital adequacy of general applicability, or any change
therein, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Agent or any
Lender with any request or directive regarding capital adequacy of general
applicability (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the Agent's or any Lender's capital as a
consequence of its obligations hereunder to a level below that which the Agent
or such Lender could have achieved but for such adoption, change or compliance
(taking into consideration the Agent's or such Lender's policies with respect to
capital adequacy) by an amount deemed by the Agent or such Lender to be
material, then from time to time, the Borrower shall pay to the Agent or such
Lender such additional amount or amounts as will compensate the Agent or such
Lender for such reduction.
(b) A certificate of the Agent or such Lender setting forth such
amount or amounts as shall be necessary to compensate the Agent or such Lender
as specified in Section 5.14(a) hereof and making reference to the applicable
---------------
law, rule or regulation shall be delivered as soon as practicable to the
Borrower and shall be prima facie evidence thereof. The Borrower shall pay the
Agent or such Lender the amount shown as due on any such certificate within
fourteen (14) Business Days after the Agent or such Lender
47
delivers such certificate. In preparing such certificate, the Agent or such
Lender may employ such assumptions and allocations of costs and expenses as it
shall in good xxxxx xxxx reasonable and may use any reasonable averaging and
attribution method.
5.15 Property Pool.
-------------
(a) The Borrower (or a Subsidiary of the Borrower if the conditions
in clause (c) below are satisfied) will at all times own fee simple title to a
----------
pool (the "Pool") of Real Property that is not mortgaged, pledged, hypothecated,
or encumbered in any manner, other than Permitted Encumbrances (the "Pool Real
Estate") with an aggregate Pool Value of at least one hundred seventy-five
percent (175%) of the Borrower's Indebtedness other than Secured Debt
outstanding from time to time, with the following characteristics:
(i) each individual income producing property in the Pool must
have an occupancy level of at least eighty percent (80%), where such
occupancy level is the average of the actual occupancy level for the
immediately preceding three (3) months, and
(ii) the Borrower must have received from third party independent
environmental consultants, written assessments for each Pool Real Estate
in, or to be added to, the Pool that do not disclose any material
environmental conditions or risks related to such properties.
If requested by the Agent, the Borrower will provide to the Agent written
assessments from third party independent environmental consultants for all Pool
Real Estate acquired after the date of this Agreement. If Super-Majority
Lenders determine that there are material environmental conditions existing on
or risks to such properties, the properties will be excluded from the Pool.
(b) Notwithstanding the foregoing, (i) the maximum Pool Value that can
be attributable to the Value of land not improved for multifamily use (not
including land that is either under development or planned for commencement of
development within three (3) years after the date of acquisition) is five
percent (5%) of the Pool Value after adding the effect of said land, (ii) the
maximum Pool Value that can be attributable to the Value of Real Property that
is under construction or development, unimproved land that is planned for
commencement of development within three (3) years after the date of acquisition
and land not improved for multifamily use is twenty percent (20%) of the Pool
Value after adding the effect of said Real Property and land; and (iii) the
maximum Pool Value that can be attributable to the Value of improved property
not used for multifamily residential use is seven and one-half percent (7-1/2%)
of the Pool Value after adding the effect of said property.
48
(c) If any Pool Real Estate is owned by a Subsidiary, then it may be
included in the Pool only if:
(i) the owner of the Pool Real Estate is either (1) a wholly
owned Subsidiary of the Borrower or (2) if not a wholly owned Subsidiary,
then (x) the value of the Pool Real Estate owned by such Subsidiary
("Partial Subsidiary Real Estate") to be used in the calculation in clauses
-------
(a) and (b) above shall be as provided in clauses (a) and (b) multiplied by
--- --- ----------- ---
the cumulative percentage interest of the Subsidiary owned by the Borrower,
(y) the maximum Pool Value that can be attributable to Partial Subsidiary
Real Estate is fifteen percent (15%) of the Pool Value after adding the
effect of the Partial Subsidiary Real Estate, and (z) the Borrower controls
the right to sell, encumber or refinance the Partial Subsidiary Real
Estate; and
(ii) the owner of the Pool Real Estate (1) either (x) executes a
Guaranty and delivers it to the Agent, together with such Subsidiary's
Organizational Documents and current certificates of existence and good
standing for the state in which it is organized and such Guaranty must
remain in full force and effect, or (y) if such Subsidiary is not wholly
owned by the Borrower, has no Indebtedness other than Non-recourse Debt,
and other than Indebtedness to the Borrower subordinated to the
Indebtedness incurred under this Agreement on terms satisfactory to the
Agent; and (2) would not at any time be in default of Sections 7.1(g), (h),
--------------- ---
(i), (j), or (k), if said subsections were applicable to said owner.
--- --- ---
6. Negative Covenants.
---------------------
The Borrower covenants and agrees with the Agent and the Lenders that prior
to the termination of this Agreement it will not do any of the following:
6.1 Indebtedness. 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 any Indebtedness with a final maturity of five (5)
years or less (not including any renewal or extension options) in excess of
$1,000,000,000.00 in the aggregate, in all cases whether direct, indirect,
absolute, contingent or otherwise; except (a) Indebtedness incurred by Borrower
which has an Acceptable Credit Rating at the time of issuance, (b) Non-recourse
Debt, (c) Indebtedness in the final five (5) years or less of a full payment
amortization schedule providing for periodic payments over the remaining life
where no more than fifty percent (50%) of the original loan amount is amortized
in said final five (5) year or less period, (d) credit enhancement provided by
or on behalf of the Borrower for tax exempt bonds if said credit enhancement has
an expiration date or a maturity date of one (1) year or more, and (e)
Indebtedness secured by multifamily real estate properties and assumed by
Borrower in connection with the purchase of said properties by Borrower (but not
incurred or assumed in anticipation of such purchase) not
49
to exceed $100,000,000.00 in the aggregate. For the purposes of the foregoing
calculation under (c) above, simultaneously issued tranches of Indebtedness
under the same indenture shall be combined and treated as a single debt
issuance.
6.2 Mergers, Consolidations and Acquisitions of Assets. In any single
--------------------------------------------------
transaction or series of related transactions, directly or indirectly: (a)
liquidate or dissolve; (b) be a party to any merger or consolidation other than
a merger or consolidation in which (i) the Borrower is the surviving entity
after such merger or consolidation, or (ii) the individuals constituting the
Borrower's Board of Trustees immediately prior to such merger or consolidation
represent a majority of the surviving entity's Board of Directors or Board of
Trustees after such merger or consolidation; or (c) sell, convey or lease all or
substantially all of its assets.
6.3 Redemption. At any time redeem, retire or otherwise acquire, directly
----------
or indirectly, any shares of its capital stock if such action would cause the
Borrower to not be in compliance with this Agreement.
6.4 Nature of Business. Change the nature of its business or enter into
------------------
any business which is substantially different from the business in which it is
presently engaged. Borrower's primary business will be the ownership, operation
and development of multi-family residential properties, and may include other
business initiatives, investments and activities which are related, but
incidental, to Borrower's primary business, subject only to the limitations on
specific loans and investments described below ("Specified Permitted Holdings");
provided, however, that the aggregate value of the Specified Permitted Holdings
shall not at any time exceed thirty percent (30%) of the Total Asset Value after
giving effect to the Specified Permitted Holdings.
"Specified Permitted Holdings" means the following:
(a) securities received in settlement of liabilities created in the
ordinary course of business, so long as the market value of such securities does
not exceed five percent (5%) of the Total Asset Value after giving effect to
such investment;
(b) investments in Unconsolidated Affiliates that are engaged
primarily in Borrower's primary business as described in this section, so long
as the aggregate amount of such investments does not exceed ten percent (10%) of
the Total Asset Value after giving effect to such investments;
(c) equity investments or capital contributions in, and loans,
advances, and extensions of credit to, Ameriton, so long as the equity
investments or capital contributions do not exceed fifteen percent (15%) of the
Total Asset Value after giving effect to such investments;
50
(d) loans, advances, and extensions of credit to Persons (who are not
Affiliates of the Borrower), so long as the aggregate unpaid amount of such
loans does not exceed ten percent (10%) of the Total Asset Value after giving
effect to such loans;
(e) investments in Persons not included in any other Specified
Permitted Holdings so long as the aggregate value of all such investments
(valued at the lower of cost or then market value) does not exceed ten percent
(10%) of the Total Asset Value after giving effect to such investments;
(f) investments in income producing Real Property that is not
multifamily residential property, so long as the aggregate Historical Value of
such investments does not exceed ten percent (10%) of the Total Asset Value
after giving effect to such investments;
(g) investments in land not improved for multifamily use (not
including land that is either under development or planned for commencement of
development within three (3) years after the date of acquisition), so long as
the aggregate Historical Value of such investments does not exceed seven and
one-half percent (7-1/2%) of the Total Asset Value after giving effect to such
investments; and
(h) investments of any kind not included in any other Specified
Permitted Holdings and which are not incidental to Borrower's primary business
as described in this Section, so long as the aggregate value of such investments
(valued at the lower of cost or then market value) does not exceed five percent
(5%) of the Total Asset Value after giving effect to such investments.
6.5 Transactions with Related Parties. Enter into any transaction or
---------------------------------
agreement with any officer, director, or holder of more than five percent (5%)
(based on voting rights) of the issued and outstanding capital stock of the
Borrower (or any Affiliate of the Borrower), unless the same is upon terms
substantially similar to those obtainable from qualified wholly unrelated
sources, or complies with the requirements of the Statement of Policy for Real
Estate Investment Trusts promulgated by the North American Security
Administrators Association, as amended from time to time.
7. Events of Default and Remedies.
-------------------------------
7.1 Events of Default. If any of the following events shall occur, then,
-----------------
as to the events described in Sections 7.1(b), (c), and (d), if the event has
--------------- --- ---
not been waived, cured or remedied within twenty (20) days after the Agent gives
the Borrower notice of such event, at any time thereafter, and as to all of the
other events described herein, at any time, the Agent may do any or all of the
following: (1) without notice to the Borrower, declare the Notes to be, and
thereupon the Notes shall forthwith become, immediately due and payable,
together with all accrued interest thereon, without notice of any kind, notice
of acceleration or of intention to accelerate, presentment and demand or
protest, all of which
51
are hereby expressly waived; (2) without notice to the Borrower, terminate the
Commitment; (3) exercise, as may any other Lender, its rights of offset against
each account and all other Property of the Borrower in the possession of the
Agent or any such Lender, which right is hereby granted by the Borrower to the
Agent and each Lender; and (4) exercise any and all other rights pursuant to the
Credit Documents:
(a) The Borrower shall fail to pay or prepay any principal of or interest
on the Notes, any reimbursement obligation in respect of an LC Disbursement, or
any fee or any other obligation hereunder within five (5) days after it was due;
or
(b) The Borrower or any Guarantor shall (i) fail to pay when due, or within
any applicable period of grace, any principal of or interest on (1) any other
Indebtedness, other than Non-recourse Debt or Disqualified Stock, in excess of
$25,000,000.00 in principal amount, or (2) Non-recourse Debt in excess of
$50,000,000.00 in principal amount; or (ii) fail to comply with Section 1004 of
the Indenture dated February 1, 1994 between the Borrower and Xxxxxx Guaranty
Trust Company of New York, as Trustee, as said Section 1004 may be amended with
the consent of the Majority Lenders; or
(c) Any written representation or warranty made in any Credit Document by
or on behalf of the Borrower, when taken as a whole shall prove to have been
incorrect, false or misleading in any material respect; or
(d) Default shall occur in the punctual and complete performance of any
covenant of the Borrower or any other Person other than the Agent or the Lenders
contained in any Credit Document not specifically set forth in this Section; or
(e) A final judgment or judgments in the aggregate for the payment of money
in excess of $25,000,000.00 shall be rendered against the Borrower or any
Guarantor and the same shall remain undischarged for a period of thirty (30)
days during which execution shall not be effectively stayed; or
(f) The Borrower shall not be in compliance with any provision of Section
-------
6.4 during the period covered by an Officer's Certificate and such non-
---
compliance remains in existence on the date the next Officer's Certificate is
required to be presented to the Agent under Section 5.2(c) of this Agreement;
--------------
provided, however, that such right to defer compliance shall be available to the
Borrower for each such provision no more than once every twelve (12) months; or
(g) Any order shall be entered in any proceeding against the Borrower or
any Guarantor decreeing the dissolution, liquidation or split-up thereof, and
such order shall remain in effect for more than thirty (30) days; or
52
(h) The Borrower or any Guarantor shall make a general assignment for the
benefit of creditors or shall petition or apply to any tribunal for the
appointment of a trustee, custodian, receiver or liquidator of all or any
substantial part of its business, estate or assets or shall commence any
proceeding under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect; or
(i) Any such petition or application shall be filed or any such proceeding
shall be commenced against the Borrower or any Guarantor and the Borrower or
such Guarantor by any act or omission shall indicate approval thereof, consent
thereto or acquiescence therein, or an order shall be entered appointing a
trustee, custodian, receiver or liquidator of all or any substantial part of the
assets of such Person or granting relief to such Person or approving the
petition in any such proceeding, and such order shall remain in effect for more
than ninety (90) days; or
(j) The Borrower or any Guarantor shall fail generally to pay its debts as
they become due or suffer any writ of attachment or execution or any similar
process to be issued or levied against it or any substantial part of its
Property which is not released, stayed, bonded or vacated within thirty (30)
days after its issue or levy; or
(k) The Borrower or any Guarantor shall have concealed, removed, or
permitted to be concealed or removed, any part of its Property, with intent to
hinder, delay or defraud its creditors or any of them, or made or suffered a
transfer of any of its Property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or shall have made any transfer of its
Property to or for the benefit of a creditor at a time when other creditors
similarly situated have not been paid.
7.2 Remedies Cumulative. No remedy, right or power conferred upon the
-------------------
Agent or the Lenders is intended to be exclusive of any other remedy, right or
power given hereunder or now or hereafter existing at law, in equity, or
otherwise, and all such remedies, rights and powers shall be cumulative.
7.3 Guaranty Proceeds.
-----------------
(a) Notwithstanding any other provision of any Credit Document to the
contrary, any funds, claims, or distributions actually received by Agent for the
account of any Lender as a result of the enforcement of, or pursuant to, any
Guaranty, net of Agent's and Lenders' expenses of collection thereof (such net
amount, "Guaranty Proceeds"), shall be made available for distribution equally
and ratably (in proportion to the aggregate amount of principal, interest and
other amounts then owed in respect of the Obligations or of an issuance of
Public Debt (as defined below), as the case may be) among the Agent, the Lenders
and the trustee or trustees of any Indebtedness not subordinated to the
Obligations (or to the holders thereof), issued by Borrower, before or after the
date of this Agreement,
53
in offerings registered under the Securities Act of 1933, as amended, or in
transactions exempt from registration pursuant to rule 144A thereof ("Public
Debt"). Agent is hereby authorized by Borrower, by each Lender and by each
Guarantor (by its execution and delivery of the Guaranty to which it is party)
to make such Guaranty Proceeds so available. No Lender shall have any interest
in any amount paid over by Agent to the trustee or trustees in respect of any
Public Debt (or to the holders thereof) pursuant to the foregoing authorization.
This Section 7.3(a) shall apply (i) solely to Guaranty Proceeds and not to any
--------------
payments, funds, claims or distributions received by Agent or Lenders directly
or indirectly from Borrower or any other Person other than from a Guarantor
pursuant to a Guaranty, and (ii) as to Public Debt issued after the date of this
Agreement, only if the documents governing the Public Debt provide for the same
sharing with the Lenders of guaranty proceeds recovered to pay the Public Debt.
Borrower is aware of the terms of the Guaranty, and specifically understands and
agrees with Agent and the Lenders that, to the extent Guaranty Proceeds are
distributed to holders of Public Debt or their respective trustees, such
Guarantor has agreed that the Obligations will not be deemed reduced by any such
distributions, and each Guarantor shall continue to make payments pursuant to
its Guaranty until such times as the Obligations have been paid in full (and the
Commitment has been terminated and any LC Exposure reduced to zero), after
taking into account any such distributions of Guaranty Proceeds in respect of
Indebtedness other than the Obligations.
(b) Nothing contained herein shall be deemed (i) to limit, modify, or
alter the rights of Agent and Lenders under any Guaranty, (ii) to subordinate
the Obligations to any Public Debt, or (iii) to give any holder of Public Debt
(or any trustee for such holder) any rights of subrogation.
(c) This Agreement and each Guaranty are for the sole benefit of
Agent and the Lenders and their respective successors and assigns. Nothing
contained herein or in any Guaranty shall be deemed for the benefit of any
holder of Public Debt, or any trustee for such holder; nor shall anything
contained herein or therein be construed to impose on Agent or Lenders any
fiduciary duties, obligations or responsibilities to the holder of any Public
Debt or their trustees (including, but not limited to, any duty to pursue any
Guarantor for payment under its Guaranty).
8. The Agent.
----------
8.1 Appointment, Powers and Immunities.
----------------------------------
(a) Each Lender hereby irrevocably appoints and authorizes the Agent
to act as its agent hereunder and under the other Credit Documents with such
powers as are specifically delegated to the Agent by the terms hereof and
thereof, together with such other powers as are reasonably incidental thereto.
The Agent (i) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and the other Credit
54
Documents, and shall not by reason of this Agreement or any other Credit
Document be a trustee for any Lender; (ii) shall not be responsible to any
Lender for any recitals, statements, representations or warranties contained in
this Agreement or any other Credit Document, or in any certificate or other
document referred to or provided for in, or received by any of them under, this
Agreement or any other Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability, execution, filing, registration,
collectibility, recording, perfection, existence or sufficiency of this
Agreement or any other Credit Document or any other document referred to or
provided for herein or therein or any property covered thereby or for any
failure by any Party or any other Person to perform any of its obligations
hereunder or thereunder, and shall not have any duty to inquire into or pass
upon any of the foregoing matters; (iii) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or any other Credit
Document except to the extent requested by the Majority Lenders; (iv) SHALL NOT
BE RESPONSIBLE FOR ANY MISTAKE OF LAW OR FACT OR ANY ACTION TAKEN OR OMITTED TO
BE TAKEN BY IT HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT OR ANY OTHER
DOCUMENT OR INSTRUMENT REFERRED TO OR PROVIDED FOR HEREIN OR THEREIN OR IN
CONNECTION HEREWITH OR THEREWITH, INCLUDING, WITHOUT LIMITATION, PURSUANT TO ITS
OWN NEGLIGENCE, BUT NOT INCLUDING AND EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE AGENT; (v) shall not be bound by or obliged to recognize any
agreement among or between the Borrower, the Agent, and any Lender other than
this Agreement and the other Credit Documents, regardless of whether the Agent
has knowledge of the existence of any such agreement or the terms and provisions
thereof; (vi) shall not be charged with notice or knowledge of any fact or
information not herein set out or provided to the Agent in accordance with the
terms of this Agreement or any other Credit Document; (vii) shall not be
responsible for any delay, error, omission or default of any mail, telegraph,
cable or wireless agency or operator, and (viii) shall not be responsible for
the acts or edicts of any Governmental Authority. The Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care.
(b) Without the prior written consent of Agent and all of the Lenders,
Agent shall not (i) modify or amend in any respect whatsoever the interest rate
provisions of the Credit Documents, (ii) increase the Commitment above
$580,000,000.00 (provided that an increase requested in accordance with Section
-------
2.1(d) must only be approved by the Lenders that are increasing their
------
Commitments), (iii) extend the Maturity Date other than in accordance with the
express provisions of the Credit Documents, (iv) extend or reduce the due date
for, or change the amount of, the scheduled payments of principal or interest on
the Loans, the LC Disbursements or the fees set forth in Section 2.7, (v) amend
-----------
the definitions of Majority Lenders or Super-Majority Lenders or any requirement
that certain actions be taken only with the consent of a certain number of the
Lenders, (vi) amend or waive any provisions of Section 5.15 of this Agreement
------------
or (vii) release any Subsidiary
55
from a Guaranty required under and delivered pursuant to Section 5.15, unless
------------
the Guaranty is no longer required pursuant to Section 5.15. From time to time
------------
upon Agent's request, each Lender shall execute and deliver such documents and
instruments as may be reasonably necessary to enable Agent to effectively
administer and service the Loan in its capacity as lead lender and servicer and
in the manner contemplated by the provisions of this Agreement.
(c) Without the prior written consent of the Super-Majority Lenders,
Agent shall not modify, amend or waive in any respect whatsoever the provisions
of Section 5.3 or the definitions of the financial covenants (or any component
-----------
thereof) described in Section 5.3.
-----------
(d) All information provided to the Agent under or pursuant to the
Credit Documents, and all rights of the Agent to receive or request information,
or to inspect information or Property, shall be by the Agent on behalf of the
Lenders. If any Lender requests that it be able to receive or request such
information, or make such inspections, in its own right rather than through the
Agent, the Borrower will cooperate with the Agent and such Lender in order to
obtain such information or make such inspection as such Lender may reasonably
require.
(e) The Borrower shall be entitled to rely upon a written notice or a
written response from the Agent as being pursuant to concurrence or consent of
the Majority Lenders or the Super-Majority Lenders unless otherwise expressly
stated in the Agent's notice or response.
8.2 Reliance. The Agent shall be entitled to rely upon any certification,
--------
notice or other communication (including any thereof by telephone, telex,
facsimile, telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel (which may be counsel for the
Borrower), independent accountants and other experts selected by the Agent. The
Agent shall not be required in any way to determine the identity or authority of
any Person delivering or executing the same. As to any matters not expressly
provided for by this Agreement or any other Credit Document, the Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and thereunder in accordance with instructions of the Majority Lenders, and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. If any order, writ, judgment or decree shall be made or entered by any
court affecting the rights, duties and obligations of the Agent under this
Agreement or any other Credit Document, then and in any of such events the Agent
is authorized, in its sole discretion, to rely upon and comply with such order,
writ, judgment or decree which it is advised by legal counsel of its own
choosing is binding upon it under the terms of this Agreement, the relevant
Credit Document or otherwise; and if the Agent complies with any such order,
writ, judgment or decree, then it shall not be liable to any Lender or to any
other Person by reason of such compliance even
56
though such order, writ, judgment or decree may be subsequently reversed,
modified, annulled, set aside or vacated.
8.3 Defaults. The Agent shall not be deemed to have constructive
--------
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on Loans) unless it has received notice from a Lender
or the Borrower specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default, or whenever the Agent has actual knowledge of the
occurrence of a Default, the Agent shall give prompt written notice thereof to
the Lenders (and shall give each Lender prompt notice of each such non-payment).
The Agent shall (subject to Section 8.7 hereof) take such action with respect to
-----------
such Default as shall be directed by the Majority Lenders and within its rights
under the Credit Documents and at law or in equity, provided that, unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
permitted hereby with respect to such Default as it shall deem advisable in the
best interests of the Lenders and within its rights under the Credit Documents
in order to preserve, protect or enhance the collectibility of the Loans, at law
or in equity.
8.4 Rights as a Lender. With respect to the Commitment and the Loans
------------------
made, Agent, in its capacity as a Lender hereunder shall have the same rights
and powers hereunder as any other Lender and may exercise the same as though it
were not acting in its agency capacity, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may (without having to account therefor to any
other Lender) as a Lender, and to the same extent as any other Lender, accept
deposits from, lend money to and generally engage in any kind of banking, trust,
letter of credit, agency or other business with the Borrower (and any of its
Affiliates) as if it were not acting as the Agent but solely as a Lender. The
Agent may accept fees and other consideration from the Borrower (in addition to
the fees heretofore agreed to between the Borrower and the Agent) for services
in connection with this Agreement or otherwise without having to account for the
same to the Lenders.
8.5 Indemnification. The Lenders agree to indemnify the Agent, its
---------------
officers, directors, agents and Affiliates, ratably in accordance with each
Lender's respective Percentage, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever (INCLUDING BUT NOT LIMITED TO,
THE CONSEQUENCES OF THE NEGLIGENCE OF THE AGENT) which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Credit Document or any other documents
contemplated by or referred to herein or therein, or the transactions
contemplated hereby or thereby (including, without limitation, interest,
penalties, reasonable attorneys' fees and amounts paid in settlement in
accordance with the terms of this Section 8, but excluding, unless a Default has
---------
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties
57
hereunder) or the enforcement of any of the terms hereof or thereof or of any
such other documents, INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF THE AGENT,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the party to be
indemnified, or from the Agent's default in the express obligations of the Agent
to the Lenders provided for in this Agreement. The obligations of the Lenders
under this Section 8.5 shall survive the termination of this Agreement and the
-----------
repayment of the Obligations.
8.6 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
---------------------------------------
has received current financial information with respect to the Borrower and that
it has, independently and without reliance on the Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and decision to enter into this Agreement
and that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Credit Documents. The
Agent shall not be required to keep itself informed as to the performance or
observance by any Party of this Agreement or any of the other Credit Documents
or any other document referred to or provided for herein or therein or to
inspect the properties or books of the Borrower or any Party except as
specifically required by the Credit Documents. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder or the other Credit Documents, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of the
Borrower or any other Party (or any of their affiliates) which may come into the
possession of the Agent. Each Lender assumes all risk of loss in connection
with its Percentage in the Loans to the full extent of its Percentage therein.
The Agent assumes all risk of loss in connection with its Percentage in the
Loans to the full extent of its Percentage therein.
8.7 Failure to Act. Except for action expressly required of the Agent, as
--------------
the case may be, hereunder, or under the other Credit Documents, the Agent shall
in all cases be fully justified in failing or refusing to act hereunder and
thereunder unless it shall receive further assurances to its satisfaction by the
Lenders of their indemnification obligations under Section 8.5 hereof against
-----------
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
8.8 Resignation of Agent. Subject to the appointment and acceptance of a
--------------------
successor Agent as provided below, the Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. The Agent shall resign if it
has assigned all of its Lender Commitment and Loans and is not an Issuing Bank.
Upon any such resignation, (i) the Majority Lenders with the consent of the
Borrower, so long as no Default is in existence, shall have the right to appoint
a successor Agent so long as such successor Agent is also a Lender at the time
of such appointment and (ii) the Majority Lenders shall
58
have the right to appoint a successor Agent that is not a Lender at the time of
such appointment so long as the Borrower consents to such appointment (which
consent shall not be unreasonably withheld). If no successor Agent shall have
been so appointed by the Majority Lenders and accepted such appointment within
30 days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, and with the consent of the
Borrower which shall not be unreasonably withheld, appoint a successor Agent.
Any successor Agent shall be a bank which has an office in the United States and
a combined capital and surplus of at least $500,000,000.00. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as Agent thereafter arising hereunder
and under any other Credit Documents, but shall not be discharged from any
liabilities for its actions as Agent prior to the date of discharge. Such
successor Agent shall promptly specify by notice to the Borrower its principal
office referred to in Section 2.1 and Section 2.3 hereof. After any retiring
----------- -----------
Agent's resignation hereunder as Agent, the provisions of this Section 8 shall
---------
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Agent.
8.9 No Partnership. Neither the execution and delivery of this Agreement
--------------
nor any of the other Credit Documents nor any interest the Lenders, the Agent or
any of them may now or hereafter have in all or any part of the Obligations
shall create or be construed as creating a partnership, joint venture or other
joint enterprise between the Lenders or among the Lenders and the Agent. The
relationship between the Lenders, on the one hand, and the Agent, on the other,
is and shall be that of principals and agent only, and nothing in this Agreement
or any of the other Credit Documents shall be construed to constitute the Agent
as trustee or other fiduciary for any Lender or to impose on the Agent any duty,
responsibility or obligation other than those expressly provided for herein and
therein.
9. Renewal and Extension.
---------------------
9.1 Procedure for Renewal and Extension. The Borrower may extend the
-----------------------------------
Maturity Date one (1) time by one (1) year by executing and delivering to the
Agent a written request for extension (the "Extension Request") at least thirty
(30) days (but not more than ninety (90) days) prior to the Maturity Date.
9.2 Conditions to Renewal and Extension. The extension of the Maturity
-----------------------------------
Date under Section 9.1 of this Agreement shall be conditioned upon, among other
-----------
things, the following terms and conditions (which shall be in addition to those
required by Sections 2.7, 3 and 9.1 of this Agreement):
------------ - ---
(a) Execution by the Borrower of a renewal and extension agreement for
each Note in Proper Form.
59
(b) No Default must be in existence on the date of the Extension
Request or on the Maturity Date (before extension).
(c) Payment of the extension fee as set forth in Section 2.7(b).
--------------
(d) Such other documents, instruments and items as Agent or any Lender
shall reasonably require to document extension.
10. Miscellaneous.
-------------
10.1 No Waiver, Amendments. No waiver of any Default shall be deemed to be
---------------------
a waiver of any other Default. No failure to exercise or delay in exercising
any right or power under any Credit Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power preclude any
further or other exercise thereof or the exercise of any other right or power.
Except as may be prohibited by Section 8.1 hereof, no amendment, modification or
-----------
waiver of any Credit Document shall be effective unless the same is in writing
and signed by the Borrower and the Majority Lenders. No notice to or demand on
the Borrower or any other Person shall entitle the Borrower or any other Person
to any other or further notice or demand in similar or other circumstances.
10.2 Notices. All notices under the Credit Documents shall be in writing
-------
and either (i) delivered against receipt therefor, or (ii) mailed by registered
or certified mail, return receipt requested, in each case addressed as set forth
herein, or to such other address as a party may designate. Notices shall be
deemed to have been given (whether actually received or not) when delivered (or,
if mailed, on the next Business Day). Provided, however, that as between the
Agent and the Lenders and among the Lenders, notice may be given by telecopy or
facsimile effective upon the earlier of actual receipt or confirmation of
receipt by telephone.
10.3 Venue. XXXXXX COUNTY, TEXAS SHALL BE A PROPER PLACE OF VENUE TO
-----
ENFORCE PAYMENT OR PERFORMANCE OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS,
UNLESS THE AGENT SHALL GIVE ITS PRIOR WRITTEN CONSENT TO A DIFFERENT VENUE. THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
STATE AND FEDERAL COURTS IN THE STATE OF TEXAS AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY PROCEEDING ARISING OUT OF ANY OF
THE CREDIT DOCUMENTS BY SERVICE OF PROCESS AS PROVIDED BY TEXAS LAW. THE
BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE CREDIT DOCUMENTS
IN THE DISTRICT
60
COURTS OF XXXXXX COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION, AND HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIMS THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE BORROWER (A) AGREES TO
DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN THE STATE OF TEXAS IN
CONNECTION WITH ANY SUCH SUIT, ACTION OR PROCEEDING AND TO DELIVER TO THE AGENT
EVIDENCE THEREOF AND (B) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
NOTICE GIVEN AS PROVIDED FOR IN THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE AGENT OR THE LENDERS TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY JURISDICTION OR TO SERVE PROCESS IN ANY
MANNER PERMITTED BY APPLICABLE LAW. THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ANY LEGAL ACTION OR PROCEEDING AGAINST THE AGENT OR ANY LENDER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS SHALL BE BROUGHT
AND MAINTAINED IN THE DISTRICT COURTS OF XXXXXX COUNTY, TEXAS, OR THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION.
10.4 Choice of Law. THIS AGREEMENT, THE NOTES AND THE OTHER CREDIT
-------------
DOCUMENTS HAVE BEEN NEGOTIATED, EXECUTED AND DELIVERED IN THE STATE OF TEXAS AND
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TEXAS, INCLUDING ALL APPLICABLE FEDERAL LAW, FROM TIME TO TIME
IN FORCE IN THE STATE OF TEXAS.
10.5 Survival; Parties Bound; Successors and Assigns.
-----------------------------------------------
(a) All representations, warranties, covenants and agreements made by
or on behalf of the Borrower in connection herewith shall survive the execution
and delivery of the Credit Documents, shall not be affected by any investigation
made by any Person, and shall bind the Borrower and its successors, trustees,
receivers and assigns and inure to the benefit of the successors and assigns of
the Agent and the Lenders (including any Affiliate of the Issuing Bank that
issues any Letter of Credit); provided, however, that the Borrower may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Agent and all of the Lenders, and any such assignment or
transfer without such consent shall be null and void.
61
(b) Subject to Sections 10.5(d) and (e) of this Agreement, a Lender may
---------------- ---
assign all or part of its Loans and its Lender Commitment to an Eligible
Institution so long as such assignment shall (1) include the voting rights and
all other rights and obligations attributable thereto, and include a written
assumption by the assignee of the assigning Lender's obligations under the
Credit Documents, (2) require the written consent of the Borrower (so long as no
Default is in existence) and the Agent (and in the case of an assignment of all
or a portion of a Lender Commitment or any Lender's obligations in respect of
its LC Exposure, the Issuing Bank), such consent not to be unreasonably
withheld, (3) be in a minimum amount of $10,000,000.00 if assigned to a Person
not already a Lender, (4) in the case of a partial assignment, not reduce the
Lender's Lender Commitment to an amount less than $10,000,000.00, and (5)
include payment to the Agent by the Lender of a service fee for each assignment
equal to $3,000.00.
(c) Subject to Section 10.5(e) of this Agreement, a Lender may sell
---------------
participating interests to an Affiliate of the participating lender with written
notice to the Agent and the Borrower but not any consent of the Agent, the
Borrower or any other Lender, and may sell participating interests in any of its
Loans to an Eligible Institution so long as such participation shall (1) limit
the voting rights of the participant, if any, to the ability to vote for changes
in the amount of the Commitment, the interest rate on the Loans, and the
Maturity Date, (2) for the Committed Loans, if the participant is not an
Affiliate of the participating Lender, require the written consent of the
Borrower (so long as no Default is in existence) and the Agent, such consent not
to be unreasonably withheld, (3) for Committed Loans be in a minimum principal
amount of at least $10,000,000.00 if participated to a Person not already a
Lender, and (4) not reduce the Lender's Lender Commitment which has not been
participated to less than $10,000,000.00. In connection with any sale of a
participating interest made in compliance with this Agreement, (i) the
participating Lender shall continue to be liable for its Lender Commitment and
its other obligations under the Credit Documents, (ii) the Agent, the Borrower
and the other Lenders shall continue to deal solely and directly with the
participating Lender in connection with such Lender's rights and obligations
under the Credit Documents, and (iii) the participant may not require the
participating Lender to take or refrain from taking any action under the Credit
Documents that is in conflict with the terms and provisions of the Credit
Documents.
(d) A Lender may assign all or any part of its Loans, participations in
Letters of Credit or its Lender Commitment to (i) an Affiliate of the Lender
with written consent of the Borrower (so long as no Default is in existence) and
the Agent, such consent not to be unreasonably withheld; and (ii) another Lender
with written consent of the Borrower (so long as no Default is in existence).
(e) Notwithstanding any provision hereof to the contrary, (i) any Lender
may assign and pledge all or any portion of its Lender Commitment and Loans to a
Federal Reserve Bank; provided, however, that any such assignment or pledge
shall not relieve
62
such Lender from its obligations under the Credit Documents; (ii) the Agent may
not assign or participate its Lender Commitment so that its Lender Commitment
after such assignment or participation is less than $25,000,000.00, to any
Person other than an Affiliate of the Agent without the prior written consent of
the Borrower, so long as no Default is in existence; and (iii) Chase may assign,
sell or participate all or any portion of the Swing Loan without the consent of
the Borrower, the Agent or any other Lender.
(f) The term of this Agreement shall be until the final maturity of the
Notes and the payment of all amounts due under the Credit Documents.
(g) Any Lender (each, a "Designating Lender") may at any time designate one
Designated Lender to fund Money Market Loans on behalf of such Designating
Lender subject to the terms of this Section 10.5(g), and the provisions in
---------------
Sections 10.5(b) and (c) shall not apply to such designation. No Lender may
---------------- ---
designate more than one (1) Designated Lender. The parties to each such
designation shall execute and deliver to the Agent for its acceptance a
Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender, the Agent will accept such
Designation Agreement and will give prompt notice thereof to the Borrower,
whereupon, (i) the Borrower shall execute and deliver to the Designating Lender
a Designated Lender Note payable to the order of the Designated Lender, (ii)
from and after the effective date specified in the Designation Agreement, the
Designated Lender shall become a party to this Agreement with a right (subject
to the provisions of Section 2.8(b)) to make Money Market Loans on behalf of its
--------------
Designating Lender pursuant to Section 2.8 after the Borrower has accepted a
-----------
Money Market Loan (or portion thereof) of the Designating Lender, and (iii) the
Designated Lender shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow of such
Designated Lender which is not otherwise required to repay obligations of such
Designated Lender which are then due and payable; provided, however, that
regardless of such designation and assumption by the Designated Lender, the
Designating Lender shall be and remain obligated to the Borrower, Agent and the
Lenders for each and every obligation of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 8.5 hereof and any sums otherwise
-----------
payable to the Borrower by the Designated Lender. Each Designating Lender shall
serve as the administrative agent of the Designated Lender and shall on behalf
of, and to the exclusion of, the Designated Lender: (1) receive any and all
payments made for the benefit of the Designated Lender and (2) give and receive
all communications and notices and take all actions hereunder, including,
without limitation, votes, approvals, waivers, consents and amendments under or
relating to this Agreement and the other Credit Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by
the Designating Lender as administrative agent for the Designated Lender and
shall not be signed by the Designated Lender on its own behalf, and shall be
binding upon the Designated Lender to the same extent as if signed by
63
the Designated Lender on its own behalf. The Borrower, the Agent and the Lenders
may rely thereon without any requirement that the Designated Lender sign or
acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder or under any other Credit Document, other than
assignments to the Designating Lender which originally designated such
Designated Lender or otherwise in accordance with the provisions of Sections
--------
10.5(b) and (c). The Agent and each Lender agrees that it will not institute
------- ---
against any Designated Lender or join any other Person in instituting against
any Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar law,
until the later to occur of (x) one year and one day after the payment in full
of the latest maturing commercial paper note issued by such Designated Lender
and (y) the Maturity Date.
10.6 Counterparts. This Agreement may be executed in several identical
------------
counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument.
10.7 Usury Not Intended; Refund of Any Excess Payments. It is the intent
-------------------------------------------------
of the parties in the execution and performance of this Agreement to contract in
strict compliance with the usury laws of the State of Texas and the United
States of America from time to time in effect. In furtherance thereof, the
Agent, the Lenders and the Borrower stipulate and agree that none of the terms
and provisions contained in this Agreement or the other Credit Documents shall
ever be construed to create a contract to pay for the use, forbearance or
detention of money with interest at a rate in excess of the Ceiling Rate and
that for purposes hereof "interest" shall include the aggregate of all charges
which constitute interest under such laws that are contracted for, reserved,
taken, charged or received under this Agreement. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
Ceiling Rate, the Borrower, the Agent and the Lenders shall, to the maximum
extent permitted under applicable law, (a) characterize any nonprincipal payment
as an expense, fee or premium rather than as interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) "spread" the total amount of
interest throughout the entire contemplated term of the Loans. The provisions
of this paragraph shall control over all other provisions of the Credit
Documents which may be in apparent conflict herewith.
10.8 Captions. The headings and captions appearing in the Credit Documents
--------
have been included solely for convenience and shall not be considered in
construing the Credit Documents.
10.9 Severability. If any provision of any Credit Documents shall be
------------
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired thereby.
64
10.10 Disclosures. Every reference in the Credit Documents to disclosures
-----------
of the Borrower to the Agent and the Lenders in writing, to the extent that such
references refer to disclosures at or prior to the execution of this Agreement,
shall be deemed strictly to refer only to written disclosures delivered to the
Agent and the Lenders in an orderly manner concurrently with the execution
hereof.
10.11 No Novation. THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT AND
-----------
THE OTHER CREDIT DOCUMENTS SOLELY TO AMEND, RESTATE AND RESTRUCTURE THE TERMS
OF, AND THE OBLIGATIONS TO THE EXISTING LENDERS OWING UNDER AND IN CONNECTION
WITH, THE ORIGINAL CREDIT AGREEMENT. THE PARTIES DO NOT INTEND THIS AGREEMENT
NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY
OF THE OBLIGATIONS OWING BY THE BORROWER UNDER OR IN CONNECTION WITH THE
ORIGINAL CREDIT AGREEMENT.
10.12 Limitation of Liability. NO OBLIGATION OR LIABILITY WHATSOEVER OF THE
-----------------------
BORROWER WHICH MAY ARISE AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR
LIABILITY WHICH MAY BE INCURRED BY IT PURSUANT TO ANY OTHER CREDIT DOCUMENT
SHALL BE PERSONALLY BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF
BE HAD TO THE PRIVATE PROPERTY OF, ANY OF THE BORROWER'S TRUSTEES OR
SHAREHOLDERS REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS IN THE NATURE
OF CONTRACT, TORT OR OTHERWISE.
10.13 Entire Agreement. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
----------------
TOGETHER CONSTITUTE A WRITTEN AGREEMENT AND REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
65
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
ARCHSTONE COMMUNITIES TRUST
By:___________________________
Name:_________________________
Title:________________________
Address:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Finance
66
Lender Commitment: $57,500,000.00 THE CHASE MANHATTAN BANK,
Percentage: 9.913793103% as Agent and as a Lender
By:_____________________________
Name:___________________________
Title:__________________________
Address:
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Manager, Real Estate Group
Telecopy No.: 000-000-0000
Telephone No.: Xxxx Xxxxxx
000-000-0000
67
Lender Commitment: $50,000,000.00 CITICORP NORTH AMERICA, INC.
Percentage: 8.620689655%
By:____________________________
Name:__________________________
Title:_________________________
Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxxx
Telephone No: 212/000-0000
Telecopier No.: 212/723-8380
68
Lender Commitment: $57,500,000.00 BANK OF AMERICA, N.A.
Percentage: 9.913793103%
By:______________________________
Name:____________________________
Title:___________________________
Address:
Commercial Real Estate Banking
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone No: 214/000-0000
Telecopier No.: 214/209-0085
69
Lender Commitment: $57,500,000.00 XXXXX FARGO BANK, NATIONAL
Percentage: 9.913793103% ASSOCIATION
By:___________________________
Name:_________________________
Title:________________________
Address:
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: X. Xxxxxxx Xxxxxx
Telephone No. 000-000-0000
Telecopy No: 000-000-0000
70
Lender Commitment: $50,000,000.00 COMMERZBANK AG, NEW YORK
Percentage: 8.620689655% AND GRAND CAYMAN BRANCHES
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Address:
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attention: Xxxxxxxxx Xxxxxx
Telephone No.: 000-000-0000
Telecopy No: 000-000-0000
71
Lender Commitment: $15,000,000.00 BANK HAPOALIM, B.M.
Percentage: 2.586206897%
By:_________________________________
Name:_______________________________
Title:______________________________
By:_________________________________
Name:_______________________________
Title:______________________________
Address:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No. 000-000-0000
Telecopy No: 000-000-0000
72
Lender Commitment: $35,000,000.00 WACHOVIA BANK, N.A.
Percentage: 6.034482759%
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address:
000 Xxxxxxxxx Xxxxxx, X.X., 00/xx/ Xxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone No.: 000-000-0000
Telecopy No: 000-000-0000
73
Lender Commitment: $50,000,000.00 FIRST UNION NATIONAL BANK
Percentage: 8.620689655%
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone No.: 000-000-0000
Telecopy No: 000-000-0000
74
Lender Commitment: $15,000,000.00 MELLON BANK, N.A.
Percentage: 2.586206897%
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
Xxx Xxxxxx Xxxx Xxxxxx, Xxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx XxXxxx
Telephone No.: 000-000-0000
Telecopy No:000-000-0000
75
Lender Commitment: $20,000,000.00 SOUTHTRUST BANK
Percentage: 3.448275862%
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address:
000 Xxxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxxxxxxxxx., Xxxxxxx 00000
Attention: Institutional Real Estate Dept.
Telephone No.: 205/000-0000
Telecopy No: 205/254-8270
76
Lender Commitment: $20,000,000.00 SUNTRUST BANK
Percentage: 3.448275862%
By:________________________________
Name:______________________________
Title:_____________________________
Address:
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone No.: 703/000-0000
Telecopy No: 703/902-9245
77
Lender Commitment: $57,500,000.00 BANK ONE, NA
Percentage: 9.913793103%
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
Corporate Real Estate
Xxx Xxxx Xxx Xxxxx, 00/xx/ Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Dell X. XxXxx
Telephone No.: 312/000-0000
Telecopy No: 312/732-1117
78
Lender Commitment: $35,000,000.00 UNION BANK OF CALIFORNIA, N.A.
Percentage: 6.034482759%
By:___________________________________
Name:_________________________________
Title:________________________________
Address:
000 Xxxxxxxxxx Xxxxxx, X-000, 0/xx/ Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: 415/000-0000
Telecopy No: 415/433-7438
79
Lender Commitment: $20,000,000.00 KEY BANK
Percentage: 3.448275862%
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:
Commercial Real Estate
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone No.: 216/000-0000
Telecopy No: 216/689-4997
80
Lender Commitment: $20,000,000.00 SUMMIT BANK
Percentage: 3.448275862%
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
Commercial Real Estate Division
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone No.: 908/000-0000
Telecopy No: 908/709-6435
81
Lender Commitment: $20,000,000.00 CITIZENS BANK OF RHODE ISLAND
Percentage: 3.448275862%
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxxxxx
Telephone No.: 401/000-0000
Telecopy No: 401/282-4485
82
OFFICER'S CERTIFICATE
---------------------
Archstone Communities Trust (The "Borrower"), The Chase Manhattan Bank,
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 ______, 2000. 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.
II. The Borrower's financial statements as of _________ as filed with the
Securities and Exchange Commission ("SEC") were prepared in conformity with
generally accepted accounting principles consistently applied and present
fairly the financial position of the Borrower as of the date thereof and
the results of its operations for the period covered thereby subject to
normal year-end adjustments.
III. As of the end of the period covered by the financial statements dated
_________ as filed with the SEC:
1. Maximum Debt to Total Asset Value Calculation
---------------------------------------------
(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 $______
Page 1 of 7 Pages
EXHIBIT A
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%
------
2. Maximum Secured Debt Calculation
--------------------------------
(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
--------------------------
(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) Borrower's Interest Expense, as defined $______
(D) Sum of 3(B) and 3(C) $______
(E) Coverage Ratio (Ratio of 3(A) to 3(D)) $______
Required: Minimum of 2.0 to 1.0
Page 2 of 7 Pages
EXHIBIT A
---------
4. Fixed Charge Coverage Ratio Calculation
---------------------------------------
(Section 5.3(c))
(A) Borrower's EBITDA, as defined $_______________
(B) Unit Capital Expenditures $_______________
(C) EBITDA minus Unit Capital Expenditures $_______________
(D) Borrower's 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
---------------
Required: Minimum of 1.75 to 1.0
5. Tangible Net Worth
------------------
(Section 5.3(d))
Assets $_______________
Liabilities $_______________
Tangible Net Worth, as defined $_______________
Required: Minimum of $1.855 billion
6. Maximum Recourse Indebtedness Calculation
-----------------------------------------
(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) $_______________
Page 3 of 7 Pages
EXIBIT A
--------
7.
Property Pool
-------------
(Section 5.15)
(A) Historical Value of the Pool Real Estate $_______________
(B) 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
Reached the Stabilization Date $_______________
(C) Unencumbered Pool Value (lesser of 7(A) and 7(B)) $_______________
(D) Outstanding Unsecured Indebtedness $_______________
(E) Unencumbered Pool Value Divided by Outstanding Unsecured
Indebtedness (7C divided 7(D)) %
Required: Minimum of 175%
(F) Pool Value attributable to unimproved land (Maximum-5%) $_______________
(G) Pool Value attributable to unimproved land and land under
construction or development (Maximum-20%) $_______________
(H) 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 ________________
Page 4 of 7 Pages
EXHIBIT A
---------
(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.
The Borrower has made available the Borrower's 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's
-------------------
earnings press release and supplemental information for such period has
been posted to the Borrower's website
(xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx/). 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 Borrower 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))
------
[ ] (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 attached 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 attached 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 ____________:
Page 5 of 7 Pages
EXHIBIT A
---------
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
__________________
3. (A) Total Assets $_________________
(B) Maximum Secured Debt $_________________
(C) Secured Debt $_________________
Date: Name:
-------------------- --------------------------------
[Vice President Name]
(A manually signed Officer's Certificate is available from the Borrower at the
request of any Agent or Lender.)
Page 6 of 7 Pages
EXHIBIT A
---------
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.
Page 7 of 7 Pages
EXHIBIT A
---------
REQUEST FOR LOAN
----------------
Date: _______________, 2000
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
("Agent")
RE: Request for Loan Under Credit Agreement (as amended from time
to time, the "Credit Agreement") dated as of December 20,
----------------
2000, among Archstone Communities Trust (the "Borrower"), the
Agent and the Lenders as signatory to the Credit Agreement
Gentlemen:
Borrower hereby requests [check as applicable] a conversion of an
existing Loan as provided below, and/or an advance under the Credit Agreement,
which is allowed pursuant to Section 5.9 of the Credit Agreement, in the amount
of $____________ [minimum of $1,000,000.00 and in multiples of $100,000.00].
Maximum Principal Amount $580,000,000.00
Less the amount outstanding under the
Credit Agreement (including Swing Loans
and Money Market Loans) ($__________.__)
Less the LC Exposure ($__________.__)
($__________.__)
Less the LC Exposure ($__________.__)
Available amount $__________.__
Less amount requested ($__________.__)
Amount remaining to be advanced $__________.__
The advance or conversion is to be made as follows:
Page 1 of 3 Pages
EXHIBIT B
---------
A. Base Rate Borrowing.
-------------------
1. Amount of Base Rate Borrowing: $__________.__
2. Date of Base Rate Borrowing _______, 2000
B. Eurodollar Rate Borrowing:
-------------------------
1. Amount of Eurodollar Rate
Borrowing: $__________.__
2. Amount of conversion of existing
Loan to Eurodollar Rate Borrowing: $__________.__
3. Number of Eurodollar Rate
Borrowing(s) now in effect: _____________
[cannot exceed 12]
4. Date of Eurodollar Rate Borrowing
or conversion: _______, 2000
5. Interest Period: _____________
6. Expiration date of current Interest
Period as to this conversion: _______, 2000
C. Swing Loan.
----------
1. Amount of Swing Loan: $__________.__
[minimum of $1,000,000.00 and in
multiples of $100,000.00]
2. Date of Swing Loan: _______, 2000
Page 2 of 3 Pages
EXHIBIT B
---------
Borrower hereby represents and warrants that the amounts set forth above
are true and correct, that the amount above requested has actually been
incurred, that the representations and warranties contained in the Credit
Agreement are true and correct as if made as of this date, and that Borrower has
kept, observed, performed and fulfilled each and every one of its obligations
under the Credit Agreement as of the date hereof [except as follows:]
Very truly yours,
ARCHSTONE COMMUNITIES TRUST
By:_______________________________
Name:_____________________________
Title:____________________________
Page 3 of 3 Pages
EXHIBIT B
---------
$[________] _____________, 2000
FOR VALUE RECEIVED ARCHSTONE COMMUNITIES TRUST, a Maryland real estate
investment trust (herein called "Maker") promises to pay to the order of
-----
[_________________________________________], a [_______________] ("Payee"), at
-----
the offices of The Chase Manhattan Bank, a New York banking corporation, as
"Agent" under the Credit Agreement, at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, or
------
at such other place as the holder (the "Holder", whether or not Payee is such
------
holder) of this note may hereafter designate in writing, in immediately
available funds and in lawful money of the United States of America, the
principal sum of [______________________] Dollars ($[___________________]) (or
the unpaid balance of all principal advanced against this note, if that amount
is less), together with interest on the unpaid principal balance of this note
from time to time outstanding at the Stated Rate and interest on all past due
amounts, both principal and accrued interest, at the Past Due Rate; provided,
--------
that for the full term of this note the interest rate produced by the aggregate
of all sums paid or agreed to be paid to the Holder of this note for the use,
forbearance or detention of the debt evidenced hereby (including, but not
limited to, all interest on this note at the Stated Rate) shall not exceed the
Ceiling Rate.
1. Definitions. Any terms not defined herein shall have the meaning
-----------
given to them in the Credit Agreement dated of even date herewith among the
Maker, the Agent and certain other Lenders (as the same may be amended or
modified the "Credit Agreement").
2. Rates Change Automatically and Without Notice. Without notice to
---------------------------------------------
Maker or any other person or entity and to the full extent allowed by applicable
law from time to time in effect, the Prime Rate and the Ceiling Rate shall each
automatically fluctuate upward and downward as and in the amount by which
Agent's said prime rate, and such maximum nonusurious rate of interest permitted
by applicable law, respectively, fluctuate.
3. Calculation of Interest. Interest shall be computed for the actual
------------------------
number of days elapsed in a year (up to 365, or 366 in a leap year) deemed to
consist of 360 days, unless the Ceiling Rate would thereby be exceeded, in which
event, to the extent necessary to avoid exceeding the Ceiling Rate, interest
shall be computed on the basis of the actual number of days elapsed in the
applicable calendar year in which it accrued.
4. Excess Interest Will be Refunded or Credited. If, for any reason
---------------------------------------------
whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, the Holder of this note shall
refund to the payor or, at the Holder's option,
Page 1 of 5 Pages
EXHIBIT C
---------
credit against the principal of this note such portion of that interest as shall
be necessary to cause the interest paid on this note to produce a rate equal to
the Ceiling Rate.
5. Interest Will be Spread. All sums paid or agreed to be paid to the
------------------------
Holder of this note for the use, forbearance or detention of the indebtedness
evidenced hereby, to the extent permitted by applicable law and to the extent
necessary to avoid violating applicable usury laws, shall be amortized,
prorated, allocated and spread in equal parts throughout the full term of this
note, so that the interest rate is uniform throughout the full term of this
note.
6. Payment Schedule. The principal of this note shall be due and payable
-----------------
on the Maturity Date. Accrued and unpaid interest shall be due and payable on
each Interest Payment Date. All payments shall be applied first to accrued
interest, the balance to principal.
7. Prepayment. Maker may prepay this note only as provided in the Credit
-----------
Agreement.
8. Revolving Credit. Upon and subject to the terms and conditions of the
-----------------
Credit Agreement and the other provisions of this note, Maker may borrow, repay
and reborrow against this note at any time unless and until a default (however
designated) or event (an "Event of Potential Default") which, if not cured after
notice or before the lapse of time (or both) would develop into a default under
this note, the Credit Agreement or any other Credit Documents has occurred which
the Holder has not declared to have been fully cured or waived, and (except as
the Credit Agreement or any of the other Credit Documents may otherwise provide)
there is no limit on the number of advances against this note so long as the
total unpaid principal of this note at any time outstanding does not exceed the
Payee's Lender Commitment. Interest on the amount of each advance against this
note shall be computed on the amount of the unpaid balance of that advance from
the date it is made until the date it is repaid. If Maker's right (if any) to
borrow against this note shall ever lapse because of the occurrence of any
default, it shall not be reinstated (or construed from any course of conduct or
otherwise to have been reinstated) unless and until the Holder shall declare in
a signed writing that it has been cured or waived. The unpaid principal balance
of this note at any time shall be the total of all principal lent against this
note to Maker or for Maker's account less the sum of all principal payments and
permitted prepayments on this note received by the Holder. Absent manifest
error, the Holder's computer records shall on any day conclusively evidence the
unpaid balance of this note and its advances and payments history posted up to
that day. All loans and advances and all payments and permitted prepayments
made on this note may be (but are not required to be) endorsed by the Holder on
the schedule attached hereto (which is hereby made a part hereof for all
purposes) or otherwise recorded in the Holder's computer
Page 2 of 5 Pages
EXHIBIT C
---------
or manual records; provided, that any Holder's failure to make notation of (a)
any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Maker's obligations or any Holder's rights with respect to that
advance or accrual, or (b) any payment or permitted prepayment of principal or
interest shall not cancel, limit or otherwise affect Maker's entitlement to
credit for that payment as of the date of its receipt by the Holder. Maker and
Payee expressly agree, as expressly allowed by Chapter 346 of the Texas Finance
Code, that Chapter 346 (which relates to open-end line of credit revolving loan
accounts) shall not apply to this note or to any loan evidenced by this note and
that neither this note nor any such loan shall be governed by Chapter 346 or
subject to its provisions in any manner whatsoever.
9. Credit Agreement. This note has been issued pursuant to the terms
-----------------
of the Credit Agreement, to which reference is made for all purposes. Advances
against this note by Payee or other Holder hereof shall be governed by the
Credit Agreement. Payee is entitled to the benefits of the Credit Agreement. As
additional security for this note, Maker hereby grants to Payee and all other
present and future Holders an express lien against, security interest in and
contractual right of setoff in and to, all property and any and all deposits
(general or special, time or demand, provisional or final) at any time held by
the Payee or other Holder for any Maker's credit or account.
10. Defaults and Remedies. Time is of the essence. Maker's failure to
----------------------
pay any principal or accrued interest owing on this note when due and after
expiration of any applicable period for notice and right to cure such a default
which is specifically provided for in the Credit Agreement or any other
provision of this note, or the occurrence of any default under the Credit
Agreement or any other Credit Documents shall constitute default under this
note, whereupon the Holder may elect to exercise any or all rights, powers and
remedies afforded (a) under the Credit Agreement and all other papers related to
this note and (b) by law, including the right to accelerate the maturity of this
entire note.
In addition to and cumulative of such rights, the Holder is hereby
authorized at any time and from time to time after any such default, at Holder's
option, without notice to Maker or any other person or entity (all rights to any
such notice being hereby waived), to set off and apply any and all of any
Maker's deposits at any time held by the Holder, and any other debt at any time
owing by the Holder to or for the credit or account of any Maker, against the
outstanding balance of this note, in such order and manner as Holder may elect
in its sole discretion.
The Holder's right to accelerate this note on account of any late payment
or other default shall not be waived or deemed waived by the Holder by reason of
the Holder's having previously accepted one or more late payments or by reason
of any Holder's otherwise not accelerating this note or exercising other
remedies for any default, and no
Page 3 of 5 Pages
EXHIBIT C
---------
Holder shall ever be obligated or deemed obligated to notify Maker or any other
person that Holder is requiring strict compliance with this note or any papers
securing or otherwise relating to it before such Holder may accelerate this note
or exercise any other remedy.
Nothing in this Section or elsewhere shall be construed as diminishing
Holder's absolute right to demand payment of all or any part of this note at any
time.
11. Legal Costs. If any Holder of this note retains an attorney in
-----------
connection with any such default or to collect, enforce or defend this note or
any papers intended to secure or guarantee it in any lawsuit or in any probate,
reorganization, bankruptcy or other proceeding, or if Maker sues any Holder in
connection with this note or any such papers and does not prevail, then Maker
agrees to pay to each such Holder, in addition to principal and interest, all
reasonable costs and expenses incurred by such Holder in trying to collect this
note or in any such suit or proceeding, including reasonable attorneys' fees.
12. Waivers. Except only for any notices which are specifically
-------
required by the Credit Agreement, Maker and any and all co-makers, endorsers,
guarantors and sureties severally waive notice (including, but not limited to,
notice of intent to accelerate and notice of acceleration, notice of protest and
notice of dishonor), demand, presentment for payment, protest, diligence in
collecting and the filing of suit for the purpose of fixing liability and
consent that the time of payment hereof may be extended and re-extended from
time to time without notice to any of them. Each such person agrees that his,
her or its liability on or with respect to this note shall not be affected by
any release of or change in any guaranty or security at any time existing or by
any failure to perfect or maintain perfection of any lien against or security
interest in any such security or the partial or complete unenforceability of any
guaranty or other surety obligation, in each case in whole or in part, with or
without notice and before or after maturity.
13. Rate of Return Maintenance Covenant. If at any time after the date
-----------------------------------
of this note, any Holder determines that (a) any applicable law, rule or
regulation regarding capital adequacy of general applicability has been adopted
or changed, or (b) its interpretation or administration by any governmental
authority, central bank or comparable agency has changed, and determines that
such change or the Holder's compliance with any request or directive regarding
capital adequacy of general applicability (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on the Holder's capital as a
consequence of its obligations under this note or any related papers to a level
below that which the Holder could have achieved but for such adoption, change or
compliance (taking into consideration the Holder's own capital adequacy
policies) by an amount the Holder deems to be material, then Maker promises to
pay from time to time to the order of the
Page 4 of 5 Pages
EXHIBIT C
---------
Holder such additional amount or amounts as will compensate the Holder for such
reduction. A certificate of any Holder setting forth the amount or amounts
necessary to compensate the Holder as specified above shall be given to Maker as
soon as practicable after the Holder has made such determination and shall be
conclusive and binding, absent manifest error. Maker shall pay the Holder the
amount shown as due on any such certificate within 15 days after the Holder
gives it. In preparing such certificate, the Holder may employ such assumptions
and make such allocations of costs and expenses as the Holder in good xxxxx
xxxxx reasonable and may use any reasonable averaging and attribution method.
14. Governing Law, Jurisdiction and Venue. This note shall be governed
-------------------------------------
by and construed in accordance with the laws of the State of Texas and the
United States of America from time to time in effect.
15. General Purpose of Loan. Maker warrants and represents to Payee and
-----------------------
all other Holders that all loans evidenced by this note are and will be for
business, commercial, investment or other similar purpose and not primarily for
personal, family, household or agricultural use.
16. Participations and Assignments. Payee and each other Holder
------------------------------
reserves the right, exercisable in such Holder's discretion and without notice
to Maker or any other person, to sell participations, assign interests or both,
in all or any part of this note or the debt evidenced by this note, in
accordance with the Credit Agreement.
17. Limitation of Liability. No obligation or liability whatsoever of
-----------------------
Maker which may arise at any time under this promissory note or any obligation
or liability which may be incurred by it pursuant to any other instrument,
transaction or undertaking contemplated hereby shall be personally binding upon,
nor shall resort for the enforcement thereof be had to the private property of,
any of Maker's trustees or shareholders regardless of whether such obligation or
liability is in the nature of contract, tort or otherwise.
ARCHSTONE COMMUNITIES TRUST
By:____________________________________
Name:__________________________________
Title:_________________________________
Page 5 of 5 Pages
EXHIBIT C
---------
SWING LOAN NOTE
---------------
$100,000,000.00 ____________, 2000
FOR VALUE RECEIVED ARCHSTONE COMMUNITIES TRUST, a Maryland real estate
investment trust (herein called "Maker") promises to pay to the order of THE
-----
CHASE MANHATTAN BANK, a New York banking corporation, at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, or at such other place as the holder (the "Holder",
------
whether or not Payee is such holder) of this note may hereafter designate in
writing, in immediately available funds and in lawful money of the United States
of America, the principal sum of One Hundred Million Dollars ($100,000,000.00)
(or the unpaid balance of all principal advanced against this note, if that
amount is less), together with interest on the unpaid principal balance of this
note from time to time outstanding at the Stated Rate and interest on all past
due amounts, both principal and accrued interest, at the Past Due Rate;
provided, that for the full term of this note the interest rate produced by the
--------
aggregate of all sums paid or agreed to be paid to the Holder of this note for
the use, forbearance or detention of the debt evidenced hereby (including, but
not limited to, all interest on this note at the Stated Rate) shall not exceed
the Ceiling Rate.
1. Definitions. Any terms not defined herein shall have the meaning
------------
given to them in the Credit Agreement dated of even date herewith among the
Maker, and certain other Lenders (as the same may be amended or modified the
"Credit Agreement").
2. Rates Change Automatically and Without Notice. Without notice to
---------------------------------------------
Maker or any other person or entity and to the full extent allowed by applicable
law from time to time in effect, the Prime Rate and the Ceiling Rate shall each
automatically fluctuate upward and downward as and in the amount by which
Holder's said prime rate, and such maximum nonusurious rate of interest
permitted by applicable law, respectively, fluctuate.
3. Calculation of Interest. Interest shall be computed for the actual
-----------------------
number of days elapsed in a year (up to 365, or 366 in a leap year) deemed to
consist of 360 days, unless the Ceiling Rate would thereby be exceeded, in which
event, to the extent necessary to avoid exceeding the Ceiling Rate, interest
shall be computed on the basis of the actual number of days elapsed in the
applicable calendar year in which it accrued.
4. Excess Interest Will be Refunded or Credited. If, for any reason
--------------------------------------------
whatever, the interest paid or received on this note during its full term
produces a rate which exceeds the Ceiling Rate, the Holder of this note shall
refund to the payor or, at the Holder's option, credit against the principal of
this note such portion of that interest as shall be necessary to cause the
interest paid on this note to produce a rate equal to the Ceiling Rate.
EXHIBIT C-1
-----------
Page 1 of 5 Pages
5. Interest Will be Spread. All sums paid or agreed to be paid to the
-----------------------
Holder of this note for the use, forbearance or detention of the indebtedness
evidenced hereby, to the extent permitted by applicable law and to the extent
necessary to avoid violating applicable usury laws, shall be amortized,
prorated, allocated and spread in equal parts throughout the full term of this
note, so that the interest rate is uniform throughout the full term of this
note.
6. Payment Schedule. The principal of this note shall be due and payable
----------------
on the Revolving Credit Termination Date. Accrued and unpaid interest shall be
due and payable on each Interest Payment Date. All payments shall be applied
first to accrued interest, the balance to principal.
7. Prepayment. Maker may prepay this note only as provided in the Credit
----------
Agreement.
8. Revolving Credit. Upon and subject to the terms and conditions of the
----------------
Credit Agreement and the other provisions of this note, Maker may borrow, repay
and reborrow against this note at any time unless and until a default (however
designated) or event (an "Event of Potential Default") which, if not cured after
--------------------------
notice or before the lapse of time (or both) would develop into a default under
this note, the Credit Agreement or any other Credit Documents has occurred which
the Holder has not declared to have been fully cured or waived, and (except as
the Credit Agreement or any of the other Credit Documents may otherwise provide)
there is no limit on the number of advances against this note so long as the
total unpaid principal of this note at any time outstanding does not exceed
$100,000,000.00. Interest on the amount of each advance against this note shall
be computed on the amount of the unpaid balance of that advance from the date it
is made until the date it is repaid. If Maker's right (if any) to borrow
against this note shall ever lapse because of the occurrence of any default, it
shall not be reinstated (or construed from any course of conduct or otherwise to
have been reinstated) unless and until the Holder shall declare in a signed
writing that it has been cured or waived. The unpaid principal balance of this
note at any time shall be the total of all principal lent against this note to
Maker or for Maker's account less the sum of all principal payments and
permitted prepayments on this note received by the Holder. Absent manifest
error, the Holder's computer records shall on any day conclusively evidence the
unpaid balance of this note and its advances and payments history posted up to
that day. All loans and advances and all payments and permitted prepayments
made on this note may be (but are not required to be) endorsed by the Holder on
the schedule attached hereto (which is hereby made a part hereof for all
purposes) or otherwise recorded in the Holder's computer or manual records;
provided, that any Holder's failure to make notation of (a) any principal
--------
advance or accrual of interest shall not cancel, limit or otherwise affect
Maker's obligations or any Holder's rights with respect to that advance or
accrual, or (b) any payment or permitted prepayment of principal or interest
shall not cancel, limit or otherwise affect Maker's entitlement to credit for
that payment as of the date of its receipt by the Holder. Maker and Payee
expressly agree, as expressly allowed by Chapter 346 of the Texas Finance Code,
that Chapter 346 (which relates to open-end line of credit revolving loan
accounts) shall not apply to
EXHIBIT C-1
-----------
Page 2 of 5 Pages
this note or to any loan evidenced by this note and that neither this note nor
any such loan shall be governed by Chapter 346 or subject to its provisions in
any manner whatsoever.
9. Credit Agreement. This note has been issued pursuant to the terms of
----------------
the Credit Agreement, to which reference is made for all purposes. Advances
against this note by Payee or other Holder hereof shall be governed by the
Credit Agreement. Payee is entitled to the benefits of the Credit Agreement.
As additional security for this note, Maker hereby grants to Payee and all other
present and future Holders an express lien against, security interest in and
contractual right of setoff in and to, all property and any and all deposits
(general or special, time or demand, provisional or final) at any time held by
the Payee or other Holder for any Maker's credit or account.
10. Defaults and Remedies. Time is of the essence. Maker's failure to
---------------------
pay any principal or accrued interest owing on this note when due and after
expiration of any applicable period for notice and right to cure such a default
which is specifically provided for in the Credit Agreement or any other
provision of this note, or the occurrence of any default under the Credit
Agreement or any other Credit Documents shall constitute default under this
note, whereupon the Holder may elect to exercise any or all rights, powers and
remedies afforded (a) under the Credit Agreement and all other papers related to
this note and (b) by law, including the right to accelerate the maturity of this
entire note.
In addition to and cumulative of such rights, the Holder is hereby
authorized at any time and from time to time after any such default, at Holder's
option, without notice to Maker or any other person or entity (all rights to any
such notice being hereby waived), to set off and apply any and all of any
Maker's deposits at any time held by the Holder, and any other debt at any time
owing by the Holder to or for the credit or account of any Maker, against the
outstanding balance of this note, in such order and manner as Holder may elect
in its sole discretion.
The Holder's right to accelerate this note on account of any late payment
or other default shall not be waived or deemed waived by the Holder by reason of
the Holder's having previously accepted one or more late payments or by reason
of any Holder's otherwise not accelerating this note or exercising other
remedies for any default, and no Holder shall ever be obligated or deemed
obligated to notify Maker or any other person that Holder is requiring strict
compliance with this note or any papers securing or otherwise relating to it
before such Holder may accelerate this note or exercise any other remedy.
Nothing in this Section or elsewhere shall be construed as diminishing
Holder's absolute right to demand payment of all or any part of this note at any
time.
11. Legal Costs. If any Holder of this note retains an attorney in
-----------
connection with any such default or to collect, enforce or defend this note or
any papers intended to secure or guarantee it in any lawsuit or in any probate,
reorganization, bankruptcy or other proceeding, or
EXHIBIT C-1
-----------
Page 3 of 5 Pages
if Maker sues any Holder in connection with this note or any such papers and
does not prevail, then Maker agrees to pay to each such Holder, in addition to
principal and interest, all reasonable costs and expenses incurred by such
Holder in trying to collect this note or in any such suit or proceeding,
including reasonable attorneys' fees.
12. Waivers. Except only for any notices which are specifically required
-------
by the Credit Agreement, Maker and any and all co-makers, endorsers, guarantors
and sureties severally waive notice (including, but not limited to, notice of
intent to accelerate and notice of acceleration, notice of protest and notice of
dishonor), demand, presentment for payment, protest, diligence in collecting and
the filing of suit for the purpose of fixing liability and consent that the time
of payment hereof may be extended and re-extended from time to time without
notice to any of them. Each such person agrees that his, her or its liability
on or with respect to this note shall not be affected by any release of or
change in any guaranty or security at any time existing or by any failure to
perfect or maintain perfection of any lien against or security interest in any
such security or the partial or complete unenforceability of any guaranty or
other surety obligation, in each case in whole or in part, with or without
notice and before or after maturity.
13. Rate of Return Maintenance Covenant. If at any time after the date of
-----------------------------------
this note, any Holder determines that (a) any applicable law, rule or regulation
regarding capital adequacy of general applicability has been adopted or changed,
or (b) its interpretation or administration by any governmental authority,
central bank or comparable agency has changed, and determines that such change
or the Holder's compliance with any request or directive regarding capital
adequacy of general applicability (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the Holder's capital as a consequence
of its obligations under this note or any related papers to a level below that
which the Holder could have achieved but for such adoption, change or compliance
(taking into consideration the Holder's own capital adequacy policies) by an
amount the Holder deems to be material, then Maker promises to pay from time to
time to the order of the Holder such additional amount or amounts as will
compensate the Holder for such reduction. A certificate of any Holder setting
forth the amount or amounts necessary to compensate the Holder as specified
above shall be given to Maker as soon as practicable after the Holder has made
such determination and shall be conclusive and binding, absent manifest error.
Maker shall pay the Holder the amount shown as due on any such certificate
within 15 days after the Holder gives it. In preparing such certificate, the
Holder may employ such assumptions and make such allocations of costs and
expenses as the Holder in good xxxxx xxxxx reasonable and may use any reasonable
averaging and attribution method.
14. Governing Law, Jurisdiction and Venue. This note shall be governed by
-------------------------------------
and construed in accordance with the laws of the State of Texas and the United
States of America from time to time in effect.
EXHIBIT C-1
-----------
Page 4 of 5 Pages
15. General Purpose of Loan. Maker warrants and represents to Payee and
-----------------------
all other Holders that all loans evidenced by this note are and will be for
business, commercial, investment or other similar purpose and not primarily for
personal, family, household or agricultural use.
16. Participations and Assignments. Payee and each other Holder reserves
------------------------------
the right, exercisable in such Holder's discretion and without notice to Maker
or any other person, to sell participations, assign interests or both, in all or
any part of this note or the debt evidenced by this note, in accordance with the
Credit Agreement.
17. Limitation of Liability. No obligation or liability whatsoever of
-----------------------
Maker which may arise at any time under this promissory note or any obligation
or liability which may be incurred by it pursuant to any other instrument,
transaction or undertaking contemplated hereby shall be personally binding upon,
nor shall resort for the enforcement thereof be had to the private property of,
any of Maker's trustees or shareholders regardless of whether such obligation or
liability is in the nature of contract, tort or otherwise.
ARCHSTONE COMMUNITIES TRUST
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT C-1
-----------
Page 5 of 5 Pages
Form of Money Market Quote Request
----------------------------------
To: The Chase Manhattan Bank (the "Agent")
From: Archstone Communities Trust (the "Borrower")
Re: Credit Agreement (the "Credit Agreement"), dated December 20, 2000
among the Borrower, the Lenders parties thereto and the Agent
We hereby give notice pursuant to Section 2.8 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Loan(s):
Date of Borrowing: ______________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the Adjusted Eurodollar Interbank
Rate].
The funding of Money Market Loans made in connection with this Money
Market Quote Request [may/may not] be made by Designated Lenders.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
ARCHSTONE COMMUNITIES TRUST
By:_________________________________
Name:____________________________
Title:___________________________
_____________________
Amount must be $20,000,000 or a larger multiple of $1,000,000.
Not less than one month (LIBOR Auction) or not less than 30 days (Absolute Rate
Auction), subject to the provisions of the definition of Interest Period.
EXHIBIT E
---------
Page 1 of 1 Page
EXHIBIT F
---------
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Lender]
RE: Invitation for Money Market Quotes to Archstone Communities Trust (the
"Borrower")
Pursuant to Section 2.8 of the Credit Agreement dated December 20, 2000
among the Borrower, the Lenders parties thereto and the undersigned, as Agent,
we are pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market Loan(s):
Date of Borrowing: ________________________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the Adjusted Eurodollar Interbank Rate.]
Please respond to this invitation by no later than ________ A.M. (New York,
New York time) on [date].
THE CHASE MANHATTAN BANK,
as Agent
By:___________________________________
Authorized Officer
EXHIBIT F
---------
Page 1 of 1 Page
Form of Money Market Quote
--------------------------
To: The Chase Manhattan Bank, as Agent
RE: Money Market Quote to Archstone Communities Trust (the "Borrower")
In response to your invitation on behalf of the Borrower dated ___________,
2000, we hereby make the following Money Market Quote on the following terms:
1. Quoting Bank:______________________________
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and the following rates:
Principal Interest Money Market
Amount Period [Margin] [Absolute Rate]
------ -------- -------- ---------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $_________________.]
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit
Agreement dated December 20, 2000 among the Borrower, the Lenders parties
thereto and yourselves, as Agent, irrevocably obligates us to make the
Money Market Loan(s) for which any offer(s) are accepted, in whole or in
part.
Very truly yours,
[NAME OF LENDER]
Dated:____________________________ By:________________________________
Authorized Officer
EXHIBIT G
---------
Page 1 of 1
Form of Designation Agreement
-----------------------------
Dated ____________, 2000
Reference is made to that certain Credit Agreement dated December 20, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among ARCHSTONE COMMUNITIES TRUST, the Lenders parties thereto, and
THE CHASE MANHATTAN BANK (the "Agent"), as Agent. Terms defined in the Credit
Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the "Designee"),
the Agent and Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Money Market Loans pursuant to
Section 2.8 of the Credit Agreement. Any assignment by Designor to Designee of
its rights to make a Money Market Loan pursuant to such Section 2.8 shall be
effective at the time of the funding of such Money Market Loan and not before
such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Credit Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Credit Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Credit Document
or any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Credit
Document, together with copies of the financial statements referred to in
Section 5.2 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Designation Agreement; (b) agrees that it will independently and
without reliance upon the Agent, the Designor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
any Credit Document; (c) confirms that it is a Designated Lender; (d) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under any Credit Document as are delegated
to the Agent by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; and (e) agrees to be bound by each and every
provision of each Credit Document and further agrees that it will perform in
accordance with their terms all of the obligations which by the terms of any
Credit Document are required to be performed by it as a
EXHIBIT H
---------
Page 1 of 4
Lender.
4. The Designee hereby appoints Designor as Designee's agent and attorney
in fact, and grants to Designor an irrevocable power of attorney, to receive
payments made for the benefit of Designee under the Credit Agreement, to deliver
and receive all communications and notices under the Credit Agreement and other
Credit Documents and to exercise on Designee's behalf all rights to vote and to
grant and make approvals, waivers, consents or amendments to or under the Credit
Agreement or other Credit Documents. Any document executed by the Designor on
the Designee's behalf in connection with the Credit Agreement or other Credit
Documents shall be binding on the Designee. The Borrower, the Agent and each of
the Lenders may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Agent for acceptance by the Agent.
The effective date for this Designation Agreement (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on the
signature page hereto.
6. The Agent hereby agrees that it will not institute against any
Designee or join any other Person in instituting against any Designee any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur
of (i) one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Designee and (ii) the Revolving Credit
Termination Date.
7. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions and judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Credit Documents against the Designee, in its
capacity as such, in any way relating to or arising out of this Designation
Agreement or any other Credit Documents or any action taken or omitted by the
Designee hereunder or thereunder, INCLUDING THE NEGLIGENCE OF THE DESIGNEE
provided that the Designor shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements if the same results from the Designee's gross
negligence or willful misconduct.
8. As of the Effective Date the Designee shall be a party to the Credit
Agreement with a right (subject to the provisions of Section 2.8(b)) to make
Money Market Loans as a Lender pursuant to Section 2.8 of the Credit Agreement
and the rights and obligations of a Lender related thereto; provided, however,
that the Designee shall not be required to make payments with respect to such
obligations except to the extent of excess cash flow of such Designee which is
not otherwise required to repay obligations of such Designee, which are then due
and payable. Notwithstanding the foregoing, the Designor, as administrative
agent for the
EXHIBIT H
---------
Page 2 of 4
Designee, shall be and remain obligated to the Borrower, the Agent and the
Lenders for each and every one of the obligations of the Designee and its
Designor with respect to the Credit Agreement, including, without limitation,
any indemnification obligations under Section 8.5 of the Credit Agreement and
any sums otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date:
__________________, 2000
[NAME OF DESIGNOR], as Designor
By:______________________________________
Title:___________________________________
[NAME OF DESIGNEE], as Designee
By:______________________________________
Title:___________________________________
Applicable Lending Office
(and address for notices):
[Address]
EXHIBIT H
---------
Page 3 of 4
Accepted this _____ day of
______________, 2000
THE CHASE MANHATTAN BANK, as Agent
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT H
---------
Page 4 of 4
FORM OF GUARANTY
THIS GUARANTY dated as of _______________, 2000 executed and delivered by
each of the undersigned, whether one or more, (all each a "Guarantor" and
collectively, the "Guarantors"), in favor of (a) THE CHASE MANHATTAN BANK, in
its capacity as Agent (the "Agent") for the Lenders under that certain Credit
Agreement dated as of December 20, 2000 by and among ARCHSTONE COMMUNITIES TRUST
(the "Borrower"), the financial institutions party thereto and their assignees
in accordance therewith (the "Lenders"), and the Agent (as the same may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with its terms, the "Credit Agreement") and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have made available
to the Borrower certain financial accommodations on the terms and conditions set
forth in the Credit Agreement;
WHEREAS, each Guarantor is a wholly-owned Subsidiary of the Borrower;
WHEREAS, the Borrower, each Guarantor and the other Subsidiaries of the
Borrower, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, each Guarantor is willing to guarantee the Borrower's obligations
to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is one of
the conditions precedent to the Agent and the Lenders making, or continuing to
make, such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely and
--------
unconditionally guaranties the due and punctual payment and performance of all
of the following (collectively referred to as the "Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any of the Lenders or the
Agent under or in connection with the Credit Agreement and any other Credit
Document, including without limitation, the repayment of all principal of the
Loans made by the Lenders to the Borrower under the Credit Agreement and the
payment of all interest, fees,
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charges, reasonable attorneys fees and other amounts payable to any Lender or
the Agent thereunder or in connection therewith; (b) any and all extensions,
renewals, modifications, amendments or substitutions of the foregoing; and (c)
all expenses, including, without limitation, reasonable attorneys' fees and
disbursements, that are incurred by the Lenders or the Agent in the enforcement
of any of the foregoing or any obligation of such Guarantor hereunder.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a
-----------------------------------------
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, the Lenders and the Agent shall not be obligated or
required before enforcing this Guaranty against any Guarantor: (a) to pursue any
right or remedy the Lenders or the Agent may have against the Borrower, any
other Guarantor or any other Person or commence any suit or other proceeding
against the Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to make demand of the
Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Obligations. In this connection, each Guarantor
hereby waives the right of such Guarantor to require any holder of the
Obligations to take action against the Borrower as provided by any Legal
Requirement.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any Legal Requirement now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or the Lenders with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute and unconditional in accordance with its terms
and shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) (i) any change in the amount, interest rate or due date or other term
of any of the Obligations, (ii) any change in the time, place or manner of
payment of all or any portion of the Obligations, (iii) any amendment or waiver
of, or consent to the departure from or other indulgence with respect to, the
Credit Agreement, any other Credit Document, or any other document or instrument
evidencing or relating to any Obligations, or (iv) any waiver, renewal,
extension, addition, or supplement to, or deletion from, or any other action or
inaction under or in respect of, the Credit Agreement, any of the other Credit
Documents, or any other documents, instruments or agreements relating to the
Obligations or any other instrument or agreement referred to therein or
evidencing any Obligations or any assignment or transfer of any of the
foregoing;
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(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Credit Documents, or any other document, instrument or agreement
referred to therein or evidencing any Obligations or any assignment or transfer
of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any security for the
Obligations, or any sale, exchange, release or surrender of, or realization on,
any collateral security for the Obligations;
(d) any settlement or compromise of any of the Obligations, any security
therefor, or any liability of any other party with respect to the Obligations,
or any subordination of the payment of the Obligations to the payment of any
other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any other
Guarantor, the Borrower or any other Person, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or other Lien on any of the
collateral securing any of the Obligations;
(g) any act or failure to act by the Borrower or any other Person which may
adversely affect such Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty;
(h) any application of sums paid by the Borrower or any other Person with
respect to the liabilities of the Borrower to the Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor hereunder.
Section 4. Action with Respect to Obligations. The Lenders and the Agent
----------------------------------
may, at any time and from time to time, without the consent of, or notice to,
any Guarantor, and without discharging any Guarantor from its obligations
hereunder take any and all actions described in Section 3 and may otherwise:
---------
(a) amend, modify, alter or supplement the terms of any of the Obligations,
including, but not limited to, extending or shortening the time of payment of
any of the Obligations or the interest rate that may accrue on any of the
Obligations; (b) amend, modify, alter or supplement the Credit Agreement or any
other Credit Document; (c) sell, exchange, release or otherwise deal with all,
or any part, of any collateral securing any of the Obligations;
EXHIBIT I
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(d) release any Person liable in any manner for the payment or collection of the
Obligations; (e) exercise, or refrain from exercising, any rights against the
Borrower or any other Person (including, without limitation, any other
Guarantor); and (f) apply any sum, by whomsoever paid or however realized, to
the Obligations in such order as the Lenders or the Agent shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes to
------------------------------
the Agent and the Lenders all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor in the Credit
Agreement and the other Credit Documents, as if the same were set forth herein
in full.
Section 6. Covenants. Each Guarantor will comply with all covenants which
---------
the Borrower is to cause such Guarantor to comply with under the terms of the
Credit Agreement or any other Credit Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
------
applicable law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the Lenders
----------------------------
are prevented from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise
would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Obligations. Each Guarantor agrees that this
----------------------------
Guaranty shall continue to be effective or be reinstated, as the case may be,
with respect to any Obligations if at any time payment of any such Obligations
is rescinded or otherwise must be restored by the Agent and/or the Lenders upon
the bankruptcy or reorganization of the Borrower or any Guarantor or otherwise.
Section 10. Subrogation. Until all of the Obligations shall have been
-----------
indefeasibly paid in full, no Guarantor shall have any right of subrogation and
each Guarantor hereby waives any right to enforce any remedy which the Agent
and/or the Lenders now have or may hereafter have against the Borrower, and each
Guarantor hereby waives any benefit of, and any right to participate in, any
security or collateral given to the Agent and the Lenders to secure payment or
performance of any of the Obligations.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
-----------------------
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any
EXHIBIT I
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withholding tax or liability imposed by any Governmental Authority, or any Legal
Requirement promulgated thereby), and if any Guarantor is required by such Legal
Requirement or by such Governmental Authority to make any such deduction or
withholding, such Guarantor shall pay to the Agent and the Lenders such
additional amount as will result in the receipt by the Agent and the Lenders of
the full amount payable hereunder had such deduction or withholding not occurred
or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted
-------
under applicable law and not by way of limitation of any such rights, each
Lender is hereby authorized by each Guarantor, at any time or from time to time,
without notice to any Guarantor or to any other Person, any such notice being
hereby expressly waived, but subject to receipt of Agent's prior written
consent, to set-off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by such Lender or any Affiliate of such
Lender, to or for the credit or the account of each Guarantor against and on
account of any of the Obligations then due and owing after the expiration of any
applicable grace periods. Each Guarantor agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the applicable provisions of the
Credit Agreement, may exercise rights of setoff or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of such Guarantor in the amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants and
-------------
agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower or any other Guarantor to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower or any other Guarantor (collectively, the "Junior
Claims") shall be subordinate and junior in right of payment to all Obligations.
If an Event of Default shall have occurred and be continuing, then no Guarantor
shall accept any direct or indirect payment (in cash, property, securities by
setoff or otherwise) from the Borrower or any other Guarantor on account of or
in any manner in respect of any Junior Claim until all of the Obligations have
been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
--------------------
Agent and the Lenders that in any Proceeding, such Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
applicable law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
applicable laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the
EXHIBIT I
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Agent and the Lenders) shall be determined in any such Proceeding are referred
to as the "Avoidance Provisions". Accordingly, to the extent that the
obligations of any Guarantor hereunder would otherwise be subject to avoidance
under the Avoidance Provisions, the maximum Obligations for which such Guarantor
shall be liable hereunder shall be reduced to that amount which, as of the time
any of the Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of any Guarantor hereunder (or any
other obligations of such Guarantor to the Agent and the Lenders), to be subject
to avoidance under the Avoidance Provisions. This Section is intended solely to
preserve the rights of the Agent and the Lenders hereunder to the maximum extent
that would not cause the obligations of any Guarantor hereunder to be subject to
avoidance under the Avoidance Provisions, and no Guarantor nor any other Person
shall have any right or claim under this Section as against the Agent and the
Lenders that would not otherwise be available to such Person under the Avoidance
Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
-----------
being and keeping itself informed of the financial condition of the Borrower, of
the other Guarantors and of all other circumstances bearing upon the risk of
nonpayment of any of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Agent or any Lender shall have any duty whatsoever to advise any Guarantor
of information regarding such circumstances or risks.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
SECTION 17. JURISDICTION, VENUE.
-------------------
(a) EACH GUARANTOR AGREES THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON DIVISION, OR, AT THE OPTION OF THE AGENT, ANY STATE
COURT LOCATED IN XXXXXX COUNTY, TEXAS SHALL HAVE NON-EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE
AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY
OR ANY OTHER CREDIT DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM OR
ANY COLLATERAL. EACH GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER IN ANY OTHER APPROPRIATE JURISDICTION. FURTHER, EACH GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A
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COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(b) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE
THE PAYMENT OF THE OBLIGATIONS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER
THE OTHER CREDIT DOCUMENTS AND THE TERMINATION OF THIS GUARANTY.
Section 18. Loan Accounts. The Agent may maintain books and accounts
-------------
setting forth the amounts of principal, interest and other sums paid and payable
with respect to the Obligations, and in the case of any dispute relating to any
of the outstanding amount, payment or receipt of Obligation or otherwise, the
entries in such account shall be binding upon each Guarantor as to the
outstanding amount of such Obligations and the amounts paid and payable with
respect thereto absent manifest error. The failure of the Agent to maintain such
books and accounts shall not in any way relieve or discharge any Guarantor of
any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
------------------
Agent or the Lenders in the exercise of any right or remedy it may have against
any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or the Lenders of any such right or
remedy shall preclude other or further exercise thereof or the exercise of any
other such right or remedy.
Section 20. Successors and Assigns. Each reference herein to the Agent or
----------------------
the Lenders shall be deemed to include such Person's respective successors and
assigns (including, but not limited to, any holder of the Obligations) in whose
favor the provisions of this Guaranty also shall inure, and each reference
herein to any Guarantor shall be deemed to include the Guarantor's successors
and assigns, upon whom this Guaranty also shall be binding. The Lenders and the
Agent may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Obligation, or grant or sell participation in any
Obligations, to any Person or entity without the consent of, or notice to, any
Guarantor and without releasing, discharging or modifying such Guarantor's
obligations hereunder. Each Guarantor hereby consents to the delivery by the
Agent or any Lender to any assignee, transferee or participant of any financial
or other information regarding the Borrower or any Guarantor. Each Guarantor may
not assign or transfer its obligations hereunder to any Person.
SECTION 21. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
-----------------------------
GUARANTORS HEREUNDER AND UNDER OTHER CREDIT DOCUMENTS SHALL BE JOINT AND
SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE FOR THE FULL
AMOUNT OF THE OBLIGATIONS AND ALL OF
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THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS HEREUNDER AND
UNDER OTHER COURT DOCUMENTS.
Section 22. Amendments. This Guaranty may not be amended except as
----------
provided in the Credit Agreement.
Section 23. Payments. All payments made by any Guarantor pursuant to this
--------
Guaranty shall be made in Dollars, in immediately available funds to the Agent
at its Lending Office, not later than 12:00 noon, New York, New York time on the
date one (1) Business Day after demand therefor.
Section 24. Notices. All notices, requests and other communications
-------
hereunder shall be in writing and shall be given as provided in the Loan
Agreement. Each Guarantor's address for notice is set forth below its signature
hereto.
Section 25. Severability. In case any provision of this Guaranty shall be
------------
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 26. Headings. Section headings used in this Guaranty are for
--------
convenience only and shall not affect the construction of this Guaranty.
Section 27. Definitions. (a) For the purposes of this Guaranty:
-----------
"Proceeding" means any of the following: (i) a voluntary or involuntary
----------
case concerning any Guarantor shall be commenced under the Bankruptcy Code or
any other applicable bankruptcy laws; (ii) a custodian (as defined in the
Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or
takes charge of, all or any substantial part of the property of any Guarantor;
(iii) any other proceeding under any applicable law, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up or composition
for adjustment of debts, whether now or hereafter in effect, is commenced
relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or
bankrupt; (v) any order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) any Guarantor
makes a general assignment for the benefit of creditors; (vii) any Guarantor
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; (viii) any Guarantor shall call
a meeting of its creditors with a view to arranging a composition or adjustment
of its debts; (ix) any Guarantor shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or (x) any
corporate action shall be taken by any Guarantor for the purpose of effecting
any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
(GUARANTOR)
By: _________________________________
Name: _______________________________
Title: ______________________________
Address for Notices:
Archstone Communities
0000 X. Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
EXHIBIT I
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