<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR
15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR
15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 1-13136
HOME PROPERTIES OF NEW YORK, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 16-1455126
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
850 CLINTON SQUARE, ROCHESTER, NEW YORK 14604
(Address of principal executive offices) (Zip Code)
(716) 546-4900
(Registrant's telephone number, including area code)
N/A
(Former name, former address and former
year, if changed since last report)
Indicate by check mark whether registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES X NO
----- -----
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date:
CLASS OF COMMON STOCK OUTSTANDING AT OCTOBER 31, 1999
$.01 par value 19,299,212
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
HOME PROPERTIES OF NEW YORK, INC.
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, 1999 AND DECEMBER 31, 1998
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
1999 1998
(Unaudited) (Note 1)
<S> <C> <C>
ASSETS
Real estate:
Land $ 189,111 $ 119,221
Buildings, improvements and equipment 1,242,599 821,567
1,431,710 940,788
Less: accumulated depreciation ( 90,731) ( 65,627)
Real estate, net 1,340,979 875,161
Cash and cash equivalents 7,177 33,446
Cash in escrows 29,269 17,431
Accounts receivable 7,077 6,269
Prepaid expenses 11,178 6,155
Deposits 507 175
Investments in and advances to affiliates 63,942 54,229
Deferred financing costs 2,686 2,749
Other assets 8,864 16,620
Total assets $1,471,679 $1,012,235
LIABILITIES AND STOCKHOLDERS' EQUITY
Mortgage notes payable $620,665 $418,942
Line of credit 19,800 -
Accounts payable 15,435 8,300
Accrued interest payable 4,149 1,962
Accrued expenses and other liabilities 5,115 4,962
Security deposits 14,965 11,404
Total liabilities 680,129 445,570
Minority interest 334,529 204,709
Commitments and contingencies
Stockholders' equity:
Preferred stock, $.01 par value; 8,000,000
shares authorized; no shares issued - -
Series B convertible cumulative preferred stock,
$.01 par value; 2,000,000 shares authorized;
2,000,000 shares issued 20 -
Common stock, $.01 par value; 50,000,000
shares authorized; 19,196,220 and 17,635,000 shares
issued and outstanding at September 30, 1999 and
December 31, 1998, respectively 192 177
Excess stock, $.01 par value; 10,000,000
shares authorized; no shares issued - -
Additional paid-in capital 487,327 401,814
Distributions in excess of accumulated earnings ( 20,688) ( 26,622)
Unrealized loss on available-for-sale securities - ( 1,607)
Treasury stock, at cost, 0 and 79,600 shares
at Sept. 30, 1999 and December 31, 1998, respectively - ( 1,863)
Officer and director notes for stock purchases ( 9,830) ( 9,943)
Total stockholders' equity 457,021 361,956
Total liabilities and stockholders' equity $1,471,679 $1,012,235
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
(UNAUDITED, IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Revenues:
Rental income $ 151,523 $ 94,196
Property other income 4,507 2,497
Interest and dividend income 5,349 3,696
Other income 2,220 1,854
Total revenues 163,599 102,243
Expenses:
Operating and maintenance 67,436 43,479
General and administrative 7,291 4,527
Interest 27,282 16,347
Depreciation and amortization 25,527 14,949
Loss on available-for-sale securities 2,123 -
Non-recurring acquisition expense 6,225 -
Total expenses 135,884 79,302
Income before gain on disposition of property,
minority interest and extraordinary item 27,715 22,941
Gain on disposition of property 457 -
Income before minority interest and
extraordinary item 28,172 22,941
Minority interest 10,866 9,195
Income before extraordinary item 17,306 13,746
Extraordinary item, prepayment penalties, net
of $78 and $298 allocated to minority interest,
respectively ( 96) ( 446)
Net income $ 17,210 $ 13,300
Basic earnings per share data:
Income before extraordinary item $.94 $1.08
Extraordinary item (.01) (.04)
Net income $.93 $1.04
Diluted earnings per share data:
Income before extraordinary item $.93 $1.06
Extraordinary item - (.03)
Net income $.93 $1.03
Weighted average number of shares outstanding:
Basic 18,458,819 12,785,427
Diluted 18,566,521 12,951,135
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
(UNAUDITED, IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Revenues:
Rental income $ 62,150 $ 39,732
Property other income 1,819 1,151
Interest and dividend income 1,537 1,535
Other income 672 740
Total revenues 66,178 43,158
Expenses:
Operating and maintenance 26,473 17,842
General and administrative 2,964 1,983
Interest 11,606 7,260
Depreciation and amortization 9,667 6,050
Non-recurring acquisition expense 6,225 -
Total expenses 56,935 33,135
Income before minority interest and
extraordinary item 9,243 10,023
Minority interest 4,137 3,726
Income before extraordinary item 5,106 6,297
Extraordinary item, prepayment penalties, net
of $78 and $93 allocated to minority interest,
respectively (96) (156)
Net income $ 5,010 $ 6,141
Basic earnings per share data:
Income before extraordinary item $.27 $.39
Extraordinary item (.01) (.01)
Net income $.26 $.38
Diluted earnings per share data:
Income before extraordinary item $.27 $.39
Extraordinary item (.01) (.01)
Net income $.26 $.38
Weighted average number of shares
outstanding - Basic
19,047,696 16,085,368
- Diluted 19,192,769 16,228,512
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
(UNAUDITED, IN THOUSANDS)
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Cash flows from operating activities:
Net income $17,210 $13,300
Adjustments to reconcile net income to net
cash provided by operating activities:
Equity in income of HP Management and Conifer Realty ( 329) ( 226)
Income allocated to minority interest 10,866 9,195
Extraordinary item allocated to minority interest (78) ( 298)
Depreciation and amortization 26,113 15,824
Unrealized loss on available-for-sale securities ( 1,607) -
Gain/loss on disposition of property ( 457) -
Changes in assets and liabilities:
Other assets 8,094 ( 8,819)
Accounts payable and accrued liabilities 13,036 9,228
Total adjustments 55,638 24,904
Net cash provided by operating activities 72,848 38,204
Cash flows used in investing activities:
Purchase of properties, net of mortgage notes assumed
and UPREIT Units issued (104,890) (225,259)
Additions to properties ( 37,300) ( 26,604)
Deposits on property ( 332) 495
Advances to affiliates ( 31,665) ( 47,273)
Payments on advances to affiliates 22,331 22,538
Other 1,099 -
Net cash used in investing activities (150,757) (276,103)
Cash flows from financing activities:
Proceeds from sale of common stock 40,650 173,862
Proceeds from sale of convertible preferred stock 48,741 -
Purchase of treasury stock ( 2,578) ( 1,437)
Proceeds from mortgage notes payable 32,978 128,600
Payments of mortgage notes payable ( 34,581) ( 31,196)
Proceeds from line of credit 73,700 146,300
Payments on line of credit ( 53,900) (138,750)
Additions to deferred loan costs ( 522) ( 1,779)
Additions to and payments received from cash escrows ( 11,838) ( 6,982)
Dividends and distributions paid ( 41,010) ( 27,579)
Net cash provided by financing activities 51,640 241,039
Net increase (decrease) in cash ( 26,269) 3,140
Cash and cash equivalents:
Beginning of period 33,446 3,809
End of period $ 7,177 $ 6,949
Supplemental disclosure of cash flow information:
Cash paid for interest $ 24,510 $ 15,499
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED, IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
1. UNAUDITED INTERIM FINANCIAL STATEMENTS
The interim consolidated financial statements of Home Properties of
New York, Inc. (the "Company") are prepared pursuant to the
requirements for reporting on Form 10-Q. Accordingly, certain
disclosures accompanying annual financial statements prepared in
accordance with generally accepted accounting principles are omitted.
The year-end balance sheet data was derived from audited financial
statements, but does not include all disclosures required by generally
accepted accounting principles. In the opinion of management, all
adjustments, consisting solely of normal recurring adjustments,
necessary for the fair presentation of the consolidated financial
statements for the interim periods have been included. The current
period's results of operations are not necessarily indicative of
results which ultimately may be achieved for the year. The interim
consolidated financial statements and notes thereto should be read in
conjunction with the financial statements and notes thereto included
in the Company's Form 10-K, as filed with the Securities and Exchange
Commission on March 17, 1999.
2. ORGANIZATION AND BASIS OF PRESENTATION
ORGANIZATION
Home Properties of New York, Inc. (the " Company " ) was formed in
November 1993, as a Maryland corporation and is engaged primarily in
the ownership, management, acquisition and development of residential
apartment communities in the Northeastern, Mid-Atlantic and Midwestern
United States. As of September 30, 1999, the Company operated 294
apartment communities with 45,081 apartments. Of this total, the
Company owned 125 communities, consisting of 33,373 apartments,
managed as general partner 7,710 apartments and fee managed 3,998
apartments for affiliates and third parties. The Company also fee
manages 1.7 million square feet of office and retail properties.
BASIS OF PRESENTATION
The accompanying consolidated financial statements include the
accounts of the Company and its 55.0% (62.4% at September 30, 1998)
general partnership interest in the Operating Partnership. The
remaining 45.0% (37.6% at September 30, 1998) is reflected as Minority
Interest in these consolidated financial statements. For financing
purposes, the Company has formed a limited liability company (the
"LLC") and a partnership (the "Financing Partnership") which
beneficially own certain apartment communities encumbered by mortgage
indebtedness. The LLC is wholly owned by the Operating Partnership.
The Financing Partnership is owned 99.9% by the Operating Partnership
and .1% by Home Properties Trust, a wholly owned qualified REIT
subsidiary (QRS) of Home Properties of New York, Inc. All significant
intercompany balances and transactions have been eliminated in these
consolidated financial statements.
3. EARNINGS PER COMMON SHARE
Basic earnings per share ("EPS") is computed as net income divided by
the weighted average number of common shares outstanding for the
period. Diluted EPS reflects the potential dilution that could occur
from common shares issuable through stock-based compensation including
stock options and the conversion of preferred stock. The exchange of
an Operating Partnership Unit for common stock will have no effect on
diluted EPS as unitholders and stockholders effectively share equally
in the net income of the Operating Partnership.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS CONT'D
(UNAUDITED, IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
3. EARNINGS PER COMMON SHARE CONT'D
Net income is the same for both the basic and diluted
calculation. The reconciliation of the basic weighted average
shares outstanding and diluted weighted average shares
outstanding for the nine and three months ended September 30,
1999 and 1998 is as follows:
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Basic weighted average number of
shares outstanding 18,458,819 12,785,427 19,047,696 16,085,368
Effect of dilutive stock options 101,550 165,708 126,817 143,144
Effect of convertible preferred stock 6,152 - 18,256 -
Diluted weighted average number
of shares outstanding 18,566,521 12,951,135 19,192,769 16,228,512
</TABLE>
4. COMPREHENSIVE INCOME
Total comprehensive income for the nine and three months ended
September 30, 1999 and 1998 is as follows:
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Net income $17,210 $13,300 $5,010 $6,141
Comprehensive income:
Unrealized loss
on available-for-sale
securities - - - -
Net comprehensive income
$17,210 $13,300 $5,010 $6,141
</TABLE>
5. OTHER INCOME
Other income for the nine and three months ended
September 30, 1999 and 1998 is summarized as follows:
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Management fees $1,180 $991 $446 $386
Development fees 601 504 210 117
Other 109 133 56 32
Management Companies 330 226 (40) 205
$2,220 $1,854 $672 $740
</TABLE>
Certain property management, leasing and development activities are
performed by Home Properties Management, Inc. and Conifer Realty
Corporation (the "Management Companies"). The Operating Partnership
owns non-voting common stock in the Management Companies which
entitles the Operating Partnership to receive 95% (99% in 1998) of the
economic interest in the Management Companies. The Company's share of
income from the Management Companies for the nine and three months
ended September 30 1999 and 1998 is summarized as follows:
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS
1999 1998 1999 1998
<S> <C> <C> <C> <C>
Management fees $ 2,827 $ 2,576 $ 974 $ 988
Development fees 3,829 3,427 1,184 1,258
Miscellaneous 78 62 40 13
General and administrative
(5,259) (5,150) (1,787) (1,808)
Interest expense ( 766) ( 485) ( 324) ( 188)
Other expenses ( 362) ( 202) ( 129) ( 56)
Net income 347 228 ( 42) 207
Company's share $ 330 $ 226 ($ 40) $ 205
</TABLE>
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS CONT'D
(UNAUDITED, IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
6. SEGMENT REPORTING
The Company has engaged in two primary business segments - the
ownership and management of market rate apartment communities and the
management and development of government assisted housing. Company
management views each apartment community as a separate component of
the operating segment. The Company's two reportable segments are
managed separately as each requires different operating strategies and
management expertise. There are no material intersegment sales or
transfers.
Non-segment revenue to reconcile total revenue consists of
unconsolidated management and development fees and interest income.
Non-segment assets to reconcile to total assets include cash, cash in
escrows, accounts receivable, prepaid expenses, deposits, investments
in and advances to affiliates, deferred charges and other assets.
The Company assesses and measures segment operating results based
on FFO.
The revenues, profit (loss), and assets for each of the reportable
segments are summarized as follows for the nine and three months ended
September 30, 1999 and 1998.
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS
1999 1998 1999 1998
<S> <C> <C> <C> <C>
REVENUES
Apartments owned $156,030 $ 96,693 $ 63,969 $40,883
Management & development fees 8,624 7,693 2,910 2,794
Reconciling items ( 1,055) ( 2,143) ( 701) ( 519)
Total Revenue $163,599 $102,243 $ 66,178 $43,158
PROFIT (LOSS)
Funds from operations:
Apartments owned $ 88,594 $ 53,214 $ 37,496 $23,041
Management & development fees 2,220 1,854 672 740
Reconciling items 5,349 3,696 1,537 1,535
Segment contribution to FFO 96,163 58,764 39,705 25,316
General & administrative expenses ( 7,291) ( 4,527) ( 2,964) (1,983)
Interest expense ( 27,282) ( 16,347) (11,606) (7,260)
Unconsolidated depreciation 368 340 147 72
Non-recurring amortization - 294 - 294
Non-real estate depreciation/amort. ( 229) ( 150) ( 93) ( 59)
Funds from Operations 61,729 38,374 25,189 16,380
Depreciation - apartments owned ( 25,298) ( 14,799) ( 9,574) 5,991)
Unconsolidated depreciation ( 368) ( 340) ( 147) ( 72)
Non-recurring amortization - ( 294) - ( 294)
Gain on disposition of properties 457 - - -
Loss on available-for-sale securities ( 2,123) - - -
Non-recurring acquisition expense ( 6,225) - ( 6,225) -
Minority interest in earnings ( 10,866) ( 9,195) ( 4,137) (3,726)
Extraordinary items, net of minority
interest ( 96) ( 446) ( 96) ( 156)
Net Income $ 17,210 $ 13,300 $ 5,010 $ 6,141
ASSETS
Apartments owned $1,340,979 $ 866,846
Apartments managed 604 832
Reconciling items 130,096 109,991
Total Assets $1,471,679 $ 977,669
</TABLE>
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED, IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
7. PRO FORMA FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Pro Forma Combined Statement of
Operations FOR THE NINE MONTHS
ENDED SEPT. 30, 1999
Home
Properties Pro Forma Company
HISTORICAL ADJUSTMENT PRO FORMA
<S> <C> <C> <C>
Revenue:
Rental income $151,523 $ 40,334 $ 191,857
Property other income 4,507 766 5,273
Interest and dividend income 5,349 - 5,349
Other income 2,220 - 2,220
Total Revenues 163,599 41,100 204,699
Expenses:
Operating and Maintenance 67,436 17,276 84,712
General and administrative 7,291 1,233 8,524
Interest 27,282 10,537 37,819
Depreciation and amortization 25,527 5,979 31,506
Loss on available-for-sale securities 2,123 - 2,123
Non-recurring acquisition expense 6,225 - 6,225
Total Expenses 135,884 35,025 170,909
Income before gain on disposition of property,
minority interest and extraordinary item 27,715 6,075 33,790
Gain on disposition of property 457 - 457
Income before minority Interest and
extraordinary item $28,172 $ 6,075 34,247
Minority interest 15,491
Net income before extraordinary item 18,756
Extraordinary item ( 95)
Net income $ 18,661
Net income per common share - Basic $ 1.01
- Diluted $ 1.01
Weighted average number of
shares outstanding - Basic 18,458,819
- Diluted 18,566,521
</TABLE>
The pro forma information was prepared as if the transactions related
to the acquisition of the Manor Apartments (on February 18, 1999, 198
units for $7,200), Ridgeway Court Apartments (on February 22, 1999, 66
units for $2,150), Springwell Park Apartments (on April 7, 1999, 303
units for $18,200), Sherwood Gardens Apartments (on May 27, 1999, 103
units for $4,100) , the CRC Portfolio (on July 1, 1999, 3,722 units
for $180,600), Maple Lane Apartments (on July 9, 1999, 396 units for
$17,400), the Mid-Atlantic Portfolio (on July 15, 1999, 3,297 units
for $157,500), the Ridley Portfolio (on July 29, 1999, 825 units for
$32,300) and the Colony Apartments (on September 1, 1999, 783 units
for $41,500) had occurred on January 1, 1999.
Adjustments to the pro forma combined statements of operations for the
nine months ended September 30, 1999, consist principally of providing
net property operating activity and recording interest, depreciation
and amortization from January 1, 1999 to the acquisition date.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following discussion is based primarily on the consolidated financial
statements of Home Properties of New York, Inc. as of September 30, 1999
and 1998 and for the nine and three month periods then ended. This
information should be read in conjunction with the accompanying
consolidated financial statements and notes thereto.
FORWARD-LOOKING STATEMENTS
This discussion contains forward-looking statements. Although the Company
believes expectations reflected in such forward-looking statements are
based on reasonable assumptions, it can give no assurance that its
expectations will be achieved. Factors that may cause actual results to
differ include general economic and local real estate conditions, other
conditions that might affect operating expenses, the timely completion of
repositioning and current development activities within anticipated
budgets, the actual pace of future acquisitions and developments and
continued access to capital to fund growth.
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal liquidity demands are expected to be distributions
to stockholders, capital improvements and repairs and maintenance for the
properties, acquisition of additional properties, property development and
scheduled debt maturities.
The Company intends to meet its short-term liquidity requirements through
net cash flows provided by operating activities and its unsecured line of
credit. The Company considers its ability to generate cash to continue to
be adequate to meet all operating requirements and make distributions to
its stockholders in accordance with the provisions of the Internal Revenue
Code, as amended, to enable the Company to qualify as a REIT.
As of September 30, 1999 the Company had a $100 million unsecured line of
credit from M&T Bank, with $19.8 million outstanding. Borrowings under the
line of credit bear interest at 1.25% over the one-month LIBOR rate (6.88%
at September 30, 1999). Accordingly, increases in interest rates will
increase the Company's interest expense and as a result will effect the
Company's results of operations and financial condition. The unsecured
credit facility expires on September 4, 2000.
To the extent that the Company does not satisfy its long-term liquidity
requirements through net cash flows provided by operating activities and
its credit facilities, it intends to satisfy such requirements through the
issuance of UPREIT units, proceeds from the Dividend Reinvestment Plan
("DRIP"), long term secured or unsecured indebtedness, or the issuance of
additional equity securities. As of September 30, 1999, the Company owned
thirty-one properties with 5,799 apartment units, which were unencumbered
by debt.
In May, 1998, the Company's Form S-3 Registration Statement was declared
effective relating to the issuance of up to $414 million of shares of
common stock or other securities. During 1998, $125.6 million of common
shares were issued from this and a previous shelf registration in various
public and private offerings. On September 30, 1999, the Company completed
the sale of $50 million of convertible preferred stock in a private
transaction with GE Capital. The convertible preferred stock will carry an
annual dividend rate equal to the greater of 8.36% or the actual dividend
paid on the Company's common shares, a conversion price of $29.77 per
share, and a five-year, non-call provision. The available balance on the
shelf at September 30, 1999 is $283.7 million.
<PAGE>
HOME PROPERTIES OF NEW YORK, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION CONT'D
The issuance of UPREIT Units for property acquisitions continues to be a
significant source of capital. During 1998, 4,512 apartment units in eight
separate transactions were acquired for a total cost of $176 million using
UPREIT Units valued at approximately $71 million, with the balance paid in
cash or assumed debt. During the first nine months of 1999, 8,147
apartment units in four separate transactions were acquired for a total
cost of $389 million using UPREIT units valued at approximately $148
million, with the balance paid in cash or assumed debt.
During 1998, over $72 million of common stock was issued under the
Company's DRIP, approximately twice the level of the previous year. An
additional $38.9 million has been raised through the DRIP program during
the first nine months of 1999.
The Company's Board of Directors approved a stock repurchase program under
which the Company may repurchase up to one million shares of its
outstanding common stock. The Board's action did not establish a target
price or a specific timetable for repurchase. During 1998, the Company
repurchased 59,600 shares at a cost of $1.4 million. An additional 109,600
shares were repurchased during the first nine months of 1999 at a cost of
$2.6 million. During the second quarter of 1999, all shares repurchased
through this program, which had been held as Treasury Stock, were retired.
As of September 30, 1999, the weighted average rate of interest on mortgage
debt is 7.4% and the weighted average maturity is approximately 12 years.
Approximately 96% of the debt is fixed rate. This limits the exposure to
changes in interest rates, minimizing the effect on results of operations
and financial condition.
<PAGE>
The following table sets forth information regarding the mortgage
indebtedness at September 30, 1999.
<TABLE>
<CAPTION>
Principal
Interest Balance
Rate as OF
of as SEPT. 30,
SEPTEMBER 30, Maturity 1999
COMMUNITIES LOCATION 1999 DATE (000'S)
FIXED RATE
<S> <C> <C> <C> <C>
Springwood Philadelphia, PA 8.50% 11/01/01 1,454
Valley View Philadelphia, PA 8.50% 11/01/01 3,296
Royal Gardens Piscataway, NJ 7.66% 08/01/02 11,456
Colony Chicago, IL 7.60% 08/01/02 16,283
Brook Hill Rochester, NY 7.75% 11/01/02 4,802
Garden Village Buffalo, NY 7.75% 11/01/02 4,519
1600 Elmwood Rochester, NY 7.75% 11/01/02 5,273
Village Green Syracuse, NY 7.75% 11/01/02 4,708
Racquet Club Philadelphia, PA 7.63% 11/01/03 12,010
Curren Terrace Philadelphia, PA 8.36% 11/01/03 9,488
Rolling Park Baltimore, MD 7.88% 11/01/03 2,820
Sherry Lake Philadelphia, PA 7.88% 01/01/04 6,495
Glen Manor Philadelphia, PA 8.13% 05/01/04 3,660
Colonies Chicago, IL 8.88% 05/01/04 12,366
Seminary Towers Washington, DC 8.22% 07/01/04 2,757
Seminary Towers Washington, DC 8.40% 07/01/04 2,523
Springcreek/Meadows Rochester, NY 7.63% (1) 08/01/04 3,114
Idylwood Buffalo, NY 8.63% 11/01/05 9,245
Carriage Hill Dearborn, MI 7.36% 01/01/06 3,859
Carriage Park Dearborn, MI 7.48% 01/01/06 5,560
Cherry Hill Dearborn, MI 7.99% 01/01/06 4,491
Mid Island Estates Bay Shore, NY 7.50% (2) 05/01/06 6,675
Newcastle Rochester, NY 7.90% (3) 07/31/06 6,000
Country Village Baltimore, MD 8.39% 08/01/06 6,623
Raintree Island Buffalo, NY 8.50% 11/01/06 6,323
Woodgate Place Rochester, NY 7.87% 01/01/07 3,414
Strawberry Hill Baltimore, MD 8.26% 05/01/07 2,059
Pavilion Baltimore, MD 7.45% 01/01/08 3,936
Maple Lane South Bend, IN 7.21% 01/01/08 5,979
Valley Park South Bethlehem, PA 6.93% 01/01/08 9,996
Hamlet Court Rochester, NY 7.11% 02/01/08 1,772
Candlewood South Bend, IN 7.02% 03/01/08 7,814
Multi-property Detroit, MI 7.51% 06/01/08 48,727
Canterbury Baltimore, MD 7.67% 06/01/08 2,217
Sherwood Gardens Philadelphia, PA 6.98% 07/01/08 3,067
Multi-property Philadelphia, PA 8.00% 07/28/09 15,750
Conifer Village Syracuse, NY 7.20% 06/01/10 2,610
Ridgeway Court Philadelphia, PA 8.38% 11/01/10 1,189
Multi-property Various 7.25% 11/01/10 32,978
Multi-property Various 6.16% 01/01/11 58,881
Timbercroft Baltimore, MD 8.50% 05/01/11 962
Timbercroft Baltimore, MD 8.00% 02/01/12 1,289
Village Square Baltimore, MD 7.00% 11/01/12 1,065
Morningside/Carriage Hill Baltimore, MD 6.99% 05/01/13 20,174
Multi-property Various 6.48% 08/31/13 100,000
Springwell Park Dearborn, MI 8.00% 07/01/15 11,631
Pines of Perinton Rochester, NY 8.50% 05/01/18 8,733
Canterbury Baltimore, MD 8.50% 06/01/18 3,081
Canterbury Baltimore, MD 7.50% 06/01/18 3,780
Pavilion Baltimore, MD 8.00% 11/01/18 8,975
Bonnie Ridge Baltimore, MD 6.60% 12/15/18 19,629
Timbercroft Baltimore, MD 8.38% 06/01/19 5,865
Canterbury Baltimore, MD 7.50% 09/01/19 3,744
Village Green (Fairways) Syracuse, NY 8.23% 10/01/19 4,374
Raintree Island Buffalo, NY 8.50% 05/01/20 1,166
Chestnut Crossing Wilmington, DE 9.34% 07/01/20 10,017
Village Square Baltimore, MD 8.13% 08/01/21 6,633
Doub Meadow Baltimore, MD 7.50% 10/01/21 2,931
Canterbury Baltimore, MD 7.50% 11/01/21 2,599
Shakespeare Park Baltimore, MD 7.50% 01/01/24 2,643
Gateway Village Baltimore, MD 8.00% 05/01/30 6,420
Owings Run Baltimore, MD 8.00% 10/01/35 17,690
Owings Run Baltimore, MD 8.00% 06/01/36 14,740
614,330
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Principal
Interest Balance
Rate as OF
of as SEPT. 30,
SEPTEMBER 30, Maturity 1999
COMMUNITIES LOCATION 1999 DATE (000'S)
VARIABLE RATE
<S> <C> <C> <C> <C>
Unsecured Line N/A 6.88% On demand 19,800
Maple Lane South Bend, IN 5.80% 07/27/07 6,335
$640,465
</TABLE>
(1) Fixed through July 31, 2000, then prime +.5% until maturity.
(2) Fixed through March 31, 2001; then 7.75% until maturity.
(3) Fixed through July 31, 2001, then variable.
RESULTS OF OPERATIONS
COMPARISON OF NINE MONTHS ENDED SEPTEMBER 30, 1999 TO THE SAME PERIOD IN
1998
The Company had 62 apartment communities with 14,048 units which were owned
during both of the nine and three month periods being presented (the "Core
Properties"). The Company has acquired an additional 63 apartment
communities with 19,325 units during 1998 and 1999 (the "Acquired
Communities"). The inclusion of these Acquired Communities generally
accounted for the significant changes in operating results for the nine and
three months ended September 30, 1999.
A summary of the Core Property net operating income is as follows:
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS
1999 1998 % CHG 1999 1998 % CHG
<S> <C> <C> <C> <C> <C> <C>
Rent $78,614,000 $74,311,000 5.8% $26,566,000 $25,240,000 5.3%
Property other income 2,429,000 2,063,000 17.7% 863,000 703,000 22.8%
Total income 81,043,000 76,374,000 6.1% 27,429,000 25,943,000 5.7%
Operating and
Maintenance (36,225,000) (35,669,000) (1.6%) (11,526,000) (12,050,000) 4.3%
Net operating income $44,818,000 $40,705,000 10.1% $15,903,000 $13,893,000 14.5%
</TABLE>
Of the $57,327,000 increase in rental income, $53,024,000 is attributable
to the Acquired Communities. The balance of this increase, which is from
the Core Properties, was the result of an increase of 4.7% in weighted
average rental rates, plus an increase in occupancy from 93.7% to 94.7%.
Of the $2,010,000 increase in property other income, $1,553,000 is
attributable to the Acquired Communities, with $366,000 representing a
17.7% increase for the Core Properties. This increase reflects increased
laundry and furniture/corporate rental activity. The balance, a $91,000
increase, is from the Company's share of income/loss from various general
partnership interests.
Interest and dividend income increased $1,653,000, primarily attributable
to an increase in construction loans and advances made to affiliated tax
credit development partnerships, as well as $714,000 in dividend income
from an investment in available-for-sale securities.
Other income increased by $366,000 due primarily to an increased level of
management and development activity.
<PAGE>
Of the $23,957,000 increase in operating and maintenance expenses,
$23,401,000 is attributable to the Acquired Communities. The balance for
the Core Properties represents a 1.6% increase over 1998. The major areas
of increase in the Core Properties occurred in utilities, personnel and
snow removal costs. All of these items were affected by a more normal
winter following the unusually mild winter weather experienced in 1998.
General and administrative expense increased in 1999 by $2,764,000, or 61%.
General and administrative expenses as a percentage of total revenues was
4.5% for both periods presented.
During the second quarter of 1999, the Company disposed of its only retail
property at a gain. A 35,000 square foot shopping center in Columbus, Ohio
was sold for approximately $1,000,000 resulting in a gain on disposition of
approximately $500,000. In addition, the Company liquidated its original
$11.6 million investment in the common stock of Associated Estates Realty
Corporation (NYSE: AEC), recognizing a loss of $2,123,000. As anticipated,
the Company reported a non-recurring acquisition expense of $6,225,000
during the third quarter of 1999. In conjunction with the acquisition of
two large portfolios, this amount of the reported acquisition price was
allocated (based on the contracts) to the purchase of the related
management contracts. As the Company will self-manage the properties,
these management contracts have no future value and the cost was expensed
in the current quarter.
COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 1999 TO THE SAME PERIOD IN
1998
Of the $22,418,000 increase in rental income, $21,092,000 is attributable
to the Acquired Communities. The balance of this increase, which is from
the Core Properties, was the result of an increase of 4.9% in weighted
average rental rates, plus an increase in occupancy from 94.3% to 94.6%.
Of the $668,000 increase in property other income, $546,000 is attributable
to the Acquired Communities, with $160,000 representing a 22.8% increase
for the Core Properties. This increase reflects increased laundry and
furniture/corporate rental activity. The balance, a ($38,000) decrease, is
from the Company's share of income/loss from various general partnership
interests.
Interest and dividend income was relatively flat for the quarter.
Of the $8,631,000 increase in operating and maintenance expenses,
$9,155,000 is attributable to the Acquired Communities. The balance for
the Core Properties (a $524,000 reduction) represents a 4.3% decrease over
1998. The major area of decrease was in personnel expense, reflecting that
the third quarter of 1998 included fourteen weekly pay periods, versus
thirteen for 1999. This is a reversal of the first quarter, which included
only twelve pay periods in 1998.
FUNDS FROM OPERATIONS
Management considers funds from operations ("FFO") to be an appropriate
measure of performance of an equity REIT. The National Association of Real
Estate Investment Trusts ("NAREIT") revised White Paper definition of FFO
is income (loss) before gains (losses) from the sale of property, non-
recurring items, extraordinary items, before minority interest in the
Operating Partnership, plus real estate depreciation. Management believes
that in order to facilitate a clear understanding of the combined
historical operating results of the Company, FFO should be considered in
conjunction with net income as presented in the consolidated financial
statements included elsewhere herein. FFO does not represent cash
generated from operating activities in accordance with generally accepted
accounting principles and is not necessarily indicative of cash available
to fund cash needs. FFO should not be considered as an alternative to net
income as an indication of the Company's performance or to cash flow as a
measure of liquidity.
<PAGE>
The calculation of FFO for the previous six quarters are presented below:
<TABLE>
<CAPTION>
Sept. 30 June 30, March 31 Dec. 31 Sept. 30 June 30
1999 1999 1999 1998 1998 1998
<S> <C> <C> <C> <C> <C> <C>
Net income $5,010 $6,191 $6,011 $5,388 $6,141 $4,384
Minority interest 4,137 3,386 3,343 3,408 3,726 3,297
Extraordinary item 96 - - 514 156 290
Non-recurring acquisition
expense 6,225 - - - - -
Non-recurring interest
amortization - - - - 294 -
Depreciation from real property 9,574 8,247 7,477 8,183 5,991 4,770
Depreciation from real property
from unconsolidated entities 147 153 84 393 72 72
(Gain) Loss from sale of property - 1,650* - - - -
FFO $25,189 $19,627 $16,915 $17,886 $16,380 $12,813
Weighted average common
shares/units outstanding - Basic 34,485.9 28,530.2 27,810.1 27,129.4 25,603.7 21,312.3
- Diluted 34,630.9 28,634.8 27,898.4 27,245.7 25,746.9 21,500.9
</TABLE>
*Includes the loss from disposition of property investment separately
disclosed as loss on available-for-sale securities.
All REITs may not be using the strict White Paper definition for new FFO.
Accordingly, the above presentation may not be comparable to other
similarly titled measures of FFO of other REITs.
IMPACT OF THE YEAR-2000 ON SYSTEM PROCESSING
The Year 2000 ("Y2K") problem concerns the inability of information systems
to properly recognize and process date-sensitive information beyond January
1, 2000. As a result, the Y2K problem can affect any system that uses date
data, including mainframes, PCs, and embedded microprocessors that control
security systems, call-processing systems, building climate systems,
elevators, office equipment and even fire alarms. All references to
percent complete below are as November 1, 1999.
The Company's State of Readiness
The Company began addressing the Y2K issue in September 1997. As such it
divided its review into two segments: business critical and mission
critical systems. Business critical systems are those with the potential
to affect the financial and operational infrastructure of the Company.
Mission critical are those systems with a potential to affect the delivery
of electricity and natural gas to our residents, commercial tenants and
employees and the safety of residents, commercial tenants and employees.
Recognizing that the mission critical systems rely heavily on public
service vendors, the Company's focus to date has been on business critical
systems under the assumption that market forces and regulatory agencies
would encourage and monitor the compliance of the telecommunications,
utilities and emergency service industries. The Company has set up systems
to monitor the progress of mission critical service providers and will
develop contingency plans, possibly in coordination with industry
organizations, as needed, to minimize the possibility that the Y2K problem
would disrupt the lives of its residents, commercial tenants and employees.
The Company relies exclusively on micro computers (PC's). PC's exist in
the corporate office, regional offices and at the communities. The Company
is 95% complete with its review and modification of corporate office
systems towards Y2K compliance. Outstanding projects include: installing
Y2K compliant module of one non-critical property management software.
Specifically, the software vendors have advised the Company that the
property management, accounts payable and general ledger software and
payroll software is compliant. The Company will continue a dialog with all
software service providers so that any additional upgrades can be completed
as necessary.
The Company is complete with its review and modification of regional office
systems and 95% complete with
<PAGE>
its review and modification of community based systems. The Company has one
and one-half full-time employees dedicated to upgrading community based
systems. Additional information systems employees will assist as needed.
The Company anticipates its community based systems will be deemed
compliant by November 30,1999.
Throughout the remainder of the year, the Company plans to periodically
match its systems' inventory against hardware and software component
manufacturer upgrade releases to assure that its systems have the most
current Y2K upgrades (including any properties acquired).
The ability of the Company to successfully transact monetary exchanges is
key to continued successful operation. For this reason, all financial
institutions which the Company has a relationship were identified and
queried for Y2K readiness status during the second quarter of 1999. The
Company's significant relationships are with regional and national
financial institutions which are also subject to the oversight of various
federal regulatory agencies for their Y2K compliance. The Company
anticipates full compliance based on the responses received to date.
Delivery of goods and services (i.e., building and elevator access,
security systems, HVAC, life safety, etc.) to the Company's communities
and offices must continue to be provided without interruption. The Company
mailed surveys to all critical suppliers in July, 1999 and critical
suppliers have indicated their expected compliance.
Contingency Plans
Testing began in August 1999 to determine the Company's business critical
system readiness. Based on testing results, contingency plans may be put
in place. Community and regional leaders are considering "worst-case"
scenarios in order to anticipate potential problems.
Risks
Since the Company's major source of income is rental payments under term
leases at communities located in different municipalities, the failure of
business critical systems at any one community is not expected to have a
material adverse effect on the Company's financial condition, results of
operations and liquidity. Given the complexity and general uncertainty of
the Y2K issues in the gas, electric, telecommunications, banking and
related industries, even the most comprehensive program, however, cannot
assure that unforeseen problems will not occur. The Company therefore is
unable at this time to determine whether any unforeseen impacts could have
a material effect on the Company's financial condition. The Company
believes that upon the full implementation of our upgraded business system
and assuming Y2K compliance of our public service vendors, the possibility
of significant interruptions of normal operations should not be material.
Costs
The total cost of the Company's Y2K activities, which is estimated at
$675,000, is not expected to have a material effect on the Company's
financial position. Approximately $595,000 has been expended as of
November 1, 1999. The remaining expenditures to be incurred will be funded
from operations. A majority of these costs are an acceleration of the
amounts the Company would anticipate incurring to upgrade business systems,
regardless of the Y2K problem, considering the evolution of technology and
the requirements for running newly acquired and improved system
applications.
INFLATION
Substantially all of the leases at the communities are for a term of one
year or less, which enables the Company to seek increased rents upon
renewal of existing leases or commencement of new leases. These short-term
leases minimize the potential adverse effect of inflation on rental income,
although residents may leave without penalty at the end of their lease
terms and may do so if rents are increased significantly.
<PAGE>
DECLARATION OF DIVIDEND
On October 26, 1999, the Board of Directors approved a dividend of $.53 per
share for the period from
July 1, 1999 to September 30, 1999. This is the equivalent of an annual
distribution of $2.12 per share and reflects a 10.4% increase over the
Company's prior quarterly dividend of $.48 per share. The dividend is
payable November 24, 1999 to shareholders of record on November 16, 1999.
SUBSEQUENT EVENT
On November 5, 1999, the Company acquired 434 apartment units in one
community located in suburban Detroit, Michigan. The total purchase price
and closing costs of $26 million was paid entirely from a draw on the line
of credit facility.
<PAGE>
PART II - OTHER INFORMATION
HOME PROPERTIES OF NEW YORK, INC.
ITEM 6. EXHIBITS AND REPORTS OR FORM 8-K
(a) Exhibits:
10.42 Amendments Eighteen through Twenty-Five to the Second Amended and
Restated Limited Partnership Agreement
10.43 Credit Agreement, dated August 23, 1999 between Home Properties
of New York, L.P., The Lenders, Party Hereto and Manufacturers
and Traders Trust Company, as Administrative Agent
(b) Reports on Form 8-K:
- Form 8-K was filed on July 2, 1999, date of report July 1, 1999
with respect to various items 2 and 5 disclosures including: (1)
the previously disclosed acquisition of the equity interests in
seven different entities which each individually owned a single
asset, apartment communities in the Baltimore, Maryland; Richmond
and Alexandria, Virginia areas, in one transaction totaling
$178.3 million; (2) the addition of a new director; (3) the
amendment to the Company's Articles of Incorporation increasing
the authorized shares of common stock as approved at the Annual
Stockholders' Meeting; and (4) certain approvals at the Annual
Stockholders' Meeting of proposals contained in the Company's
proxy statement.
- Form 8-K/A was filed July 29, 1999 to amend the Form 8-K filed on
July 2, 1999 and included the item 7 disclosures of the financial
statement information
- Form 8-K was filed July 30, 1999, date of report July 15, 1999
with respect to an item 2 disclosure concerning the previously
disclosed acquisition of the equity interests in seventeen
different entities which each individually owned a single asset
(apartment community) in Maryland and Delaware, for a total
purchase price of $156.5 million.
- Form 8-K filed October 5, 1999, date of report February 18, 1999
with respect to various items 2 and 5 disclosures, including:
(1) the Operating Partnership's acquisition of the Ridley
Portfolio on July 29, 1999, which included four communities
located in suburbs of Philadelphia, Pennsylvania for a total
purchase price of $31.5 million; (2) the Operating Partnership's
acquisition of the Colony Apartments in Mt. Prospect, Illinois on
September 1, 1999 for a total purchase price of $41.5 million;
(3) five other unrelated transactions in which the Operating
Partnership acquired five multifamily residential properties in
Virginia, Pennsylvania, Michigan and Indiana.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HOME PROPERTIES OF NEW YORK, INC.
(Registrant)
Date: NOVEMBER 12, 1999
By: /S/ DAVID P. GARDNER
David P. Gardner
Vice President
Chief Financial Officer and Treasurer
Date: NOVEMBER 12, 1999
By: /S/ DAVID P. GARDNER
David P. Gardner
Vice President
Chief Financial Officer and Treasurer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
HOME PROPERTIES OF NEW YORK, INC.'S FINANCIAL STATEMENTS CONTAINED IN ITS
SEPTEMBER 30, 1999 FORM 10-Q AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> 9-MOS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<EXCHANGE-RATE> 1
<CASH> 7,177
<SECURITIES> 0
<RECEIVABLES> 7,077
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 1,431,710
<DEPRECIATION> 90,731
<TOTAL-ASSETS> 1,471,679
<CURRENT-LIABILITIES> 0
<BONDS> 620,665
0
20
<COMMON> 192
<OTHER-SE> 456,809
<TOTAL-LIABILITY-AND-EQUITY> 1,471,679
<SALES> 0
<TOTAL-REVENUES> 163,599
<CGS> 0
<TOTAL-COSTS> 108,602
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 27,282
<INCOME-PRETAX> 28,172
<INCOME-TAX> 0
<INCOME-CONTINUING> 17,306
<DISCONTINUED> 0
<EXTRAORDINARY> (96)
<CHANGES> 0
<NET-INCOME> 17,210
<EPS-BASIC> .93
<EPS-DILUTED> .93
</TABLE>
EXHIBIT 10.42
Home Properties of New York, L.P.
Amendment No. Eighteen to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective April 7, 1999 to substitute the "Schedule A" attached hereto
for the "Schedule A" currently attached to the Partnership Agreement.
"Schedule A" is hereby amended to reflect various changes.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
Home Properties of New York, L.P.
Amendment No. Nineteen to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective May 18, 1999 to substitute the "Schedule A" attached hereto for the
"Schedule A" currently attached to the Partnership Agreement. "Schedule A" is
hereby amended to reflect various changes.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
Home Properties of New York, L.P.
Amendment No. Twenty to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective July 1, 1999 to substitute the "Schedule A" attached hereto for the
"Schedule A" currently attached to the Partnership Agreement. "Schedule A" is
hereby amended to reflect various changes, including the issuance of limited
partnership interests to certain of the former holders of interests in various
entities owning the 3,722 unit CRC Portfolio and to Community Realty Company,
Inc. in consideration of the contribution of certain assets.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
Home Properties of New York, L.P.
Amendment No. Twenty-One to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective July 15, 1999 to substitute the "Schedule A" attached hereto for the
"Schedule A" currently attached to the Partnership Agreement. "Schedule A" is
hereby amended to reflect various changes, including the issuance of limited
partnership interests to certain of the former holders of interests in various
entities owning the 3,297 unit Mid-Atlantic Portfolio.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
Home Properties of New York, L.P.
Amendment No. Twenty-Two to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective July 28, 1999 to substitute the "Schedule A" attached hereto for the
"Schedule A" currently attached to the Partnership Agreement. "Schedule A" is
hereby amended to reflect various changes, including the issuance of limited
partnership interests to certain of the former holders of interests in various
entities owning the 825 unit Ridley Portfolio.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
Home Properties of New York, L.P.
Amendment No. Twenty-Three to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective July 30, 1999 to substitute the "Schedule A" attached hereto for the
"Schedule A" currently attached to the Partnership Agreement. "Schedule A" is
hereby amended to reflect various changes, including the issuance of limited
partnership interests to Community Investment Strategies, Inc. in connection
with the acquisition of certain of its assets.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
Home Properties of New York, L.P.
Amendment No. Twenty-Four to
Second Amended and Restated
Agreement of Limited Partnership
The Second Amended and Restated Agreement of Limited Partnership of Home
Properties of New York, L.P. (the "Partnership Agreement") is hereby amended
effective August 17, 1999 to substitute the "Schedule A" attached hereto for
the "Schedule A" currently attached to the Partnership Agreement. "Schedule A"
is hereby amended to reflect various changes.
GENERAL PARTNER
Home Properties of New York, Inc.
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
LIMITED PARTNERS LISTED ON ATTACHED SCHEDULE A
By: Home Properties of New York, Inc.
as attorney in fact
/s/ Ann M. McCormick
Ann M. McCormick
Secretary
<PAGE>
AMENDMENT NO. 25 TO THE SECOND
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P.
This AMENDMENT No. 25 TO THE SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HOME PROPERTIES OF NEW YORK, L.P., dated as of September
30, 1999 (this "Amendment"), is being executed by Home Properties of New York,
Inc., a Maryland corporation (the "General Partner"), as the general partner of
Home Properties of New York, L.P., a New York limited partnership (the
"Partnership"), pursuant to the authority conferred on the General Partner by
Section 9. 1 0(b)(iii) of the Second Amended and Restated Agreement of Limited
Partnership of Home Properties of New York, L.P., dated as of September 23,
1997 (the "Agreement"). Capitalized terms used, but not otherwise defined
herein, shall have the respective meanings ascribed thereto in the Agreement.
WHEREAS, on September 30, 1999, the General Partner filed Articles
Supplementary amending its Charter to designate and classify 2,000,000 shares
of authorized but unissued shares of its prefer-red stock, par value $.01 per
share, as shares of its Series B Convertible Cumulative Preferred Stock, par
value $.01 per share (the "Series B Preferred Stock");
WHEREAS, in accordance with Section 3.04 of the Agreement, upon the
issuance of any such shares of Series B Preferred Stock, the General Partner
will contribute the net cash proceeds from such issuance to the QRS, which will
contribute such net cash proceeds to the Partnership in exchange for a number
of Partnership Preferred Units equal to the number of shares of Series B
Preferred Stock so issued, which Partnership Preferred Units shall have
designations, preferences and other rights, terms and provisions that are
substantially the same as the designations, preferences and other rights, terms
and provisions of the Series B Preferred Stock, except as otherwise set forth
herein; and
WHEREAS, pursuant to Section 3.03(a) of the Agreement, the General
Partner is authorized to determine the relative rights and powers of such
Partnership Preferred Units in its sole discretion.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. The Agreement is hereby amended by the addition of a new exhibit,
entitled "EXHIBIT D", in the form attached hereto, which shall be attached to
and made a part of the Agreement.
2. Except as specifically amended hereby, the terms, covenants, provisions
and conditions of the Agreement shall remain unmodified and continue in full
force and effect and, except as amended hereby, all of the terms, covenants,
provisions and conditions of the Agreement are hereby ratified and confirmed in
all respects.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
written above,
GENERAL PARTNER:
HOME PROPERTIES OF NEW YORK, INC.
By /s/ David P. Gardner
Name David P. Gardner
Title: Vice President
<PAGE>
EXHIBIT D
PARTNERSHIP UNIT DESIGNATION OF THE SERIES B PARTNERSHIP
PREFERRED UNITS OF HOME PROPERTIES OF NEW YORK, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of Partnership Preferred Units is hereby designated as "Series B
Partnership Preferred Units," and the number of Partnership Preferred Units
constituting such series shall be 2,000,000.
2. DEFINITIONS.
For purposes of the Series B Partnership Preferred Units, the following
terms shall have the meanings indicated in this Section 2, and capitalized
terms used and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement:
"AGREEMENT" shall mean the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of September 23, 1997, as
amended.
"CALL DATE" shall have the meaning set forth in paragraph (a) of Section 5
of this EXHIBIT D.
"COMMON Stock" shall mean the Common Stock, $0.01 par value per share, of
the General Partner or such shares of the General Partner's capital stock
into which outstanding shares of Common Stock shall be reclassified.
"DISTRIBUTION PAYMENT DATE" shall mean any date on which cash dividends
are paid on all outstanding shares of the Series B Preferred Stock.
"JUNIOR PARTNERSHIP UNITS" shall have the meaning set forth in paragraph
(c) of Section 9 of this EXHIBIT D.
"PARITY PARTNERSHIP UNITS" shall have the meaning set forth in paragraph
(b) of Section 9 of this EXHIBIT D.
"PARTNERSHIP" shall mean Home Properties of New York, L.P., a New York
limited partnership.
"REPURCHASE DATE " SHALL have the meaning set forth in paragraph (a) of
Section 6 of this Exhibit D.
<PAGE>
"SERIES B ARTICLES SUPPLEMENTARY " MEANS the Articles Supplementary to
the Amended and restated Articles of Incorporation of the General Partner,
dated September 29, 1999, designating the Series B Preferred Stock.
"PARTNERSHIP COMMON UNITS" shall mean a fractional, undivided share of
the Partnership Interests of all Partners issued pursuant to Section 3.01
and 3.02 of the Agreement.
"SENIOR PARTNERSHIP UNITS" shall have the meaning set forth in paragraph
(a) of Section 8 of this Exhibit D.
"SERIES B PARTNERSHIP PREFERRED UNIT" means a Partnership Preferred Unit
with the designations, preferences and relative, participating, optional
or other special rights, powers and duties as are set forth in this
Exhibit D. It is the intention of the General Partner that each Series B
Partnership Preferred Unit shall be substantially the economic equivalent
of one share of Series B Preferred Stock.
"SERIES B PREFERRED STOCK" means the Series B Convertible Cumulative
Preferred Stock, par value $0.01 per share, of the General Partner, with
the preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption set forth in the Series B Articles Supplementary.
3 DISTRIBUTIONS.
On every Distribution Payment Date, the holders of Series B
Partnership Preferred Units shall be entitled to receive distributions payable
in cash in an amount per Series B Partnership Preferred Unit equal to the per
share dividend payable on the Series B Preferred Stock on such Distribution
Payment Date. Each such distribution shall be payable to the holders of record
of the Series B Partnership Preferred Units, as they appear on the records of
the Partnership at the close of business on the record date for the dividend
payable with respect to the Series B Preferred Stock on such Distribution
Payment Date. Holders of Series B Partnership Preferred Units shall not be
entitled to any distributions on the Series B Partnership Preferred Units,
whether payable in cash, property or stock, except as provided herein.
4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
the Partnership, whether voluntary or involuntary, before any payment or
distribution of the Partnership (whether capital, surplus or otherwise) shall
be made to or set apart for the holders of Junior Partnership Units, the
holders of Series B Partnership Preferred Units shall be entitled to receive
Twenty-Five Dollars ($25) per Series B Partnership Preferred Unit (the
"Liquidation Preference"), plus an amount per Series B Partnership Preferred
Unit equal to all dividends (whether or not declared) accumulated, accrued and
unpaid on one share of Series B Preferred Stock to the date of final
distribution to such holders; but such holders shall not be entitled to any
further payment. Until the holders of the Series B Partnership Preferred Units
have been paid the Liquidation Preference in full, plus an amount equal to all
dividends (whether or not declared) accumulated, accrued and unpaid on the
Series B Preferred Stock to the date of final distribution to such holders, no
payment shall be made to any holder of Junior Partnership Units upon the
liquidation, dissolution or winding up of the Partnership. If, upon any
liquidation, dissolution or winding up of the Partnership, the assets of the
Partnership, or proceeds thereof. distributable among the holders of Series B
Partnership Preferred Units shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any Parity
Partnership Units, then such assets, or the proceeds thereof, shall be
distributed among the holders of Series B Partnership Preferred Units and any
such Parity Partnership Units ratably in the same proportion as the respective
amounts that would be payable on such Series B Partnership Preferred Units and
any such other Parity Partnership Units if all amounts payable thereon were
paid in full. For the purposes of this Section 4, (i) a consolidation or merger
of the Partnership with one or more partnerships, or (ii) a sale or transfer of
all or substantially all of the Partnership's assets shall not be deemed to be
a liquidation, dissolution or winding up, voluntary or involuntary, of the
Partnership.
(b) Upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to the holders of
Series B Partnership Preferred Units and any Parity Partnership Units, as
provided in this Section 4, any other series or class or classes of Junior
Partnership Units shall, subject to the respective terms thereof, be entitled
to receive any and all assets remaining to be paid or distributed, and the
holders of the Series B Partnership Preferred Units and any Parity Partnership
Units shall not be entitled to share therein.
5. REDEMPTION.
Series B Partnership Preferred Units shall be redeemable by the
Partnership as follows:
(a) At any time that the General Partner exercises its right to
redeem all or any of the shares of Series B Preferred Stock, the General
Partner shall cause the Partnership to redeem an equal number of Series B
Partnership Preferred Units, at a redemption price per Series B Partnership
Preferred Unit equal to the same price paid by the General Partner to redeem
the Series B Preferred Stock, and such price shall be paid in the same manner
as paid by the General Partner for the Series B Preferred Stock redeemed on the
same date as the date of redemption of the Series B Preferred Stock (the "Call
Date"), in the manner set forth herein; provided, however, that in the event of
a redemption of Series B Partnership Preferred Units, if the Call Date occurs
after a dividend record date for the Series B Preferred Stock and on or prior
to the related Distribution Payment Date, the distribution payable on such
Distribution Payment Date in respect of such Series B Partnership Preferred
Units called for redemption shall be payable on such Distribution Payment Date
to the holders of record of such Series B Partnership Preferred Units on the
applicable dividend record date, and shall not be payable as part of the
redemption price for such Series B Partnership Preferred Units.
(b) If the Partnership shall redeem Series B Partnership Preferred Units
pursuant to paragraph (a) of this Section 5, from and after the Call Date
(unless the Partnership shall fail to make available the amount of cash or
other forms of consideration necessary to effect such redemption), (i) except
for payment of the redemption price, the Partnership shall not make any further
distributions on the Series B Partnership Preferred Units so called for
redemption, (ii) said units shall no longer be deemed to be outstanding, and
(iii) all rights of the holders thereof as holders of Series B Partnership
Preferred Units of the Partnership shall cease except the rights to receive the
cash payable upon such redemption, without interest thereon; provided, however,
that if a Call Date occurs after a dividend record date for the Series B
Preferred Stock and on or prior to the related Distribution Payment Date, the
full distribution payable on such Distribution Payment Date in respect of such
Series B Partnership Preferred Units called for redemption shall be payable on
such Distribution Payment Date to the holders of record of such Series B
Partnership Preferred Units on the applicable dividend record date
notwithstanding the prior redemption of such Series B Partnership Preferred
Units. No interest shall accrue for the benefit of the holders of Series B
Partnership Preferred Units to be redeemed on any cash set aside by the
Partnership.
<PAGE>
6. REPURCHASE
Series B Partnership Preferred Units shall be repurchased by the
Partnership if a "Fundamental Change" or "REIT Termination Event" (as such
terms are defined in the Series B Articles Supplementary) occurs and the
General Partner is required to repurchase any of the shares of Series B
Preferred Stock.
(a) At the time that the General Partner repurchases any of the shares of
Series B Preferred Stock, the General Partner shall cause the Partnership to
repurchase an equal number of Series B Partnership Preferred Units, at a price
per Series B Partnership Preferred Unit equal to the Repurchase Price specified
in the Series B Articles Supplementary for the shares of Series B Preferred
Stock, and such price shall be paid in the same manner as paid by the General
Partner for the Series B Preferred Stock repurchased on the same date as the
date of repurchase of the Series B Preferred Stock (the "Repurchase Date"), in
the manner set forth herein; provided, however, that in the event of a
repurchase of Series B Partnership Preferred Units, if the Repurchase Date
occurs after a dividend record date for the Series B Preferred Stock and on or
prior to the related Distribution Payment Date, the distribution payable on
such Distribution Payment Date in respect of such Series B Partnership
Preferred Units to be repurchased shall be payable on such Distribution Payment
Date to the holders of record of such Series B Partnership Preferred Units on
the applicable dividend record date, and shall not be payable as part of the
Repurchase Price for such Series B Partnership Preferred Units.
(b) If the Partnership shall repurchase Series B Partnership Preferred
Units pursuant to paragraph (a) of this Section 6, from and after the
Repurchase Date (unless the Partnership shall fail to make available the amount
of cash or other forms of consideration necessary to effect such redemption),
(i) except for payment of the redemption price, the Partnership shall not make
any further distributions on the Series B Partnership Preferred Units so called
for redemption, (ii) said units shall no longer be deemed to be outstanding,
and (iii) all rights of the holders thereof as holders of Series B Partnership
Preferred Units of the Partnership shall cease except the rights to receive the
cash payable upon such repurchase, without interest thereon; provided, however,
that if a Repurchase Date occurs after a dividend record date for the Series B
Preferred Stock and on or prior to the related Distribution Payment Date, the
full distribution payable on such Distribution Payment Date in respect of such
Series B Partnership Preferred Units called for redemption shall be payable on
such Distribution Payment Date to the holders of record of such Series B
Partnership Preferred Units on the applicable dividend record date
notwithstanding the prior redemption of such Series B Partnership Preferred
Units. No interest shall accrue for the benefit of the holders of Series B
Partnership Preferred Units to be redeemed on any cash set aside by the
Partnership.
7. STATUS OFREACQUIRED UNITS.
All Series B Partnership Preferred Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.
8. CONVERSION.
Series B Partnership Preferred Units shall be convertible as follows:
(a) Upon any conversion of shares of Series B Preferred Stock into
shares of Common Stock, the General Partner shall cause a number of Series B
Partnership Preferred Units equal to the number of such converted shares of
Series B Preferred Stock to be converted by the holders thereof into
Partnership Common Units. The conversion ratio in effect from time to time for
the conversion of Series B Partnership Preferred Units into Partnership Common
Units pursuant to this Section 8 shall at all times be equal to, and shall be
automatically adjusted as necessary to reflect, the conversion ratio in effect
from time to time for the conversion of Series B Preferred Stock into Common
Stock.
(b) In the event of a conversion of any Series B Partnership
Preferred Units, the Partnership shall make a cash payment to the holder
thereof equal to the cash payment required to be made by the General Partner to
the holder of the shares of Series B Preferred Stock the conversion of which
required the conversion of such Series B Partnership Preferred Units. Holders
of Series B Partnership Preferred Units at the close of business on a
distribution payment record date shall be entitled to receive the distribution
payable on such units on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such distribution payment
record date and prior to such Distribution Payment Date. Except as provided
above, the Partnership shall make no payment or allowance for unpaid
distributions on converted units or for distributions on the Partnership Common
Units issued upon such conversion. Each conversion of Series B Partnership
Preferred Units into Partnership Common Units shall be deemed to have been
effected at the same time and date that the corresponding conversion of Series
B Preferred Stock into Common Stock is deemed to have been effected.
(c) No fractional Partnership Common Units shall be issued upon
conversion of Series B Partnership Preferred Units. Instead of any fractional
Partnership Common Units that would otherwise be deliverable upon the
conversion of Series B Partnership Preferred Units, the Partnership shall pay
to the holder of such converted units an amount in cash equal to the cash
payable to a holder of an equivalent number of converted shares of Series B
Preferred Stock in lieu of fractional shares of Common Stock.
(d) The Partnership will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of (i) the issue or delivery
of Partnership Common Units or other securities or property on conversion or
redemption of Series B Partnership Preferred Units pursuant hereto, and (ii)
the issue or delivery of Common Stock or other securities or property on
conversion or redemption of Series B Preferred Stock pursuant to the terms
hereof.
9. RANKING.
Any class or series of Partnership Units of the Partnership shall be
deemed to rank:
(a) prior or senior to the Series B Partnership Preferred Units, as
to the payment of distributions and as to distributions of assets upon
liquidation, dissolution or winding up, if the holders of such class or series
shall be entitled to the receipt of distributions and of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in preference
or priority to the holders of Series B Partnership Preferred Units ("Senior
Partnership Units");
(b) on a parity with the Series B Partnership Preferred Units, as to
the payment of distributions and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the distribution rates, distribution
payment dates or redemption or liquidation prices per unit or other
denomination thereof be different from those of the Series B Partnership
Preferred Units if the holders of such class or series of Partnership Units and
the Series B Partnership Preferred Units shall be entitled to the receipt of
distributions and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
distributions per unit or other denomination or liquidation preferences,
without preference or priority one over the other (the Partnership Units
referred to in this paragraph being hereinafter referred to as "Parity
Partnership Units"), and
(c) junior to the Series B Partnership Preferred Units, as to the
payment of distributions and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series of Partnership Units shall
be Partnership Common Units or the holders of Series B Partnership Preferred
Units shall be entitled to receipt of distributions or of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in preference
or priority to the holders of such class or series of Partnership Units (the
Partnership Units referred to in this paragraph being hereinafter referred to,
collectively, as "Junior Partnership Units").
10. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to the
holders of Series B Partnership Preferred Units for any Fiscal Year (and, if
necessary, subsequent Fiscal Years) to the extent that the holders of Series B
Partnership Preferred Units receive a distribution on any Series B Partnership
Preferred Units (other than an amount included in any redemption pursuant to
Section 5 hereof) with respect to such Fiscal Year.
(b) If any Series B Partnership Preferred Units are redeemed
pursuant to Section 5 hereof, for the Fiscal Year that includes such redemption
(and, if necessary, for subsequent Fiscal Years) (a) gross income and gain (in
such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the holders of Series B Partnership Preferred
Units to the extent that the redemption amounts paid or payable with respect to
the Series B Partnership Preferred Units so redeemed exceeds the aggregate
Capital Contributions (net of liabilities assumed or taken subject to by the
Partnership) per Series B Partnership Preferred Unit allocable to the Series B
Partnership Preferred Units so redeemed and (b) deductions and losses (in such
relative proportions as the General Partner in its discretion shall determine)
shall be allocated to the holders of Series B Partnership Preferred Units to
the extent that the aggregate Capital Contributions (net of liabilities assumed
or taken subject to by the Partnership) per Series B Partnership Preferred Unit
allocable to the Series B Partnership Preferred Units so redeemed exceeds the
redemption amount paid or payable with respect to the Series B Partnership
Preferred Units so redeemed.
11. RESTRICTIONS ON OWNERSHIP.
The Series B Partnership Preferred Units shall be owned and held solely by
the General Partner or the QRS.
12. VOTE REQUIRED FOR AMENDMENT, MERGER, CONSOLIDATION, ETC.
So long as any Series B Partnership Preferred Units are outstanding, in
addition to any other vote or consent required by law or by the Agreement, the
affirmative vote of at least 66-2/3% of the holders of the Series B Partnership
Preferred Units, given in person or by proxy, either in writing without a
meeting or by vote at any meeting called for the purpose, shall be necessary
for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Agreement, the Amendment, or this Exhibit D thereto, that materially
and adversely affects the powers, rights or preferences of the holders of
the shares of Series B Partnership Preferred Units; PROVIDE , HOWEVER,
that the amendment of the provisions of the Agreement so as to authorize
or create or to increase the authorized amount of, any Junior Partnership
Units, or other Units that are not senior in any respect to the Series B
Partnership Preferred Units or any Parity Partnership Units shall not be
deemed to materially adversely affect the powers, rights or preferences
of the holders of Series B Partnership Preferred Units; or
(b) An exchange that affects the Series B Partnership Preferred
Units, a consolidation with or merger of the Partnership into another
entity, or a consolidation with or merger of another entity into the
Partnership, unless in each such case each Series B Partnership Preferred
Unit (i) shall remain outstanding without a material and adverse change
to its terms and rights or (ii) shall be converted into or exchanged for
convertible preferred securities of the surviving entity having
preferences, conversion or other rights, powers, restrictions,
limitations as to distributions, qualifications and terms or conditions
of redemption thereof identical to that of a Series B Partnership
Preferred Unit (except for changes that, do not materially and adversely
affect the holders of the Series B Partnership Preferred Units); or
(c) The authorization, reclassification or creation of, or the
increase in the authorized amount of, any Units of any series, or any
security convertible into Units of any series, ranking prior to the
Series B Partnership Preferred Units in the distribution of assets on any
liquidation, dissolution or winding up of the Partnership or in the
payment of distributions; or
(d) Any increase in the authorized amount of Series B Partnership
Preferred Units or decrease in the authorized amount of Series B
Partnership Preferred Units below the number of Series B Partnership
Preferred Units then issued and outstanding;
PROVIDED, however, that no such vote of the holders of Series B Partnership
Preferred Units shall be required if, at or prior to the time when such
amendment, alteration or repeal is to take effect, or when the issuance of any
such prior Units or convertible security is to be made, as the case may be,
provision is made for the redemption or repurchase of all Series B Partnership
Preferred Units at the time outstanding to the extent such redemption or
repurchase is authorized by Section 5 hereof.
For purposes of the foregoing provisions of this Section 12, each Series B
Partnership Preferred Unit shall have one (1) vote, except that when any other
series of Preferred Units shall have the right to vote with the Series B
Partnership Preferred Units as a single class on any matter, then the Series B
Partnership Preferred Units and such other series shall have with respect to
such matters one (1) vote per $25.00 of stated liquidation preference. Except
as otherwise required by applicable law or as set forth herein, the Series B
Partnership Preferred Units shall not have any relative, participating,
optional or other special voting rights and powers other than as set forth
herein, and the consent of the holders thereof shall not be required for the
taking of any Partnership action.
13. GENERAL
(a) The ownership of Series B Partnership Preferred Units may (but
need not, in the sole and absolute discretion of the General Partner) be
evidenced by one or more certificates. The General Partner shall amend Exhibit
A to the Agreement from time to time to the extent necessary to reflect
accurately the issuance of, and subsequent conversion, redemption, or any other
event having an effect on the ownership of, Series B Partnership Preferred
Units.
(b) The rights of the General Partner and the QRS, in their capacity
as holders of the Series B Partnership Preferred Units, are in addition to and
not in limitation of any other rights or authority of the General Partner or
the QRS, respectively, in any other capacity under the Agreement or applicable
law. In addition, nothing contained herein shall be deemed to limit or
otherwise restrict the authority of the General Partner or the QRS under the
Agreement, other than in their capacity as holders of the Series B Partnership
Preferred Units.
14. ECONOMIC EQUIVALENCY.
Notwithstanding any other provision of this EXHIBIT D, the shares of
Series B Preferred Stock and the Series B Partnership Preferred Units are
intended to be substantially equivalent in distributions and other payments. In
the event that any provision of this EXHIBIT D would result in a different
distribution or other payments being made to the holder of a Series B
Partnership Preferred Units than to a holder of a share of Series B Preferred
Stock, this Exhibit D shall be deemed automatically amended to conform to the
terms of the Series B Articles Supplementary with respect to such distribution
or other payment.
<PAGE>
August 17, 1999
SCHEDULE A
HOME PROPERTIES OF NEW YORK, L.P.
PARTNERS, UNITS AND PERCENTAGE INTERESTS
GENERAL PARTNER
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Home Properties of
New York, Inc. 850 Clinton Square 347,568.539 1.00000%
Rochester, New York 14604
LIMITED PARTNERS
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Home Properties Trust 850 Clinton Square 18,678,296.360 53.73989%
Rochester, New York 14604
Home Leasing Corporation 850 Clinton Square 429,376 1.23537%
Rochester, New York 14604
Leenhouts Ventures 850 Clinton Square 8,010 0.02305%
Rochester, New York 14604
Norman P. Leenhouts 850 Clinton Square 467 0.00134%
Rochester, New York 14604
Nelson B. Leenhouts 850 Clinton Square 219 0.00063%
Rochester, New York 14604
Arlene Z. Leenhouts 850 Clinton Square 50,000 0.14386%
Rochester, New York 14604
Nancy E. Leenhouts 850 Clinton Square 50,000 0.14386%
Rochester, New York 14604
Amy L. Tait 850 Clinton Square 11,195 0.03221%
Rochester, New York 14604
Amy L. Tait and 850 Clinton Square 2,548 0.00733%
Robert C. Tait Rochester, New York 14604
Ann M. McCormick 850 Clinton Square 565 0.00163%
Rochester, New York 14604
Ann M. McCormick and 850 Clinton Square 1,737 0.00500%
Patrick M. McCormick Rochester, New York 14604
David P. Gardner 850 Clinton Square 3,506 0.01009%
Rochester, New York 14604
William E. Beach 850 Clinton Square 2,433 0.00700%
Rochester, New York 14604
William E. Beach and 850 Clinton Square 3,046 0.00876%
Richelle A. Beach Rochester, New York 14604
Paul O'Leary 850 Clinton Square 3,207 0.00923%
Rochester, New York 14604
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Richard J. Struzzi 850 Clinton Square 2,363 0.00680%
Rochester, New York 14604
Robert C. Tait 850 Clinton Square 70 0.00020%
Rochester, New York 14604
Timothy A. Florczak 850 Clinton Square 600 0.00173%
Rochester, New York 14604
Laurie Leenhouts 850 Clinton Square 6,033 0.01736%
Rochester, New York 14604
J. Neil Boger 27 Arlington Drive 1,225 0.00352%
Pittsford, New York 14534
Joyce P. Caldarone 162 Anchor Drive 1,225 0.00352%
Vero Beach, Florida 32963
Peter L. Cappuccilli, Sr. 605 Genesee Street 6,250 0.01798%
Syracuse, New York 13204
Rocco M. Cappuccilli 605 Genesee Street 6,250 0.01798%
Syracuse, New York 13204
Linda Wells Davey 17 Green Valley Road 1,225 0.00352%
Pittsford, New York 14534
Richard J. Dorschel 32 Whitestone Lane 1,225 0.00352%
Rochester, New York 14618
Elizabeth Hatch Dunn P.O. Box 14261 2,450 0.00705%
North Palm Beach, Florida 33408
Jeremy A. Klainer 295 San Gabriel Drive 612 0.00176%
Rochester, New York 14610
J. Robert Maney 506 Panorama Trail 2,450 0.00705%
Rochester, New York 14625
John A. McAlpin 6270 Bopple Hill Road 1,225 0.00352%
and Mary E. McAlpin Maples, New York 14512-9771
Trustees or their successors
in trust under the McAlpin
Living Trust, dated January 19,
1999 and any amendments thereto
George E. Mercier 99 Ridgeland Road 1,225 0.00352%
Rochester, New York 14623
Harold S. Mercier Trust c/o Star Bank N.A. 1,225 0.00352%
Trustee
P.O. Box 1118, ML 7193
Cincinnati, OH 45201
Michelle Mercier 99 Ridgeland Road 1,225 0.00352%
Rochester, New York 14623
Jack E. Post 4898 East Lake Road 1,225 0.00352%
Rushville, New York 14544
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Carolyn M. Steklof 144 Dunrovin Lane 1,225 0.00352%
Rochester, New York 14618
William T. Uhlen, Jr. 5556 Vardon Drive 2,450 0.00705%
Canandaigua, NY 14424
Lawrence R. Brattain 1200 Edgewater Drive 500 0.00144%
Apartment 907
Lakewood, OH 44107
C. Terence Butwid 850 Clinton Square 4,246 0.01222%
Rochester, New York 14604
C.O.F. Inc. 850 Clinton Square 332,681 0.95717%
Rochester, New York 14604
Conifer Development, Inc. 850 Clinton Square 20,738 0.05967%
Rochester, New York 14604
Crossed Family Partnership 850 Clinton Square 7,200 0.02072%
Rochester, New York 14604
Richard J. Crossed 850 Clinton Square 68,021 0.19571%
Rochester, New York 14604
Kathleen M. Dunham 850 Clinton Square 200 0.00058%
Rochester, New York 14604
John H. Fennessey 850 Clinton Square 30,700 0.08833%
Rochester, New York 14604
Timothy D. Fournier 850 Clinton Square 7,600 0.02187%
Rochester, New York 14604
Barbara Lopa 850 Clinton Square 100 0.00029%
Rochester, New York 14604
Peter J. Obourn 850 Clinton Square 30,700 0.08833%
Rochester, New York 14604
John Oster 850 Clinton Square 4,595 0.01322%
Rochester, New York 14604
Eric Stevens 850 Clinton Square 100 0.00029%
Rochester, New York 14604
Tamarack Associates c/o Mr. Timothy D. 2,316 0.00666%
Fournier
850 Clinton Square
Rochester, New York 14604
Tamarack II Associates 850 Clinton Square 2,027 0.00583%
Rochester, New York 14604
Burton S. August 11 Woodbury Place 4,246 0.01222%
Rochester, New York 14618
Charles J. August 355 Ambassador Drive 4,246 0.01222%
Rochester, New York 14610
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Robert W. August 35 Woodstone Rise 1,158 0.00333%
Pittsford, New York 14534
John H. Cline 35 Vick Park A 2,316 0.00666%
Rochester, New York 14607
Ralph DeStephano, Sr. 1249-1/2 Long Pond Road 2,316 0.00666%
Rochester, New York 14626
Gerald A. Fillmore 3800 Delano Road 2,316 0.00666%
F/B/O Living Trust of G.A.F.
Oxford, Michigan 48371
Richard J. Katz, Jr. 136 Spyglass Lane 2,316 0.00666%
Jupiter, Florida 33477
The Estate of Esther
Frank Lowenthal 231 Georgian Court 2,316 0.00666%
Rochester, New York 14610
Anwer Masood, MD 1445 Portland Avenue 2,316 0.00666%
Rochester, New York 14621
Elizabeth W. Pine 3 Mile Post Lane 1,448 0.00417%
Pittsford, New York 14534
Ernest Reveal Family Trust c/o J. Harrison 976 0.00281%
#321001810 Chase P.O. Box 1412
Rochester, New York 14603
Hazel E. Reveal Marital Trust c/o J. Harrison 1,340 0.00386%
#321001860 Chase P.O. Box 1412
Rochester, New York 14603
Gregory J. Riley, MD 9 Beach Flint Way 2,256 0.00649%
Victor, New York 14564
Thomas P. Riley 346 Beach Avenue 2,316 0.00666%
Rochester, New York 14612
William G. vonberg 8 Old Landmark Drive 2,316 0.00666%
Rochester, New York 14618
Howard Weinstein,
Trustee U/T/A 70 Woodland Road 2,316 0.00666%
dated June 2, 1994 Short Hills, New Jersey 07078
Stephen C. Whitney 9 Devonwood Lane 869 0.00250%
Pittsford, New York 14534
Mr. and Mrs. Frank Zamiara 136 Mendon-Ionia Road 2,316 0.00666%
Mendon, New York 14506
The Joseph A. Cicci
Revocable Trust 109 Wyoming Street 60,000 0.17263%
Syracuse, New York 13204
Daniel Solondz 968 Stuyvesant Avenue 261,678 0.75288%
Union, New Jersey 07063
Gaby Solondz 1997
Trust dated 9/1/97 28 Fordham Road 25,000 0.07193%
Livingston, NJ 07039
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Philip J. Solondz P.O. Box 641 236,678 0.68095%
500 Morris Avenue,
Suite A104
Springfield, NJ 07081-0641
Julia Weinstein 308 E. 72nd St., Apt. 3D 56,051 0.16127%
New York, New York 10021
CLASS A LIMITED PARTNERSHIP INTERESTS
State Treasurer of the
State of Michigan, 430 West Allegan 1,666,667 4.79522%
Custodian of Michigan Lansing, Michigan 48922
Public School
Employees' Retirement System, Michigan
State Policy Retirement System and
Michigan Judges' Retirement System
___________________________________________________________
Peter B. Baker 300 Park Street 4,871 0.01401%
Haworth, NJ 07641
John F. Barna 11 Hummingbird Lane 5,977 0.01720%
Darien, CT 06820
Nadine L. Barna 11 Hummingbird Lane 4,042 0.01163%
Darien, CT 06820
Robert E. & Barbara T. Buce 16846 Glynn Drive 1,282 0.00369%
Pacific Palisades, CA 90272
Vincent J. Cannella
Living Trust 14657 Amberleigh Hill Court4,635 0.01334%
St. Louis, MO 63017
Andrew J. Capelli 35 Starlight Road 3,344 0.00962%
Staten Island, NY 10301
John J. Chopack 202 Hedgemere Drive 444 0.00128%
Devon, PA 19333
Harris R. Chorney 43 Mountain Brook Road 705 0.00203%
West Hartford, CT 06117
Ralph W. Clermont 2311 Clifton Forge Dr. 1,324 0.00381%
St. Louis, MO 63131
Thomas J. Coffey 5 Brampton Road 662 0.00190%
Malvern, PA 19355
Barbara G. Collins 2141 Ponus Ridge 1,324 0.00381%
New Canaan, CT 06840
Charles T. Collins 684 Fernfield Circle 5,942 0.01710%
Wayne, PA 19087
John D. Collins 2141 Ponus Ridge Road 6,227 0.01792%
New Canaan, CT 06840
Patricia A. Collins 684 Fernfield Circle 388 0.00112%
Wayne, PA 19087
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Michael A. Conway 15 Berndale Drive 6,227 0.01792%
Westport, CT 06880
Veronica A. Conway 15 Berndale Drive 3,571 0.01027%
Westport, CT 06880
Mildred M. Cozine 5 Manchester Court 1,986 0.00571%
Morristown, NJ 07960
William J. Cozine 5 Manchester Court 6,663 0.01917%
Morristown, NJ 07960
Kenneth Daly 1359 Shadowoak Drive 1,104 0.00318%
Malvern, PA 19355
Anthony J. Del Tufo 29 Fox Glen Drive 462 0.00133%
Stamford, CT 06903
Jack C. Dixon 16 Lands End Drive 3,589 0.01033%
Greensboro, NC 27408-3841
Priscilla M. Elder 230 Sundial Court 5,788 0.01665%
Vero Beach, FL 32963-3469
Doris E. Ficca 415 Lancaster Avenue, 776 0.00223%
Unit 8
Haverford, PA 19041
John J. Ficca, Jr. 415 Lancaster Avenue 10,150 0.02920%
Unit 8
Haverton, PA 19041
John & Doris Ficca 415 Lancaster Avenue, 2,295 0.00660%
Unit 8
Haverford, PA 19041
Alfred W. Fiore 27 Copper Beach Road 444 0.00128%
Greenwich, CT 06830
Carol T. Fish 38 Cedar Knoll Road 6,006 0.01728%
Cockeysville, MD 21030
Jeffrey Fish 38 Cedar Knoll Road 450 0.00129%
Cockeysville, MD 21030
Joseph H. Fisher 345 W. Mountain Road 10,600 0.03050%
West Simsbury, CT 06092
John A. Flack 89 Perkins Road 642 0.00185%
Grenwich, CT 06830
F. David Fowler 9724 Beman Woods Way 1,821 0.00524%
Potomac, MD 20854
Freedom House Foundation P.O. Box 67 100 0.00029%
Glen Gardner, NJ 08826-0367
James L. Goble 10260 Strait Lane 11,228 0.03230%
Dallas, TX 75229
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
LaVonne B. Graese Diane M. Graese, Trustee 49,321 0.14190%
Grantor Retained Annuity 1704 Cordoba Canyon Street
Trust dated 3/31/99 Las Vegas, Nevada 89117
James J. Grifferty 57 Woods Lane 23,515 0.06766%
Scarsdale, NY 10583
John M. Guinan 4 Denford Drive 778 0.00224%
Newtown Square, PA 19073
M. Candace Guinan 4 Denford Drive 773 0.00222%
Newtown Square, PA 19073
William A. Hasler 102 Golden Gate Avenue 923 0.00266%
Belvedere, CA 94920
Maxine S. Holton 12861 Marsh Landing 6,418 0.01847%
Palm Beach Gardens, FL 33418
Thomas L. Holton 12861 Marsh Landing 8,136 0.02341%
Palm Beach Gardens, FL 33418
Charles T. Hopkins 104 Wood Spring Road 6,202 0.01784%
Box 443
Gwynedd Valley, PA 19437
Robert D. Huth 44 W. Lancaster Avenue 571 0.00164%
Ardmore, PA 19003
Richard Isserman 165 W. 66th Street 4,428 0.01274%
Apartment 21B
New York, New York 10023
Thomas F. Keaveney 1420 Regatta Drive 8,016 0.02306%
Wilmington, NC 28405
Patrick W. Kenny 33 Fulton Place 642 0.00185%
West Hartford, CT 06107
Frank Kilkenny 42 Highland Circle 5,884 0.01693%
Bronxville, NY 10708
Janet T. Klion 25 Bailiwick Road 7,608 0.02189%
Greenwich, CT 06831
Howard J. Krongard 9 Cornell Way 8,387 0.02413%
Upper Montclair, NJ 07043
Louis E. Levy 26 Farmstead Road 15,586 0.04484%
Short Hills, NJ 07078
Sandra H. Levy 26 Farmstead Road 3,000 0.00863%
Short Hills, NJ 07078
RJL Marital Trust I c/o William E. Logan 2,835 0.00816%
3613 Sarah Drive
Wantagle, NY 11793
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Jerome Lowengrub 7 Lee Terrace 7,111 0.02046%
Short Hills, NJ 07078
Kelly Lowengrub Custodian 30 Randall Shea Drive 200 0.00058%
for Kaycee Lowengrub Swansea, MA 02777-2912
Kelly Lowengrub Custodian 30 Randall Shea Drive 200 0.00058%
for Kate Lowengrub Swansea, MA 02777-2912
Kelly Lowengrub Custodian 30 Randall Shea Drive 150 0.00043%
for Kristopher Lowengrub Swansea, MA 02777-2912
Kelly Lowengrub 30 Randall Shea Drive 200 0.00058%
Swansea, MA 02777-2912
Kenneth Lowengrub 30 Randall Shea Drive 200 0.00058%
Swansea, MA 02777-2912
Michael C. Lowengrub Custodian 3 Shoreham Drive West 200 0.00058%
for Robin Lowengrub Dix Hills, NY 11746-6510
Michael C. Lowengrub Custodian 3 Shoreham Drive West 400 0.00115%
for Jason Lowengrub Dix Hills, NY 11746-6510
Nancy Lowengrub, custodian for 3 Shoreham Drive, West 150 0.00043%
Robin Lowengrub Dix Hills, NY 11746
Roderick C. McGeary 1911 Waverly Street 3,710 0.01067%
Palo Alto, CA 94301
Ingunn T. McGregor Two Cherry Lane 8,335 0.02398%
Old Greenwich, CT 06870-1902
Michael Meltzer 6362 Innsdale Drive 887 0.00255%
Los Angeles, CA 90068
Martin F. Mertz 256 S. Bald Hill Road 7,551 0.02173%
New Canaan, CT 06840
Bernard J. Milano 134 MacIntyre Lane 662 0.00190%
Allendale, NJ 07401
Burton M. Mirsky 21 Woodcrest Drive 4,216 0.01213%
Morristown, NJ 07960
Herbert E. Morse 18 Porters Cove Road 897 0.00258%
Hingham, MA 02043
Thomas J. Murphy 208 N. Edmonds Avenue 923 0.00266%
Havertown, PA 19083
Mary Jane & Jay Patchen 9406 Mary Tucker Cove 1,324 0.00381%
Memphis, TN 38133
Michael C. Plansky 156 Beach Avenue 802 0.00231%
Larchmont, NY 10538
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
James T. & Dorothy Powers 9870 Huntcliff Trace 4,158 0.01196%
Atlanta, GA 30350
Henry A. Quinn 603 Benson House 145,383 0.41829%
Rosemont, PA 19010
Michael G. Regan 14 Brenner Place 10,984 0.03160%
Demarest, NJ 07627
Lavoy Robison 1001 Green Oaks Drive 2,469 0.00710%
Littleton, CO 80121
Eugene G. Schorr KPMG Peat Marwick 444 0.00128%
345 Park Avenue
New York, NY 10154
David M. Seiden 29 Hampton Road 314 0.00090%
Scarsdale, NY 10583
William Simon KPMG Peat Marwick 12,212 0.03514%
725 South Figueroa Street
Los Angeles, CA 90017
Dorothy L. Shanahan 123 Rotary Drive 3,711 0.01068%
Summit, NJ 07901
John T. Shanahan 123 Rotary Drive 16,442 0.04731%
Summit, NJ 07901
Dallas E. Smith 78083 Foxbrook Lane 222 0.00064%
Palm Desert, CA 92211-1229
Edward F. Smith 1031 Lawrence Avenue 2,194 0.00631%
Westfield, NJ 07090
Harold I. Steinberg Revocable 1221 Ranleigh Road 2,855 0.00821%
Inter Vivos Trust under agreement McLean, VA 22101
dated 5/24/91
Denis J. Taura 90 Montadale Drive 8,892 0.02558%
Princeton, NJ 08540
Shaileen & Timothy Tracy 111 Lampwick Lane 1,100 0.00316%
Fairfield, CT 06430
Timothy P. Tracy
Pension Trust 111 Lampwick Lane 1,552 0.00447%
Fairfield, CT 06430
Edward W. Trott KPMG Peat Marwick 4,176 0.01201%
767 Fifth Avenue
New York, NY 10153
United Jewish Appeal of
MetroWest 901 Route 10 100 0.00029%
Whippany, NJ 07981-1156
Estate of William F.
VanFossan 8576 Woodbriar Drive 1,571 0.00452%
Sarasota, FL 34238
Katharine E. Van Riper 57 Foremost Mountain Rd 9,311 0.02679%
Montville, NJ 07045
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Eileen M. Walsh 3045 Grand Concourse 449 0.00129%
Apartment F-4
Bronx, NY 10468
Lillian D. Walsh 29986 Maple View Drive 2,835 0.00816%
Rainier, OR 97048
Sam Yellen 22433 Oxnard Street 9,938 0.02859%
Woodland, CA 91367
Thomas J. Yoho 12 Indian Rock Lane 1,572 0.00452%
Greenwich, CT 06830
___________________________________________________________
B&L Realty Investments 21790 Coolidge Highway 33,560 0.09656%
Limited Partnership Oak Park, MI 48237
Berger/Lewiston Associates 21790 Coolidge Highway 1,076,594 3.09750%
Limited Partnership Oak Park, MI 48237
Big Beaver-Rochester
Properties 21790 Coolidge Highway 528,348 1.52013%
Limited Partnership Oak Park, MI 48237
Century Realty Investment
Company 21790 Coolidge Highway 99,195 0.28540%
Limited Partnership Oak Park, MI 48237
Greentrees Apartments 21790 Coolidge Highway 275,905 0.79381%
Limited Partnership Oak Park, MI 48237
Kingsley-Moravian Company 21790 Coolidge Highway 376,288 1.08263%
Limited Partnership Oak Park, MI 48237
Stephenson-Madison Heights
Company 21790 Coolidge Highway 104,541 0.30078%
Limited Partnership Oak Park, MI 48237
Southpointe Square Apartments 21790 Coolidge Highway 155,623 0.44775%
Limited Partnership Oak Park, MI 48237
Woodland Garden Apartments 21790 Coolidge Highway 319,860 0.92028%
Limited Partnership Oak Park, MI 48237
___________________________________________________________
John M. DiProsa 32 Sydenham Road 6,150 0.01769%
Rochester, NY 14609
Claude S. Fedele 12 Beckenham Lane 23,765 0.06838%
Fairport, NY 14450
Gabriel W. Gruttadaro 6 Powder Mill Drive 11,150 0.03208%
Pittsford, NY 14534
Anthony M. Julian 204 Angelus Drive 5,575 0.01604%
Rochester, NY 14622
Natalie M. Julian 204 Angelus Drive 5,575 0.01604%
Rochester, NY 14622
Joanne M. Lobozzo 756 Rock Beach Road 165,188 0.47527%
Rochester, NY 14617
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Geraldine B. Lynch 92 Eagle Ridge Circle 3,922 0.01128%
Rochester, NY 14617
Michael E. McCusker and
Elaine R. McCusker 7974 Oak Brook Circle 31,687 0.09117%
Trustees under the Michael E.Pittsford, NY 14534
and Elaine R. McCusker Living
Trust dated August 30, 1994
Jack P. Schifano 916 Highland Trails Avenue 3,961 0.01140%
Henderson, NV 89015
___________________________________________________________
Stephen W. Hall P.O. Box 370068 92,889 0.26725%
Las Vegas, NV 89137-0068
Donald H. Schefmeyer 63262 Orange Road 101,782 0.29284%
South Bend, IN 46614
___________________________________________________________
Beverly B. Bernstein P.O. Box 25370 72,304 0.20803%
Washington, DC 20007
The Estate of Samuel Selsky 1801 East Jefferson St. 47,282 0.13604%
Apartment 608
Rockville, MD 20852
Leona Libby Feldman 575 Greensward Lane 4,388 0.01262%
Delray Beach, FL 33445
Park Shirlington Apartments c/o 11501 Huff Court 72,304 0.20803%
Limited Partnership N. Bethesda, MD 20895
Lauren Libby Pearce 537 Hilarie Road 21,938 0.06312%
St. Davids, PA 19807
Steven M. Reich 1976 Trust c/o Stephen A. Bodzin 59,313 0.17065%
Trustee
1156 15th Street, NW
Suite 329
Washington, DC 20005
Amy S. Rubenstein 252 Collingwood Street 11,627 0.03345%
San Francisco, CA 94114
Barton S. Rubenstein 4003 Underwood Street 13,689 0.03939%
Chevy Chase, MD 20815
Beth Dana Rubenstein 451 29th Street 13,689 0.03939%
San Francisco, CA 94131
Trust U/W Daryl R. Rubenstein c/o David Osnos 2,062 0.00593%
F/B/O Amy Sara Rubenstein 1050 Connecticut Avenue, NW
Washington, DC 20036
Lee G. Rubenstein 4915 Linnean Avenue, NW 2,808 0.00808%
Washington, DC 20008
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Sarah Selsky 1801 East Jefferson St 42,779 0.12308%
Apartment 608
Rockville, MD 20852
Tower Capital, LLC 11501 Huff Court 279,782 0.80497%
N. Bethesda, MD 20895
WHC Associates, LLC 7201 Wisconsin Avenue 83,364 0.23985%
Suite 650
Bethesda, MD 20814
___________________________________________________________
Merrill Bank 200 Bradley Place 19,783 0.05692%
Apartment 305
Palm Beach, FL 33480
Ariel Golden Behr 151 W. 88th Street 1,469 0.00423%
New York, NY 10027
Doris Berliner 7 Slade Avenue 2,637 0.00759%
Apartment 108
Baltimore, MD 21208
Phillip Chmar 7 Slade Avenue 3,830 0.01102%
Apartment 713
Baltimore, MD 21208
Louis K. Coleman 2508 Guilford Avenue 7,152 0.02058%
Baltimore, MD 21218
Mark Dopkin 6303 Lincoln Avenue 371 0.00107%
Baltimore, MD 21209
Paul Goldberg 7111 Park Heights Avenue 509 0.00146%
Apartment 712
Baltimore, MD 21215
Carol Golden P.O. Box 9691 2,486 0.00715%
Jerusalem, Israel 91090
Joseph Goldman 5250 Linnean Avenue, NW 3,661 0.01053%
Washington, D.C. 20015
Dr. Milton L. Goldman 3240 Patterson Street, NW 8,363 0.02406%
Washington, D.C. 20015-1661
Samuel and Esther Hanik 5800 Nicholson Lane 16,582 0.04771%
Apartment 1-903
Rockville, MD 20852
Muriel Hettleman 1 Slade Avenue 6,906 0.01987%
Apartment 203
Baltimore, MD 21208
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Charles Heyman 3409 Old Post Drive 1,406 0.00405%
Baltimore, MD 21208
Samuel Hillman Marital Trust NationsBank 9,758 0.02808%
c/o Anne Weisner
P.O. Box 830151
Dallas, TX 75283
Samuel Hillman Residuary Trust NationsBank 9,758 0.02808%
c/o Nancy Politsch
100 S. Charles Street
Baltimore, MD 21201-2713
Marvin A. Jolson 7812 Ridge Terrace 1,018 0.00293%
Baltimore, MD 21208
Hilda Kaplan, Trustee
u/r/d/t/d 10/18/99 7111 Park Heights Avenue 6,500 0.01870%
Apartment 110
Baltimore, MD 21215
Isadore Kaplan Revocable Trust 7111 Park Heights Ave. 9,324 0.02683%
Apartment 110
Baltimore, MD 21215
Milton Klein 1 Slade Avenue 7,305 0.02102%
Apartment 706
Baltimore, MD 21208
Dr. Lee Kress 417 Barby Lane 7,152 0.02058%
Cherry Hill, NJ 08003
Richard & Cheryl Kress 15 W. Aylesbery Road 7,152 0.02058%
Suite 700
Timonium, MD 21093
William Kress Marital Trust c/o Richard Kress 60,305 0.17351%
Trustee
15 W. Aylesbery Road
Suite 700
Timonium, MD 21093
Elmer W. Leibensperger 1900 Dumont Court 859 0.00247%
Timonium, MD 21093
Merrill & Natalie S. Levy 5906 Eastcliff Drive 2,637 0.00759%
Baltimore, MD 21209
Gertrude Myerberg 2227 Ibis Isle Road East 14,611 0.04204%
Palm Beach, FL 33480
Bertha Pollack 7420 Westlake Terrace, 2,486 0.00715%
#1209
Bethesda, MD 20817
Lawrence E. Putnam
Family Trust 3241 Worthington St.NW 5,424 0.01561%
Washington, DC 20015
Stephen F. Rosenberg 3 Greenwood Place 367 0.00106%
Suite 307
Baltimore, MD 21208
Z. Valeere Sass, Trustee 758 Regency Lakes Drive 2,637 0.00759%
E501
Boca Raton, FL 33433
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Isidore Schnaper 11 Slade Avenue 10,421 0.02998%
Apartment 304
Baltimore, MD 21208
M. Gerald Sellman
Revocable Trust 2 Yearling Way 18,347 0.05279%
Agreement dated Lutherville, MD 21093
November 30, 1998
Dr. Albert Shapiro 100 Sunrise Avenue 13,196 0.03797%
Palm Beach, FL 33480
Earle K. Shawe Shawe & Rosenthal 85,085 0.24480%
20 S. Charles Street
Baltimore, MD 21201
Rhoda E. Silverman, Trustee R. Silverman Rev. Trust 1,469 0.00423%
3211 Worthington Street, NW
Washington, DC 20015
Herbert J. Siegel 20 Pleasant Ridge 417,947 1.20249%
Drive, Suite A
Owings Mills, MD 21117
Siegel Family, LLLP c/o Herbert J. Siegel 31,995 0.09205%
20 Pleasant Ridge
Drive, Suite A
Owings Mills, MD 21117
Dr. Edgar Sweren 77 Seminary Farm Road 1,018 0.00293%
Timonium, MD 21093
Dr. Myra Jody Whitehouse 1 Staffordshire Road 2,085 0.00600%
Cherry Hill, NJ 08003
Ms. Terry Whitehouse 3706 Taylor Street 2,085 0.00600%
Chevy Chase, MD 20815
___________________________________________________________
Harold M. Davis 2180 Twinbrook Road 229,754 0.66103%
Berwyn, PA 19312
Nicholas V. Martell 1551 Harmoneyville Rd 229,754 0.66103%
Pottstown, PA 19465
R.C.E. Developers, Inc. P.O. Box 2002 4,642 0.01336%
Ambler, PA 19002
___________________________________________________________
Frances Berkowitz 29 East 64th Street 1,358 0.00391%
Apartment 7D
New York, New York 10021
Richard A. Eisner 1107 Fifth Avenue 10,180 0.02929%
New York, New York 10128
Norman Fieber 62 Fox Ridge Road 10,180 0.02929%
Stamford, CT 06903
Sylvia Fieber 62 Fox Ridge Road 10,180 0.02929%
Stamford, CT 06903
Michael Glick 1035 Fifth Avenue 18,664 0.05370%
New York, New York 10028
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Ronnie Glick 1035 Fifth Avenue 1,696 0.00488%
Apartment 14B
New York, New York 10028
Claire Morse 240 Lee Street 5,090 0.01464%
Brookline, MA 02445-5915
Enid Morse 840 Park Avenue 5,090 0.01464%
#7/8A
New York, New York 10021
Lester Morse, Jr. 840 Park Avenue 19,088 0.05492%
#7/8A
New York, New York 10021
Richard Morse 240 Lee Street 6,999 0.02014%
Brookline, MA 02445
___________________________________________________________
Leslie G. Berman 1100 Reisterstown Road 39,094 0.11248%
#202
Baltimore, MD 21208
___________________________________________________________
Carriage Hill Apartments
Limited Partnership c/o Biltmore 97,594 0.28079%
Properties Corporation
2025 West Long Lake Road
Suite 104
Troy, Michigan 48098
Carriage Park Development c/o Biltmore 127,976 0.36820%
Properties Corporation
2025 West Long Lake Road
Suite 104
Troy, Michigan 48098
Cherry Hill Village Limited
Partnership c/o Biltmore 114,621 0.32978%
Properties Corporation
2025 West Long Lake Road
Suite 104
Troy, Michigan 48098
___________________________________________________________
William S. Beinecke 99 Park Avenue 1,946 0.00560%
Suite 2200
New York, New York 10016
Robert K. Kraft c/o Chestnut Hill 1,946 0.00560%
Management Corp.
One Boston Place
Boston, MA 02108
Robert J. Sharp 121 Middlebrook Farm Rd 1,946 0.00560%
Wilton, CT 06897
Estate of Ross D. Siragusa c/o Melvyn H. 11,672 0.03358%
Schneider
Altschuler, Melvoin & Glass, LLP
2029 Century Park East
Suite 3100
Los Angeles, CA 90007
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
___________________________________________________________
Patricia D. Moore Trust
No. 413 51267 Windsor Manor Court 6,353 0.01828%
South Bend, IN 46530
___________________________________________________________
The Enid Barden Trust of Enid Barden, Trustee 11,758 0.03383%
June 28, 1995 74 E. Long Lake Road
Bloomfield Hills, MI 48304-2379
Fairway Property Company 32270 Telegraph Road 5,324 0.01532%
Suite 200
Birmingham, MI 48205
David A. Gumenick 30160 Orchard Lake 7,454 0.02145%
Road - 110
Farmington Hills, MI 48334
David Herskovitz 1055 Trailridge Lane 2,130 0.00613%
Atlanta, GA 30338
Constance W. Jacob 8344 Hendrie 2,662 0.00766%
Huntington Woods, MI 48070
The Howard J. Leshman Revocable Howard J. Leshman, 7,839 0.02255%
Trust Dated May 20, 1983 Trustee
as Amended and Restated 74 E. Long Lake Road
on March 4, 1998 Bloomfield Hills, MI 48304-2379
Lyle Properties Limited
Partnership Marc W. Pomeroy, 11,758 0.03383%
General Partner
74 E. Long Lake Road
Bloomfield Hills, MI 48304-2379
Marvin Novick 12820 Burton 331 0.00095%
Oak Park, MI 48237
David K. Page 2290 First National 7,986 0.02298%
Building
Detroit, MI 48226
Keith J. Pomeroy Trust
of 12/13/76 Keith J. Pomeroy, 22,406 0.06446%
as Amended and Restated Truste
6/28/95 74 E. Long Lake Road
Bloomfield Hills, MI 48304-2379
David Sillman 6421 Inkster Road 31,965 0.09197%
Suite 200
Bloomfield Hills, MI 48301
Lionel J. Stober Trust Lionel J. Stober, 5,324 0.01532%
Trustee
6013 Shawdow Lake Drive
Toledo, OH 43623
Ruth Stober 6670 Vachon Court 5,324 0.01532%
Bloomfield Hills, MI 48301
Ari Stutz 6809 Spruce 2,662 0.00766%
Bloomfield Hills, MI 48301-3058
Jonah L. Stutz 29757 Farmbrook Villa 5,324 0.01532%
Lane
Southfield, MI 48034
Leah Stutz 6809 Spruce 2,662 0.00766%
Bloomfield Hills, MI 48301-3058
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Steven I. Victor Trust 401 S. Old Woodward 5,324 0.01532%
Suite 333
Birmingham, MI 48009
Woodridge Properties Limited
Partnership Stephen R. Polk, 15,972 0.04595%
Managing General Partner
26955 Northwestern Highway
Southfield, MI 48034
___________________________________________________________
Richard Bacas 2413 N. Edgewood Street 2,136 0.00615%
Arlington, VA 22207-4926
Julie Belinkie 1120 Connecticut Ave 7,854 0.02260%
NW, #1200
Washington, DC 20036
David Bender 1120 Connecticut Ave 7,854 0.02260%
NW, #1200
Washington, DC 20036
Jay Bender 12721 Maidens Bower Drive 6,283 0.01808%
Potomac, MD 20854-6052
Lisa Bender-Feldman 2579 Eagle Run Lane 6,283 0.01808%
Ft. Lauderdale, FL 33327
Scott Bender 12700 Glen Mill Road 6,283 0.01808%
Potomac, MD 20854
Barbara Bender-Laskow 8308 Larkmeade Terrace 7,854 0.02260%
Potomac, MD 20854
Caplin Family Investments, LLC c/o Mortimer Caplin 111,705 0.32139%
Caplin & Dreyfus
One Thomas Circle
Washington, DC 20005
Michael A. Caplin 8477 Portland Place, NW 26,284 0.07562%
McLean, VA 22102
Jeremy O. Caplin 360 Ardwood Road 39,425 0.11343%
Earlysville, VA 22936
Catherine Caplin 1219 Sunset Plaza 32,854 0.09453%
Drive, #7
Los Angeles, CA 90069-1254
The Caplin Family Trust P.O. Box 854 32,854 0.09453%
Pebble Beach, CA 93953
Yetta K. Cohen 1650 Tysons Boulevard, 150,991 0.43442%
#620
McLean, VA 22102
Community Realty Company, Inc. 6305 Ivy Lane 160,360 0.46138%
Suite 210
Greenbelt, MD 20770
Benedict C. Cosimano 3505 Fulton Street, NW 2,136 0.00615%
Washington, DC 20007
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Samuel Diener, Jr. Revocable
Trust Samuel Diener, M.D., 16,758 0.04821%
Trustee
786 Eastern Point Road
Annapolis, MD 21401
Clarence Dodge, Jr. Revocable
Trust 5146 Palisade Lane 154,036 0.44318%
dated 1/10/92 Washington, DC 20016
Marcia Esterman Living Trust Marcia Esterman, 7,900 0.02273%
Trustee
5709 Mayfair Manor Drive
Rockville, MD 20852
Lydia Funger McClain 12201 Lake Potomac 21,807 0.06274%
Terrace
Potomac, MD 20854
William S. Funger 6 Great Elm Court 21,807 0.06274%
Potomac, MD 20854
Keith P. Funger 10530 South Glen Road 21,807 0.06274%
Potomac, MD 20854
Morton Funger 1650 Tysons Boulevard, 150,898 0.43415%
#620
McLean, VA 22102
Bernard S. Gewirz 1730 K Street, NW 66,219 0.19052%
#1204
Washington, DC 20006
Carl S. Gewirz 1730 K Street, NW 23,071 0.06638%
#1204
Washington, DC 20006
Steven B. Gewirz 1730 K Street, NW 7,150 0.02057%
#1204
Washington, DC 20006
Michael AK Gewirz 1730 K Street, NW 9,534 0.02743%
#1204
Washington, DC 20006
Diane Goldblatt Apt 420 5,713 0.01644%
10500 Rockville Pike
Rockville, MD 20852
Herbert Goldblatt 11936 Canfield Road 5,713 0.01644%
Potomac, MD 20854
Barbara Goldman 1624 Belvedere 7,900 0.02273%
Boulevard
Silver Spring, MD 20902
Theodore L. Gray 1200 Jossie Lane 1,971 0.00567%
McLean, VA 22102
Eileen Greenberg 1120 Connecticut Ave 7,854 0.02260%
NW, #1200
Washington, DC 20036
Hermen Greenberg 1050 Connecticut Ave., 1,006,836 2.89680%
NW #444
Washington, DC 20036
William Kaplan 5901 Montrose Road, 83,779 0.24104%
#N405
Rockville, MD 20852
Herman Kraft Sunrise Assisted 2,628 0.00756%
Living, #212
5910 Wilson Blvd.
Arlington, VA 22205
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Patricia A. Mancuso 11912 Tallwood Court 493 0.00142%
Potomac, MD 20854
Charles and Lupe Mancuso,
T.B.T.E. 9421 Reach Road 493 0.00142%
Potomac, MD 20854
Melanie F. Nichols 21 Crescent Lane 21,801 0.06272%
San Anselmo, CA 94960
Jeffrey W. Ochsman 9505 Newbridge Drive 21,807 0.06274%
Potomac, MD 20854
Bruce D. Ochsman 8905 Hunt Valley Court 21,807 0.06274%
Potomac, MD 20854
Ralph Ochsman 1650 Tysons Boulevard, 150,898 0.43415%
#620
McLean, VA 22102
Michael P. & Esther K.
Ochsman Tenants By the 21,807 0.06274%
Entirety
5600 Wisconsin Avenue
Chevy Chase, MD 20815
Sharon Lynn Ochsman c/o Terri Weisenberger 21,807 0.06274%
1650 Tysons Blvd. #620
McLean, VA 22102
Wendy A. Ochsman 90720 Holloway Hill 21,807 0.06274%
Court
Potomac, MD 20854
Ralmor Corporation c/o Terri Weisenberger 392,503 1.12928%
1650 Tysons Blvd., #620
McLean, VA 22102
Jerome Shapiro 9511 Orion Court 7,903 0.02274%
Burke, VA 22015
Sophie B. Shapiro Family Trust c/o Bobbie Goldman 62,369 0.17944%
1624 Belvedere Boulevard
Silver Spring, MD 20902
Albert H. Small 1050 Connecticut Ave., 1,006,836 2.89680%
NW #444
Washington, DC 20036
David Stearman 5630 Wisconsin Avenue, 83,779 0.24104%
#1007
Chevy Chase, MD 20815
Juanita H. West Trust c/o Martin R. West III 19,255 0.05540%
3 Farm Haven Court
Rockville, MD 20852
Martin R. West, III 3 Farm Haven Court 5,776 0.01662%
Rockville, MD 20852
___________________________________________________________
Arthur Baitch 119 Swan Hill Court 14,785 0.04254%
Baltimore, MD 21208
Stuart Brager 6 Schloss Court 4,290 0.01234%
Baltimore, MD 21208-1926
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
David C. Browne 910 Rambling Drive 77,222 0.22218%
Baltimore, MD 21228
C. Coleman Bunting, Jr. RD 1, Box 140 15,369 0.04422%
Selbyville, DE 19975
Genine Macks Fidler 4750 Owings Mills Blvd 101,126 0.29095%
Owings Mills, MD 21117
Josh E. Fidler 4750 Owings Mills Blvd 72,539 0.20870%
Owings Mills, MD 21117
Thomas O'R. Frech 16 Deer Woods Ct 9,473 0.02726%
Glen Arm, MD 21057
Melvin Friedman, M.D. 8108 Anita Rd. 10,738 0.03089%
Baltimore, MD 21208
George H. Greenstein 7724 Grasty Rd. 9,771 0.02811%
Baltimore, MD 21208
Mildred Hemstetter 47-H Queen Anne Way 2,123 0.00611%
Chester, MD 21619
Sanford G. Jacobson Suite 616, 901 Dulaney 17,620 0.05070%
Valley Rd.
Towson, MD 21204
James C. Johnson and 3955 Olean Gateway 2,145 0.00617%
Sandra J. Johnson Linkwood, MD 21835
William R. Kahn 7903 Long Meadow Rd. 8,279 0.02382%
Baltimore, MD 21208
Kanode Partnership 8213 A Stevens Rd. 77,222 0.22218%
Thurmont, MD 21788
Allan Krumholz and 5404 Springlake Way 4,290 0.01234%
Francine Krumholz Baltimore, MD 21212
Burton H. Levinson 11 Slade Ave #316 22,947 0.06602%
Baltimore, MD 21208
Eugene K. Lewis/
Suzanne D. Lewis 842 Wyndemere Way 3,600 0.01036%
Naples, FL 34105
Arthur M. Lopatin Revocable
Trust 11312 Wingfood Dr. 4,931 0.01419%
Boynton Beach, FL 33437
Lawrence Macks 4750 Owings Mills Blvd 173,664 0.49965%
Owings Mills, MD 21117
Martha Macks 3908 N. Charles St., 90,886 0.26149%
#500
Baltimore, MD 21218
Morton J. Macks 4750 Owings Mills Blvd 343,442 0.98813%
Owings Mills, MD 21117
Joseph M. Mosmiller 687 Ardmore Lane 4,290 0.01234%
Naples, FL 34108
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
N & C Partnership 204 East Highfield Rd 9,982 0.02872%
Baltimore, MD 21218
Orlinsky Family Limited
Partnership 4172 N.W. 53rd Street 2,145 0.00617%
Boca Raton, FL 33496
Albert Perlow 7903 Winterset Ave. 4,290 0.01234%
Baltimore, MD 21208
Anne Louise Perlow 10 Talton Court 6,435 0.01851%
Baltimore, MD 21208
Alleck A. Resnick 3402 Old Forest Rd. 4,290 0.01234%
Harriet Resnick Baltimore, MD 21208
Stanley Safier 6210 Frankford Ave. 4,290 0.01234%
Baltimore, MD 21206
Arnold Sagner PO Box 416 11,065 0.03184%
Ellicott City, MD 21041
Donald I. Saltzman 3407 Engelmeade Rd. 5,434 0.01563%
Baltimore, MD 21208
Murray Saltzman 8216 N.W. 80th Street 2,145 0.00617%
Tamarac, FL 33321
William G. Scaggs 1520 Royal Palm Way 8,579 0.02468%
Boca Raton, FL 33432
Earle K. Shawe c/o Shawe & Rosenthal 29,645 0.08529%
20 S. Charles Street
Baltimore, MD 21201
Steven D. Shawe Shawe & Rosenthal 5,014 0.01443%
20 S. Charles Street
Baltimore, MD 21201
Karolyn Solomon 3706 Breton Way 4,991 0.01436%
Baltimore, MD 21208-1707
William B. Warren Dewey Ballantine LLP 2,145 0.00617%
1301 Avenue of Americas
New York, NY 10019
Robert M. Wertheimer 9 Greenlea Drive 2,145 0.00617%
Baltimore, MD 21208
___________________________________________________________
Leonard Klorfine 105 Chesley Drive 170,312 0.49001%
Suite 203
Media, PA 19063
Number of Percentage
NAME AND IDENTIFYING NUMBER BUSINESS OR RESIDENCE UNITS HELD INTEREST
ADDRESS
Greenacres Associates 105 Chesley Drive 59,896 0.17233%
Suite 203
Media, PA 19063
Ridley Brook Associates 105 Chesley Drive 97,917 0.28172%
Suite 203
Media, PA 19063
___________________________________________________________
Community Investment
Strategies, Inc. 120 Albany Street 64,150 0.18457%
8th Floor
New Brunswick, New Jersey 08901
TOTAL UNITS/INTERESTS 34,756,853.899 100.00%
EXHIBIT 10.43
CREDIT AGREEMENT
DATED AS OF AUGUST 23, 1999
AMONG
HOME PROPERTIES OF NEW YORK, L.P.,
THE LENDERS, Party Hereto
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
As Administrative Agent
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms ............................................... 1
SECTION 1.02. Classification of Loans and Borrowings ......................18
SECTION 1.03. Terms Generally .............................................18
SECTION 1.04. Accounting Terms; GAAP ......................................19
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments; Extension of Maturity Date .....................19
SECTION 2.02. Loans and Borrowings ........................................19
SECTION 2.03. Requests for Borrowings .....................................20
SECTION 2.04. Letters of Credit ...........................................21
SECTION 2.05. Funding of Borrowings .......................................25
SECTION 2.06. Interest Elections ..........................................25
SECTION 2.07. Termination and Reduction of Commitments ....................27
SECTION 2.08. Repayment of Loans; Evidence of Debt ........................27
SECTION 2.09. Prepayment of Loans .........................................28
SECTION 2.10. Fees ........................................................29
SECTION 2.11. Interest ....................................................30
SECTION 2.12. Alternate Rate of Interest ..................................31
SECTION 2.13. Increased Costs .............................................32
SECTION 2.14. Break Funding Payments ......................................33
SECTION 2.15. Taxes .......................................................33
SECT10N 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs .34
SECTION 2.17. Mitigation Obligations; Replacement of Lenders ..............36
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers ........................................37
SECTION 3.02. Authorization; Enforceability ...............................37
SECTION 3.03. Governmental Approvals; No Conflicts ........................38
SECTION 3.04. Financial Condition; No Material Adverse Change .............38
SECTION 3.05. Properties ..................................................38
SECTION 3.06. Intellectual Property .......................................39
SECTION 3.07. Litigation and Environmental Matters ........................40
SECTION 3.08. Compliance with Laws and Agreements .........................40
SECTION 3.09. Investment and Holding Company Status .......................41
SECTION 3.10. Taxes .......................................................41
SECTION 3.11. ERISA .......................................................41
SECTION 3.12. Disclosure ..................................................41
SECTION 3.13. Insurance ...................................................41
SECTION 3.14. REIT Status .................................................42
SECTION 3.15. Solvency ....................................................42
SECTION 3.16. Margin Regulations ..........................................42
SECTION 3.17. Representations and Warranties in the Loan Documents ........42
<PAGE>
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date ..............................................43
SECTION 4.02. Each Credit Event ...........................................44
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information ..................45
SECTION 5.02. Notices of Material Events ..................................48
SECTION 5.03. Existence; Conduct of Business ..............................49
SECTION 5.04. Payment of Obligations ......................................49
SECTION 5.05. Maintenance of Properties; Insurance; Management ............49
SECTION 5.06. Books and Records; Inspection Rights ........................49
SECTION 5.07. Compliance with Laws ........................................49
SECTION 5.08. Use of Proceeds and Letters of Credit .......................49
SECTION 5.09. Company Status ..............................................50
SECTION 5.10. Ownership of Projects and Property; Unencumbered Assets .....50
SECTION 5.11. Shareholder Communication, Filings, etc .....................50
SECTION 5.12. Further Assurances ..........................................51
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness and Other Financial Covenants ..................51
SECTION 6.02. Liens .......................................................52
SECTION 6.03. Fundamental Changes .........................................52
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions ...53
SECTION 6.05. Hedging Agreements ..........................................54
SECTION 6.06. Transactions with Affiliates ................................54
SECTION 6.07. Restriction on Fundamental Changes ..........................54
SECTION 6.08. Margin Regulations; Securities Laws .........................54
SECTION 6.09. Negative Covenants of the Company and the QRS Subsidiary ....54
<PAGE>
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices .....................................................60
SECTION 9.02. Waivers; Amendments .........................................61
SECTION 9.03. Expenses; Indemnity; Damage Waiver ..........................61
SECTION 9.04. Successors and Assigns ......................................63
SECTION 9.05. Survival ....................................................65
SECTION 9.06. Counterparts; Integration; Effectiveness ....................65
SECTION 9.07. Severability ................................................66
SECTION 9.08. Right of Setoff .............................................66
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process ..66
SECTION 9.10. WAIVER OF JURY TRIAL ........................................67
SECTION 9.11. Headings ....................................................67
SECTION 9.12. Confidentiality .............................................67
SECTION 9.13. Interest Rate Limitation ....................................68
SCHEDULES:
Schedule 2.01 - Commitments
Schedule 3.02 - Ownership Structure
Schedule 3.04 - Existing Indebtedness
Schedule 3.07 - Disclosed Matters
Schedule 3.13 - Insurance
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form, of Guaranty
Exhibit C - Form of Note
Exhibit D-I - Form of Borrowing Request and Compliance Certificate
Exhibit D-2 - Form of Notice of Issuance and Compliance Certificate
Exhibit E - Form of Opinion of Borrower's Counsel
Exhibit F - Form of Quarterly/Annual Compliance Certificate
CREDIT AGREEMENT, dated as of August 23, 1999, among HOME PROPERTIES OF NEW
YORK, L.P., a New York limited partnership, the LENDERS party hereto, and
MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADJUSTED EBITDA" means, for any period, EBITDA for such period
plus management, development and other income for such period less the
Capital Expenditure Reserve Amount for such period.
"ADJUSTED NOI" means, for any period, NOI for such period from
Eligible Projects less the Capital Expenditure Reserve Amount for such
period.
"ADJUSTED UNENCUMBERED NOI" means, for any period, Adjusted NOI
derived from Unencumbered Eligible Projects and which Adjusted NOI is not
subject to any Liens,
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADJUSTED RECOURSE SECURED INDEBTEDNESS" means Recourse Secured
Indebtedness where for the purposes of clause (b) of the definition of
Recourse Secured Indebtedness (i) the Secured Indebtedness to Total
Property Value of the Project is greater than 60% or (ii) the ratio of
Adjusted NOI to Debt Service of the Project is less than 1.4 to 1.0.
"ADMINISTRATIVE AGENT" means The Manufacturers and Traders Trust
Company, in its capacity as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate, respectively.
"ANNUAL COMPLIANCE CERTIFICATE" shall have the meaning set forth
in Section 5.01(b)(iii).
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"APPLICABLE EURODOLLAR MARGIN" means for any day, 125 basis points.
"ASSESSMENT RATE" means for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B"
(or a comparable successor risk classification) within the meaning of 12
C.F.R. Part 327 (or any successor provision) to the Federal Deposit
Insurance Corporation for insurance by such Corporation of time deposits
made in dollars at the offices of such member in the United States;
provided that if, as a result of any change in any law, rule or regulation,
it is no longer possible to determine the Assessment Rate as aforesaid,
then the Assessment Rate shall be such annual rate as shall be determined
by the Administrative Agent to be representative of the cost of such
insurance to the Lenders.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved
by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Commitments.
"BANKRUPTCY CODE" shall have the meaning set forth in Section 3.15.
"BASE CD RATE" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BOOK VALUE" means the value at which a Property is reported
on the financial statements of the Company in accordance with GAAP, less
the amount of any Indebtedness or Liens related to such Property.
"BORROWER" means Home Properties of New York L.P., a New York
limited partnership.
"BORROWING" means Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"BORROWING REQUEST " means a request by the Borrower for a
Revolving Loan in accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed; PROVIDED that, when used in connection
with a Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day
on which banks are not open for dealings in dollar deposits in the London
interbank market.
"CAD" means "cash available for distribution" and shall mean,
for any period, FFO less an annual reserve for anticipated recurring,
nonrevenue generating capitalized costs, as reported on the financial
statements of the Company in accordance with GAAP.
"CAPITAL EXPENDITURE RESERVE AMOUNT" means, for any period, an
amount equal to (i) $350 multiplied by the number of apartment units
contained in all Projects multiplied by (ii) a fraction, the numerator of
which is equal to the number of days in such period and the denominator of
which is equal to 365.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations
of such 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
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"CASH AND CASH EQUIVALENTS" means unrestricted (i) cash; (ii)
marketable direct obligations issued or unconditionally guaranteed by the
United States government and backed by the full faith and credit of the
United States government; (iii) domestic and Eurodollar certificates of
deposit and time deposits, bankers' acceptances and floating rate
certificates of deposit issued by any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations), which, at the time of acquisition, are rated A- I (or
better) by S&P or P- I (or better) by Moody's, PROVIDED that the maturities
of such Cash and Cash Equivalents shall not exceed one year; (iv) publicly
traded equity securities issued by a REIT that primarily owns multi-family
properties; and (iv) other marketable securities acceptable to the Required
Lenders.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. <section><section> 96011
ET SEQ., any amendments thereto, any successor, statutes and any
regulations or guidance promulgated thereunder.
"CHANGE IN CONTROL" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of Section 13(dX3) of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as
in effect on the date hereof), of shares representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Company by
Persons who were neither (i) nominated by the board of directors of the
Company nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower or the Company by
any Person or group.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance
by any Lender or the Issuing Bank (or, for purposes of Section 2.13(b), by
any lending office of such Lender or by such Lender's or the Issuing Bank's
holding company, if any) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" means, with respect to each Lender, the commitment
of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant
to Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender's Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $100,000,000.
"COMPANY" means Home Properties of New York, Inc., a Maryland
corporation.
"CONSOLIDATED BUSINESSES" means the Company, the Borrower, the
Management Companies, and their wholly-owned Subsidiaries.
"CONTINGENT OBLIGATION" as to any Person means, without
duplication, (i) any contingent obligation of such Person required to be
shown on such Person's balance sheet in accordance with GAAP, and (ii) any
obligation required to be disclosed in the footnotes to such Person's
financial statements in accordance with GAAP, guaranteeing partially or in
whole any non-recourse Indebtedness, lease, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations
(other than guarantees of completion) which have not yet been called on or
quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a)
with respect to a guaranty of interest or interest and principal, or
operating income guaranty, the sum of all payments required to be made
thereunder (which in the case of an operating income guaranty shall be
deemed to be equal to the debt service for the note secured thereby),
calculated at the interest rate applicable to such Indebtedness, through
(i) in the case of an interest or interest and principal guaranty, the
stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain
in effect, and (b) with respect to all guarantees not covered by the
preceding clause (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such guaranty is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
recorded on the balance sheet and on the footnotes to the most recent
financial statements of the applicable Borrower required to be delivered
pursuant hereto. Notwithstanding anything contained herein to the contrary,
(1) guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder,
at which time any such guaranty of completion shall be deemed to be a
Contingent Obligation in an amount equal to any such claim and (2) Low
Income Housing Credit Program Guarantees shall not be deemed to be
Contingent Obligations. Subject to the preceding sentence, (i) in the case
of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly
to the applicable Borrower), the amount of the guaranty shall be deemed to
be 100% thereof unless and only to the extent that (X) such other Person
has delivered Cash or Cash Equivalents to secure all or any part of such
Person's guaranteed obligations or (Y) such other Person holds an
Investment Grade Credit Rating from either Moody's or S&P, and (ii) in the
case of a guaranty, (whether or not joint and several) of an obligation
otherwise constituting Debt of such Person, the amount of such guaranty
shall be deemed to be only that amount in excess of the amount of the
obligation constituting Indebtedness of such Person.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract
or otherwise. "CONTROLLING " and "Controlled" have meanings correlative
thereto.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 3.07.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"DEBT SERVICE" means for any period the sum of (i) all interest
obligations accrued on all Indebtedness with respect to a Project, (ii) all
payments of principal required to be made (other than payments of any
principal balance remaining to be paid by the terms of the applicable
Indebtedness at the maturity thereof) with respect to any Indebtedness on a
Project and (iii) the amortization of loan fees, original issue discount,
non-cash interest payments, the interest component of Capital Lease
Obligations and hedging costs (but excluding extraordinary interest
expense, and net of amortization of deferred costs associated with new
financings or refinancings of existing Indebtedness) during such period.
"EBITDA" means, for any period, NOI for such period, less
allocated corporate marketing, general and administrative expenses for such
period.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with
Section 9.02).
"ELIGIBLE PROJECT" means, any Project that (i) is 100% owned by
a Consolidated Business, free of all title defects and material structural
defects, (ii) has achieved an occupancy rate of not less than 80%, (iii) is
managed by the Borrower, either Management Company or other Subsidiary of
the Borrower, (iv) is free of all Hazardous Materials as verified by an
environmental assessment report in form and substance satisfactory to the
Administrative Agent.
"ELIGIBLE ASSIGNEE" means (i) a Lender or any Affiliate
thereof; (ii) a commercial bank having total assets in excess of
$5,000,000,000; (iii) the central bank of any country which is a member of
the Organization for Economic Cooperation and Development having total
assets in excess of $10,000,000,000; or (iv) a finance company or other
financial institution reasonably acceptable to the Administrative Agent,
which is regularly engaged in making, purchasing or investing in loans and
having total assets in excess of $1,000,000,000 or is otherwise reasonably
acceptable to the Administrative Agent.
"ENCUMBERED ELIGIBLE PROJECT" means any Eligible Project all or
any portion of which is encumbered by a Lien.
"ENVIRONMENTAL LAWS" means any and all present and future
federal, state or local laws, rules, regulations, statutes or codes and any
and all ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened
release of any Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary of the Borrower directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the presence, generation,
use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of
the foregoing.
"EQUITY VALUE" means Total Value less Total Outstanding
Indebtedness.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by
the Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multi-employer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multi-employer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multi-employer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO
Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCLUDED TAXES" means with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment
to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction in
which the Borrower is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section
2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.15(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.15(a).
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/ 100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FFO" means "funds from operations" as defined in the National
Association of Real Estate Investment Trusts ("NAREIT ") White Paper on
Funds From Operations as approved by the NAREIT Board of Governors on March
3, 1995.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"FIXED CHARGES" means with respect to-any fiscal period, the
sum of (a) Total Interest Expense and (b) the aggregate of all scheduled
principal payments on Indebtedness made or required to be made during such
fiscal period for the Consolidated Businesses (but excluding balloon
payments of principal due upon the stated maturity of an Indebtedness) and
(c) the aggregate of all dividends declared and payable on the Company's,
the Borrower's or any of their Subsidiaries' preferred stock or preferred
partnership units, as the case may be, provided, HOWEVER, that the
distributions payable on the currently outstanding Class A Limited
Partnership Interests of the Borrower shall not be included in this clause
(c).
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"GENERAL PARTNER" means the Company and any successor general
partner(s) of the Borrower.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR') means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "PRIMARY OBLIGOR') in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation; PROVIDED, that the term Guarantee shall
not include (i) endorsements for collection or deposit in the ordinary
course of business, (ii) guarantees of completion unless and until a claim
for payment has been made thereunder, at which time any such guaranty of
completion shall be deemed to be a Guaranty in an amount equal to any such
claim and (iii) Low Income Housing Credit Program Guarantees.
"GUARANTY" means the Guaranty Agreement of even date herewith
made by the Company for the benefit of the Lenders in the form attached
hereto as Exhibit B.
"HAZARDOUS MATERIALS" means toxic substances, hazardous waste,
hazardous materials or hazardous substances, as such terms are defined in
the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Section 9601 ET SEQ.), the Comprehensive Environmental, Response,
Compensation and Liability Act, as amended (42 U.S.C. Sections 9601 and
9657 ET SEQ.) and/or the Hazardous Materials Transportation Act, as amended
(49 U.S.C. Sections 1801 ET SEQ.), and the regulations promulgated pursuant
to any such laws, any asbestos or asbestos related products and any oils,
petroleum-derived compounds or pesticides; PROVIDED that "Hazardous
Materials" shall not include (a) materials which exist in quantities or in
a compounded non-hazardous form in compliance with all applicable Federal,
state and local laws, ordinances, rules and regulations such as asphalt
contained in road surfacing materials and (b) materials customarily used in
the day-to-day operation and maintenance of the Properties which are
stored, used and disposed of in accordance with all applicable Federal,
state and local laws, ordinances, rules and regulations such as cleaning
fluids.
"HEDGING AGREEMENT" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"IMPROVEMENTS" means all buildings, fixtures, structures,
parking areas, landscaping and all other improvements whether existing now
or hereafter constructed, together with all machinery and mechanical,
electrical, HVAC and plumbing systems presently located thereon and used in
the operation thereof, excluding (a) any such items owned by utility
service providers, (b) any such items owned by tenants or other
third-parties unaffiliated with the Borrower and (c) any items of personal
property.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations (including, without limitation, Contingent Obligations) of such
Person for borrowed money or with respect to deposits or advances of any
kind, (b) all obligations (including, without limitation, Contingent
Obligations) of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations (including, without limitation,
Contingent Obligations) of such Person upon which interest charges are
customarily paid, (d) all obligations (including, without limitation,
Contingent Obligations) of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred
in the ordinary course of business), (f) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, (g) all Guarantees by such Person of Indebtedness of
others, (h) all Capital Lease Obligations (including, without limitation,
Contingent Obligations) of such Person, (i) all obligations (including,
without limitation, Contingent Obligations) of such Person as an account
party in respect of letters of credit and letters of guaranty and (j) all
obligations (including, without limitation, Contingent Obligations) of such
Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person's ownership interest
in or other relationship with such entity, except to the extent the terms
of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INTEREST ELECTION REQUESTS" means a request by the Borrower to
convert or continue a Revolving Loan in accordance with Section 2.06.
"INTEREST PAYMENT DATE" means the first day of each calendar
month.
"INTEREST PERIOD" means the period commencing on the date of
any Eurodollar Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter, as the
Borrower may elect, PROVIDED that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the
last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Loan, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"ISSUING BANK" means The Manufacturers and Traders Trust
Company, in its capacity as the issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.04(i). 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 Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount 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 Applicable Percentage of the total LC
Exposure at such time.
"LEASE" means a lease, license, concession agreement or other
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments
thereof and all side letters or side agreements relating thereto.
"LENDERS" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Acceptance.
"LETTER OF CREDIT" means any letter of credit issued pursuant to
this Agreement,
"LIBO RATE" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate
Service (or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such Service or if
such page or service ceases to display such information from such other
service or method as the Administrative Agent may select) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case
of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"LOANS" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty
and all other instruments, agreements and written obligations between the
Borrower and any of the Lenders pursuant to or in connection with the
transactions contemplated hereby.
"LOW INCOME HOUSING CREDIT PROGRAM GUARANTEES" means the
assurance by the Borrower to limited partners of certain Affiliates of the
Borrower, of which the Borrower or a Subsidiary of the Borrower is the
general partner, that the real properties developed and operated by such
Affiliates under the Low Income Housing Tax Credit program established
under the Code will be kept in compliance with applicable requirements to
avoid loss of, or recapture of, low income housing tax credits.
"MANAGEMENT COMPANY" means either, (i) Home Properties
Management, Inc., a Maryland corporation, 95% of the issued and outstanding
capital stock of which is and shall continue to be owned, beneficially and
of record, by the Borrower, and (ii) Conifer Realty Corporation, a Maryland
corporation, 95% of the issued and outstanding capital stock of which is
and shall continue to be owned, beneficially and of record, by the
Borrower.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U and Regulation G of the Federal Reserve Board as in effect
from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, assets, operations or condition (financial or otherwise) of
the Borrower and its wholly-owned Subsidiaries, taken as a whole, (b) the
ability of the Company, the Borrower or any of their Subsidiaries to
perform any of their obligations under this Agreement or the Loan Documents
or (c) the rights of or benefits available to the Lenders under this
Agreement or the Loan Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $7,500,000. For purposes of
determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary of the Borrower in respect of
any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"MATURITY DATE" means September 4, 2000.
"MAXIMUM AVAILABILITY" means the lesser of (a) $100,000,000 and
(b) the sum of (i) 60% of the Total Property Value of Unencumbered Eligible
Projects plus (ii) 60% of the Total Property Value of Encumbered Eligible
Projects minus the amount of any Secured Indebtedness affecting such
Projects, PROVIDED that such amount in this clause (ii) shall not be less
than zero.
"MONEY MARKET" when used in reference to any Loan or Borrowing,
refers to whether such Loan or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Money Market
Rate.
"MONEY MARKET LOAN MATURITY DATE" means, with respect to any
Money Market Loan, the maturity date requested by the Borrower in
connection therewith (which date shall in no event be later than the
earlier of (a) 29 days after the date of such Borrowing thereof and (b) the
Maturity Date).
"MONEY MARKET RATE" means, with respect to any proposed Money
Market Loan, the quoted rate per annum obtained by the Administrative Agent
with respect thereto, and accepted by all the Lenders in their sole
discretion, no later than 10:00 a.m., New York City time, two Business Days
prior to the requested date of Borrowing (or, in the case of Money Market
Loans having a Money Market Maturity Date of six days or less from the
relevant date of Borrowing, the quoted rate per annum obtained by the
Administrative Agent with respect thereto, and accepted by all the Lenders
in their sole discretion, no later than one hour after the quote is
obtained by the Administrative Agent, which quote shall in no event be
obtained later than 12:00 noon, New York City time, on the relevant date of
Borrowing).
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(aX3) of ERISA.
"NET CASH PROCEEDS" means all cash when and as received in
connection with the sale or refinancing of any Real Property, less the
amount of Secured Indebtedness required to be repaid in connection with the
sale or refinancing of such Real Property, real estate transfer taxes
payable in connection with the sale of such Real Property and reasonable
costs and expenses paid by the Borrower or its Subsidiaries in connection
with such sale or refinancing.
"NET OFFERING PROCEEDS" means all cash received by the Company
as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or
other ownership or equity interests in the Company, less customary costs
and discounts of issuance paid by the Company.
"NOI" means net operating income derived from Projects
determined in accordance with GAAP, adjusted, however, to exclude accrued
rent with respect to tenants that are more than 90 days in arrears in the
payment of rent, and further adjusted to account for the actual management
fee, if any, paid with respect to the Projects.
"NOTE" means a promissory note in the form attached hereto as
Exhibit C payable to a Lender, evidencing certain of the Obligations of the
Borrower to such Lender and executed by the Borrower, as the same may be
amended, supplemented, modified or restated from time to time; "NOTES"
means, collectively, all of such Notes outstanding at any given time.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business; and
(e) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary of the
Borrower, provided that the term "Permitted Encumbrances" shall not include
any Lien securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) Cash and Cash Equivalents;
(b) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof,
(c) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from Moody's;
(d) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000; and
(e) fully collaterialized repurchase agreements with a term of
not more than 30 days for securities described in clause (b) above and
entered into with a financial institution satisfying the criteria described
in clause (d) above.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by The Manufacturers and Traders Trust Company
as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.
"PROJECT" means any residential housing building, related group
of buildings or community owned 100%, directly or indirectly, by any of the
Consolidated Businesses.
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable,
or other asset owned or leased by any Consolidated Business.
"QRS SUBSIDIARY" means the Company's wholly-owned Subsidiary
that after the date hereof owns limited partnership interests in the
Borrower.
"QUALIFIED COMMUNITY REINVESTMENT PROJECTS" means those Projects
that comply with the Community Reinvestment Act or other applicable federal
and state laws.
"QUARTERLY COMPLIANCE CERTIFICATE" shall have the meaning set
forth in Section 5.01(a)(iii).
"REAL PROPERTY" means all of the Borrower's present and future
right, title and interest (including, without limitation, any leasehold
estate) in (i) any plots, pieces or parcels of land, (ii) any Improvements
of every nature whatsoever (the rights and interests described in clauses
(i) and (ii) above being the "Premises"), (iii) all easements, rights of
way, gores of land or any lands occupied by streets, ways, alleys,
passages, sewer rights, water courses, water rights and powers, and public
places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any
way belong, relate or be appurtenant thereto, (iv) all hereditaments, gas,
oil, minerals (with the right to extract, sever and remove such gas, oil
and minerals), and easements, of every nature whatsoever, located in, on or
benefiting the Premises and (v) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the
rights and interests described in clauses (iii) and (iv) above.
"RECOURSE SECURED INDEBTEDNESS" means (a) Guarantees of the
Company, the Borrower and their Subsidiaries and (b) Secured Indebtedness
affecting any Project that is recourse to the Borrower or its Subsidiaries.
"REGISTER" has the meaning set forth in Section 9.04.
"REIT" means a domestic trust or corporation that qualifies as a
real estate investment trust under the provisions of Sections 856, ET SEQ.
of the Code.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing at least 75% of the
sum of the total Revolving Credit Exposures and unused Commitments at such
time.
"RESTRICTED PAYMENT" is defined in Section 6.01 hereof.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its LC Exposure at such time.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for
new negotiable non-personal time deposits in dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to
any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements
if such financial statements were prepared in accordance with GAAP as of
such date.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"THREE-MONTH SECONDARY CD RATE" means, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day is not a Business Day, the
next preceding business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H. 15(519) during the week following such day) or, if
such rate is not so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or,
if such day is not a Business Day, on the next preceding Business Day) by
the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"TOTAL INTEREST EXPENSE" means, for any period, the sum of (i)
interest expense of the Consolidated Businesses paid during such period and
(ii) interest expense of the Consolidated Businesses accrued and/or
capitalized for such period in each case including participating interest
expense, the amortization of loan fees, original issue discount, non-cash
interest payment, the interest component of Capital Lease Obligations and
hedging costs but excluding extraordinary interest expense, and net of
amortization of deferred costs associated with new financings or
refinancings of existing Indebtedness.
"TOTAL OUTSTANDING INDEBTEDNESS" means, as of any date, the sum
of (i) all Indebtedness of the Consolidated Businesses and (ii) without
duplication, all Contingent Obligations of the Consolidated Businesses
which are recourse to the Borrower. "Total Outstanding Indebtedness" shall
not be deemed to include (a) completion guarantees of construction loans or
(b) Low Income Housing Tax Credit Program Guarantees.
"TOTAL PROPERTY VALUE" means, as of any date, the sum of (i)
with respect to all Eligible Projects which have been owned by the Borrower
for not less than four full consecutive calendar quarters, as of the first
day of each fiscal quarter for the immediately preceding consecutive four
calendar quarters, an amount equal to Adjusted NOI relating to such
Eligible Project for such period divided by an annual interest rate equal
to 9.5%, and (ii) with respect to all Eligible Projects which have been
owned by the Borrower for less than four full consecutive calendar
quarters, an amount equal to the cost of acquiring such Eligible Projects
less reasonable and customary transaction costs incurred in connection with
such acquisition.
"TOTAL VALUE" means, as of any date, the sum of (i) Total
Property Value for all Eligible Projects; (ii) an amount equal to 500% of
the EBITDA derived from management and development activities of the
Consolidated Businesses as of the first day of each fiscal quarter for the
immediately preceding consecutive four calendar quarters; (iii)
unrestricted Permitted Investments of the Consolidated Businesses; (iv) an
amount equal to 50% of Book Value of undeveloped land and Projects on which
construction is in progress, up to a maximum of 10% of Total Value before
including the amount of Total Value derived from this clause (iv); (v) an
amount equal to 75% of all (1) investments in notes secured by mortgages on
the Property of any Person (including Affiliates) and (2) obligations of
Affiliates and directors, officers and employees of the Company, the
Borrower, the Borrower's Subsidiaries, the Borrower's Affiliates and the
Management Companies to repay any loans and advances; and (vi) Borrower's
pro rata share of investments in Real Property not constituting Eligible
Projects, valued at the lower of cost or the value specified in clauses (i)
through (vi) above.
"TRANSACTIONS" means the execution, delivery and performance by
the Borrower of this Agreement, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
"TYPE" when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or the Money Market Rate.
"UNENCUMBERED ELIGIBLE PROJECT" means any Eligible Project with
is not an Encumbered Eligible Project.
"UNSECURED INTEREST EXPENSE" means the interest expense paid,
accrued or capitalized on all Total Outstanding Indebtedness that is not
Secured Indebtedness for the applicable period.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Type
(EG., a "Eurodollar Loan"). Borrowings also may be classified and referred
to by Type (EG., a "Eurodollar Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. ACCOUNTING TERMS: GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such change in GAAP or
in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees to make Loans to the Borrower from
time to time during the Availability Period in an aggregate principal
amount that will not result in (i) such Lender's Revolving Credit Exposure
exceeding such Lender's Commitment or (ii) the sum of the total Revolving
Credit Exposures exceeding the total Maximum Availability. Within the
foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02 LOANS AND BORROWINGS. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective Commitments. The failure of any Lender
to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder, PROVIDED that the Commitments of the
Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of ABR Loans, Money Market Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; PROVIDED that any exercise of
such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Loan, such Loan shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $1,000,000. At the time
that each ABR Loan is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $ 100,000 and not less than $ 1,000,000;
PROVIDED that an ABR Loan may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type may be outstanding at the same
time; PROVIDED that there shall not at any time be more than a total of
five Eurodollar Loans outstanding.
(d) Notwithstanding anything herein to the contrary, at no time
shall the aggregate Revolving Credit Exposure be greater than the Maximum
Availability.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date.
(f) Notwithstanding any other provision of this Agreement, no
Loans with interest accruing at the Money Market Rate shall be made unless
all the Lenders accept the quoted Money Market Rate obtained by the
Administrative Agent.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of the
proposed Borrowing, (b) in the case of a Money Market Borrowing, not later
than 11:00 a.m., New York City time, two Business Days before the date of
the proposed Borrowing (or, in the case of Money Market Loans having a
Money Market Maturity Date of six days or less from the relevant date of
Borrowing, not later than 11:00 a.m., New York City time, on the date of
the proposed Borrowing), or (c) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that any such notice of an ABR Borrowing
to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.04(e) may be given not later than 10:00 a.m., New York City time,
on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing
Request in the form of Exhibit D-1 attached hereto, or such other form
approved by the Administrative Agent, and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a
Eurodollar Borrowing or a Money Market Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term
"Interest Period";
(v) in the case of a Money Market Borrowing, the Money Market
Loan Maturity Date to be applicable thereto, which shall
be a date contemplated by the definition of the term
"Money Market Maturity Date"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be a Eurodollar Borrowing with an Interest Period of one
month's duration. If no Interest Period is specified with respect to any
requested Eurodollar Borrowing, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If no Money Market
Maturity Date is specified with respect to any requested Money Market
Borrowing, then the Borrower shall be deemed to have selected a Money
Market Maturity Date that is seven days after the date of such Borrowing.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. LETTERS OF CREDIT. (a) GENERAL. 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 Administrative Agent and the Issuing Bank, at any time
and from time to time during the Availability Period. 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) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION, CERTAIN
CONDITIONS. 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 telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or
extension) a notice in the form of Exhibit D-2 attached hereto, or such
other form approved by the Administrative Agent, and signed by the Borrower
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, 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 an amount equal to 10% of the Maximum
Availability and (ii) the sum of the total Revolving Credit Exposures shall
not exceed the Maximum Availability.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension)
and (ii) the date that is five Business Days prior to the Maturity Date.
(d) PARTICIPATIONS. 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 Applicable 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 Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable 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 or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. 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 Administrative Agent an amount equal
to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York City
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 12:00 noon,
New York City time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., New York City 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, if such LC
Disbursement is not less than $ 1,000,000, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with
Section 2.03 that such payment be financed with a Money Market Loan 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
Money Market Loan. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and
such Lender's Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.05 with respect to Loans made by such
Lender (and Section 2.05 shall apply, MUTATIS MUTANDIS, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from
the Borrower pursuant to this paragraph, the Administrative 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 ABR Revolving Loans as contemplated above) shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) OBLIGATIONS ABSOLUTE. 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
Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, 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. 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 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) DISBURSEMENT PROCEDURES. 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 Administrative Agent, the Lenders 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) INTERIM INTEREST. 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 ABR Revolving Loans; PROVIDED that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.11 (e) shall apply. 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) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative 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 2.10(b). 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) CASH COLLATERALIZATION. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders demanding the deposit
of cash collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative 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 VII. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative 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 Administrative 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 Administrative
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 to the satisfaction of the Required Lenders.
SECTION 2.05. FUNDING OF BORROWINGS. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time,
to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts
so received, in like funds, to an account of the Borrower designated by the
Borrower in the applicable Borrowing Request; PROVIDED that ABR Revolving
Loans made to finance the reimbursement of an LC Disbursement as provided
in Section 2.04(e) shall be remitted by the Administrative Agent to the
Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS. (a) Each Loan initially shall
be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Loan, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Loan to a different Type or to continue such Loan and, in the
case of a Eurodollar Loan, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with
respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a Eurodollar Borrowing or a Money Market
Borrowing;
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving
effect to such election, which shall be a period
contemplated by the definition of the term "Interest
Period"; and
(v) if the resulting Borrowing is a Money Market Borrowing,
the Money Market Loan Maturity Date to be applicable
thereto, which shall be a date contemplated by the
definition of the term "Money Market Maturity Date."
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration, and if any such
Interest Election Request requests a Money Market Borrowing but does not
specify a Money Market Maturity Date, then the Borrower shall be deemed to
have selected a Money Market Maturity Date that is seven days after the
date of such Borrowing.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to (i) a Eurodollar Loan prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Loan shall be
converted to a Eurodollar Loan with an Interest Period of one month's
duration and (ii) a Money Market Loan prior to the Money Market Maturity
Date applicable thereto, then, unless such Borrowing is repaid as provided
herein, on the Money Market Maturity Date such Loan shall be converted to
an ABR Loan. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as
an Event of Default is continuing (i) no outstanding Loan may be converted
to or continued as a Eurodollar Loan and (ii) unless repaid, each
Eurodollar Loan shall be converted to an ABR Loan at the end of the
Interest Period applicable thereto and each Money Market Loan shall be
converted to an ABR Loan on the Money Market Maturity Date applicable
thereto.
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; PROVIDED that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $100,000
and not less than $1,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment
of the Loans in accordance with Section 2.09, the Revolving Credit
Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; PROVIDED that a
notice of termination of the Commitments delivered by the Borrower may
state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower
(by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with
their respective Commitments.
SECTION 2.08. REPAYMENT OF LOANS, EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof
and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereto
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that
the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement
SECTION 2.09. PREPAYMENT OF LOANS. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to prior notice in accordance with paragraph (b)
of this Section.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Eurodollar Loan, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in
the case of prepayment of an ABR Loan, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment, or (iii) in the
case of prepayment of a Money Market Loan, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by
Section 2.07, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.07. Promptly
following receipt of any such notice relating to a Loan, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Loan shall be in an amount that would be permitted in the
case of an advance of a Loan of the same Type as provided in Section 2.02.
Each prepayment of a Loan shall be applied ratably to the Loans included in
the prepaid Borrowing. Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.11.
(c) If at any time the Borrower or any of its Subsidiaries
receives proceeds from the sale, transfer, assignment, conveyance or
refinancing of any Real Property or any interest in any Real Property, the
Borrower shall be required to prepay a portion of the Loan in an amount
equal to the Net Cash Proceeds unless the Borrower shall have obtained
prior written consent from the Required Lenders to retain the Net Cash
Proceeds. In the event of a required prepayment in accordance with this
clause (c), the Borrower shall simultaneously with the receipt of such Net
Cash Proceeds make such prepayment together with the interest accrued to
the date of the prepayment on the principal amount prepaid. In connection
with the prepayment of any Loan prior to the maturity thereof, the Borrower
shall also pay any applicable expenses pursuant to Section 2.14 hereof.
Each such prepayment shall be applied to prepay ratably the Loans of the
Lender. As used in this clause (c) only, the phrase "sale, transfer,
assignment, conveyance or refinancing" shall not include sales or
conveyances among Borrower and any of its Subsidiaries.
(d) If at any time the Revolving Credit Exposure exceeds the
Maximum Availability, the Borrower shall be required to prepay a portion of
the Loan in an amount equal to such excess. In the event of a required
prepayment in accordance with this clause (d), the Borrower shall
immediately make such prepayment together with the interest accrued to the
date of the prepayment on the principal amount prepaid and shall, to the
extent necessary, return or cause to be returned to the Issuing Bank such
Letters of Credit so that immediately following such prepayment and return
of such Letters of Credit the Revolving Credit Exposure shall not exceed
the Maximum Availability; provided that in lieu of returning any such
Letters of Credit, the Borrower may deposit with the Administrative Agent
cash collateral in accordance with Section 2.04(j). In connection with the
prepayment of any Loan prior to the maturity thereof, the Borrower shall
also pay any applicable expenses pursuant to Section 2.14 hereof. Each such
prepayment shall be applied to prepay ratably the Loans of the Lender.
(e) If at any time (i) the Company or the Borrower merges or
consolidates with another Person and the Company or the Borrower, as the
case may be, is not the surviving entity, or (ii) the Company, the
Borrower, any of its Subsidiaries or either Management Company,
individually or collectively, ceases to provide property management and
leasing services to at least 80% of the total number of Projects in which
the Borrower has an ownership interest (the date any such event shall occur
being the "PREPAYMENT DATE"), the Borrower shall be required to prepay the
Loans in their entirety as if the Prepayment Date were the Maturity Date,
and the Commitment shall be terminated as of the Prepayment Date, without
further notice to the Borrower. In the event of a required prepayment in
accordance with this clause (e), the Borrower shall on the Prepayment Date
make such prepayment together with the interest accrued to the date of the
prepayment on the principal amount prepaid and shall return or cause to be
returned all Letters of Credit to the Issuing Bank. In connection with the
prepayment of any Loan prior to the maturity thereof, the Borrower shall
also pay any applicable expenses pursuant to Section 2.14 hereof Each such
prepayment shall be applied to prepay ratably the Loans of the Lender.
Amounts prepaid pursuant to this clause (e) may not be reborrowed.
SECTION 2.10. FEES. (a) On the Closing Date Borrower shall pay to
the Administrative Agent a commitment fee of $150,000.00, which shall be
fully earned and non-refundable.
(b) Borrower agrees to pay to the Administrative Agent for the
account of each Lender an unused facility fee, which shall accrue at a rate
of 22.5 basis points per annum on the daily amount of the unused Commitment
of such Lender during the period from and including the date hereof to but
excluding the date on which such Commitment terminates; PROVIDED that, if
such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on
the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued unused facility fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after
the date hereof, PROVIDED that any unused facility fees accruing after the
date on which the Commitments terminate shall be payable on demand. All
unused facility 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).
(c) Upon the issuance of each Letter of Credit, the Borrower
agrees to pay to the Lender an issuance fee. If the requested Letter of
Credit is for a duration of one year, the issuance fee shall be equal to 1%
of the face amount of the Letter of Credit, which Letter of Credit fee
shall also be due on each anniversary date of the issuance of the Letter of
Credit (or any extension or renewal thereof), so long as the Letter of
Credit (or any extension or renewal thereof), remains outstanding. If the
requested Letter of Credit is for a duration of less than one year, the
issuance fee shall be equal to 1%, pro-rated to the nearest 1/12 of a year,
of the face amount of the Letter of Credit. Notwithstanding the above, in
no case shall the issuance fee be less than the greater of $400.00 or 1/2
% of the face amount of the Letter of Credit. Upon the issuance of each
Letter of Credit (and upon each anniversary thereof so long as the Letter
of Credit remains outstanding), the issuance fee shall be fully earned and
non-refundable. Each Letter of Credit Fee shall be payable quarterly in
arrears, with one-quarter of the issuance fee due three months from the
issuance of the Letter of Credit (and also three months from each
anniversary of the issuance of the Letter of Credit), one quarter of the
issuance fee due six months from the issuance of the Letter of Credit (and
also six months from each anniversary of the issuance of the Letter of
Credit), one quarter of the issuance fee due nine months from the date of
issuance of the Letter of Credit (and also nine months from each
anniversary of the issuance of the Letter of Credit), and one quarter of
the issuance fee due on the anniversary of the issuance of the Letter of
Credit (and twelve months from each anniversary of the issuance of the
Letter of Credit). Borrower shall also pay to the Lender the Lender's
standard fees with respect to the amendment, renewal or extension of any
Letter of Credit and processing of drawings thereunder.
(d) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in the
case of facility fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances. Upon its receipt of fees
to which the Lenders are entitled, the Administrative Agent shall promptly
remit such fees to the Lenders as provided herein.
SECTION 2.11. INTEREST. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate, which rates are
subject to change without notice to the Borrower as specified in the
definition of Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Eurodollar Margin.
(c) The Loans comprising each Money Market Borrowing shall bear
interest at the Money Market Rate.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after
as well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or (ii)
in the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for the immediately preceding calendar month and
upon termination of the Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (d) of this Section 2.11 shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate and Money
Market Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period; then the Administrative Agent shall give notice thereof to
the Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the
conversion of any Loan to, or continuation of any Loan as, a Eurodollar
Loan shall be ineffective and (ii) if any Borrowing Request requests a
Eurodollar Loan, such Borrowing shall be made as a Money Market Loan with a
Money Market Maturity Date of seven days from the date of such Borrowing,
PROVIDED that if the circumstances giving rise to such notice affect only
one Interest Period or one Type of Borrowings, then the other Interest
Periods and Type of Borrowings shall be permitted.
SECTION 2.13. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan (or of maintaining
its obligation to make any such Loan) or to increase the cost to such
Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital
or on the capital of such Lender's or the Issuing Bank's holding company,
if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender's or the Issuing Bank's holding company
could have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies and the policies of such
Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph
(a) or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such
compensation; PROVIDED that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date
that such Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's intention to claim
compensation therefor; PROVIDED, FURTHER, that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 270-day
period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.14. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.09(b) and is revoked in
accordance therewith) or (d) the assignment of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.17, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had
such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. TAXES. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of
and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Borrower shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as
will permit such payments to be made without withholding or at a reduced
rate.
SECTION 2.16. PAYMENTS GENERALLY, PRO RATA TREATMENT, SHARING OF
SET-OFFS. (a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or
otherwise) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices,
except payments to be made directly to the Issuing Bank as expressly
provided herein and except that payments pursuant to Sections 2.13, 2.14,
2.15 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations
in the Loans and participations in LC Disbursements of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Loans and participations in LC
Disbursements; PROVIDED that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off
and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(d) or (e), 2.05(b) or 2.16(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.17. MITIGATION OBLIGATIONS, REPLACEMENT OF LENDERS. (a)
If any Lender requests compensation under Section 2.13, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates,
if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15,
as the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Bank, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments
required to be made pursuant to Section 2.15, such assignment will result
in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION: POWERS. Each of the Borrower, the
Company and their Affiliates is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted
and, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, is
qualified to do business in, and is in good standing in, every jurisdiction
where it owns property or where the conduct of its business or the
ownership of its property or assets (including, without limitation, the
Projects) requires such qualification. Neither the Borrower, the Company
nor any of their Affiliates are "foreign persons" within the meaning of
Section 1445 of the Code.
SECTION 3.02. AUTHORIZATION, ENFORCEABILITY. (a) The Transactions
have been duly authorized by all necessary partnership action of the
Borrower and the General Partner has the requisite power and authority to
execute, deliver and perform this Agreement and the other Loan Documents on
behalf of the Borrower. The Guaranty has been duly authorized by all
necessary action of the Company and the Company has the requisite power and
authority to execute, deliver and perform the Guaranty and the other Loan
Documents to which it is a party. This Agreement and each other Loan
Document to which it is a party has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law. The
Guaranty and each other Loan Document to which it is a party has been duly
executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject
to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(b) SCHEDULE 3.02 contains a diagram indicating the ownership
structure of the Company, the Borrower and their respective Subsidiaries,
indicating the nature of such interest with respect to each Person included
in such diagram and accurately sets forth (1) the correct legal name of
such Person, the jurisdiction of its incorporation or organization and the
jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding
shares or interests of each class of securities of the Company. None of
such issued and outstanding securities is subject to any vesting,
redemption, or repurchase agreement, and there are no warrants or options
outstanding with respect to such securities, except as noted on such
Schedule. The outstanding capital stock of the Company is duly authorized,
validly issued, fully paid and nonassessable. The Company has no
Subsidiaries other than as set forth on such Schedule 3.02.
SECTION 3.03. GOVERNMENTAL APPROVALS, NO CONFLICTS. Neither the
Transactions nor the execution, delivery and performance of the Loan
Documents by the Borrower or the Company, as the case may be, (a) requires
any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have been obtained or
made and are in full force and effect and except as may be required under
applicable federal securities laws, (b) violates any applicable law or
regulation or the charter, by-laws, partnership agreement or other
organizational documents of the Company, the Borrower or any of their
Subsidiaries, or any order of any Governmental Authority, (c) violates or
results in a default under any indenture, agreement or other instrument
binding upon the Company, the Borrower or any of their Subsidiaries or
their assets, or give rise to a right thereunder to require any payment to
be made by the Borrower or any of its Subsidiaries or (d) results in the
creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION: NO MATERIAL ADVERSE CHANGE.
(a) The Borrower has heretofore furnished to the Lenders (i) its annual
audited financial statements for the fiscal year ended December 31, 1998,
reported on by Coopers & Lybrand LLP, independent public accountants, and
(ii) quarterly financial statements for the quarter ended June 30, 1999,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) Since June 30, 1999, there has been no change, event or
circumstance which has had or is reasonably likely to have a Material
Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries has any
Contingent Obligation or liability for any taxes, long-term leases or
commitments, not reflected in its audited financial statements delivered to
the Administrative Agent on or prior to the Effective Date or otherwise
disclosed to the Administrative Agent and the Lenders in writing, which
will have or is reasonably likely to have a Material Adverse Effect.
(D) SCHEDULE 3.04 sets forth, as of July 31, 1999, all
Indebtedness of the Borrower and its Subsidiaries and there are no defaults
in the payment of principal or interest on any such Indebtedness and no
payments thereunder have been deferred or extended beyond their stated
maturity.
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and its
Subsidiaries has good and marketable title to, or valid leasehold interests
in, all its Property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended
purposes. Ownership of all wholly owned Projects and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is
not held directly by the Company.
(b) There are no pending or, to the best knowledge of the
Borrower, threatened proceedings or actions to revoke, attack, invalidate,
rescind or modify in any material respect (i) the zoning of any Projects,
or any part thereof, or (ii) any building or other permits heretofore
issued with respect to any Project, or asserting that any such zoning or
permits do not permit the operation of any such Project or any part thereof
or that any improvements located on such Project cannot be operated in
accordance with its intended use or is in violation of applicable law.
There are no pending or, to the best knowledge of the Borrower, threatened
or contemplated proceedings relating to any (A) taking by eminent domain or
other condemnation of any portion of any Project, (B) condemnation or
relocation of any roadways abutting any Project and (C) denial of access to
any Project from any point of access to such Project which would have, or
is reasonably likely to have, a Material Adverse Effect. Each Project has
adequate and permanent legal access to water, gas and electrical public
utilities, storm, and sanitary sewerage facilities, other required public
utilities (with respect to each of the aforementioned items by means of
either a direct connection to the source of such utilities or through
connections available on publicly dedicated roadways directly abutting such
Project), parking and means of access between such Project and public
highways over recognized curb cuts; and all of the foregoing comply with
all applicable laws, rules and regulations of Governmental Authorities.
(c) Neither the existence of any Improvements upon a Project or
the present use or condition of any Project violate in any material respect
any applicable laws, rules and regulations of Governmental Authorities.
Each Project may be operated in its current fashion and the Borrower has
received no notices from any Governmental Authority alleging any violation
by any Project of any applicable laws, rules or regulations. All of the
Improvements located on the Projects and the use of such Improvements are
covered by existing valid certificates of occupancy and all other
certificates and permits required by applicable laws, rules, regulations,
and ordinances or in connection with the use, occupancy, and operation
thereof. No material portion of any Projects, nor any Improvements located
on such Projects that are material to the operation, use, or value thereof,
have been damaged in any respect as a result of any fire, explosion,
accident, flood, or other casualty, except to the extent that the same have
been restored to their condition prior thereto. No written notices of
violation of any federal, state, or local law or ordinance or order or
requirement have been received with respect to any Projects.
(d) There are no pending or, to the best of Borrower's
knowledge, proposed special or other assessments for public improvements or
otherwise affecting any Project, nor, to the best of Borrower's knowledge,
are there any contemplated improvements to any Projects that may result in
such special or other assessments.
(e) Each Project is free of material structural defects and all
building systems contained therein are in good working order subject to
ordinary wear and tear.
(f) Each Project is being operated and maintained in accordance
with the Borrower's usual and customary business practices.
SECTION 3.06. INTELLECTUAL PROPERTY. The Company, the Borrower
and their Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to
its business, and the use thereof by the Company, the Borrower and their
Subsidiaries does not infringe upon the rights of any other Person, except
for any such infringements that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.07. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are
no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the best knowledge of the
Borrower, threatened against or affecting the Company, the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material
Adverse Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company, the Borrower nor any of its Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
(d) Except as may be disclosed in detail by the Borrower to the
Lenders in writing from time to time, no Hazardous Materials are located on
or about any of the Properties, and the Properties do not contain any
underground tanks for the storage or disposal of Hazardous Materials;
PROVIDED that notwithstanding the delivery of any such notice, the Borrower
and each of its Subsidiaries shall at all times be in compliance with all
laws, rules, regulations and orders of any Governmental Authority
applicable to it or its Properties except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. Further, (i) the Borrower has not, and
to the knowledge of the Borrower no other Person has, (A) stored or treated
Hazardous Materials, (B) disposed of Hazardous Materials or incorporated
Hazardous Materials into, on or around any of the Properties, and (C)
permitted any underground storage tanks to exist on any of the Properties,
(ii) no complaint, order, citation or notice with regard to air emissions,
water discharges, noise emissions, or Hazardous Materials, if any, or any
other environmental, health, or safety matters affecting any of the
Properties or any portion thereof, from any person, government or entity,
has been issued to the Borrower which has not been remedied or cured, and
(iii) the Borrower has complied with all applicable laws, rules or
regulations affecting the Properties.
SECTION 3.08. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Company, the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
SECTION 3.09. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Company, the Borrower nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.10. TAXES. Each of the Company, Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $250,000 the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $250,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.12. DISCLOSURE. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to
which the Company, the Borrower or any of its Subsidiaries is subject, and
all other matters known to the Borrower, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect. None of the reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that,
with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.13. INSURANCE. SCHEDULE 3.13 accurately sets forth as
of the Effective Date all insurance policies and programs currently in
effect with respect to the Properties, assets and business of the Company,
the Borrower and its Subsidiaries, specifying for each such policy and
program, (i) the amount thereof, (ii) the risks insured against thereby,
(iii) the name of the insurer and each insured party thereunder, (iv) the
policy or other identification number thereof, and (v) the expiration date
thereof. The Borrower has delivered to the Administrative Agent copies of
all insurance policies set forth on Schedule 3.13. Such insurance policies
and programs are currently in full force and effect, and, together with
payment by the insured of scheduled deductible payments, are in amounts
sufficient to cover the replacement value of the respective Properties and
assets of the Borrower and its Subsidiaries.
SECTION 3.14. REIT STATUS . The Company qualifies as a REIT under
the Code.
SECTION 3.15. SOLVENCY. Within the meaning of Section 548 of
Title 11 of the United States Code entitled "Bankruptcy' as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code"), the
Uniform Fraudulent Transfer Act and the Uniform Fraudulent Conveyance Act
as in effect in any relevant jurisdiction, and any similar laws or
statutes, and after giving effect to the transactions contemplated hereby:
the fair saleable value of the Borrower's assets exceeds and will,
immediately following the making of the Loans, exceed the Borrower's total
liabilities including, without limitation, subordinated, unliquidated,
disputed, and contingent liabilities; the fair saleable value of the
Borrower's assets is and will, immediately following the making of each
Loan, be greater than the Borrower's probable liabilities, including the
maximum amount of its contingent liabilities on its debts as such debts
become absolute and matured; the Borrower's assets do not and, immediately
following the making of the Loans will not, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be
conducted; and the Borrower does not intend to, and does not believe that
it will, incur debts and liabilities (including without limitation
contingent liabilities and other commitments) beyond its ability to pay
such debts as they mature (taking into account the timing and amounts of
cash to be received by the Borrower and the amounts to be payable on or in
respect of obligations of the Borrower).
SECTION 3.16. MARGIN REGULATIONS. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
any margin stock or margin securities (within the meaning of Regulations G,
T, U and X issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Loan will be used, directly or indirectly, to
purchase or carry any margin stock or margin securities or to extend credit
to others for the purpose of purchasing or carrying any margin stock or
margin securities. None of the transactions contemplated by this Agreement
will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended.
SECTION 3.17. REPRESENTATIONS AND WARRANTIES IN THE LOAN
DOCUMENTS. The representations and warranties of the Borrower and the
Company, as the case may be, in each of the Loan Documents are true,
complete and correct in all material respects, and the Borrower hereby
confirms each such representation and warranty as being true, complete and
correct in all material respects as of the relevant dates with the same
effect as if set forth in its entirety herein.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to
make Loans and of the Issuing Bank to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from the Company and each party hereto either (i) a counterpart of
this Agreement and all other Loan Documents to which it is a party,
signed on behalf of such party including, without limitation, the
Guaranty, or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature
page of each such Loan Document) that such party has signed a
counterpart of this Agreement and all other Loan Documents required to
be delivered by the Administrative Agent.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Nixon Hargrave, Devans & Doyle LLP,
counsel for the Borrower, substantially in the form of Exhibit E, and
covering such other matters relating to the Borrower, the Company,
this Agreement or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to
deliver such opinion.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of the Borrower, the Company and their Affiliates, the
authorization of the Transactions and any other legal matters relating
to the Borrower, the Company and their Affiliates, this Agreement or
the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, an Executive
Vice President or a Financial Officer of the General Partner,
confirming compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.02.
(e) No change in the business, assets, management, operations,
financial condition or prospects of the Borrower or any of its
Properties shall have occurred since June 30, 1999, which change, in
the judgment of the Administrative Agent, will have or is reasonably
likely to have a Material Adverse Effect.
(f) Except as disclosed to the Administrative Agent and the
Lenders, since June 30, 1999, neither the Borrower nor the Company
shall have (i) entered into any (as determined in good faith by the
Administrative Agent) commitment or transaction, including, without
limitation, transactions for borrowings and capital expenditures,
which are not in the ordinary course of the Borrower's or the
Company's business, (ii) declared or paid any dividends or other
distributions other than dividends paid to the shareholders of the
Company for the quarter ended June 30, 1999, (iii) established
compensation or employee benefit plans or (iv) redeemed or issued any
equity Securities other than shares of common stock, par value $.01
per share, of the Company (1) issued from time to time pursuant to the
terms and conditions of the Company's Dividend Reinvestment and Stock
Purchase, Resident Stock Purchase and Employee Stock Purchase Plan and
(2) issued in exchange for limited partnership interests in the
Borrower.
(g) Since June 30, 1999, no agreement or license relating to the
business, operations or employee relations of the Borrower or any of
its Properties shall have been terminated, modified, revoked, breached
or declared to be in default, the termination, modification,
revocation, breach or default under which, in the reasonable judgment
of the Administrative Agent, would result in a Material Adverse
Effect.
(h) Since June 30, 1999, no material adverse change shall have
occurred in the conditions in the capital markets or the market for
loan syndications generally.
(i) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth
in this Agreement shall be true and correct on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
(c) The Borrower has not received written notice from the
Required Lenders that an event has occurred since the date of this
Agreement which has had, and continues to have, or is reasonably
likely to have, a Material Adverse Effect.
(d) The Borrower shall have delivered a certificate in the form
of Exhibit D-1 or D-2, as applicable, attached hereto, signed by a
Financial Officer of the Borrower, (1) representing and certifying
that immediately prior to and immediately after the requested
Borrowing or the issuance, amendment or extension of a Letter of
Credit, the Company, the Borrower and their Subsidiaries are in
compliance with the representations, warranties and covenants set
forth in this Agreement and (2) including the calculations set forth
therein.
Each Borrowing and-each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) through (d) of this Section 4.02.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) QUARTERLY REPORTS.
(i) BORROWER QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within forty-five (45) days after the end of
each fiscal quarter in each fiscal year (other than the last fiscal quarter
in each fiscal year), a consolidated balance sheet and the related
consolidated statement of operations of the Borrower and its Subsidiaries
(to be prepared and delivered quarterly in conjunction with the other
reports delivered hereunder) for each such fiscal quarter, in each case in
form and substance used in the preparation of the consolidating financial
statements of the Company and, with respect to the statement of operations,
in comparative form, the corresponding figures for the corresponding
periods of the previous fiscal year, certified by a Financial Officer of
the Borrower as fairly presenting the consolidated financial position of
the Borrower as of the dates indicated and the results of their operations
for the months indicated in accordance with GAAP, subject to normal
quarterly adjustments but without certain footnote disclosures required by
GAAP.
(ii) COMPANY QUARTERLY FINANCIAL REPORTS. As soon as practicable,
and in any event within forty-five (45) days after the end of each fiscal
quarter in each fiscal year (other than the last fiscal quarter in each
fiscal year), a consolidated balance sheet and the related consolidated
statements of operations and cash flow of the Company, the Borrower and its
Subsidiaries on Form 10-Q as at the end of such period and, with respect to
the statements of operations and cash flow, setting forth in comparative
form the corresponding figures for the corresponding period of the previous
fiscal year, certified by a Financial Officer of the Company as fairly
presenting the consolidated and consolidating financial position of the
Company, the Borrower and its Subsidiaries as at the date indicated and the
results of their operations and cash flow for the period indicated in
accordance with GAAP, subject to normal adjustments but without certain
footnote disclosures required by GAAP (as permitted by the requirements for
reporting on Form 10-Q).
(iii) QUARTERLY COMPLIANCE CERTIFICATES. Together with each
delivery of any quarterly report pursuant to clauses (i) and (ii) of this
Section 5.01(a), the Borrower shall deliver a certificate of the Borrower
and the Company in the form of Exhibit F attached hereto (the "Quarterly
Compliance Certificate"), signed by the Borrower's and the Company's
respective Financial Officers, representing and certifying (1) that the
Financial Officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her supervision, a
review in reasonable detail of the transactions and consolidated and
consolidating financial condition of the Company, the Borrower and its
Subsidiaries, during the fiscal quarter covered by such reports, that such
review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as
at the date of such Quarterly Compliance Certificate, of any condition or
event which constitutes an Event of Default or Default or mandatory
prepayment event, or, if any such condition or event existed or exists, and
specifying the nature and period of existence thereof and what action the
Company and/or the Borrower or any of its Subsidiaries has taken, is taking
and proposes to take with respect thereto; and (2) the calculations
evidencing compliance with each of the financial covenants set forth in
Article VI hereof.
(b) ANNUAL REPORTS.
(i) BORROWER FINANCIAL STATEMENTS. As soon as practicable, and in
any event within ninety (90) days after the end of each fiscal year, a
consolidated balance sheet and the related consolidated statement of
operations of the Borrower and its Subsidiaries as at the end of such
fiscal year, in each case in form and substance used in the preparation of
the consolidating financial statements of the Company and, with respect to
the statement of operations, in comparative form, the corresponding figures
for the corresponding periods of the previous fiscal year, certified by a
Financial Officer of the Borrower as fairly presenting the consolidated
financial position of the Borrower as of the dates indicated and the
results of their operations for the months indicated in accordance with
GAAP, subject to normal year-end adjustments but without certain footnote
disclosures required by GAAP.
(ii) COMPANY FINANCIAL STATEMENTS. As soon as practicable, and in
any event within ninety (90) days after the end of each fiscal year, (i) an
audited consolidated balance sheet and the related consolidated statements
of operations and cash flow of the Company and its Subsidiaries on Form
10-K as at the end of such fiscal year and a report setting forth in
comparative form the corresponding figures from the consolidated financial
statements of the Company and its Subsidiaries for the prior fiscal year,
(ii) a report with respect thereto of Coopers & Lybrand LLP or other
nationally recognized independent certified public accountants acceptable
to the Administrative Agent, which report shall be unqualified and shall
state that such financial statements fairly present the consolidated
financial position of the Company and its Subsidiaries as at the dates
indicated and the consolidated results of its operations and cash flow for
the periods indicated in conformity with GAAP applied on a basis consistent
with prior years (except for changes with which Coopers & Lybrand LLP or
any such other independent certified public accountants, if applicable,
shall concur and which shall have been disclosed in the notes to the
financial statements) (which report shall be subject to the confidentiality
limitations set forth herein); and (iii) in the event that the report
referred to in clause (ii) above is qualified, a copy of the management
letter or any similar report delivered to the Company or to any officer or
employee thereof by such independent certified public accountants in
connection with such financial statements. The Administrative Agent and
each Lender (through the Administrative Agent) may, with the consent of the
Company (which consent shall not be unreasonably withheld), communicate
directly with such accountants, with any such communication to occur
together with a representative of the Company, at the expense of the
Administrative Agent (or the Lender requesting such communication), upon
reasonable notice and at reasonable times during normal business hours.
(iii) ANNUAL COMPLIANCE CERTIFICATES. Together with each delivery of
any annual report pursuant to clauses (i) and (ii) of this Section 5.01(b),
the Borrower shall deliver a certificate of the Borrower and the Company in
the form of Exhibit F attached hereto (the "Annual Compliance
Certificate"), signed by the Borrower's and the Company's respective
Financial Officers, representing and certifying (1) that the officer
signatory thereto has reviewed the terms of the Loan Documents, and has
made, or caused to be made under his/her supervision, a review in
reasonable detail of the transactions and consolidated and consolidating
financial condition of the Company, the Borrower and its Subsidiaries,
during the accounting period covered by such reports, that such review has
not disclosed the existence during or at the end of such accounting period,
and that such officer does not have knowledge of the existence as at the
date of such Annual Compliance Certificate, of any condition or event which
constitutes an Event of Default or Default or mandatory prepayment event,
or, if any such condition or event existed or exists, and specifying the
nature and period of existence thereof and what action the Company and/or
the Borrower or any of its Subsidiaries has taken, is taking and proposes
to take with respect thereto; and (2) the calculations evidencing
compliance with each of the financial covenants set forth in Article VI
hereof.
(c) ACCOUNTANT'S CERTIFICATE. Concurrently with any delivery of
financial statements under clause (b) above, a certificate of the
accounting firm that reported on such financial statements stating whether
they obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines).
(d) PROPERTY REPORTS. When requested by the Administrative Agent
or the Required Lenders, a rent roll and income statement with respect to
any Project.
(e) COMMUNITY REINVESTMENT ACT. Promptly following any request
therefor, such other information regarding the Loans and the use thereof,
Qualified Community Reinvestment Projects and the Company, the Borrower and
its Subsidiaries as any Lender may request to determine compliance by the
Projects with the Community Reinvestment Act or other applicable federal or
state law; provided that the Borrower shall have no obligation hereunder to
deliver any such information to any Lender more than one time in any
calendar quarter.
(f) ADDITIONAL INFORMATION. Promptly following any request
therefor, such other information regarding the operations, business affairs
and financial condition of the Company, the Borrower or any Subsidiary of
the Borrower, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. (a) The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(iii) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $250,000; and
(iv) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by
a certificate of a Financial Officer or other executive officer of the
Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect
thereto.
(b) The Borrower shall deliver to the Administrative Agent and
the Lenders written notice of each of the following not less than ten (10)
Business Days prior to the occurrence thereof: (i) a sale, transfer or
other disposition of assets, in a single transaction or series of related
transactions, for consideration in excess of an amount equal to 10% of the
Total Value, (ii) an acquisition of assets, in a single transaction or
series of related transactions, for consideration in excess of 10% of the
Total Value, and (iii) the grant of a Lien with respect to assets, in a
single transaction or series of related transactions, in connection with
Indebtedness aggregating an amount in excess of 10% of the Total Value. In
addition, simultaneously with delivery of any such notice, the Borrower
shall deliver to the Administrative Agent a certificate of the Borrower and
its financial Officer certifying that Borrower is in compliance with this
Agreement and the other Loan Documents both on a historical basis and on a
pro forma basis, exclusive of the property sold, transferred and/or
encumbered and inclusive of the property to be acquired or the indebtedness
to be incurred, together with calculations, in the form of Schedule B to
Exhibit F attached hereto, evidencing compliance with each of the financial
covenants set forth in Article VI hereof.
To the extent such proposed transaction, after giving effect to
the prepayment required to be made pursuant to Section 2.09(c), would
result in a failure to comply with the financial covenants set forth
herein, the Borrower shall prepay outstanding Loans in such amount, as
determined by the Administrative Agent, as may be required to reduce the
Obligations so that the Borrower will be in compliance with the covenants
set forth herein upon the consummation of the contemplated transaction.
SECTION 5.03. EXISTENCE, CONDUCT OF BUSINESS. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES, INSURANCE: MANAGEMENT .
(a) The Borrower will, and will cause each of its Subsidiaries to, (i) keep
and maintain all Property useful and necessary to the conduct of its
business in good working order and condition, ordinary wear and tear
excepted, and (ii) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are
described in Section 3.13 or substantially similar policies and programs as
are acceptable to the Administrative Agent.
(b) The Borrower, its wholly-owned Subsidiaries and either
Management Company, individually or collectively, shall at all times manage
Projects constituting the greater of (i) 80% of Total Value or (ii) 80% of
the total number of apartment units comprising the Projects.
SECTION 5.06. BOOKS AND RECORDS, INSPECTION RIGHT . The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. USE OF PROCEEDS AND LETTERS OF CREDIT. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the
Board, including Regulations G, T, U and X. The proceeds of the Loans will
be used only for the purposes of:
(a) Acquisition of residential housing Projects similar to and
consistent with the types of Projects owned and/or operated by the
Borrower on the Effective Date (including Qualified Community
Reinvestment Projects), located in the Northeast, Mid-Atlantic and
Midwest regions of the United States;
(b) Renovation of Projects owned and operated by the Borrower,
(c) Redemptions by the Borrower of interests of limited
partnership units in the Borrower issued in connection with the
acquisition from time to time of Projects;
(d) Financing expansions, renovations and new construction
related to Properties owned and operated by the Borrower or its
Subsidiaries and Affiliates; PROVIDED, HOWEVER, that in no event,
shall more than 50% of aggregate amount of the Loans be used for the
construction of any new Projects;
(e) Refinancing of existing Indebtedness for borrowed money
secured by Projects;
(f) Payment by the Borrower of distributions to its partners
(including the Company); and
(g) Working capital needs of the Borrower, PROVIDED, HOWEVER, in
no event shall the LC Exposure and the amount of the Loans used by the
Borrower for working capital purposes exceed 10% of the Maximum
Availability in the aggregate.
Promptly upon the utilization of any proceeds of the Loans in
connection with the acquisition, expansion, renovation or construction of a
Qualified Community Reinvestment Project, the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer or other
executive officer of the Borrower setting forth the details of each such
utilization.
SECTION 5.09. COMPANY STATUS. The Company shall at all times (a)
remain a publicly traded company listed on the New York Stock Exchange, (b)
maintain its status as a REIT under Sections 856-860 of the Code and (c)
retain direct or indirect management and control of the Borrower.
SECTION 5.10. OWNERSHIP OF PROJECTS AND PROPERTY: UNENCUMBERED
ASSETS. The ownership of substantially all wholly owned Projects and other
Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by the Company.
SECTION 5.11. SHAREHOLDER COMMUNICATION, FILINGS, ETC. Promptly
upon the mailing or filing thereof, the Borrower shall deliver to the
Administrative Agent copies of all financial statements, reports and proxy
statements mailed to the Company's shareholders, and copies of all of the
Company's final registration statements and other final documents filed
with the Securities and Exchange Commission (or any successor thereto) or
any national securities exchange.
SECTION 5.12. FURTHER ASSURANCES. The Borrower agrees upon demand
of the Administrative Agent to do any act or execute any additional
documents as may be reasonably required by the Administrative Agent to
exercise or enforce its rights under this Agreement, the Notes or the other
Loan Documents and to realize thereon. This covenant shall survive the
termination of this Agreement until payment in full of all amounts due
hereunder or under the Notes and the other Loan Documents, provided that
the covenant shall be reinstated if any payment of all amounts due
hereunder or under the Notes and the other Loan Documents is required to be
returned to the payor or any other party under any applicable bankruptcy
law.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have
been paid in full and all Letters of Credit have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. (a) INDEBTEDNESS AND OTHER FINANCIAL COVENANTS.
Neither the Borrower nor any of its Subsidiaries shall directly or
indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except that the
Borrower and/or its Subsidiaries may create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness to the extent that Total Outstanding Indebtedness, would not
exceed (i) 55% of Total Value, or (ii) in the case of Secured Indebtedness
of the Consolidated Businesses, 50% of Total Value, or (iii) in the case of
Recourse Secured Indebtedness of the Consolidated Businesses, 35% of Total
Value, or (iv) in the case of Adjusted Recourse Secured Indebtedness, 12.5%
of Total Value. Notwithstanding anything to the contrary herein contained,
in no event shall (x) the aggregate amount of completion guarantees with
respect to Projects at any time exceed 15% of Total Value and (y) the
aggregate amount of Low Income Housing Credit Program Guarantees at any
time exceed 15% of Total Value.
(b) MINIMUM EQUITY VALUE. The Equity Value shall at no time be
less than $270,800,000.00, plus an amount equal to 85% of all Net Offering
Proceeds received by the Company after July 6, 1998.
(c) MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO. As of the
first day of each calendar quarter for the immediately preceding four
consecutive calendar quarters, the ratio of Adjusted EBITDA to Total
Interest Expense for such period shall not be less than 2.15 to 1.0.
(d) MINIMUM UNSECURED INTEREST COVERAGE RATIO. As of the first
day of each calendar quarter for the immediately preceding four consecutive
calendar quarters, the ratio of Adjusted Unencumbered NOI to Unsecured
Interest Expense shall not be less than 1.65 to 1.0.
(e) MINIMUM UNENCUMBERED TOTAL PROPERTY VALUE. The Total
Property Value of Unencumbered Eligible Projects shall at no time be less
than the greater of (a) 120% of the Revolving Credit Exposure at such time
and (b) $100,000,000. Unencumbered Eligible Projects shall consist at all
times of not less than ten (10) Eligible Projects.
(f) MINIMUM FIXED CHARGE COVERAGE RATIO. As of the first day of
each calendar quarter for the immediately preceding four consecutive
calendar quarters, the ratio of Adjusted NOI to Fixed Charges shall not be
less than 1.8 to 1.0.
(g) MAXIMUM DIVIDEND PAYOUT RATIO. The Company shall not make
any Restricted Payment during any of its fiscal quarters, which, when added
to all Restricted Payments made during the three immediately preceding
fiscal quarters, exceeds the greater of (i) 90% of FFO, and 110% of CAD,
and (ii) the amounts required to maintain its status as a REIT under the
Code. For purposes of this provision, "Restricted Payment" means (i) any
dividend or other distribution on any shares of the Company's capital stock
(except dividends payable solely in shares of its capital stock or in
rights to subscribe for or purchase shares of its capital stock), or (ii)
any payment on account of the purchase, redemption, retirement or
acquisition of (a) any shares of the Company's capital stock or (b) any
option, warrant or other right to acquire shares of the Company's capital
stock.
(h) MAXIMUM AVAILABILITY. The Revolving Credit Exposure shall
not at any time exceed the Maximum Availability. If at any time the
Revolving Credit Exposure exceeds the Maximum Availability, the Borrower
shall immediately prepay a portion of the Loan in an amount equal to such
excess as provided for in Section 2.09(d).
SECTION 6.02. LIENS. The-Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Lien on any Property now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(a) Permitted Encumbrances; and
(b) Liens securing permitted Secured Indebtedness, provided that
a maximum Secured Indebtedness in an amount equal to not more
than 20% of Total Value may be secured by any one Project or
several cross-collateralized Projects.
SECTION 6.03. FUNDAMENTAL CHANGE . (a) The Borrower will not, and
will not permit any of its Subsidiaries to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate
with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets, or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except (i) in connection with the issuance transfer, conversion
or repurchase of limited partnership interests in Borrower, and (ii) if at
the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing any Person may merge into the
Borrower in a transaction in which the Borrower is the surviving entity and
any Subsidiary of the Borrower may merge into the Borrower in a transaction
in which the Borrower is the surviving entity.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on
the date of execution of this Agreement and businesses reasonably related
thereto.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITION . The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary of the
Borrower prior to such merger) any capital stock, evidences of indebtedness
or other securities (including any option, warrant or other right to
acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit, except:
(a) permitted Investments;
(b) investments in Real Property;
(c) investments (including loans) in the Borrower's Subsidiaries,
the Borrower's Affiliates and the Management Company;
(d) loans to directors, officers and employees of the Company,
the Borrower, the Borrower's Subsidiaries, the Borrower's
Affiliates and either Management Company;
(e) investments in notes secured by mortgages on any Real
Property of any Person;
(f) investments in Real Property under development or
construction; and
(g) investments in equity securities issued by a REIT that
primarily owns multi-family properties.
Notwithstanding the foregoing, the investments set forth above
shall be limited in the following manner (i) the aggregate amount of
investments in land and/or Real Property under development or construction
shall not exceed 10% of Total Value; (ii) the aggregate amount of
investments in partnerships, joint ventures, corporations, limited
liability companies or other entities which are not wholly-owned by the
Borrower or its Subsidiaries shall not exceed 10% of Total Value; (iii) the
aggregate amount of investments by the Borrower and its Subsidiaries in
Properties which are not residential in nature shall not exceed 5% of Total
Value; (iv) the aggregate outstanding principal amount of such loans to
directors, officers and employees shall not exceed $10,000,000; and (v) the
aggregate amount of investments in equity securities issued by REITs that
primarily own multi-family properties shall not exceed 10% of Total Value.
SECTION 6.05. HEDGING AGREEMENTS. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Subsidiary
of the Borrower is exposed in the conduct of its business or the management
of its liabilities.
SECTION 6.06. TRANSACTIONS WITH AFFILIATES. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or
permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder or holders of more than 5% of any class of equity
securities of the Borrower, or with any Affiliate of the Borrower which is
not its Subsidiary, on terms that determined by the respective Boards of
Directors of the Company to be less favorable to the Borrower or any of its
Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate. Nothing contained in this Section 6.06 shall prohibit (a)
increases in compensation and benefits for officers and employees of the
Borrower or any of its Subsidiaries which are customary in the industry or
consistent with the past business practice of the Borrower or such
Subsidiary, PROVIDED that no Event of Default or Default has occurred and
is continuing; (b) payment of customary partners' indemnities; or (c)
performance of any obligations arising under the Loan Documents.
SECTION 6.07. RESTRICTION ON FUNDAMENTAL CHANGE. Neither the
Borrower nor any of its Subsidiaries shall enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), or convey, lease, sell, transfer or otherwise dispose of,
in one transaction or series of transactions, all or substantially all of
the Borrower's or any such Subsidiary's business or Property, whether now
or hereafter acquired, except in connection with issuance, transfer,
conversion or repurchase of limited partnership interests in Borrower.
Notwithstanding the foregoing, the Borrower shall be permitted to merge
with another Person so long as the Borrower is the surviving Person
following such merger.
SECTION 6.08. MARGIN REGULATIONS: SECURITIES LAWS. Neither the
Borrower nor any of its Subsidiaries, shall use all or any portion of the
proceeds of any credit extended under this Agreement to purchase or carry
Margin Stock.
SECTION 6.09. NEGATIVE COVENANTS OF THE COMPANY AND THE QRS
SUBSIDIARY. (a) The Company will not acquire any assets of any nature
whatsoever, other than (i) additional partnership units in the Borrower and
(ii) its interest in the QRS Subsidiary and other Subsidiaries of the
Company. The QRS Subsidiary will not acquire any assets of any nature
whatsoever, other than its limited partnership interests in the Borrower.
(b) From and after the date hereof, the Company will not incur
any Indebtedness or any other obligations or liabilities or any Liens on
its assets or any part thereof except (i) as the general partner of the
Borrower in connection with trade payables incurred in the ordinary course
of business, (ii) Indebtedness, the net proceeds of which are contributed
to the QRS Subsidiary or the Borrower, as the case may be, simultaneously
with the incurrence thereof by the Company, (iii) Guaranties of
Indebtedness of any Affiliate of the Company incurred in the ordinary
course of such Affiliate's business and (iv) the obligation to pay
dividends when and if declared by the Company. From and after the date
hereof, the QRS Subsidiary will not incur any Indebtedness or any other
obligations or liabilities or any Liens on its assets or any part thereof.
(c) From and after the date hereof, (i) the Company will not
retain any Net Offering Proceeds, and the same will be contributed by the
Company to the Borrower, or if the QRS Subsidiary is a limited partner in
the Borrower, to the QRS, Subsidiary simultaneously with receipt thereof by
the Company and (ii) the QRS Subsidiary will not retain any Net Offering
Proceeds so contributed to it by the Company, and the same will be
contributed by the QRS Subsidiary to the Borrower simultaneously with
receipt thereof by the QRS Subsidiary.
(d) The Company shall not enter into any merger or
consolidation, or liquidate, windup or dissolve (or suffer any liquidation
or dissolution), or convey, lease, sell, transfer or otherwise dispose of,
in one transaction or series of transactions, any of its business or
assets, including its interests in the Borrower or in the QRS Subsidiary.
Notwithstanding the foregoing, the Company shall be permitted to merge with
another Person so long as the Company is the surviving Person following
such merger. The QRS Subsidiary shall not enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), or convey, lease, sell, transfer or otherwise dispose of,
in one transaction or series of transactions, any of its business or
assets, including its interests in the Borrower.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay (i) any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise or
(ii) any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise,
and such failure shall continue unremedied for a period of three days
after notice;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries in or in connection
with this Agreement or any amendment or modification hereof or waiver
hereunder, or in any report certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, shall prove
to have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Article V or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 15 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);
(f) the Company, the Borrower or any Subsidiary of the Borrower
shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when
and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness unless prohibited by
this Agreement;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company, the Borrower
or any Subsidiary of the Borrower or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company, the Borrower or any
Subsidiary of the Borrower or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering
any of the foregoing shall be entered;
(i) the Company, the Borrower or any Subsidiary of the Borrower
shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company, the
Borrower or any Subsidiary of the Borrower or for a substantial part
of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(j) the Company, the Borrower or any Subsidiary of the Borrower
shall become unable, admit in writing or fail generally to pay its
debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $ 1,000,000 shall be rendered against
the Company, the Borrower, any Subsidiary of the Borrower or any
combination thereof and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Company, the
Borrower or any Subsidiary of the Borrower to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $250,000;
(m) a Change in Control shall occur,
(n) an event shall occur which has a Material Adverse Effect;
(o) the Company shall fail to (i) maintain its status as a REIT
for federal income tax purposes, or (ii) continue as a general partner
of the Borrower, or (iii) comply with all Requirements of Law
applicable to it and its businesses and Properties, in each case where
the failure to so comply individually or in the aggregate will have or
is reasonably likely to have a Material Adverse Effect, or (iv) remain
listed on the New York Stock Exchange, or (v) file all tax returns and
reports required to be filed by it with any Governmental Authority as
and when required to be filed or to pay any taxes, assessments, fees
or other governmental charges upon it or its Property, assets,
receipts, sales, use, payroll, employment, licenses, income, or
franchises which are shown in such returns, reports or similar
statements to be due and payable as and when due and payable, except
for taxes, assessments, fees and other governmental charges (A) that
are being contested by the Company in good faith by an appropriate
proceeding diligently pursued, (B) for which adequate reserves have
been made on its books and records, and (C) the amounts the nonpayment
of which would not, individually or in the aggregate, result in a
Material Adverse Effect;
(p) the Company shall merge or liquidate with or into any other
Person and, as a result thereof and after giving effect thereto, (i)
the Company is not the surviving Person or (ii) such merger or
liquidation would effect an acquisition of or investment in any Person
not otherwise permitted under the terms of this Agreement. The
Borrower shall merge or liquidate with or into any other Person and,
as a result thereof and after giving effect thereto, (i) the Borrower
is not the surviving Person or (ii) such merger or liquidation would
effect an acquisition of or Investment in any Person not otherwise
permitted under the terms of this Agreement; or
(q) the Guaranty shall at any time and for any reason other than
pursuant to the terms thereof, cease to be in full force and effect or
shall be declared null and void, or the validity or enforceability
thereof shall be contested by the Company or the Company shall deny it
has any further liability or obligation thereunder,
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
shall, at the request of the Required Lenders, by notice to the Borrower,
take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower, and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent by the terms
hereof, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent,
and such bank and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that
the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement by a person other than the
Administrative Agent, (ii) the contents of any certificate, report or other
document delivered hereunder or in connection herewith by a person other
than the Administrative Agent, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein
by a person other than the Administrative Agent, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article IV or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel, independent
accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative
Agent may resign at any time by notifying the Lenders, the Issuing Bank and
the Borrower. Upon any such resignation, the Required Lenders shall have
the right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an
office in New York State, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon
this Agreement, any related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail, return receipt requested, or sent by telecopy, as follows:
(a) if to the Borrower, to it at 850 Clinton Square, Rochester,
New York 14604, Attn: David P. Gardner (Telecopy No. 716-546-5433),
with a copy to the Borrower at the same address, Attention: Gerald B.
Korn (Telecopy No. 716-546-5433);
(b) if to the Administrative Agent, to The Manufacturers and
Traders Trust Company, 255 East Avenue, Rochester, New York 14604,
Attn: Ms. Lisa Plescia, Vice President, Telecopy No. 716-546-5363;
(c) if to the Issuing Bank, to The Manufacturers and Traders
Trust Company, 255 East Avenue, Rochester, New York 14604, Attn:
Ms. Lisa Plescia, Vice President; Telecopy No. 716-546-5363 and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt.
SECTION 9.02. WAIVERS, AMENDMENTS. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default
at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the prior written consent of the
Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent
of each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, or (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent
of each Lender, PROVIDED FURTHER that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent or the
Issuing Bank hereunder without the prior written consent of the
Administrative Agent or the Issuing Bank, as the case may be.
SECTION 9.03. EXPENSES; INDEMNITY, DAMAGE WAIVER. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of outside and in-house counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, the Issuing Bank or any Lender, in connection
with the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, and the other Loan
Documents including, without limitation, the Note, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower hereby indemnifies the Administrative Agent,
the Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against,
and holds each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result
of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (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 such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses resulted from the negligence of
such Indemnitee proven by clear and convincing evidence (and not merely a
preponderance of the evidence) or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank
under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent or the Issuing Bank, as the case may be,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Issuing
Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than ten Business Days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGN . (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other
than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter
of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the
Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it);
provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Administrative Agent
(and, in the case of an assignment of all or a portion of a Commitment or
any Lender's obligations in respect of its LC Exposure, the Issuing Bank
must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of
the Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further
that any consent of the Borrower otherwise required under this paragraph
shall not be required if an Event of Default under clause (h) or (i) of
Article VII has occurred and is continuing. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations
in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in the State of
New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already
be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); PROVIDED that (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first
proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the
same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits
of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.16(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.17 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; PROVIDED that no such
pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant
to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of. Sections 2.13, 2.14, 2.15 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment
of the Loans, the expiration or termination of the Letters of Credit and
the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. COUNTERPARTS, INTEGRATION, EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but
all of which when taken together shall constitute a single contract. This
Agreement and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. This Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 9.09. GOVERNING LAW, JURISDICTION, CONSENT TO SERVICE OF
PROCESS . (a) This Agreement and all the other Loan Documents shall be
construed in accordance with and governed by the law of the State of New
York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in Monroe County and of the
United States District Court of the Western District of New York, and any
appellate court from any thereof, or such other jurisdiction or venue as
the Required Lenders may determine, in any action or proceeding arising out
of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court, or in such other
jurisdiction or venue as the Required Lenders may so determine. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, 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 this Agreement in any
court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent,
the Issuing Bank and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates' directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to
keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative
Agent, the Issuing Bank or any Lender on a nonconfidential basis from a
source other than the Borrower. For the purposes of this Section,
"Information" means all information received from the Borrower relating to
the Borrower or its business, other than any such information that is
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; PROVIDED that,
in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the "Charges"),
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest payable
in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
By: /S/ GERALD B. KORN
Name: Gerald B. Korn
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY, individually and as
Administrative Agent,
By: /S/ LISA PLESCIA
Name: Lisa Plescia
Title: Vice President
CITIZENS BANK OF RHODE ISLAND
By: /S/ CRAIG E. SCHERMERHORN
Name: Craig E. Schermerhorn
Title: Vice President
STATE OF NEW YORK)
COUNTY OF MONROE) SS:
On this 23rd day of August, 1999, before me, the subscriber,
personally appeared GERALD B. KORN, to me known, who, being by me duly
sworn, did depose and say that he resides in Fairport, New York that he is
the Vice President of HOME PROPERTIES OF NEW YORK, L.P., the limited
partnership described in, and which executed the within Instrument, and
that he signed his name thereto by order of the Board of Directors.
/s/ David M. Hastings
Notary Public, State of New York
No. 02HA4079617
Qualified in Monroe County
Commission Expires June 9, 2001
STATE OF NEW YORK)
COUNTY OF MONROE) SS:
On this 23rd day of August, 1999, before me, the subscriber,
personally appeared LISA PLESCIA, to me known, who, being by me duly sworn,
did depose and say that she resides in Rochester, New York, that she is a
Vice President of MANUFACTURERS AND TRADERS TRUST COMPANY, the corporation
described in, and which executed the within Instrument, and that she signed
her name thereto by order of the Board of Directors.
/s/ David M. Hastings
Notary Public, State of New York
No. 02HA4079617
Qualified in Monroe County
Commission Expires June 9, 2001
STATE OF NEW YORK)
COUNTY OF MONROE) SS:
On this 20th day of August, 1999, before me, the subscriber,
personally appeared CRAIG E. SCHERMERHORN, to me known, who, being by me
duly sworn, did depose and say that he resides in Providence, Rhode Island,
that he is the Vice President of CITIZENS BANK OF RHODE ISLAND, the
corporation described in, and which executed the within Instrument, and
that he signed his name thereto by order of the Board of Directors.
/s/ Maurice C. Mahoney
Notary Public
Commission Expires 7/23/01
