EXHIBIT 10.76
M&T Bank
Manufacturers and Traders Trust Company
LIBOR GRID NOTE
(Daily LIBOR)
New York
Buffalo, New York November 23, 2004 $42,000,000.00
BORROWER: HOME PROPERTIES, L.P., a partnership organized under the laws of
Maryland. Address of residence/chief executive office: 850 Clinton Square,
Rochester, NY 14604
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with its principal banking office at One M&T Plaza, Buffalo, NY 14240.
Attention: Office of General Counsel
1. DEFINITIONS. Each capitalized term shall have the meaning specified herein
and the following terms shall have the indicated meanings.
a. "Authorized Person" shall mean, each individually,
____________________________ Mention of the Authorized Person's name is for
reference purposes only and the Bank may rely on a person's title to
ascertain whether someone is an Authorized Person.
b. "Base Rate" shall mean 0 percentage points above the rate of interest
announced by the Bank from time to time as its prime rate of interest
("Prime"). If the prior blank is not completed, the Base Rate shall be one
(1) percentage point above Prime.
c. "Base Rate Loan" shall mean a Loan which bears interest at the Base Rate.
d. "Business Day" shall mean any day of the year other than a day on which
banking institutions in New York, New York are authorized or required by
law or other governmental action to close.
e. "Conversion Date" shall mean the date on which Borrower's election to
convert a Base Rate Loan to a LIBOR Rate Loan, or a LIBOR Rate Loan to a
Base Rate Loan, becomes effective in accordance with this Note.
f. "Draw Date" shall mean, in relation to Loan, the Business Day on which such
Loan is made, or to be made, to Borrower pursuant to the Note.
g. "LIBOR Rate Loan" shall mean a Loan which bears interest at the LIBOR Rate.
h. "LIBOR" shall mean the rate obtained by dividing (i) the one-day (or
multiple day, as applicable, in contemplation of succeeding days in which
the London Interbank Eurodollar Market is expected to be closed) interest
period London Interbank Offered Rate, as fixed by the British Bankers
Association for United States dollar deposits in the London Interbank
Eurodollar Market at approximately 11:00 a.m. London, England time (or as
soon thereafter as practicable) each day (or if such day is a non-Business
Day, as fixed in the same manner on the immediately preceding Business Day,
which day's rate shall apply to the immediately succeeding non-Business
Days), as determined by the Bank from any broker, quoting service or
commonly available source, utilized by the Bank, by (ii) a percentage equal
to 100% minus the stated maximum rate of all reserves required to be
maintained against "Eurocurrency Liabilities" as specified in Regulation D
(or against any other category of liabilities, which includes deposits by
reference to which the interest rate on LIBOR Rate Loan(s) is determined,
or any category of extensions of credit or other assets which includes
loans by a non-United States' office of a bank to United States' residents)
on such date to any member bank of the Federal Reserve System.
i. "LIBOR Rate" shall mean 1.25 percentage points above LIBOR.
J. "Loan" means a loan made to Borrower by the Bank pursuant to this Note.
k. "Maximum Principal Amount" shall mean Forty-Two Million Dollars
($42,000,000.00).
l. "Outstanding Principal Amount" shall mean the actual outstanding principal
amount under this Note at any time.
2. PAYMENT OF PRINCIPAL, INTEREST AND EXPENSES
a. Promise to Pay. For value received, and intending to be legally bound,
Borrower promises to pay to the order of the Bank, on demand, the Maximum
Principal Amount or the Outstanding Principal Amount, if less; plus interest as
set forth below and all fees and costs (including without limitation attorneys'
fees and disbursements, whether for internal or outside counsel) the Bank incurs
in order to collect any amount due under this Note, to negotiate or document a
workout or restructuring, or to preserve its rights or realize upon any guaranty
or other security for the payment of this Note ("Expenses").
b. Interest. Each Loan shall earn interest on the Outstanding Principal
Amount thereof calculated on the basis of a 360-day year for the actual number
of days of each year (365 or 366), as follows:
i. LIBOR Rate Loans. Interest shall accrue each day on a LIBOR Rate
Loan, from and including the first date the LIBOR Rate Loan was made
(i.e., the Draw Date or the Conversion Date, as the case may be) to,
but not including, the date such LIBOR Rate Loan is paid in full or
converted to a Base Rate Loan, at a rate per annum equal to the LIBOR
Rate in effect that day.
ii. Base Rate Loans. Interest shall accrue each day on a Base Rate
Loan, from and including the first date the Base Rate Loan was made
(i.e., the Draw Date or the Conversion Date, as the case may be) to,
but not including, the day such Base Rate Loan is paid in full or
converted to a LIBOR Rate Loan, at the rate per annum equal to the
Base Rate in effect that day. Any change in the Base Rate resulting
from a change in Prime shall be effective on the date of such change.
c. Maximum Legal Rate. It is the intent of the Bank and of Borrower that in
no event shall interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate"). Solely to the extent
necessary to prevent interest under this Note from exceeding the Maximum Legal
Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to
Borrower.
d. Payments; Late Charge; Default Rate. Payments shall be made in
immediately available United States funds at any banking office of the Bank.
Absent demand for payment in full, interest shall be due and payable monthly, or
as otherwise invoiced by the Bank. If payment is not received within five days
of its due date, Borrower shall pay a late charge equal to the greatest of (a)
5% of the delinquent amount, (b) the Bank's then current late charge as
announced by the Bank from time to time, or (c) $50.00. In addition, if the Bank
has not actually received any payment under this Note within thirty days after
its due date, from and after such thirtieth day the interest rate for all
amounts outstanding under this Note shall automatically increase to 5 percentage
points above the higher of the Base Rate or the LIBOR Rate (the "Default Rate"),
and any judgment entered hereon or otherwise in connection with any suit to
collect amounts due hereunder shall bear interest at such Default rate. Payments
may be applied in any order in the sole discretion of the Bank but, prior to
demand, shall be applied first to past due interest, Expenses, late charges, and
principal payments, if any, which are past due, then to current interest and
Expenses and late charges, and last to remaining principal.
3. LOANS.
a. General. Any Loan hereunder shall either be in the form of a Base Rate
Loan or a LIBOR Rate Loan. The Bank may make any Loan in reliance upon any oral,
telephonic, written, teletransmittal or other request (the "Request(s)") that
the Bank in good faith believes to be valid and to have been made by Borrower or
on behalf of Borrower by an Authorized Person. The Bank may act on the Request
of any Authorized Person until the Bank shall have received from Borrower, and
had a reasonable time to act on, written notice revoking the authority of such
Authorized Person. The Bank shall incur no liability to Borrower or to any other
person as a direct or indirect result of making any Loan pursuant to this
paragraph.
b. Request for Loans. In making any Request for a Loan, Borrower shall
specify the applicable interest rate (LIBOR Rate or Base Rate), aggregate amount
of such Loan and the Draw Date; provided, however, if a Request is received by
the Bank after 2:00 p.m. (Eastern Standard Time) on any given day, the earliest
possible Draw Date will be the next Business Day; and
c. Delivery of Requests. Delivery of a Request for a LIBOR Rate Loan or a
Base Rate Loan shall be made to the Bank at the following address, or such other
address designated by the Bank from time to time.
Manufacturers and Traders Trust Company
Attn: Lisa Plescia
Fax No. (585) 546-5363
Telephone No. (585) 258-8233
4. CONVERSION ELECTIONS.
a. Conversion Election. An Authorized Person of Borrower may, upon
irrevocable Request to the Bank,
i. elect to convert on any Business Day any Base Rate Loan into a
LIBOR Rate Loan; or
ii. elect to convert on any Business Day any LIBOR Rate Loan into a
Base Rate Loan.
b. Notice of Conversion.
i. For an election under Section 4(a)(i) or 4(a)(ii), an Authorized
Person must deliver to the Bank by 2:00 p.n. (Eastern Standard
Time) on a Business Day a Notice of Conversion ("Notice of
Conversion"), specifying the aggregate amount of the Loans to be
converted.
ii. The Conversion Date shall be the date the Bank receives the
Notice of Conversion in accordance with the foregoing Section. If
a Notice of Conversion is received after 2:00 p.m. (Eastern
Standard Time), the Notice of Conversion will be deemed to have
been received on the next Business Day.
iii. The Bank may take action on any Notice of Conversion in reliance
upon any oral, telephonic, written or teletransmitted notice that
the Bank in good faith believes to be valid and to have been made
by Borrower or on behalf of Borrower by an Authorized Person. No
Notice of Conversion may be delivered by e-mail. The Bank may act
on the Notice of Conversion from any Authorized Person until the
Bank shall have received from Borrower, and had a reasonable time
to act on, written notice revoking the authority of such
Authorized Person. The Bank shall incur no liability to Borrower
or to any other person as a direct or indirect result of acting
on any Notice of Conversion under this Note. The Bank, in its
sole discretion, may reject any Notice of Conversion that is
incomplete.
c. Conversion upon Default. Unless the Bank shall otherwise consent in
writing, if (i) Borrower has failed to pay when due, in whole or in part, the
indebtedness under the Note (whether by demand or otherwise), or (ii) there
exists a condition or event which, with the passage of time, the giving of
notice or both, shall constitute an event of default under any of Borrower's
agreement with the Bank, if any, Borrower may not elect to have an existing Loan
converted to a LIBOR Rate Loan or have any new Loan made as a LIBOR Rate Loan.
Further, the Bank, in its sole discretion, may convert any LIBOR Rate Loan to a
Base Rate Loan. Notwithstanding the foregoing, if Borrower commences, or has
commenced against it, any proceeding or request for relief under any bankruptcy,
insolvency or similar laws now or hereafter in effect in the United States of
America or any state or territory thereof or any foreign jurisdiction or any
formal or informal proceeding for dissolution, liquidation or the settlement of
claims against or winding up of affairs of Borrower (a "Bankruptcy Event"), any
outstanding LIBOR Rate Loans shall be automatically converted to Base Rate Loans
without further action by the Bank and Borrower's rights to have Base Rate Loans
converted under Section 4(a)(i) shall be automatically terminated. Nothing
herein shall be construed to be a waiver by the Bank to have any Loan accrue
interest at the Default Rate of Interest (which shall be calculated from the
higher of the LIBOR Rate or the Base Rate, as described above).
5. SETOFF. The Bank shall have the right to set off against the amounts owing
under the Note any property held in a deposit or other account with the Bank or
any of its affiliates or otherwise owing by the Bank or any of its affiliates in
any capacity to Borrower or any guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
affiliate elects to do so.
6. DEMAND, DISCRETIONARY FACILITY.
a. Discretionary Facility. The Bank may modify, restrict, suspend or
terminate the credit under this Note at any time for any reason and without
affecting Borrower's then existing obligation under this Note. Any Request for a
Loan hereunder shall be limited in amount, such that the sum of (i) the
principal amount of such Request; (ii) the Outstanding Principal Amount under
this Note; and (iii) the aggregate face amounts of (or, if greater, Borrower's
aggregate reimbursement obligations to the Bank (or any of its affiliates) in
connection with) any letters of credit issued by the Bank (or any of its
affiliates) at the request (or for the benefit of) Borrower, pursuant to this
credit; does not exceed the Maximum Principal Amount under this Note.
Notwithstanding the above, the Bank shall have the sole and absolute discretion
whether to make any Loan (or any portion of any Loan) requested by Borrower,
regardless of any general availability under the Maximum Principal Amount.
b. Demand Facility. This Note is payable on demand, and all amounts
hereunder shall become immediately due and payable upon demand by the Bank;
provided, however, that the Outstanding Principal Amount of this Note and all
accrued and unpaid interest shall automatically become immediately due and
payable upon the occurrence of a Bankruptcy Event with regard to Borrower or any
guarantor or endorser of this Note. Borrower hereby waives protest, presentment
and notice of any kind in connection with this Note.
7. BANK RECORDS CONCLUSIVE. The Bank shall set forth on a schedule attached to
this Note or maintained on computer, the date and original principal amount of
each Loan and the date and amount of each payment to be applied to the
Outstanding Principal Amount of this Note. The Outstanding Principal Amount set
forth on any such schedule shall be presumptive evidence of the Outstanding
Principal Amount of this Note and of all Loans. No failure by the Bank to make,
and no error by the Bank in making, any annotation on any such schedule shall
affect the Borrower's obligation to pay the principal and interest of each Loan
or any other obligation of Borrower to the Bank pursuant to this Note.
8. PURPOSE. Borrower certifies (a) that no Loan will be used to purchase margin
stock except with the Bank's express prior written consent for each such
purchase and (b) that all Loans shall be used for a business purpose, and not
for any personal, family or household purpose.
9. AUTHORIZATION. Borrower, if a corporation, partnership, limited liability
company, trust or other entity, represents that it is duly organized and in good
standing or duly constituted in the state of its organization and is duly
authorized to do business in all jurisdictions material to the conduct of its
business; that the execution, delivery and performance of this Note have been
duly authorized by all necessary regulatory and corporate or partnership action
or by its governing instrument; that this Note has been duly executed by an
authorized officer, partner or trustee and constitutes a binding obligation
enforceable against Borrower and not in violation of any law, court order or
agreement by which Borrower is bound; and that Borrower's performance is not
threatened by any pending or threatened litigation.
10. INABILITY TO DETERMINE LIBOR RATES, INCREASED COSTS, ILLEGALITY.
a. Increased Costs. If the Bank shall determine that, due to either (a) the
introduction of any change in law (other than any change by way of imposition of
or increase in reserve requirements included in the calculation of the LIBOR) or
in the interpretation of any requirement of law or (b) the compliance
requirements for any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to the Bank of agreeing to make or making, funding or
maintaining any LIBOR Rate Loans, then Borrower shall be liable for, and shall
from time to time, upon demand therefor by the Bank and pay to the Bank such
additional amounts as are sufficient to compensate the Bank for such increased
costs.
b. Inability to Determine Rates. If the Bank shall determine that for any
reason adequate and reasonable means do not exist for ascertaining LIBOR with
respect to a proposed LIBOR Rate Loan, the Bank will give notice of such
determination to Borrower. Thereafter, the Bank may not make or maintain, as the
case may be, LIBOR Rate Loans hereunder until the Bank revokes such notice in
writing. Upon receipt of such notice, any Notice of Conversion received from
Borrower shall be deemed withdrawn, and Borrower may revoke any Request Borrower
previously made for a LIBOR Rate Loan. If Borrower does not revoke any such
Request, the Bank may make the Loans, as proposed by Borrower, in the amount
specified in the applicable Request submitted by Borrower, but such Loans shall
be made or continued as Base Rate Loans instead of LIBOR Rate Loans.
c. Illegality. If the Bank shall determine that the introduction of any law
(statutory or common), treaty, rule, regulation, guideline or determination of
an arbitrator or of a governmental authority or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
governmental authority has asserted that it is unlawful for the Bank to make
LIBOR Rate Loans, then, on notice thereof by the Bank to Borrower, the Bank may
suspend the making of LIBOR Rate Loans until the Bank shall have notified
Borrower that the circumstances giving rise to such determination shall no
longer exist. If the Bank shall determine that it is unlawful to maintain any
LIBOR Rate Loans, Borrower shall immediately pay to the Bank the aggregate
principal amount of all LIBOR Rate Loans then outstanding, together with accrued
interest and related Expenses. If Borrower is required to pay off any LIBOR Rate
Loan as set forth in this subsection, then concurrently with such payment,
Borrower may borrow from the Bank, in the amount of such payment, a Base Rate
Loan.
11. MISCELLANEOUS. This Note, together with any related loan and security
agreements and guaranties, contains the entire agreement between the Bank and
Borrower with respect to the Note, and supersedes every course of dealing, other
conduct, oral agreement and representation previously made by the Bank. All
rights and remedies of the Bank under applicable law and this Note or amendment
of any provision of this Note are cumulative and not exclusive. No single,
partial or delayed exercise by the Bank of any right or remedy shall preclude
the subsequent exercise by the Bank at any time of any right or remedy of the
Bank without notice. No waiver or amendment of any provision of this Note shall
be effective unless made specifically in writing by the Bank. No course of
dealing or other conduct, no oral agreement or representation made by the Bank,
and no usage of trade, shall operate as a waiver of any right or remedy of the
Bank. No waiver of any right or remedy of the Bank shall be effective unless
made specifically in writing by the Bank. Borrower agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Singular number includes
plural and neuter gender includes masculine and feminine as appropriate.
12. NOTICES. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Borrower
(at its address on the Bank's records) or to the Bank (at the address on page
one and separately to the Bank officer responsible for Borrower's relationship
with the Bank). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) Business Days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) Business Day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Borrower and the Bank.
13. JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts which become due under this Note
and the term "Borrower" shall include each as well as all of them.
14. GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by
the Bank and will be deemed to be made in the State of New York. Except as
provided under federal law, this Note will be interpreted in accordance with the
laws of the State of New York excluding its conflict of laws rules. BORROWER
HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY OR JUDICIAL DISTRICT WHERE
THE BANK MAINTAINS A BRANCH, AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE
OF PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING
NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE
BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY
RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY
PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION. Borrower acknowledges and agrees that the venue provided above is
the most convenient forum for both the Bank and Borrower. Borrower waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Note.
16. WAIVER OF JURY TRIAL. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS
NOTE OR THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT
NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
___ Amended and Restated Note. The Borrower acknowledges, agrees and understands
that this Note is given in replacement of and in substitution for, but not in
payment of, a note dated on or about __________________________ in the original
principal amount of $________________ issued by _________________________ to the
Bank (or its predecessor in interest), as the same may have been amended or
modified from time to time ("Prior Note"), and further, that: (a) the
obligations of the Borrower as evidenced by the Prior Note shall continue in
full force and effect, as amended and restated by this Note, all of such
obligations being hereby ratified and confirmed by the Borrower; (b) any and all
liens, pledges, assignments and security interests securing the Borrower's
obligations under the Prior Note shall continue in full force and effect, are
hereby ratified and confirmed by the Borrower, and are hereby acknowledged by
the Borrower to secure, among other things, all of the Borrower's obligations to
the Bank under this Note, with the same priority, operation and effect as that
relating to the obligations under the Prior Note; and (c) nothing herein
contained shall be construed to extinguish, release, or discharge, or
constitute, create, or effect a novation of, or an agreement to extinguish, the
obligations of the Borrower with respect to the indebtedness originally
described in the Prior Note or any of the liens, pledges, assignments and
security interests securing such obligations.
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
available funds in Borrower's deposit account #__________________ with the Bank
automatically for any amount which becomes due under this Note or as directed by
an Authorized Person, by telephone.
Acknowledgment. Borrower acknowledges that it has read and understands all the
provisions of this Note, including the Governing Law, Jurisdiction and Waiver or
Jury Trial, and has been advised by counsel as necessary or appropriate.
TAX ID/SS# 16-1455130 HOME PROPERTIES, L.P.
BORROWER
By: Home Properties, Inc.
Its: General Partner
/s/ Nancy J.Elliott
Signature of Witness
Nancy J. Elliott By: /s/ Gerald B. Korn
Typed Name of Witness Vice President
ACKNOWLEDGMENT
STATE OF NEW YORK)
COUNTY OF MONROE) ss:
On the 23rd day of November, in the year 2004, before me, the undersigned, a
Notary Public in and for said State, personally appeared Gerald B. Korn,
personally known to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged tome that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Robin L. Stein
Notary Public
