EXHIBIT 99.1
AMENDED AND RESTATED
CREDIT AGREEMENT
among
CAMDEN PROPERTY TRUST
as Borrower,
THE LENDERS NAMED HEREIN
as Lenders,
BANK OF AMERICA, N.A.
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.
as Syndication Agent,
WACHOVIA BANK, N.A.
WELLS FARGO BANK, N.A.
as Documentation Agents,
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Joint Bookrunner,
and
J.P. MORGAN SECURITIES INC.
as Joint Bookrunner
Dated as of
JANUARY 14, 2005
TABLE OF CONTENTS
ARTICLE 1 TERMS DEFINED............................................................................. 1
SECTION 1.1. Definitions......................................................................... 1
SECTION 1.2. Singular and Plural; Gender......................................................... 23
SECTION 1.3. Substantive Definitions............................................................. 23
SECTION 1.4. Money............................................................................... 23
SECTION 1.5. Captions; References................................................................ 23
SECTION 1.6. Accounting Terms and Determinations................................................. 24
ARTICLE 2 COMMITMENT................................................................................ 24
SECTION 2.1. Commitment.......................................................................... 24
SECTION 2.2. Method of Borrowing under Credit Facility........................................... 25
SECTION 2.3. Competitive Bid Loans............................................................... 26
SECTION 2.4. Fees................................................................................ 30
SECTION 2.5. Disbursement and Performance by Lenders............................................. 32
SECTION 2.6. Swingline Loan Subfacility.......................................................... 33
SECTION 2.7. Letters of Credit................................................................... 35
SECTION 2.8. Letter of Credit Usage Absolute..................................................... 38
ARTICLE 3 TERMS OF THE CREDIT FACILITIES............................................................ 39
SECTION 3.1. Notes............................................................................... 39
SECTION 3.2. Maturity; Mandatory Principal Reductions............................................ 40
SECTION 3.3. Interest Rate....................................................................... 40
SECTION 3.4. Interest Payments................................................................... 41
SECTION 3.5. Conversion of Advances and Interest Rate Elections.................................. 41
SECTION 3.6. Reduction of Commitment Amount; Consequential Loss.................................. 42
SECTION 3.7. Schedules on Notes.................................................................. 43
SECTION 3.8. General Provisions as to Payments................................................... 43
SECTION 3.9. Application of Payments............................................................. 44
SECTION 3.10. Post-Default Interest; Past Due Principal and Interest............................. 44
SECTION 3.11. Computation of Interest and Fees................................................... 45
SECTION 3.12. Lenders' Capital Adequacy.......................................................... 45
SECTION 3.13. Regulatory Changes; Indemnification for Failure to Pay When Due.................... 45
SECTION 3.14. Taxes.............................................................................. 46
SECTION 3.15. Extension Option................................................................... 49
SECTION 3.16. Replacement of a Lender............................................................ 49
ARTICLE 4 CONDITIONS TO CLOSING AND ADVANCES........................................................ 50
SECTION 4.1. Conditions To Closing............................................................... 50
SECTION 4.2. Conditions To All Advances or Swingline Advances or Issuances of Letters of Credit.. 52
ARTICLE 5 UNENCUMBERED PROPERTIES POOL AND GUARANTIES............................................... 52
SECTION 5.1. Unencumbered Properties Pool........................................................ 52
SECTION 5.2. Negative Pledge Agreements.......................................................... 54
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SECTION 5.3. Additional Guarantor Subsidiaries................................................... 54
SECTION 5.4. Ownership of Guarantor Subsidiaries................................................. 54
SECTION 5.5. Partnership Matters................................................................. 54
SECTION 5.6. Guaranty Proceeds................................................................... 55
ARTICLE 6 REPRESENTATIONS AND WARRANTIES............................................................ 55
SECTION 6.1. Existence and Power of Borrower..................................................... 56
SECTION 6.2. Existence and Power of Guarantor Subsidiaries....................................... 56
SECTION 6.3. Authorization; Contravention........................................................ 56
SECTION 6.4. Enforceable Obligations............................................................. 56
SECTION 6.5. Financial Information............................................................... 57
SECTION 6.6. Litigation.......................................................................... 57
SECTION 6.7. ERISA............................................................................... 57
SECTION 6.8. Taxes and Filing of Tax Returns..................................................... 58
SECTION 6.9. Ownership of Assets................................................................. 58
SECTION 6.10. Business; Compliance............................................................... 58
SECTION 6.11. Licenses, Permits.................................................................. 59
SECTION 6.12. Compliance with Law................................................................ 59
SECTION 6.13. Utilities and Access............................................................... 59
SECTION 6.14. Full Disclosure.................................................................... 59
SECTION 6.15. Environmental Matters.............................................................. 60
SECTION 6.16. Purpose of Credit.................................................................. 60
SECTION 6.17. Governmental Regulations........................................................... 61
SECTION 6.18. Insurance.......................................................................... 61
SECTION 6.19. Solvency........................................................................... 61
ARTICLE 7 AFFIRMATIVE COVENANTS..................................................................... 61
SECTION 7.1. Information From Borrower........................................................... 61
SECTION 7.2. Business of Borrower; REIT Status; NYSE Listing..................................... 63
SECTION 7.3. Right of Inspection; Confidentiality................................................ 63
SECTION 7.4. Maintenance of Insurance............................................................ 64
SECTION 7.5. Maintenance and Use................................................................. 64
SECTION 7.6. Payment of Taxes, Impositions and Claims............................................ 65
SECTION 7.7. Compliance with Laws and Documents.................................................. 65
SECTION 7.8. Environmental Law Compliance and Indemnity.......................................... 65
SECTION 7.9. Covenant Compliance................................................................. 66
SECTION 7.10. Quantity and Quality of Documents.................................................. 66
SECTION 7.11. Use of Proceeds.................................................................... 67
SECTION 7.12. Additional Documents............................................................... 67
ARTICLE 8 NEGATIVE COVENANTS........................................................................ 67
SECTION 8.1. Minimum Net Worth................................................................... 67
SECTION 8.2. Liabilities to Assets Ratios........................................................ 67
SECTION 8.3. Interest Coverage Ratio............................................................. 68
SECTION 8.4. Fixed Charge Coverage Ratio......................................................... 68
SECTION 8.5. Debt Limitations.................................................................... 68
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SECTION 8.6. Limitation on Sale or Transfer of Assets............................................ 68
SECTION 8.7. Permitted Liens..................................................................... 68
SECTION 8.8. Consolidations, Mergers, and Maintenance............................................ 68
SECTION 8.9. Management of Property.............................................................. 69
SECTION 8.10. Intentionally Deleted.............................................................. 69
SECTION 8.11. Limitation on Distributions........................................................ 69
SECTION 8.12. Investments........................................................................ 69
SECTION 8.13. Negative Pledge.................................................................... 70
SECTION 8.14. Transactions with Affiliates....................................................... 70
SECTION 8.15. Employee Plans..................................................................... 70
SECTION 8.16. Use Violations..................................................................... 71
SECTION 8.17. Exceptions to Covenants............................................................ 71
SECTION 8.18. Fiscal Year and Accounting Methods................................................. 71
SECTION 8.19. Governmental Regulations........................................................... 71
SECTION 8.20. Treasury Stock..................................................................... 71
ARTICLE 9 DEFAULTS AND REMEDIES..................................................................... 72
SECTION 9.1. Events of Default................................................................... 72
SECTION 9.2. Notice and Cure..................................................................... 75
SECTION 9.3. Remedies............................................................................ 75
SECTION 9.4. Rights of Set-Off................................................................... 75
SECTION 9.5. Remedies Cumulative, Concurrent and Non-Exclusive................................... 76
SECTION 9.6. No Conditions Precedent to Exercise Remedies........................................ 76
SECTION 9.7. Waivers............................................................................. 77
SECTION 9.8. Discontinuance of Proceedings....................................................... 77
SECTION 9.9. Application of Proceeds............................................................. 77
SECTION 9.10. Actions in Respect of Letters of Credit............................................ 77
ARTICLE 10 AGENTS AND THE LENDERS................................................................... 79
SECTION 10.1. Appointment and Authorization of Agents............................................ 79
SECTION 10.2. Possession of Instruments by Administrative Agent.................................. 81
SECTION 10.3. Expenses........................................................................... 81
SECTION 10.4. Delegation of Duties; Reliance; Consultation....................................... 82
SECTION 10.5. Limitation of Liability............................................................ 82
SECTION 10.6. Default............................................................................ 83
SECTION 10.7. Lenders' Decisions................................................................. 84
SECTION 10.8. Limitation of Liability of Lenders................................................. 84
SECTION 10.9. Relationship of Lenders............................................................ 85
SECTION 10.10. Debtor-Creditor Relationship...................................................... 85
SECTION 10.11. Credit Decisions.................................................................. 85
SECTION 10.12. Removal of any Agent.............................................................. 85
SECTION 10.13. Resignation by any Agent.......................................................... 86
SECTION 10.14. Sharing of Payments and Setoffs................................................... 86
SECTION 10.15. Non-Advancing Lenders............................................................. 87
SECTION 10.16. Benefit of Lenders................................................................ 88
SECTION 10.17. Roles of Agents................................................................... 88
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ARTICLE 11 MISCELLANEOUS............................................................................ 88
SECTION 11.1. Continuing Agreement............................................................... 88
SECTION 11.2. Notices............................................................................ 88
SECTION 11.3. No Waivers......................................................................... 89
SECTION 11.4. Expenses; Documentary Taxes; Indemnification....................................... 89
SECTION 11.5. Amendments, Waivers and Consents................................................... 90
SECTION 11.6. Survival........................................................................... 90
SECTION 11.7. Prior Understandings; No Defenses; Release; No Oral Agreements..................... 90
SECTION 11.8. Limitation on Interest............................................................. 91
SECTION 11.9. Invalid Provisions................................................................. 92
SECTION 11.10. Lender Assignments and Participations............................................. 92
SECTION 11.11. Binding Effect.................................................................... 94
SECTION 11.12. Senior Debt; Borrower Subordination............................................... 94
SECTION 11.13. Nonliability of Agent and Lender.................................................. 95
SECTION 11.14. Payment Set Aside................................................................. 95
SECTION 11.15. Construction...................................................................... 95
SECTION 11.16. Time of Essence................................................................... 95
SECTION 11.17. Inconsistent Provisions........................................................... 95
SECTION 11.18. Consolidated Group................................................................ 96
SECTION 11.19. Submission To Jurisdiction; Service of Process.................................... 96
SECTION 11.20. JURY TRIAL WAIVER................................................................. 96
SECTION 11.21. APPLICABLE LAW.................................................................... 96
SECTION 11.22. Counterparts...................................................................... 97
SCHEDULES AND EXHIBITS
SCHEDULE I AGENTS, JOINT BOOKRUNNERS, LENDERS AND BORROWER
SCHEDULE II LIBOR MARGIN; VARIABLE RATE MARGIN; FACILITY FEE PERCENTAGE
SCHEDULE III ORGANIZATIONAL CHART
EXHIBIT A-1 FORM OF NOTE
EXHIBIT A-2 FORM OF COMPETITIVE BID NOTE
EXHIBIT A-3 FORM OF SWINGLINE NOTE
EXHIBIT B ADVANCE/LETTER OF CREDIT REQUEST
EXHIBIT C COMPLIANCE CERTIFICATE
EXHIBIT D ASSIGNMENT AND ACCEPTANCE
EXHIBIT E-1 COMPETITIVE BID QUOTE REQUEST
EXHIBIT E-2 INVITATION FOR COMPETITIVE BID QUOTE
EXHIBIT E-3 COMPETITIVE BID QUOTE
EXHIBIT F FORM OF GUARANTY AGREEMENT
EXHIBIT G CONTRIBUTION AGREEMENT
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of the 14th
day of January, 2005 by and among CAMDEN PROPERTY TRUST, a Texas real estate
investment trust, as borrower, BANK OF AMERICA, N.A., as administrative agent,
JPMORGAN CHASE BANK, N.A., as syndication agent, WACHOVIA BANK, N.A. and WELLS
FARGO BANK, N.A., as documentation agents, and the financial institutions and
other entities designated as "Lenders" on Schedule I hereto, as Schedule I may
be modified or supplemented from time to time.
PRELIMINARY STATEMENT
Camden Property Trust ("Borrower") currently has a credit facility in an
amount equal to Five Hundred Million and No/100 Dollars ($500,000,000) pursuant
to the Existing Credit Agreement (as herein defined). Borrower has requested
that Agents, Sole Lead Arranger and Joint Bookrunners (each as herein defined)
arrange a credit facility in the amount of Six Hundred Million and No/100
Dollars ($600,000,000), with the ability to further increase such credit
facility up to Seven Hundred Fifty Million and No/100 Dollars ($750,000,000).
Upon and subject to the terms of this Agreement and the other Loan Documents,
Agents and the Lenders are willing to fund such credit facility. Accordingly, in
consideration of the mutual covenants contained herein, Borrower, the Guarantor
Subsidiaries, Agents and the Lenders (each as herein defined) agree as follows:
ARTICLE 1
TERMS DEFINED
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings:
ADJUSTED LIBOR RATE means on the applicable Effective Date, with respect
to a LIBOR Rate Advance, a rate per annum equal to the sum of (a) the quotient
of (i) the LIBOR Rate on the applicable Effective Date, divided by (ii) the
remainder of 1.00 minus the LIBOR Reserve Requirement, if any, on the applicable
Effective Date, plus (b) the LIBOR Margin in effect on such date.
ADMINISTRATIVE AGENT means Bank of America, N.A., a national banking
association, in its capacity as administrative agent for the Lenders hereunder,
or any successor administrative agent pursuant to Section 10.12 or Section
10.13.
ADVANCE means an advance made by the Lenders (including advances under
Competitive Bid Notes) to Borrower under the Credit Facility pursuant to the
terms and conditions of this Agreement.
ADVANCE/LETTER OF CREDIT REQUEST has the meaning set forth in Section
2.2(a).
AFFILIATE means, as to any Person, any Subsidiary of such Person, or any
Person which, directly or indirectly, controls, is controlled by, or is under
common control with such Person. For the purposes of this definition, "control"
means the possession of the power to direct or
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 1
cause the direction of management and policies of such Person, whether through
the ownership of voting securities or other equity interests, by contract or
otherwise.
AGENTS means Administrative Agent, Syndication Agents, Documentation
Agents, Managing Agents and Co-Agents.
AGGREGATE LOAN PERCENTAGE means, with respect to each Lender, the
fraction, expressed as a percentage, obtained by dividing (a) the sum of the
aggregate principal amount outstanding on the date of determination under the
Note and the Competitive Bid Note payable to such Lender plus the amounts such
Lender is required to fund under the Swingline Advance, by (b) the aggregate
principal amount outstanding on the date of determination under all of the
Notes, Competitive Bid Notes and Swingline Note.
AGREEMENT means this Credit Agreement, including the Schedules and
Exhibits hereto, together with all renewals, extensions, modifications,
amendments, supplements, rearrangements and restatements thereof.
APPLICABLE DEBT RATING means at any time the Moody's Rating and the S&P
Rating if equivalent, and the higher of the Moody's Rating and the S&P Rating if
such ratings are not equivalent; provided, that, if the Moody's Rating and the
S&P Rating are not equivalent and one of the two ratings is two or more
categories lower than the other, then the rating classification used for the
purpose hereof shall be the category next below that of the higher of the two
ratings.
APPLICABLE ENVIRONMENTAL LAWS has the meaning set forth in Section 7.8.
APPLICABLE LENDING OFFICE means with respect to each Lender, such Lender's
domestic lending office (as designated by such Lender) for Variable Rate
Advances and Competitive Bid Fixed Rate Loans and such Lender's Eurodollar
lending office (as designated by such Lender) for LIBOR Rate Advances,
Competitive Bid Advances and Competitive Bid Pricing Loans.
APPLICABLE RATE means at any time, (a) with respect to a Variable Rate
Advance, a rate per annum equal to the Variable Rate, and (b) with respect to a
LIBOR Rate Advance, a rate per annum equal to the Adjusted LIBOR Rate.
ASSIGNMENT AND ACCEPTANCE has the meaning set forth in Section 11.10.
AUTHORIZED OFFICER means, as to Borrower or any other Person, any of its
Chairman, Vice-Chairman, Chief Executive Officer, President, Executive Vice
President(s), Chief Financial Officer, Chief Accounting Officer, Treasurer or
Assistant Treasurer, who is duly authorized by the Board of Directors or other
governing board of such Person to execute the Loan Documents or any other
documents or certificates to be executed by such Person hereunder or in
connection with any Advance or Swingline Advance or any reporting requirements
hereunder.
BASE RATE means, on any date of determination, the greater of (a) the rate
of interest per annum most recently announced by Administrative Agent as its
prime rate in effect at its principal office automatically fluctuating upward
and downward until and at the time specified in each such announcement without
special notice to Borrower or any other Person, which prime
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 2
rate may not necessarily represent the lowest or best rate actually charged to a
customer or (b) the sum of the Federal Funds Rate plus 100 basis points.
BORROWER means Camden Property Trust, a Texas real estate investment
trust, and its successors.
BORROWER CONTROL GROUP means a management group which includes the
President, the Chief Executive Officer, the Chief Financial Officer, and such
other officers and Trust Managers approved by the President, the Chief Executive
Officer and Chief Financial Officer.
BORROWING DATE means the date on which an Advance or Swingline Advance is
made under this Agreement.
BUSINESS DAY means (a) for all purposes other than as covered by clause
(b) of this definition, any day of the week, other than Saturday, Sunday or
other day Administrative Agent or any Lender is required or authorized by law or
executive order to close, and (b) with respect to all requests, notices and
determinations in connection with LIBOR Rate Advances and Competitive Bid
Pricing Loans, a day that is a Business Day described in clause (a) of this
definition and that is a day other than a day on which banks are required or
authorized to close in the London interbank market.
CAMDEN L.P. means Camden Operating L.P., a Delaware limited partnership,
and its successors.
CAMDEN REALTY means Camden Realty, Inc., a Delaware corporation, and its
successors.
CAMDEN USA means Camden USA, Inc., a Delaware corporation, and its
successors.
CAPITAL EXPENDITURES means expenditures by Borrower or any of its
Consolidated Subsidiaries for fixed or capital assets, including without
limitation expenditures for maintenance and repairs.
CASH EQUIVALENTS means, as to any Person, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than six
months from the date of acquisition, (b) time deposits and certificates of
deposit of any commercial bank organized under the laws of the United States,
any State thereof or the District of Columbia having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof, or the District of Columbia having, capital,
surplus and undivided profits aggregating in excess of $200,000,000 and having a
long-term unsecured debt rating of at least "A" or the equivalent thereof from
S&P, or "A2" or the equivalent thereof from Moody's, with maturities of not more
than six months from the date of acquisition by such Person, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, (d) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by Moody's and in each
case maturing not more than six months after the date of acquisition by such
Person,
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 3
(e) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (a) through (d) above.
CHANGE IN CONTROL means the acquisition by a person (as such term is used
in Section 13(d) and Section 14(d)(2) of the Exchange Act) or related persons
constituting a group (as such term is used in Rule 13d-5 under the Exchange Act)
(other than Borrower Control Group) of the beneficial ownership of issued and
outstanding shares of the voting stock or similar ownership interests of
Borrower, the result of which acquisition is that such person or such group
possess in excess of 30% of the combined voting power of all the issued and
outstanding voting stock or other similar ownership interests of Borrower.
CLOSING DATE means the effective date of execution of this Agreement as
designated in the first paragraph of this Agreement.
CO-AGENT means AmSouth Bank; Bank of China, New York Branch; The Governor
and Company of the Bank of Ireland; U.S. Bank National Association and Credit
Suisse First Boston, acting through its Cayman Islands Branch, each in its
capacity as co-agent for the Lenders hereunder.
CODE means the Internal Revenue Code of 1986, as amended.
COMMITMENT means, with respect to each Lender, the amount indicated as the
Commitment for such Lender on Schedule I, as such amount (a) may be reduced or
increased from time to time as a result of a reduction in the Total Commitment
pursuant to Section 3.6 or an increase in the Total Commitment pursuant to
Section 2.1(b), or as otherwise provided herein, or (b) may be adjusted from
time to time to account for any assignment of a Lender's interest as provided in
Section 11.10 of this Agreement, or pursuant to Section 3.16 or otherwise.
COMMITMENT FEES means the Initial Commitment Fee and any commitment or
upfront fees to be paid to any Lenders upon any increase in the Total Commitment
as determined at the time of such increase.
COMMITMENT PERCENTAGE means, with respect to each Lender, the percentage
indicated for such Lender as its Commitment Percentage on Schedule I, as such
percentage may be adjusted from time to time as a result of reduction or
increase in the Total Commitment as provided herein, or to account for any
assignments of a Lender's interest as provided in Section 11.10, or pursuant to
Section 3.16 or otherwise.
COMPETITIVE BID ACCEPTANCE NOTICE has the meaning set forth in Section
2.3(f).
COMPETITIVE BID ADVANCE means a borrowing hereunder consisting of the
aggregate amount of the Competitive Bid Loans made on the same Borrowing Date by
some or all of the Lenders to Borrower on the same terms pursuant to Section
2.3.
COMPETITIVE BID AUCTION means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins and/or Competitive Bid Fixed Rates
pursuant to Section 2.3.
COMPETITIVE BID AUCTION FEE has the meaning set forth in Section 2.4(d).
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 4
COMPETITIVE BID FIXED RATE means a rate per annum equal to the Base Rate
plus or minus a margin, or other fixed interest rate, offered by a Lender for a
Competitive Bid Fixed Rate Loan.
COMPETITIVE BID FIXED RATE LOAN means a Competitive Bid Loan made by a
Lender pursuant to Section 2.3, which bears interest at a Competitive Bid Fixed
Rate selected by Borrower.
COMPETITIVE BID LOAN means either a Competitive Bid Pricing Loan or a
Competitive Bid Fixed Rate Loan.
COMPETITIVE BID MARGIN means the margin above or below, as applicable, the
applicable Adjusted LIBOR Rate offered for a Competitive Bid Pricing Loan,
expressed as a percentage (rounded to the nearest 1/100 of 1%).
COMPETITIVE BID NOTE means a promissory note in substantially the form of
Exhibit A-2, with appropriate insertions, evidencing Competitive Bid Loans made
by a Lender, duly executed and delivered by Borrower and payable to the order of
each Lender, each in the principal face amount equal to 50% of the Total
Commitment (provided, that, in no event shall the aggregate amount funded under
all Competitive Bid Notes ever exceed 50% of the Total Commitment), as such
notes may be amended, renewed or extended from time to time, and all notes given
in amendment, replacement or restatement thereof, in whole or in part, including
without limitation in connection with an assignment of a Lender's interest
hereunder or the addition of a new Lender hereunder.
COMPETITIVE BID PRICING LOAN means a Competitive Bid Loan made by a Lender
pursuant to Section 2.3, which bears interest at a Eurodollar Bid Rate selected
by Borrower.
COMPETITIVE BID QUOTE means a Competitive Bid Quote substantially in the
form of Exhibit E-3 hereto completed and delivered by a Lender to Administrative
Agent in accordance with Section 2.3.
COMPETITIVE BID QUOTE REQUEST means a Competitive Bid Quote Request
substantially in the form of Exhibit E-1 hereto completed and delivered by
Borrower to Administrative Agent in accordance with Section 2.3.
COMPLIANCE CERTIFICATE means a certificate to be delivered by Borrower to
Administrative Agent as a condition to closing pursuant to Section 4.1(e), and
quarterly thereafter as required under Section 7.1(c), each such Compliance
Certificate to be in the form of Exhibit C hereto, with appropriate information
for the period covered thereby.
CONSEQUENTIAL LOSS has the meaning set forth in Section 3.6(b).
CONSOLIDATED OR COMBINED means with reference to any term defined herein,
that term as applied to the accounts of Borrower and its Subsidiaries,
consolidated or combined in accordance with GAAP.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 5
CONSOLIDATED ASSETS means the aggregate book value of all assets of
Borrower and its Consolidated Subsidiaries, prior to any deductions for
accumulated depreciation, and after deducting assets classified as intangible
assets, all as determined in accordance with GAAP.
CONSOLIDATED EBITDA means, for any period, determined in accordance with
GAAP on a consolidated basis for Borrower and its Consolidated Subsidiaries, an
amount equal to the sum of consolidated net income before taxes, extraordinary
gains or losses, and preferred dividends (as determined in accordance with
GAAP), plus depreciation, plus amortization, plus interest expense, each as
deducted in determining such consolidated net income before taxes, for such
period, as adjusted for (i) any non-recurring items during such period, and (ii)
the addition of any acquisitions and the deletion of any dispositions of Real
Estate during such period.
CONSOLIDATED INTEREST EXPENSE means, for any period, the interest expense
(including capitalized interest) that is incurred and required to be shown as
such on the financial statements of Borrower and its Subsidiaries, on a
consolidated basis, prepared in accordance with GAAP.
CONSOLIDATED LIABILITIES means the amount of liabilities shown on the
consolidated balance sheet of Borrower and its Consolidated Subsidiaries
prepared in accordance with GAAP.
CONSOLIDATED NET WORTH means, as of any date, Consolidated Assets minus
Consolidated Liabilities.
CONSOLIDATED SUBSIDIARY means at any date any Subsidiary of Borrower the
accounts of which, in accordance with GAAP, would be consolidated with the
accounts of Borrower on the consolidated financial statements of Borrower as of
such date.
CONTINGENT OBLIGATION of any Person means any obligation, contingent or
otherwise, of such Person (a) with respect to any Debt, lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person
incurring such liability, or the primary effect, thereof, is to provide
assurance to the obligee of such liability that such liability will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto, including, without limitation, any obligation
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreements to keep-well, to purchase any Real Estate or other
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions, by "comfort letter" or other similar undertaking of
support or otherwise), or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), (b) creating any exposure, contingent or otherwise, directly or
indirectly, under any forward equity type products, derivatives or any other
exposure considered or treated as debt by any Ratings Agency, or (c) assuring
any creditor or purchaser from such Person against loss, including without
limitation, any recourse obligation with respect to loans or other receivables
sold with recourse to such Person, provided that the term Contingent Obligation
shall not include endorsements for collection or deposit in the ordinary course
of business.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 6
CONTRIBUTION AGREEMENT means the Contribution Agreement in the form
attached hereto as Exhibit G, to be dated of even date herewith, executed by and
among Borrower and the Guarantor Subsidiaries as of the Closing Date, and by
each other Person that becomes a Guarantor Subsidiary after the Closing Date,
which joinder may be by a supplement thereto, or any separate new or replacement
Contribution Agreement signed by one or more Guarantor Subsidiaries after the
Closing Date, and all amendments, supplements, replacements and restatements
thereof.
CREDIT FACILITY means the revolving line of credit created pursuant to
this Agreement in an amount equal to $600,000,000 as of the Closing Date,
subject to increase up to $750,000,000 as provided in Section 2.1(b).
CREDIT PERIOD means the period commencing on the date of this Agreement
and ending on the Termination Date.
DEBT of any Person means at any date, without duplication, (a) all
indebtedness, obligations and liabilities of such Person which, in accordance
with GAAP and practices thereof, would be included in determining liabilities as
shown in the liability section of the balance sheet of such Person, including,
without limitation, the Obligations and all other indebtedness, obligations and
liabilities evidenced by bonds, debentures, notes or other similar instruments,
whether recourse or non-recourse and whether secured or unsecured, but excluding
trade payables, accounts payable, accrued interest and expenses, prepaid rents,
security deposits and other accruals, (b) all other indebtedness (including
capitalized lease obligations) of such Person on which interest charges are
customarily paid or accrued, (c) all obligations for indebtedness in respect of
Contingent Obligations of such Person and obligations under interest rate swaps,
hedge agreements and other similar agreements, (d) the unfunded or unreimbursed
portion of all letters of credit issued for the account of such Person, (e) all
obligations to purchase under agreements to acquire, or otherwise to contribute
money with respect to Development Properties, and (f) without duplication of any
other Debt, all personal liability of such Person as a general partner or joint
venturer of a partnership or joint venture for obligations of such partnership
or joint venture of the nature described in (a) through (e) preceding.
DEBTOR RELIEF LAWS means any applicable Laws pertaining to liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, insolvency,
reorganization, receivership, composition, extension or adjustment of debt, or
similar Laws, domestic or foreign, affecting the rights or remedies of creditors
generally, in effect from time to time.
DEFAULT means any condition or event which constitutes an Event of Default
or which with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
DEFAULT RATE means the fluctuating per annum rate of interest equal to the
lesser of (a) four percent (4.0%) plus the Base Rate, or (b) the Maximum Lawful
Rate.
DESIGNATED SUCCESSOR AGENT means, at any given time, the Lender (other
than Administrative Agent) which has the largest Commitment, or if the Lenders
have no further commitment to lend hereunder, the largest Aggregate Loan
Percentage; provided, however, if
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 7
two or more such Lenders have the same Commitment or Aggregate Loan Percentage,
as the case may be, at such time, then the Designated Successor Agent shall be
such of those Lenders having the same Commitment or Aggregate Loan Percentage,
as the case may be, which has the largest net worth; and, provided further, that
if the Required Lenders object to the newly named Designated Successor Agent, or
if any Lender determined to be a Designated Successor Agent declines to serve as
successor Administrative Agent in writing delivered to the outgoing
Administrative Agent, within seven (7) Business Days after such Designated
Successor Agent is determined, then the Lender other than Administrative Agent
or such rejected or declining Designated Successor Agent which has the next
largest Commitment or Aggregate Loan Percentage, as the case may be, shall be
the Designated Successor Agent. For each such Lender that is a member of a bank
holding company, its net worth shall be deemed to be the consolidated net worth
of its bank holding company.
DEVELOPMENT PROPERTIES means Real Estate comprised of multi-family
projects under construction, or in pre-construction phases of the development
process, but not yet completed.
DIDMCA means the Depositary Institutions Deregulation and Monetary Control
Act of 1980, Public Law 96-221, as amended, codified at 12 U.S.C. Section
1735f-7.
DISTRIBUTION by any Person, means (a) with respect to any stock of any
class issued by such Person or any partnership, joint venture or other
beneficial ownership or equity interest of such Person, the retirement,
redemption, repurchase, or other acquisition for value of such stock,
partnership, joint venture or other equity interest, (b) the declaration or
payment (without duplication) of any dividend or other distribution, whether
monetary or in kind, on or with respect to any stock, partnership, joint venture
or other equity interest of any Person, and (c) any other payment or
distribution of assets of a similar nature or in respect of an equity
investment.
DOCUMENTATION AGENT means Wachovia Bank, National Association and Wells
Fargo Bank, N.A., each in its capacity as documentation agent for the Lenders
hereunder, or any successor documentation agent pursuant to Section 10.12 or
Section 10.13.
EFFECTIVE DATE means the date selected by Borrower to be the first day of
the applicable Interest Period related to a LIBOR Rate Advance or a Competitive
Bid Pricing Loan.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender; and
(c) any other Person approved by Administrative Agent and, so long as no Default
is in existence and no Event of Default has occurred and is continuing, by
Borrower (which approval by Borrower and Administrative Agent shall not be
unreasonably withheld or delayed); provided, however, that none of Borrower nor
any Affiliate of Borrower shall qualify as an Eligible Assignee.
ELIGIBLE GROUND LEASE means a lease meeting at least the following
requirements: (a) a remaining term (including renewal options exercisable at
lessee's sole option) of at least thirty (30) years, (b) the leasehold interest
is transferable and assignable either without the landlord's prior consent or
with such consent, which, however, will not be unreasonably withheld by
landlord, and (c) the ground lease contains customary lender protection
provisions acceptable to Administrative Agent in that, among other things, it
provides or allows for, without further consent from the landlord, (i) notice
and right to cure to lessee's lender, (ii) a right of the lessee
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 8
to pledge or mortgage the leasehold interest, (iii) recognition of a foreclosure
of the leasehold interest including entering into a new lease with the lender,
and (iv) no right of landlord to terminate without consent of lessee's lender
except after a default which remains uncured after notice and opportunity to
cure given to lessee's lender. Each of the following shall be an Eligible Ground
Lease notwithstanding that any of the following may not comply with the
requirements of this definition: (a) property in Corpus Christi, Nueces County,
Texas, containing 7.494 and 4.841 acres, respectively, subject to ground leases
from Texas A&M University to Borrower as lessee, consisting of two tracts, and
commonly known as Camden Miramar Apartments; (b) property in Louisville,
Kentucky, subject to a ground lease from Alice A. Boden, Trustee, Philip
Arterburn and Nancy A. Branch, commonly known as Camden Oxmoor; and (c) property
in Phoenix, Maricopa County, Arizona, subject to a ground lease from the City of
Phoenix, to Camden USA, as lessee, commonly known as Camden Copper Square.
EMPLOYEE PLAN means at any time an employee benefit plan as defined in
Section 3(3) of ERISA that is now or was previously maintained, sponsored or
contributed to by Borrower or any Guarantor Subsidiary or any ERISA Affiliate of
Borrower or any Guarantor Subsidiary.
EQUITY INTERESTS has the meaning set forth in Section 8.13.
EQUITY OFFERING means the issuance and sale by Borrower or any
Consolidated Subsidiary subsequent to the Closing Date of any equity securities
of Borrower or any Consolidated Subsidiary.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all regulations issued pursuant
thereto.
ERISA AFFILIATE means any person that is treated as a single employer with
Borrower or any Guarantor Subsidiary under Section 414 of the Code.
ERISA REPORTABLE EVENT means a reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has not
been waived.
EURODOLLAR BID RATE means, with respect to a Competitive Bid Pricing Loan
made by a given Lender for the relevant Interest Period, the sum of (a) the
Adjusted LIBOR Rate (less the LIBOR Margin), and (b) the Competitive Bid Margin
offered by such Lender and accepted by Borrower pursuant to Section 2.3.
EVENT OF DEFAULT has the meaning set forth in Section 9.1.
EXCESS OUTSTANDINGS means the amount (if any) by which the then
outstanding aggregate principal balances of all the Notes, the Competitive Bid
Notes and the Swingline Note plus the Letter of Credit Usage exceed the Maximum
Available Amount, as determined on any date during the term of this Agreement.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 9
EXISTING CREDIT AGREEMENT means the Credit Agreement dated as of August
15, 2002, executed by Borrower, Administrative Agent and the lenders which are
parties thereto.
EXISTING LETTERS OF CREDIT means the letters of credit listed on Schedule
IV which were issued by the Fronting Bank for the account of Borrower under the
Existing Credit Agreement and which shall be Letters of Credit under this
Agreement.
EXTENSION FEE has the meaning set forth in Section 3.15(d).
EXTENSION OPTION has the meaning set forth in Section 3.15.
FACILITY FEE means the non-refundable annual fee equal to the product of
(a) the applicable percentage in effect based on the Applicable Debt Rating as
shown in Schedule II, times (b) the Total Commitment, irrespective of usage,
calculated and payable as provided in Section 2.4(b).
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded upwards
if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to Administrative Agent
on such day on such transactions from three Federal funds brokers of recognized
standing.
FEE LETTERS means the various letter agreements to be executed by
Borrower, Administrative Agent and delivered to each Lender setting forth
various fees payable by Borrower to such Lender relating to the Credit Facility
and all amendments, modifications and supplements thereto and any restatements
or replacements thereof.
FISCAL YEAR means any fiscal year of Borrower commencing on January 1 and
ending on December 31.
FIXED CHARGES means with respect to Borrower and its Consolidated
Subsidiaries for any period, the sum of all interest expense incurred (including
capitalized interest), and all scheduled principal payments (excluding balloon
payments) made or to have been made during such period, plus any Distributions
made during such period with respect to any stock or other similar ownership
interests other than common stock (or ownership interests equivalent to common
stock), plus a capital improvement reserve equal to $250 per year multiplied by
the weighted average of the number of apartment units in all Properties, for the
applicable period.
FRONTING BANK shall mean Bank of America, N.A or such other Lender which
is approved as Fronting Bank by Borrower and Administrative Agent.
FUNDS FROM OPERATIONS means the term "Funds from Operations" as such term
is defined by the National Association of Real Estate Investment Trusts, as such
term may be modified,
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 10
revised or redefined from time to time by said association, or if said
association no longer exists or no longer promulgates a definition for such
term, then such other meaning as is selected by Administrative Agent in its
reasonable determination.
GAAP means principles that are (a) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time and (b) consistently applied with
past financial statements of Borrower or any of its Subsidiaries adopting the
same principles; provided that a certified public accountant would, insofar as
the use of such accounting principles is pertinent, be in a position to deliver
an unqualified opinion (other than a qualification regarding changes in
generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
GENERAL PARTNER means CPT-GP, Inc., a Delaware corporation, the sole
general partner of Camden L.P., and its successors.
GOVERNMENTAL AUTHORITY means any government, any state or other political
subdivision thereof, any court, any governmental body, agency or
instrumentality, or any Person exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, or any
arbitration authority.
GROSS ASSET VALUE means on any date of determination, the sum of the
following, without duplication: (a) all cash and Cash Equivalents of Borrower
and the Consolidated Subsidiaries, including without limitation restricted cash
and escrow deposits (as shown on Borrower's consolidated balance sheet), plus
(b) the aggregate cost book value determined in accordance with GAAP (as shown
on Borrower's consolidated balance sheet) of all Development Properties until
the earlier of, for each Development Property, (i) eighteen (18) months
following the date on which such Development Property was completed, or (ii) the
first fiscal quarter in which the occupancy rate for the average number of units
(computed on a weighted average basis) in such Development Property is at least
90%, plus (c) the aggregate cost book value determined in accordance with GAAP
(as shown on Borrower's consolidated balance sheet) of all developed Real Estate
acquired by Borrower or any Consolidated Subsidiary, until, for each piece of
acquired Real Estate, the one-year anniversary of the date of acquisition of
such Real Estate, plus (d) the quotient obtained by dividing (i) Consolidated
EBITDA from completed and stabilized Real Estate as of the last day of the
immediately preceding calendar quarter, and then annualized, but excluding from
the calculation thereof any income from Development Properties included under
clause (b) above and any income from acquired Real Estate included under clause
(c) above, by (ii) a capitalization rate equal to 7.50% per annum, plus (d) the
book value determined in accordance with GAAP (all as are shown on Borrower's
consolidated balance sheet) of (i) all undeveloped Real Estate, (ii) Investments
of Borrower and its Consolidated Subsidiaries in joint ventures and
partnerships, (iii) notes, mortgages and other evidences of indebtedness held by
Borrower or any Consolidated Subsidiary, and (iv) accounts receivable of
Borrower and its Consolidated Subsidiaries. In computing Gross Asset Value, once
the aggregate of all Investments by Borrower and its Consolidated Subsidiaries
in any joint ventures, partnerships or other Subsidiary (other than a
Consolidated Subsidiary) exceeds the lesser of (x) two and one-half percent
(2.5%) of Gross Asset Value or (y) $150,000,000, then all such Investments shall
be treated on a pro rata basis such that Borrower shall be credited with a pro
rata share of income and investment and will be charged with a pro rata share of
the applicable expense and liability,
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 11
with respect to such Investments, as if such Investments were reflected on a
consolidated basis. The pro rata treatment of such Investments shall continue
only so long as the aggregate amount of such Investments is greater than the
lesser of (x) two and one-half percent (2.5%) of Gross Asset Value or (y)
$150,000,000.
GROSS ASSET VALUE OF UNENCUMBERED PROPERTIES means on any date of
determination the sum of the following, without duplication, provided that such
values shall be determined and included with respect only to Property that
qualifies as an Unencumbered Property and is in the Pool at such date: (a) the
aggregate cost book value determined in accordance with GAAP (as shown on
Borrower's consolidated balance sheet) of all Development Properties until the
earlier of, for each Development Property, (i) eighteen (18) months following
the date on which such Development Property was completed, or (ii) the first
fiscal quarter in which the occupancy rate for the average number of units
(computed on a weighted average basis) in such Development Property is at least
90%, plus (b) the aggregate cost book value determined in accordance with GAAP
(as shown on Borrower's consolidated balance sheet) of all developed Real Estate
acquired by Borrower or any Consolidated Subsidiary, until, for each piece of
acquired Real Estate, the one-year anniversary of the date of acquisition of
such Real Estate, plus (c) the quotient obtained by dividing (i) Unencumbered
Adjusted NOI from completed and stabilized Real Estate as of the last day of the
immediately preceding calendar quarter, and then annualized, but excluding from
the calculation thereof any income from Development Properties included under
clause (a) above and any income from acquired Real Estate included under clause
(b) above, by (ii) a capitalization rate equal to 7.50% per annum.
GROUND-LEASED QUALIFYING PROPERTIES means Real Estate in which the
interest of Borrower or the respective Guarantor Subsidiary is a leasehold
interest pursuant to an Eligible Ground Lease.
GUARANTEED PENSION PLAN means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTOR SUBSIDIARIES means initially Camden USA, Camden Operating L.P.,
Camden Realty, Inc. and each Consolidated Subsidiary of Borrower that becomes a
Guarantor Subsidiary after the date hereof pursuant to Section 5.3 (including
Camden Summit Partnership L.P.) or otherwise, and their respective successors
and assigns.
GUARANTY AGREEMENT means the Guaranty Agreement of even date herewith
executed by each of Camden USA, Camden L.P., Camden Realty and each Guaranty
Agreement executed by a Guarantor Subsidiary subsequent to the date hereof
pursuant to Section 5.3 or otherwise, in favor of Administrative Agent, for the
ratable benefit of the Lenders (subject, however, to the provisions in favor of
Senior Debt holders included in Section 5.6), guaranteeing full payment and
performance of the Obligations, as it may be amended, modified, supplemented,
replaced or restated from time to time, each such Guaranty Agreement to be
substantially in the form attached hereto as Exhibit F.
GUARANTY PROCEEDS has the meaning set forth in Section 5.6.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 12
IMPOSITIONS means all real estate and personal property taxes; charges for
any easement, license or agreement maintained for the benefit of any of the real
property of Borrower or any Guarantor Subsidiary, or any part thereof; and all
other taxes, charges and assessments and any interest, costs or penalties with
respect thereto, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, which at any time prior to or
after the execution hereof may be assessed, levied or imposed upon any of the
Real Estate, or any part thereof, or the ownership, use, sale, occupancy or
enjoyment thereof, in each case which, if not timely paid or otherwise
discharged, would materially and adversely affect (a) such ownership, use, sale,
occupancy or enjoyment, or (b) the financial condition of Borrower or any
Consolidated Subsidiary.
IMPROVEMENTS means all improvements now or at any time hereafter located
on any of the Real Estate (or any designated part thereof).
INITIAL COMMITMENT FEE has the meaning set forth in Section 2.4(a).
INITIAL UNENCUMBERED PROPERTIES means those Unencumbered Properties
comprising the Pool on the Closing Date, as set forth in the initial Compliance
Certificate attached hereto as Schedule C.
INTEREST ADJUSTMENT DATE means the earlier of either the last day of an
Interest Period or the Termination Date.
INTEREST PERIOD means, with respect to a LIBOR Rate Advance, or
Competitive Bid Pricing Loan, a period selected by Borrower of seven (7) days,
fourteen (14) days or of one month, two months, three months, four months, five
months, six months or twelve months, commencing on the Effective Date of such
LIBOR Rate Advance or the Borrowing Date with respect to a Competitive Bid Loan;
provided that (a) any Interest Period related to, and ending on a date later
than, the Termination Date, shall be deemed to end on the Termination Date; (b)
if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall end on the next succeeding Business Day, except that
if the next Business Day would fall in the next calendar month, the Interest
Period shall end on the immediately preceding Business Day; (c) any Interest
Period that begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period shall end on the last
Business Day of such calendar month; and (d) with respect to a Competitive Bid
Pricing Loan, an Interest Period shall not be seven (7) days or twelve months.
INVESTMENTS means with respect to any Person, all shares of capital stock,
evidences of Debt and other securities issued by any other Person, all loans,
advances, or extensions of credit to, or contributions to the capital of, any
other Person, all purchases of the securities or business or integral part of
the business of any other Person and commitments and binding options to make
such purchases, all interests in real property, and all other investments;
provided, however, that the term "Investment" shall not include (i) equipment,
inventory and other tangible personal property acquired in the ordinary course
of business, or (ii) current trade and customer accounts receivable for services
rendered in the ordinary course of business and payable in accordance with
customary trade terms. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any investment represented
as a guaranty shall be taken at
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 13
not less than the principal amount of the obligations guaranteed and still
outstanding, but without duplication if such Investment is included elsewhere in
this definition; (b) there shall be included as an Investment all interest
accrued with respect to Debt constituting an Investment unless and until such
interest is paid; (c) there shall be deducted in respect of each such Investment
any amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (d)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investment any decrease in the value thereof.
INVITATION FOR COMPETITIVE BID QUOTES means an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit E-2 hereto, completed and
delivered by Administrative Agent to the Lenders in accordance with Section
2.3(c).
JOINT BOOKRUNNERS means Banc of America Securities LLC and J.P. Morgan
Securities, Inc.
LAWS means all constitutions, treaties, statutes, laws, ordinances, codes,
regulations, rules, orders, decisions, writs, injunctions, or decrees of the
United States of America or any other Governmental Authority, now in effect and
hereafter amended, issued, promulgated, or otherwise coming into effect.
LEGAL REQUIREMENTS means (a) any and all present and future judicial
decisions, laws, permits, licenses or certificates, of any Governmental
Authority in any way applicable to Borrower or any Consolidated Subsidiary, (b)
the presently or subsequently effective bylaws and articles or certificate of
incorporation, partnership agreement and any other form of business association
agreement of Borrower or any Consolidated Subsidiary, (c) any and all covenants,
conditions or restrictions applicable to the Real Estate or the ownership, use
or occupancy thereof, and (d) any and all leases or contracts (written or oral)
of any nature that relate in any way to any Property or any portion thereof, or
to which Borrower or any Consolidated Subsidiary may be bound, and in each case
which, if violated, would materially and adversely affect (i) the present or
potential ownership, use, sale, occupancy or possession of the Property or any
material part thereof, by Borrower or any Consolidated Subsidiary, or (ii) the
financial condition of Borrower or any Consolidated Subsidiary.
LENDERS means the financial institutions and other entities listed as a
"Lender" on Schedule I attached hereto, as Schedule I may be modified, amended
or supplemented from time to time.
LETTER(S) OF CREDIT has the meaning provided in Section 2.7.
LETTER OF CREDIT COLLATERAL has the meaning provided in Section 9.10.
LETTER OF CREDIT COLLATERAL ACCOUNT has the meaning provided in Section
9.10.
LETTER OF CREDIT DOCUMENTS has the meaning provided in Section 2.8.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 14
LETTER OF CREDIT USAGE means at any time the sum of (a) the aggregate
maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
therein, and (b) the aggregate amount of Borrower's unpaid obligations under
this Agreement in respect of the Letters of Credit.
LIBOR MARGIN means the applicable margin based on the Applicable Debt
Rating described in, and determined pursuant to, Schedule II.
LIBOR RATE means, with respect to a LIBOR Rate Advance for the Interest
Period applicable thereto, the rate per annum (rounded upwards, if necessary, to
the nearest 1/1000 of 1%) equal to the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by Administrative Agent from
time to time) at approximately 11:00 a.m. (London time) two Business Days prior
to commencement of such Interest Period, for U.S. Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any reason, then
the term "LIBOR Rate" for such Interest Period shall be the rate determined by
Administrative Agent to be the rate at which deposits in U.S. Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the applicable LIBOR Rate Advance and with a term
equivalent to such Interest Period would be offered by Administrative Agent's
London branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
LIBOR RATE ADVANCE means an Advance under the Credit Facility (including
Competitive Bid Pricing Loans) which bears interest computed with reference to
the LIBOR Rate.
LIBOR RATE PRINCIPAL means any portion or portions of the outstanding
principal balance of the Notes which bears interest at an applicable LIBOR Rate
at the time in question.
LIBOR RESERVE REQUIREMENT means, on any day, that percentage (expressed as
a decimal fraction) which is in effect on such date, as provided by the Federal
Reserve System for determining the maximum reserve requirements generally
applicable to financial institutions regulated by the Federal Reserve Board
comparable in size and type to Administrative Agent (including, without
limitation, basic supplemental, marginal and emergency reserves) under
Regulation D with respect to "Eurocurrency liabilities" as currently defined in
Regulation D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding (or, if reserves for
Eurocurrency liabilities are not separately stated in such regulations, the
other applicable category of liabilities which includes deposits by reference to
which the interest rate on a LIBOR Rate Advance is determined). Each
determination by Administrative Agent of the LIBOR Reserve Requirement, shall,
in the absence of manifest error, be conclusive and binding.
LIEN means with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, a Person shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 15
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
LITIGATION means any proceeding, claim, suit, action, arbitration,
mediation, case or investigation by, before or involving any Governmental
Authority.
LOAN DOCUMENTS means this Agreement, the Notes, the Competitive Bid Notes,
the Swingline Note, the Guaranty Agreements, the Contribution Agreement, the Fee
Letters, the Letter of Credit Documents and all other agreements, statements,
certificates, documents or instruments evidencing, securing or pertaining to the
Credit Facility or the Notes or otherwise executed and/or delivered from time to
time pursuant to or in connection with this Agreement, as the same may be
supplemented, modified, amended, renewed, extended, rearranged, restated or
replaced from time to time.
MANAGING AGENT means Citicorp North America, Inc.; Commerzbank AG, New
York and Grand Cayman Branches; Deutsche Bank Trust Company Americas; EuroHypo
AG, New York Branch; PNC Bank, National Association; and SunTrust Bank; each in
its capacity as managing agent for the Lenders herewith.
MANDATORY SWINGLINE ADVANCE has the meaning set forth in Section 2.6
hereof.
MARGIN REGULATIONS mean Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
MARGIN STOCK means "margin stock" as defined in Regulation U.
MATERIAL ADVERSE EFFECT means an effect resulting from any circumstance or
event of whatever nature (including the filing of, or any adverse determination
in, any Litigation) which does, or could reasonably be expected to, (i) impair
the validity or enforceability of any Loan Document, (ii) materially and
adversely affect the condition (financial or otherwise), operations, business,
management or assets of Borrower or the Guarantor Subsidiaries, (iii) materially
impair the ability of Borrower and the Guarantor Subsidiaries, taken as a whole,
to fulfill any material part of the Obligations, or (iv) cause a Default or an
Event of Default.
MAXIMUM AVAILABLE AMOUNT means the maximum aggregate principal balances of
the Notes, all Competitive Bid Notes and the Swingline Note that may be
outstanding at the time in question without resulting in a breach of the
requirements and covenants of this Agreement, including without limitation those
set forth in Section 5.1 and Section 8.2.
MAXIMUM LAWFUL RATE means the maximum rate (or, if the context so permits
or requires, an amount calculated at such rate) of interest which, at the time
in question would not cause the interest charged on the Credit Facility at such
time to exceed the maximum amount which Lenders would be allowed to contract
for, charge, take, reserve, or receive under applicable federal or state law
after taking into account, to the extent required by applicable law, any and all
relevant payments, fees or charges under the Loan Documents. For purposes of
determining the Maximum Rate under the applicable Laws of the State of Texas,
the applicable rate ceiling shall be the "weekly ceiling" from time to time in
effect under Chapter 1D of the Texas Credit Title, as amended or supplemented;
provided that to the extent permitted by
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 16
applicable Laws and subject to any notice or other requirements under applicable
Laws, Administrative Agent may from time to time change the rate ceiling. If
under applicable law there is no legal limitation on the amount or rate of
interest that may be charged on amounts outstanding under the Credit Facility,
there shall be no Maximum Lawful Rate, notwithstanding any reference thereto
herein or in any of the Loan Documents.
MINIMUM NOTICE REQUIREMENT has the meaning set forth in Section 3.5(b).
MOODY'S means Moody's Investors Service, Inc., or, if Moody's no longer
publishes ratings, such other ratings agency reasonably acceptable to
Administrative Agent.
MOODY'S RATING means the most recently announced rating from time to time
of Moody's assigned to any class of long-term senior, unsecured liability
securities issued by Borrower, as to which no letter of credit, guaranty, or
third party credit support is in place, regardless of whether all or any part of
such liability has been issued at the time such rating was issued.
NON-RECOURSE INDEBTEDNESS means Debt of Borrower or any Consolidated
Subsidiary which is secured by one or more parcels of Real Estate and related
personal property or interests therein and is not a general obligation of
Borrower or any Consolidated Subsidiary, the holder of such Debt having recourse
solely to the Real Estate securing such Debt, the Improvements thereon, related
personal property and leases thereon, and the rents and profits thereof securing
such Debt (other than recourse for standard so-called "carve-outs").
NON-U.S. LENDER has the meaning set forth in Section 3.14(d).
NOTES means the promissory notes substantially in the form of Exhibit A-1
hereto with appropriate insertions evidencing Advances under the Credit Facility
other than Competitive Bid Advances, executed by Borrower, payable to the order
of each Lender, each in the principal face amount of the respective Lender's
Commitment, as such notes may be amended, renewed or extended from time to time,
and all notes given in amendment, replacement or restatement thereof, in whole
or in part, including without limitation in connection with an assignment of a
Lender's interest hereunder or the addition of a new Lender hereunder.
OBLIGATIONS means all present and future indebtedness, obligations and
liabilities, or any part thereof, of Borrower or any Guarantor Subsidiary now or
hereafter existing or arising under or in connection with this Agreement, the
Notes, the Competitive Bid Notes, the Swingline Note or any other of the Loan
Documents (specifically including, without limitation, the principal amount
outstanding under the Notes, the Competitive Bid Notes and the Swingline Note,
and the Letter of Credit Usage), together with: (a) all interest accrued
thereon; (b) all reasonable costs, expenses, and attorneys' fees of counsel to
Administrative Agent and of counsel to any Lender (subject to any limitations
set forth in Section 11.4) incurred in the documentation of any amendments,
waivers or extensions of the Loan Documents or administration, enforcement or
collection thereof (specifically including, without limitation, any of the
foregoing incurred in connection with any bankruptcy or other insolvency
proceedings of Borrower or any Guarantor Subsidiary or any other Consolidated
Subsidiary); (c) the reimbursement and payment of all sums which might be
advanced by Administrative Agent or any Lender to pay or satisfy amounts
required to be paid by Borrower or any Guarantor Subsidiary under this Agreement
or under any
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 17
other Loan Document; (d) all liability which Borrower or any Guarantor
Subsidiary may incur with respect to any interest rate swap or hedge agreements
between Borrower or any Guarantor Subsidiary and any Lender pertaining to the
Advances under the Credit Facility and the Swingline Advances; and (e) all
costs, charges, reasonable commissions, reasonable attorneys' fees and expenses
owing and to become owing in connection with the documentation, administration,
enforcement and collection of the foregoing obligations and indebtedness, and
those owing or to become owing in connection with the repossession, operation,
maintenance, preservation or foreclosure of any collateral that may ever be
given for the obligations and indebtedness hereunder; regardless of whether such
indebtedness, obligations and liabilities are direct, indirect, fixed,
contingent, liquidated, unliquidated, joint, several or joint and several. The
Obligations shall include all renewals, extensions, modifications,
rearrangements and replacements of any of the above-described obligations and
indebtedness.
PARTICIPANT has the meaning set forth in Section 11.10(d).
PARTIALLY-OWNED QUALIFYING PROPERTIES means Real Estate in which Borrower
or Guarantor Subsidiaries own no less than 66 2/3% of the legal and beneficial
interest in such Real Estate or 66 2/3% of the Voting Interests in the Person
which directly owns such Real Estate and Borrower or Guarantor Subsidiaries have
the unrestricted right and ability to make all decisions regarding the sale,
leasing or other disposition of such Real Estate, the ability to put a Lien on
such Real Estate and the ability to obtain any financing secured by, or related
to, such Real Estate.
PBGC means the Pension Benefit Guaranty Corporation, or its successors.
PENSION PLAN means any Employee Plan that is now or was previously covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code.
PERMITTED LIENS means (a) Liens granted to Administrative Agent for the
benefit of the Lenders to secure the Obligations, (b) pledges or deposits made
to secure payment of worker's compensation (or to participate in any fund in
connection with worker's compensation insurance), unemployment insurance,
pensions or social security programs, (c) encumbrances consisting of zoning
restrictions, easements, or other restrictions on the use of real property,
provided that such items do not materially impair the use of such property for
the purposes intended and none of which is violated in any material respect by
existing or proposed structures or land use, (d) Liens for taxes, assessments
and governmental charges not yet due and payable or that are being contested in
good faith by appropriate proceedings diligently conducted, and for which
reserves in accordance with GAAP or otherwise reasonably acceptable to
Administrative Agent have been provided, or Liens imposed by mandatory
provisions of law such as for materialmen's, mechanics', warehousemen's and
other similar Liens arising in the ordinary course of business, securing payment
of any liability whose payment is not yet due, (e) Liens on Property where
Borrower is insured against such Liens by title insurance, (f) Liens securing
assessments or charges payable to a property owner association or similar
entity, which assessments are not yet due and payable or that are being
contested in good faith by appropriate proceedings diligently conducted, and for
which reserves in accordance with GAAP or otherwise reasonably acceptable to
Administrative Agent have been provided, (g) Liens securing assessment bonds, so
long as Borrower is not in default under the terms thereof, or (h) Liens
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 18
filed by mechanics and materialmen which are being diligently contested in good
faith, for which appropriate reserves have been established on the books of
Borrower or the appropriate Subsidiary as required by GAAP, and which, if
reasonably requested by Administrative Agent, have been bonded or insured around
in full in form and by a surety commonly accepted in the industry.
PERSON means an individual, a corporation, a limited liability company, a
partnership, a joint venture, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
POOL means collectively all Unencumbered Properties meeting all
requirements of Article 5 at the time in question.
POOL VIOLATION means a violation of any provision in Article 5 or any
other covenants in this Agreement related to the Pool or the Unencumbered
Properties taken as a whole which would occur if an Unencumbered Property were
excluded from the Pool because there existed a condition related thereto which
violates a particular representation, warranty or covenant contained in this
Agreement.
PORTFOLIO ACQUISITION means the acquisition by Borrower or any Guarantor
Subsidiary from a Person or related Persons in a single transaction, or a series
of related transactions, of the legal and beneficial interests of two or more
tracts of improved property which, upon their acquisition, shall be part of the
Real Estate.
PROPERTY means, collectively, the Real Estate, the Improvements, and all
other real or personal property and assets, and any interests therein, owned at
any time by Borrower or any of its Consolidated Subsidiaries.
RATINGS AGENCY means S&P or Moody's, or any other ratings agency replacing
either of S&P or Moody's as provided in the definitions thereof.
REAL ESTATE means all real property and Improvements at any time owned or
leased (as lessee or sublessee) by Borrower or any of its Consolidated
Subsidiaries.
REGISTER has the meaning set forth in Section 11.10(b).
REGULATION U means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time and shall include any successor
or other regulation or official interpretation of the Board of Governors
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks that is applicable to member banks of the Federal Reserve
System.
REGULATORY CHANGE shall mean the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority charged with the administration thereof.
REPRESENTATIVES has the meaning set forth in Section 10.4.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 19
REQUIRED LENDERS means:
(a) All Lenders in order to make any amendment or modification to
(i) change the definitions of Commitment, Commitment Percentage or Aggregate
Loan Percentage, (ii) extend the due date for, decrease the amount or rate of
calculation of, or waive the late or non-payment of, any scheduled payment or
mandatory prepayment of principal or interest on any of the Notes, the
Competitive Bid Notes or the Swingline Note or under this Agreement or any fees
payable to the Lenders under the Loan Documents, except, in each case, any
adjustments or reductions expressly contemplated hereby or in any Loan Document,
(iii) increase the amount of the Total Commitment except as provided in Section
2.1(b), (iv) reinstate any of the Notes and other indebtedness pursuant to the
provisions in Section 9.3, (v) release Borrower or, except as otherwise provided
in this Agreement, any Guarantor Subsidiary from its liability for payment of
the Obligations, or (vi) change this definition of Required Lenders.
(b) Except as provided in paragraph (a) above, Lenders whose
Commitments at the time in question in the aggregate equal or exceed 66-2/3% of
the Total Commitment; provided, however, that if the Termination Date has
occurred, or the Lenders have no commitment to lend hereunder, or an Event of
Default is in existence, then it shall mean the Lenders holding Notes,
Competitive Bid Notes and the Swingline Note with an aggregate unpaid principal
balance equal to or greater than 66-2/3% of the aggregate unpaid principal
balance of all the Notes and all the Competitive Bid Notes at the time in
question (provided, that in the case of the Swingline Loan, the amount of each
Lender's participation interest in the Swingline Loan shall be considered for
the purposes hereof as if it were a direct loan and not a participation
interest, and the aggregate amount of the Swingline Loan owing to the Swingline
Lender shall be considered for purposes hereof as reduced by the amount of such
funded participation interests).
RIGHTS means rights, remedies, powers, privileges and benefits.
S&P means Standard & Poor's Rating Group, a division of McGraw Hill, Inc.,
a New York corporation, or if S&P no longer publishes ratings, then such other
ratings agency reasonably acceptable to Administrative Agent.
S&P RATING means the most recently announced rating from time to time of
S&P assigned to any class of long-term senior, unsecured liability securities
issued by Borrower, as to which no letter of credit, guaranty, or third party
credit support is in place, regardless of whether all or any part of such
liability has been issued at the time such rating was issued.
SEC means the federal Securities and Exchange Commission, and its
successors.
SECURED INDEBTEDNESS means Debt of Borrower and its Consolidated
Subsidiaries that is directly or indirectly secured by a Lien on any Real
Estate, including (without duplication) all Contingent Obligations associated
with such Debt.
SECURED RECOURSE DEBT means all Secured Indebtedness that is not
Non-Recourse Indebtedness.
SOLE LEAD ARRANGER means Banc of America Securities LLC, and its
successors.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 20
SENIOR DEBT has the meaning set forth in Section 5.6.
SUBSIDIARY means, for any Person, any corporation, partnership,
association, trust or other business entity (a) of which more than fifty percent
(50%) of the outstanding capital stock or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions (including that of a general partner) is at
the time directly or indirectly owned by, or the management is otherwise
controlled by, such Person and any Subsidiaries of such Person, or (b) the
accounts of which would be consolidated with the accounts of Borrower on
Borrower's consolidated financial statements prepared in accordance with GAAP.
The term Subsidiary shall include Subsidiaries of Subsidiaries (and so on).
Unless otherwise qualified, references to "Subsidiary" or "Subsidiaries" herein
shall refer to those of Borrower and its Subsidiaries.
SUMMIT ACQUISITION means (i) the merger of Summit Properties, Inc., a
Maryland corporation with and into Camden Summit, Inc., a Delaware corporation
and (ii) the conversion of limited partnership interests in Summit Properties
Partnership, L.P. into limited partnership interests in Camden Summit
Partnership, L.P.
SWINGLINE ADVANCE has the meaning set forth in Section 2.6.
SWINGLINE COMMITMENT has the meaning set forth in Section 2.6.
SWINGLINE LENDER means Bank of America, N.A., in its capacity as Swingline
Lender hereunder, and its permitted successors in such capacity in accordance
with the terms of this Agreement.
SWINGLINE LOAN means the loan made by the Swingline Lender pursuant to
Section 2.6.
SWINGLINE NOTE means a promissory note in substantially the form of
Exhibit A-3, evidencing the Swingline Loan, duly executed and delivered by
Borrower, and payable to the order of Swingline Lender, as such note may be
amended, renewed or extended from time to time, and any note or notes given in
amendment, replacement or restatement thereof, in whole or in part.
SYNDICATION AGENT means JPMorgan Chase Bank, N.A., in its capacity as
syndication agent for the Lenders hereunder, or any successor syndication agent
pursuant to Section 10.12 or Section 10.13.
TAXES means all taxes, assessments, filing or other fees, levies, imposts,
duties, deductions, withholdings, stamp taxes, interest equalization taxes,
capital transaction taxes, foreign exchange taxes or other charges of any nature
whatsoever, from time to time or at any time imposed by law or any federal,
state or local governmental agency. "Tax" means any one of the foregoing.
TELERATE SCREEN means the display designated as Screen 3750 (as to
Dollars) on the Telerate System or such other screen on the Telerate System as
shall display the London interbank offered rates for deposits in U.S. dollars
quoted by selected banks.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 21
TERMINATION DATE means January 14, 2008, as the same may be extended from
time to time in accordance with this Agreement.
TOTAL COMMITMENT means, at any time, the sum of the Commitments of all of
the Lenders.
TOTAL CONSOLIDATED DEBT at any time of determination, without duplication,
means the sum of (a) consolidated Debt of Borrower and its Consolidated
Subsidiaries which would be reflected on the consolidated balance sheet of
Borrower prepared in accordance with GAAP if such balance sheet were prepared as
of such date of determination, plus (b) the unfunded obligations of Borrower or
any Consolidated Subsidiary under outstanding letters of credit, plus (c) the
amount of any Contingent Obligations that are reasonably quantifiable by
Borrower (as confirmed by Administrative Agent) and which do not duplicate any
amounts otherwise included under this definition of Total Consolidated Debt.
TOTAL UNSECURED DEBT means Total Consolidated Debt excluding all Secured
Indebtedness, which includes, without limitation, the aggregate outstanding
principal balance of the Notes and the Competitive Bid Notes.
UCC means the Uniform Commercial Code in effect under the laws of the
State of Texas, as amended, or, if stated with reference to another
jurisdiction, the Uniform Commercial Code as adopted in the relevant
jurisdiction.
UNENCUMBERED ADJUSTED NOI means for any period the aggregate net operating
income from all the Unencumbered Properties in the Pool (as calculated by
Borrower in a manner reasonably acceptable to Administrative Agent), as adjusted
(a) for any non-recurring items during such period, (b) for the deletion of any
dispositions or additions of any acquisitions of Unencumbered Properties during
such period, and (c) to include in expenses property supervision expenses and a
capital improvement reserve for the Unencumbered Properties for such period in
the amount of $250 per year multiplied by the weighted average of the number of
apartment units in all of the Unencumbered Properties for the applicable period.
UNENCUMBERED PROPERTIES means the Ground-Leased Qualifying Properties, the
Partially-Owned Qualifying Properties, and other Real Estate that is owned one
hundred percent (100%) in fee simple by Borrower or a Guarantor Subsidiary, and
which in each case satisfies all of the following conditions:
(a) each Unencumbered Property shall be free and clear of all
Liens other than Permitted Liens;
(b) no Unencumbered Property shall have any material
environmental, structural, title, survey or other defects that would give rise
to a materially adverse effect as to the value, use of, or ability to develop,
lease, sell or refinance such property; and
(c) each Unencumbered Property shall consist solely of Real Estate
located in the United States of America (i) that is a Development Property, or
(ii) is fully operational as a multi-family residential apartment community
(specifically excluding, without limitation, assisted living facilities, low
income housing or any federally subsidized housing facility) and
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 22
with respect to which all necessary valid certificates of occupancy for all
improvements thereon have been issued and are in full force and effect.
VARIABLE RATE means a fluctuating rate of interest equal to the Base Rate
plus the Variable Rate Margin.
VARIABLE RATE ADVANCE shall mean an Advance under the Credit Facility
which bears interest computed with reference to the Variable Rate.
VARIABLE RATE MARGIN means the applicable margin based on the Applicable
Debt Rating of Borrower as described in, and determined pursuant to, Schedule
II.
VOTING INTERESTS means stock or similar ownership interests, of any class
or classes (however designated) the holders of which are at the time entitled,
as such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, limited liability company, trust or other business entity involved,
or (b) to control, manage, or conduct the business of the corporation,
partnership, limited liability company, association, trust or other business
entity involved.
WORK means the furnishing of labor, materials, components, furniture,
furnishings, fixtures, appliances, machinery, equipment, tools, power, water,
fuel, lubricants, supplies, goods and/or services with respect to any part of
the Property.
SECTION 1.2. Singular and Plural; Gender. Each term defined in the
singular form in Section 1.1 shall mean the plural thereof when the plural form
of such term is used in this Agreement, and each term defined in the plural form
in Section 1.1 shall mean the singular thereof when the singular form of such
term is used in this Agreement. Words of any gender shall include each other
gender where appropriate.
SECTION 1.3. Substantive Definitions. The terms, provisions and agreements
set forth in the definitions contained in Section 1.1 shall be substantive terms
of this Agreement and fully binding on the parties hereto.
SECTION 1.4. Money. Unless stipulated otherwise, all references herein or
in any of the Loan Documents to "Dollars," "$," "money," "payments" or other
similar financial or monetary terms are references to lawful money of the United
States of America.
SECTION 1.5. Captions; References. The captions in this Agreement and in
the table of contents hereof are for convenience of reference only and shall not
define, affect or limit any of the terms or provisions hereof. All references
herein to Articles and Sections are, unless specified otherwise, references to
articles and sections of this Agreement. Unless specifically indicated
otherwise, all references herein to an "Exhibit," "Annex" or "Schedule" are
references to exhibits, annexes or schedules attached hereto, all of which are
incorporated herein and made a part hereof for all purposes, the same as if set
forth fully herein, it being understood that if any exhibit, annex or schedule
attached hereto which is to be executed and delivered contains blanks, the same
shall be completed correctly and in accordance with this Agreement prior to or
at the time of the execution and delivery thereof. The words "herein," "hereof,"
"hereunder" and other
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 23
similar compounds of the word "here" when used in this Agreement shall refer to
the entire Agreement and not to any particular provision or section unless
specifically indicated otherwise.
SECTION 1.6. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP.
ARTICLE 2
COMMITMENT
SECTION 2.1. Commitment. Subject to and upon the terms, covenants and
conditions of this Agreement:
(a) Advances. Each Lender severally agrees to make in the manner
set forth in Section 2.2, its pro rata part (based on its Commitment Percentage)
of one or more Advances under the Credit Facility (excluding Competitive Bid
Loans) to refinance all or a part of the indebtedness evidenced by the Existing
Credit Agreement, for the acquisition and development of multi-family
properties, working capital and general corporate purposes, which, subject to
the terms hereby and the other Loan Documents, Borrower may borrow, repay, and
reborrow under this Agreement; provided that, (i) each such Advance must occur
on a Business Day and no later than the Business Day immediately preceding the
Termination Date, (ii) each such Advance must be in an amount not less than the
limitations provided in Section 2.2, and (iii) on any date of determination, the
sum of the outstanding principal balance of the Credit Facility (including the
outstanding balance of all Competitive Bid Loans and the Swingline Loan) plus
the Letter of Credit Usage shall never exceed the lesser of (A) the Maximum
Available Amount, or (B) the Total Commitment. Except as provided in Section 2.3
hereof, in no event shall any Lender be required to make any Advances in excess
of its Commitment Percentage of the amount required to be advanced by the
Lenders under the above provisions of this Section 2.1 or which would cause any
Lender to have made Advances (excluding under Competitive Bid Loans), and to be
responsible for such Lender's Commitment Percentage of the Swingline Loan and
Letter of Credit Usage, in the aggregate, in excess of such Lender's Commitment.
The amount outstanding under the Credit Facility set forth on the books and
records of Administrative Agent maintained in the ordinary course of business
shall be presumptive evidence of the principal amount thereof owing and unpaid
from time to time, but the failure to record any such amount shall not limit or
affect the Obligations.
(b) Increase in Total Commitment. So long as no Default or Event
of Default shall have occurred and be continuing, Borrower shall have the right
from time to time within twenty-four months from the Closing Date, upon not less
than ten (10) days prior written notice to Administrative Agent, to increase the
Total Commitment to an amount up to but not exceeding $750,000,000, by the
addition of one or more new Lenders hereunder and/or by an increase in any one
or more of the then existing Lender's Commitments hereunder (as identified by
the Joint Bookrunners, or either one of them, and approved by Borrower and
Administrative Agent) (provided that in no event shall any Lender be obligated
at any time to increase its Commitment, nor shall any Lender be entitled to an
increase in its Commitment, in connection with any increase in the Total
Commitment under this Section 2.1(b), any such increase to be allocated to
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 24
existing or new Lenders in such amounts as Borrower and Joint Bookrunners
determine in their sole and absolute discretion with the concurrence only of
Administrative Agent); subject to and upon the following terms and conditions:
(1) No Event of Default shall have occurred and be
continuing, and no Default shall be in existence at the time Borrower
elects to increase the Total Commitment as provided herein or on the
effective date of such increase.
(2) Any new Lender pursuant to this Section 2.1(b) shall be
an Eligible Assignee and shall be subject to the consent of Administrative
Agent, which consent shall not be unreasonably withheld.
(3) This Agreement will be amended to reflect the addition
of any new Lender hereunder, and Administrative Agent will deliver an
updated Schedule I to Borrower and each of the Lenders, reflecting the
revised Total Commitment and the Commitment and Commitment Percentage of
each of the Lenders (including any new Lender(s)) upon such increase.
(4) The outstanding Advances under the Notes will be
reallocated on the effective date of such increase among the Lenders in
accordance with their revised Commitment Percentages (and Borrower shall
pay any and all costs required pursuant to Section 3.6(b) in connection
with such reallocation as if such reallocation were a prepayment)
(provided, that, any such reallocation shall be applied to the extent
possible to avoid any Consequential Loss), and Borrower will deliver a
Note to each new Lender in the amount of its Commitment and, if
applicable, to any existing Lender in the amount of its increased
Commitment, and Borrower shall deliver new Competitive Bid Notes to all
Lenders, each in the principal face amount equal to 50% of the Total
Commitment as increased.
(5) From and after the effective date of any increase in the
Total Commitment pursuant to this Section 2.1(b), all references herein to
the Total Commitment and, to the extent applicable, the Commitments and
Commitment Percentages of each Lender, shall mean such amounts as
increased or adjusted hereunder.
(6) Borrower shall pay to Administrative Agent for the
account of the applicable Lenders any Commitment Fees to be paid in
connection with any such increase.
SECTION 2.2. Method of Borrowing under Credit Facility. Subject to the
terms and conditions of this Agreement, Borrower shall be entitled to obtain
Advances (other than Competitive Bid Advances) under the Credit Facility from
Lenders pursuant to Section 2.1 in the following manner:
(a) Request for Advance. Borrower shall request an Advance by
delivering to Administrative Agent an irrevocable written request (an
"Advance/Letter of Credit Request") in the form of Exhibit B, duly executed by
Borrower not later than 11:00 a.m. (Dallas time), (i) at least one (1) Business
Day before each Variable Rate Advance and (ii) at least three (3) Business Days
before each LIBOR Rate Advance, of its intention to borrow, specifying (A) the
date of
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 25
such Advance, which shall be a Business Day, (B) the amount of such Advance,
which shall be in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Advances and
$1,000,000 or a whole multiple of $100,000 in excess thereof with respect to
Variable Rate Advances, (C) whether such Advance is to be a LIBOR Rate Advance
or Variable Rate Advance, and (D) in the case of a LIBOR Rate Advance, the
duration of the Interest Period applicable thereto. Notices received after 11:00
a.m. (Dallas time), shall be deemed received on the next Business Day.
(b) Notice To Lenders. Administrative Agent shall promptly notify
Lenders of each Advance/Letter of Credit Request received from Borrower. Each
Lender shall, not later than 11:00 (a.m.) Dallas, Texas time, on the requested
Borrowing Date for any such Advance, deliver to Administrative Agent, at its
address set forth herein, such Lender's Commitment Percentage of such Advance,
in immediately available funds in accordance with Administrative Agent's
instructions. Prior to 2:00 p.m., Dallas, Texas time, on the date of any Advance
hereunder Administrative Agent shall, subject to satisfaction of the conditions
set forth in Article IV, disburse the amounts made available to Administrative
Agent by the Lenders by (i) transferring such amounts by wire transfer pursuant
to Borrower's instructions, or (ii) in the absence of such instructions,
crediting such amounts to the account of Borrower maintained with Administrative
Agent. All Advances under the Credit Facility shall be made by each Lender
according to its Commitment Percentage.
(c) Advance Assumed. Absent contrary written notice from a Lender,
Administrative Agent may assume that each Lender has made its Commitment
Percentage of the requested Advance available to Administrative Agent on the
applicable Borrowing Date, and Administrative Agent may, in reliance upon such
assumption (but is not required to), make available to Borrower a corresponding
amount. If a Lender fails to make its Commitment Percentage of any requested
Advance available to Administrative Agent on the applicable Borrowing Date,
Administrative Agent shall seek to recover the applicable amount on demand (i)
from that Lender, together with interest at the Federal Funds Rate, for the
period commencing on the date the amount was made available to Borrower by
Administrative Agent and ending on (but excluding) the date Administrative Agent
recovers the amount from that Lender, or (ii) if that Lender fails to pay its
amount upon demand, then from Borrower, together with interest at an annual
interest rate equal to the rate applicable to the requested Advance for the
period commencing on the Borrowing Date and ending on (but excluding) the date
Administrative Agent recovers the amount from Borrower. No Lender is responsible
for the failure of any other Lender to make its Commitment Percentage of any
Advance.
SECTION 2.3. Competitive Bid Loans.
(a) Competitive Bid Advances. In addition to Advances pursuant to
Sections 2.1 and 2.2, but subject to all of the terms and conditions of this
Agreement (including, without limitation, the limitation set forth in Section
2.1 as to the maximum aggregate principal amount of all outstanding Advances
under the Credit Facility), so long as the Applicable Debt Rating is not less
than BBB-/Baa3, Borrower may, in accordance with this Section 2.3, prior to the
Termination Date from time to time, request the Lenders to make offers to make
Competitive Bid Advances to Borrower. Each Lender may, but shall have no
obligation to, make such offers and Borrower may, but shall have no obligation
to, accept any such offers in the manner set forth
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 26
in this Section 2.3. Competitive Bid Advances shall be evidenced by the
Competitive Bid Notes. In no event shall the aggregate amount of Competitive Bid
Loans outstanding at any time exceed an amount equal to fifty percent (50%) of
the Total Commitment.
(b) Competitive Bid Quote Request. When Borrower wishes to request
offers to make Competitive Bid Loans under this Section 2.3, Borrower shall
transmit to Administrative Agent by telecopy a Competitive Bid Quote Request (in
form as attached hereto as Exhibit E-1) to be received no later than 11:00 a.m.,
Dallas time, at least five (5) Business Days prior to the Borrowing Date
proposed therein in the case of a Competitive Bid Pricing Loan and three (3)
Business Days prior to the Borrowing Date proposed therein in the case of a
Competitive Bid Fixed Rate Loan, specifying in accordance with all of the terms
of this Agreement:
(i) the proposed Borrowing Date for the proposed Competitive
Bid Advance;
(ii) the aggregate principal amount of such Competitive Bid
Advance (which must be at least $10,000,000 or a larger multiple of
$1,000,000);
(iii) the Interest Period applicable thereto in the case of a
Competitive Bid Pricing Loan (provided that the seven (7) day and
the twelve (12) month Interest Period options shall not be available
in the case for Competitive Bid Pricing Loans) or the term in the
case of Competitive Bid Fixed Rate Loan (which term must be not
shorter than fourteen (14) days and not longer than six (6) months),
and in the case of any Competitive Bid Loan such Interest Period or
term, as the case may be, shall not extend past the Termination
Date;
(iv) whether such request is for a Competitive Bid Pricing
Loan or a Competitive Bid Fixed Rate Loan; and
(v) whether a Competitive Bid Auction Fee is due in
connection with such Competitive Bid Quote Request and, if so, an
agreement to pay same.
Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and term and for both Competitive Bid Pricing Loans and
Competitive Bid Fixed Rate Loans in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five (5) Business Days (or
upon reasonable prior notice to the Lenders, such other number of days as
Borrower and Administrative Agent may agree) of any other Competitive Bid Quote
Request. Each Competitive Bid Quote Request shall be in a minimum amount of
$10,000,000 or a larger multiple of $1,000,000. Borrower shall not be entitled
to have more than four (4) Competitive Bid Loans outstanding at any time. A
Competitive Bid Quote Request that does not conform substantially to the format
of Exhibit E-1 hereto, or for which any Competitive Bid Auction Fee, if
applicable, is not timely paid, shall be rejected, and Administrative Agent
shall promptly notify Borrower of such rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly upon receipt
of a Competitive Bid Quote Request that is not rejected pursuant to Section
2.3(b), Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes (in
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 27
form as attached hereto as Exhibit E-2) which shall constitute an invitation by
Borrower to each Lender to submit Competitive Bid Quotes (in form as attached
hereto as Exhibit E-3) offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this Section 2.3.
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive
Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.3 and must be submitted to
Administrative Agent by telecopy at its offices specified in or
pursuant to Section 11.2 not later than 10:00 a.m., Dallas time, at
least three (3) Business Days prior to the proposed Borrowing Date
in the case of a Competitive Bid Pricing Loan and two (2) Business
Days prior to the proposed Borrowing Date in the case of a
Competitive Bid Fixed Rate Loan (or upon reasonable prior notice to
the Lenders, such other time and date as Borrower and Administrative
Agent may agree). Any Competitive Bid Quote so made shall be
irrevocable except with the written consent of Borrower.
(ii) Each Competitive Bid Quote shall in any case specify:
(1) the proposed Borrowing Date, which shall be the same as that set
forth in the applicable Invitation for Competitive Bid Quotes; (2)
the principal amount of the Competitive Bid Loan for which each such
offer is being made, (x) which principal amount may be greater than,
less than or equal to the Commitment of the quoting Lender, but in
no case greater than an amount which would cause the sum of the then
outstanding Advances under the Credit Facility, the outstanding
balances of all Competitive Bid Loans and the Swingline Loan, plus
the Letter of Credit Usage to exceed the Total Commitment or the
Maximum Available Amount, (y) which principal amount must be at
least $5,000,000 and an integral multiple of $1,000,000, and (z)
which principal amount may not exceed the principal amount of
Competitive Bid Loans for which offers were requested; (3) whether
the quote is for a Competitive Bid Pricing Loan or a Competitive Bid
Fixed Rate Loan if quotes are being requested for both types of
Advances in the same Competitive Bid Quote Request; (4) the
Competitive Bid Margin offered for each such Competitive Bid Pricing
Loan; (5) the minimum or maximum amount, if any, of each Competitive
Bid Loan which may be accepted by Borrower; (6) the applicable
Interest Period or term of each Competitive Bid Loan; and (7) the
identity of the quoting Lender.
(iii) Administrative Agent shall reject any Competitive Bid
Quote that: (1) is not substantially in the form of Exhibit E-3
hereto or does not specify all of the information required by
Section 2.3(d)(ii); (2) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit E-3
hereto; (3) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes,
except as contemplated by Section 2.3(d)(ii); or (4) arrives after
the time set forth in Section 2.3(d)(i).
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 28
(iv) If any Competitive Bid Quote shall be rejected pursuant
to Section 2.3(d)(iii), then Administrative Agent shall notify the
applicable Lender of such rejection as soon as practicable.
(v) If Administrative Agent, in its capacity as a Lender,
elects to submit a Competitive Bid Quote for any Competitive Bid
Quote Request, it shall submit its Competitive Bid Quote directly to
Borrower at least one-half hour earlier than the latest time at
which the Lenders are required to submit a Competitive Bid Quote
under this Section 2.3(d).
(e) Notice to Borrower. Administrative Agent shall promptly notify
Borrower of (1) the terms of any Competitive Bid Quote submitted by a
Lender that is in accordance with this Section 2.3 and (2) if not
disregarded by Administrative Agent in accordance with the immediately
succeeding sentence, of any Competitive Bid Quote that is in accordance
with this Section 2.3 which amends, modifies or is otherwise inconsistent
with a previous Competitive Bid Quote submitted by such Lender with
respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by Administrative Agent unless
such subsequent Competitive Bid Quote specifically states that it is
submitted solely to correct a manifest error in such former Competitive
Bid Quote. Administrative Agent's notice to Borrower shall specify the
aggregate principal amount of Competitive Bid Loans for which offers have
been received for each Interest Period and/or term specified in the
related Competitive Bid Quote Request and the respective principal amounts
and Competitive Bid Margins and/or fixed interest rates so offered.
(f) Acceptance and Notice by Borrower. Subject to the receipt of
the notice from Administrative Agent referred to in this Section 2.3, not
later than 11:00 a.m. (Dallas time) at least three (3) Business Days prior
to the proposed Borrowing Date in the case of a Competitive Bid Pricing
Loan and two (2) Business Days prior to the proposed Borrowing Date in the
case of a Competitive Bid Fixed Rate Loan, Borrower shall notify
Administrative Agent of Borrower's acceptance or rejection of each offer
received by it pursuant to this Section 2.3; provided, however, that the
failure by Borrower to give such notice to Administrative Agent shall be
deemed to be a rejection by Borrower of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Acceptance Notice") shall
specify the aggregate principal amount of offers for each Interest Period
or term that are accepted. Borrower may accept or reject any Competitive
Bid Quote in whole or in part (subject to the terms of this Section 2.3);
provided that:
(i) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or fixed interest rates with
respect to comparable Interest Periods or terms (provided, that,
Borrower may, in its sole discretion, select between Competitive Bid
Margins and fixed interest rates); and
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 29
(iii) Borrower may not accept any offer of the type described
in this Section 2.3 that otherwise fails to comply with the
requirements of this Agreement for the purpose of obtaining a
Competitive Bid Loan under this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Lenders with the same Competitive Bid Margins or the same fixed interest
rate for a greater aggregate principal amount than the amount in respect of
which offers are permitted to be accepted for the related Interest Period or
term, as the case may be, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by Administrative
Agent among such Lenders as nearly as possible (in such multiples as
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers; provided, however, that Administrative Agent
shall endeavor to allocate each Competitive Bid Advance so that no Lender shall
be allocated a portion of any Competitive Bid Advance which is less than
$5,000,000. Allocations by Administrative Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. Administrative
Agent shall promptly, but in any event on the same Business Day, notify each
Lender of its receipt of a Competitive Bid Acceptance Notice and the aggregate
principal amount of each Competitive Bid Advance allocated to that participating
Lender.
(h) Funding of Competitive Bid Loans. If Borrower accepts one or
more offers made by any Lender or Lenders pursuant to Section 2.3(f), each such
Lender shall, not later than 11:00 a.m. (Dallas, Texas time) on the applicable
Borrowing Date, make the funds under its applicable Competitive Bid Loan
available to Borrower by wire transfer of the full amount of such funds to
Administrative Agent pursuant to Administrative Agent's wire transfer
instructions (or as otherwise directed by Administrative Agent) in funds that
are available for immediate use by Administrative Agent. The amount so received
by Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to Borrower on the applicable Borrowing Date by
depositing same, in immediately available funds, not later than 2:00 p.m.
(Dallas, Texas time) in an account that Borrower maintains with Administrative
Agent.
(i) Commitment to Lend Not Reduced. The agreement of a Lender to
make a Competitive Bid Loan hereunder shall not reduce such Lender's obligation
to fund other Advances under the Credit Facility to the extent of such Lender's
Commitment, it being expressly acknowledged and agreed that the agreement to
make a Competitive Bid Loan is optional on the part of such Lender and in
addition to its Commitment. The amount of Competitive Bid Loans shall not reduce
the Commitment of any Lender.
SECTION 2.4. Fees.
(a) Commitment Fees. In consideration for the commitment of each
Lender to make Advances under the Credit Facility upon the terms and conditions
set forth in this Agreement and the reserving of sufficient funds by each Lender
from which to make disbursement of the Advances under the Credit Facility,
Borrower shall pay to Administrative Agent, for the benefit and account of each
Lender, on the Closing Date, a one-time non-refundable commitment fee (the
"Initial Commitment Fee") in the amount for each Lender determined in accordance
with each Lender's Fee Letter. The Initial Commitment Fee has been
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 30
earned in full. Upon the addition of a new Lender or the increase of an existing
Lender's Commitment in connection with an increase in the Total Commitment under
Section 2.1(b), Borrower shall pay to Administrative Agent, for the account of
the applicable Lenders, any Commitment Fees agreed to in connection with any
such addition or increase.
(b) Facility Fee. Throughout the Credit Period, Borrower shall pay
to Administrative Agent the Facility Fee for the account of each Lender in
accordance with each Lender's Commitment Percentage, such annual fee to be due
and payable in quarterly installments in arrears, with the first payment thereof
to be due on April 1, 2005, for the period from the Closing Date through such
date (prorated for such period), and subsequent payments to be made on the first
day of each fiscal quarter for the previous quarter and on the Termination Date
in an amount equal to the prorated portion of any fee which has accrued since
the last payment thereof.
(c) Extension Fee. Borrower shall pay the Extension Fee to
Administrative Agent (for the benefit of the Lenders) in the amount and manner
set forth in Section 3.15(d) at the time Borrower delivers to Administrative
Agent notice of its election to exercise the Extension Option.
(d) Competitive Bid Auction Fee. In consideration for
Administrative Agent's services in administering the auctions for all
Competitive Bid Loans, Borrower shall pay to Administrative Agent a fee (a
"Competitive Bid Auction Fee") in the amount of $2,500 for each Competitive Bid
Auction in excess of two such auctions in each calendar month, with such
Competitive Bid Auction Fee to be paid at the time of submission by Borrower of
each Competitive Bid Quote Request after the second Competitive Bid Auction in
the applicable calendar month, which fee shall be non-refundable (even if
Borrower cancels the proposed Competitive Bid Auction or no offers are made by
the Lenders).
(e) Letter of Credit Fee. Prior to the Termination Date, Borrower
shall pay to Administrative Agent, for the account of Lenders in proportion to
their interests in respect of issued and undrawn Letters of Credit, a fee (a
"Letter of Credit Fee") in an amount, provided that no Event of Default shall
have occurred and be continuing, equal to a rate per annum equal to the then
LIBOR Margin, on the daily average of such issued and undrawn Letters of Credit,
which fee shall be payable, in arrears, on each January 1, April 1, July 1 and
October 1 prior to the Termination Date and on the Termination Date in an amount
equal to the prorated portion of any fee which has accrued since the last
payment thereof. From the occurrence, and during the continuance, of an Event of
Default, such fee shall be increased to be equal to four percent (4%) per annum
on the daily average of such issued and undrawn Letters of Credit.
(f) Fronting Bank Fee. Borrower shall pay any Fronting Bank, for
its own account, a fee (a "Fronting Bank Fee") equal to the greater of (i) .10%
per annum of the issued and undrawn amount of the Letters of Credit issued by
such Fronting Bank and (ii) $1,500 per Letter of Credit, which fee shall be in
addition to and not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee
shall be payable in arrears on each January 1, April 1, July 1 and October 1
prior to the Termination Date and on the Termination Date in an amount equal to
the prorated portion of any fee which has accrued since the last scheduled
payment date.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 31
SECTION 2.5. Disbursement and Performance by Lenders.
(a) If Borrower fails to pay or perform any of the Obligations
when due and there exists any Event of Default which is continuing, or Borrower
has requested Administrative Agent to make an Advance to pay such Obligation,
refrain from making an Advance or take any action, Administrative Agent, in
Borrower's name or in its own name, shall have the right but not the obligation,
to pay or perform such Obligation, including (i) payment to any Governmental
Authority of taxes, assessments and other charges with respect to any of the
Property; (ii) payment to insurers to maintain insurance; (iii) payment to the
holder of any unpermitted lien or encumbrance against the Unencumbered
Properties to remove same; (iv) performing any other Obligation including
payment to any third party Administrative Agent deems necessary or advisable in
connection with any Work or expenses incident to the Property or the Credit
Facility; and (v) taking any action and paying any amounts Administrative Agent
deems necessary or advisable to protect and preserve Borrower's title to the
Property, or any security that may at any time be given for the Obligations.
Borrower hereby assigns and pledges the proceeds of the Credit Facility to
Administrative Agent and the Lenders for such purpose. No such action, payment
or disbursement or failure to act, pay or disburse, shall cure or waive any
Default or Event of Default or waive any right or remedy of Administrative Agent
or the Lenders.
(b) Any funds of the Lenders paid or used for any of the purposes
referred to in Section 2.5(a) shall constitute an Advance and be a part of the
Obligations, even if in excess of the Total Commitment, and the Lenders'
obligation to make future Advances shall be correspondingly reduced.
Administrative Agent and the Lenders may rely on any statement, invoice, claim
or notice without inquiry into the validity or accuracy thereof, and without
liability for the sufficiency or adequacy of any such action or payment except
for the gross negligence or willful misconduct of Administrative Agent or the
Lenders. Upon making any such payment the Lenders shall be subrogated to all
rights of the Person receiving such payment. The amount and nature of any such
expense or expenditure and the time when paid shall be presumptively established
by the statement of Administrative Agent of the amount and nature thereof.
(c) All costs, expenses and disbursements incurred by
Administrative Agent or the Lenders under this Section 2.5, in connection with
any Default or Event of Default, to protect or preserve the Property, or which
are reimbursable by Borrower under any provision of this Agreement or any Loan
Document shall be a part of the Obligations, even if in excess of the Total
Commitment. Except as provided otherwise in the Loan Documents, if incurred
before the Termination Date, such costs, expenses and disbursements shall be
paid or reimbursed to Lenders upon demand and shall bear interest until paid (i)
from the date incurred or paid until the date ten (10) days after demand, at the
per annum rate equal to the lesser of the Maximum Lawful Rate or the Variable
Rate, provided that if at any time the Variable Rate would exceed the Maximum
Lawful Rate then the Variable Rate shall be limited to the Maximum Lawful Rate,
but, to the extent permitted by applicable Laws, any subsequent reductions in
the Variable Rate shall not reduce the Variable Rate below the Maximum Lawful
Rate until the total amount of interest accrued at the Maximum Lawful Rate
equals the amount of interest which would have accrued if the Variable Rate had
not been limited by the Maximum Lawful Rate, and (ii) from and after the date
ten (10) days after demand, at the per annum rate equal to the lesser of the
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 32
Maximum Lawful Rate or the Default Rate. Except as provided otherwise in the
Loan Documents, if incurred after the Termination Date, all such costs and
expenses shall be reimbursed by Borrower to Lenders upon demand by
Administrative Agent and shall bear interest until paid at the per annum rate
equal to the lesser of the Maximum Lawful Rate or the Default Rate.
SECTION 2.6. Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions of
this Section 2.6, the Swingline Lender, in its individual capacity, agrees to
make a revolving credit loan available to Borrower (the "Swingline Loan"), which
shall be advanced (each a "Swingline Advance" and collectively, the "Swingline
Advances") from time to time during the term hereof; provided, however, that the
aggregate amount of Swingline Advances outstanding at any time shall not exceed
the lesser of (i) FIFTY MILLION DOLLARS ($50,000,000), and (ii) an amount equal
to the Total Commitments less the sum of all Advances (including Competitive Bid
Loans and the Swingline Loan then outstanding plus the Letter of Credit Usage)
(the "Swingline Commitment"). Subject to the limitations set forth herein, any
amounts repaid in respect of Swingline Advances may be reborrowed.
(b) Swingline Advances.
(i) Advance/Letter of Credit Request. With respect to any
Swingline Advance, Borrower shall give Swingline Lender and
Administrative Agent notice in writing in the form attached hereto
as Exhibit B, which shall be received by Swingline Lender and
Administrative Agent not later than 1:00 p.m. (Dallas time) on the
proposed date of such Swingline Advance (and confirmed by telephone
by such time), specifying (A) that a Swingline Advance is being
requested, (B) the amount of such Swingline Advance, (C) the
proposed date of such Swingline Advance, which shall be a Business
Day and (D) stating that no Default or Event of Default has occurred
and is continuing both before and after giving effect to such
Swingline Advance. Such notice shall be irrevocable.
(ii) Minimum Amounts. Each Swingline Advance shall be in a
minimum principal amount of $1,000,000, or an integral multiple of
$100,000 in excess thereof.
(iii) Repayment of Swingline Loan. Each Swingline Advance
shall be due and payable on demand, or if no demand is made, on the
earliest of (A) five (5) Business Days from the date of the
applicable Swingline Advance, (B) the date of the next Advance or
(C) the Termination Date. In addition, in no event shall any
Swingline Advance be outstanding for more than ten (10) days in any
calendar month. If, and to the extent, any Swingline Advance shall
be outstanding on the date of any Advance, such Swingline Advance
shall first be repaid from the proceeds of such Advance prior to the
disbursement of the same to Borrower. If, and to the extent, an
Advance is not requested prior to the Termination Date or the end of
the five (5) Business Day period after a Swingline Advance and such
Swingline Advance remains outstanding, Borrower shall be deemed to
have
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 33
requested a Variable Rate Advance in the amount of the applicable
Swingline Advance then outstanding, the proceeds of which shall be
used to repay such Swingline Advance to Swingline Lender. In
addition, the Swingline Lender may, at any time, in its sole
discretion, by written notice to Borrower and Administrative Agent,
demand repayment of its Swingline Advances by way of a Variable Rate
Advance, in which case Borrower shall be deemed to have requested a
Variable Rate Advance in the amount of such Swingline Advances then
outstanding, the proceeds of which shall be used to repay such
Swingline Advances to the Swingline Lender. Any Advance which is
deemed requested by Borrower in accordance with this Section
2.6(b)(iii) is hereinafter referred to as a "Mandatory Swingline
Advance". Each Lender hereby irrevocably agrees to make its pro rata
part (based on its Commitment Percentage) of the Variable Rate
Advance constituting such Mandatory Swingline Advance promptly upon
receipt of notice from Swingline Lender of any such deemed request
for a Mandatory Swingline Advance in the amount and in the manner
specified in the preceding sentences and on the date such notice is
received by such Lender (or the next Business Day if such notice is
received after 12:00P.M. (Dallas time)) notwithstanding (I) the
amount of the Mandatory Swingline Advance may not comply with the
minimum amount of Advances otherwise required hereunder, (II)
whether any conditions specified in Section 4.2 are then satisfied,
(III) whether a Default or an Event of Default then exists, (IV)
failure of any such deemed request for the Variable Rate Advance
constituting such Mandatory Swingline Advance to be made by the time
otherwise required in Section 2.2, (V) the date of such Mandatory
Swingline Advance (provided that such date must be a Business Day),
or (VI) any termination of the Commitments immediately prior to such
Mandatory Swingline Advance or contemporaneously therewith;
provided, however, that no Lender shall be obligated to make
Advances in respect of a Mandatory Swingline Advance if a Default or
an Event of Default then exists and the applicable Swingline Advance
was made by Swingline Lender without receipt of a written
Advance/Letter of Credit Request in the form specified in subclause
(i) above or after Administrative Agent has delivered a notice of
Default or Event of Default which has not been rescinded.
(iv) Purchase of Participations. In the event that any
Mandatory Swingline Advance cannot for any reason be made on the
date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under any Debtor Relief
Law with respect to Borrower), then each Lender hereby agrees that
it shall forthwith, upon demand, purchase (as of the date the
Mandatory Swingline Advance would otherwise have occurred, but
adjusted for any payment received from Borrower on or after such
date and prior to such purchase) from Swingline Lender such
participations in the outstanding Swingline Advances as shall be
necessary to cause each such Lender to share in such Swingline
Advances ratably based upon its Commitment Percentage (determined
before giving effect to any termination of the Commitments pursuant
hereto), provided that (A) all interest payable on the Swingline
Advances with respect to any participation shall be for the account
of the Swingline Lender until but excluding the day upon which the
Mandatory Swingline Advance would
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 34
otherwise have occurred, and (B) in the event of a delay between the
day upon which the Mandatory Swingline Advance would otherwise have
occurred and the time any purchase of a participation pursuant to
this sentence is actually made, the purchasing Lender shall be
required to pay to Swingline Lender interest on the principal amount
of such participation for each day from and including the day upon
which the Mandatory Swingline Advance would otherwise have occurred
to but excluding the date of payment for such participation, at the
rate equal to the Federal Funds Rate, for the two (2) Business Days
after the date the Mandatory Swingline Advance would otherwise have
occurred, and thereafter at a rate equal to the Variable Rate.
Notwithstanding the foregoing, no Lender shall be obligated to
purchase a participation in any Swingline Advance if a Default or an
Event of Default then exists and such Swingline Advance was made by
Swingline Lender without receipt of a written Advance/Letter of
Credit Request in the form specified in subclause (i) above or after
Administrative Agent has delivered a notice of Default or Event of
Default which has not been rescinded.
(c) Interest Rate. Each Swingline Advance shall bear interest on
the outstanding principal amount thereof, for each day from the date such
Swingline Advance is made until the date it is repaid, at a rate per annum equal
to the greater of (i) the Variable Rate or (ii) the Federal Funds Rate for such
day, plus the LIBOR Margin, plus .50%.
SECTION 2.7. Letters of Credit.
(a) Procedure for Issuance. Borrower shall give Administrative
Agent, and the designated Fronting Bank, written notice in the event that it
desires to have letters of credit (each Existing Letter of Credit and the
additional letter issued hereunder, being referred to as a "Letter of Credit")
issued, or to have Letters of Credit issued on behalf of Borrower or any
Guarantor Subsidiary, hereunder no later than 10:00 a.m., Dallas time, at least
three (3) Business Days prior to the date of such issuance. Each such notice
shall specify (i) the designated Fronting Bank, (ii) the aggregate amount of the
requested Letters of Credit, (iii) the individual amount of each requested
Letter of Credit and the number of Letters of Credit to be issued, (iv) the date
of such issuance (which shall be a Business Day), (v) the name and address of
the beneficiary, (vi) the expiration date of the Letter of Credit (which in no
event shall be later than the second anniversary date of the Termination Date;
provided, that, Borrower shall be required to comply with the agreements set
forth in Section 9.10 hereof in the event any Letter of Credit remains
outstanding on the Termination Date), (vii) the purpose and circumstances for
which such Letter of Credit is being issued and (viii) the terms upon which each
such Letter of Credit may be drawn down (which terms shall not leave any
discretion to Fronting Bank). Each such notice may be revoked telephonically by
Borrower to the applicable Fronting Bank and Administrative Agent any time prior
to the date of issuance of the Letter of Credit by the applicable Fronting Bank,
provided such revocation is confirmed in writing by Borrower to Fronting Bank
and Administrative Agent within one (1) Business Day by facsimile.
Notwithstanding anything contained herein to the contrary, Borrower shall
complete and deliver to Fronting Bank any required documentation in connection
with any requested Letter of Credit no later than two (2) Business Days prior to
the issuance thereof. No later than 10:00 a.m., Dallas time, on the date that is
three (3) Business Days prior to the date of issuance, Borrower shall specify a
precise description of the documents and the verbatim text of any certificate to
be presented by the
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 35
beneficiary of such Letter of Credit, which if presented by such beneficiary
prior to the expiration date of the Letter of Credit would require Fronting Bank
to make a payment under the Letter of Credit; provided, that Fronting Bank may,
in its reasonable judgment, require changes in any such documents and
certificates only in conformity with changes in customary and commercially
reasonable practice or law and, provided further, that no Letter of Credit shall
require payment against a conforming draft to be made thereunder on the third
Business Day following the date that such draft is presented if such
presentation is made later than 10:00 A.M. Dallas time (except that if the
beneficiary of any Letter of Credit requests at the time of the issuance of its
Letter of Credit that payment be made on the same Business Day against a
conforming draft, such beneficiary shall be entitled to such a same day draw,
provided such draft is presented to the applicable Fronting Bank no later than
10:00 A.M. Dallas time and provided further Borrower shall have requested to
Fronting Bank and Administrative Agent that such beneficiary shall be entitled
to a same day draw). In determining whether to pay on such Letter of Credit,
Fronting Bank shall be responsible only to determine that the documents and
certificates required to be delivered under the Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Letter of Credit.
(b) Issuance of Letters of Credit. Subject to the terms contained
in this Agreement and the other Loan Documents and the payment of any Excess
Amount which would result from the issuance of the applicable Letter of Credit,
upon the receipt of a notice in accordance with clause (a) above requesting the
issuance of a Letter of Credit, Fronting Bank shall issue a Letter of Credit or
Letters of Credit in such form as is reasonably acceptable to Borrower (subject
to the provisions of clause (a) above) in an amount or amounts equal to the
amount or amounts requested by Borrower. All Letters of Credit shall be
denominated in Dollars. Fronting Bank shall notify Administrative Agent upon
issuance of each such Letter of Credit, or any amendment thereto, and
Administrative Agent shall forward copies of any such notice to Lenders.
(c) Limit on Letter of Credit Usage. The Letter of Credit Usage
shall be no more than One Hundred Million Dollars ($100,000,000) at any one
time.
(d) Drawings under Letters of Credits In the event of any request
for a drawing under any Letter of Credit by the beneficiary thereunder, Fronting
Bank shall notify Borrower and Administrative Agent (and Administrative Agent
shall notify each Lender thereof) on or before the date on which Fronting Bank
intends to honor such drawing, and, except as provided in this subsection (d),
Borrower shall reimburse Fronting Bank, in immediately available funds, on the
same day on which such drawing is honored in an amount equal to the amount of
such drawing. Notwithstanding anything contained herein to the contrary,
however, unless Borrower shall have notified Administrative Agent, and Fronting
Bank prior to 11:00 a.m. (Dallas time) on the Business Day immediately prior to
the date of such drawing that Borrower intends to reimburse Fronting Bank for
the amount of such drawing with funds other than the proceeds of the Advances,
Borrower shall be deemed to have timely given an Advance/Letter of Credit
Request pursuant to Section 2.2(a) to Administrative Agent, requesting a
Variable Rate Advance on the date on which such drawing is honored and in an
amount equal to the amount of such drawing. Each Lender (other than Fronting
Bank) shall, in accordance with Section 2.2(a), make available its pro rata
share of such Variable Rate Advance to Administrative Agent, the proceeds of
which shall be applied directly by Administrative Agent to reimburse Fronting
Bank
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 36
for the amount of such draw. In the event that any such Lender fails to make
available to Fronting Bank the amount of such Lender's participation on the date
of a drawing, Fronting Bank shall be entitled to recover such amount on demand
from such Lender together with interest at the Federal Funds Rate commencing on
the date such drawing is honored, and the provisions of Section 2.2(c) shall
otherwise apply to such failure.
(e) Changes in Laws. If, after the date hereof, any change in any
law or regulation or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration thereof
shall either (i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against letters of credit issued by, or assets held by,
or deposits in or for the account of, or participations in any letter of credit,
upon any Lender (including Fronting Bank) or (ii) impose on any Lender any other
condition regarding this Agreement or such Lender (including Fronting Bank) as
it pertains to the Letters of Credit or any participation therein and the result
of any event referred to in the preceding clause (i) or (ii) shall be to
increase, by an amount deemed by Fronting Bank or such Lender to be material,
the cost to Fronting Bank or any Lender of issuing or maintaining any Letter of
Credit or participating therein, then Borrower shall pay to Fronting Bank or
such Lender, within fifteen (15) days after written demand by such Lender (with
a copy to Administrative Agent), which demand shall be accompanied by a
certificate showing, in reasonable detail, the calculation of such amount or
amounts, such additional amounts as shall be required to compensate Fronting
Bank or such Lender for such increased costs or reduction in amounts received or
receivable hereunder. Each Lender will promptly notify Borrower and
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
clause (e) and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender shall fail to notify Borrower of
any such event within ninety (90) days following the end of the month during
which such event occurred, then Borrower's liability for any amounts described
in this Section incurred by such Lender as a result of such event shall be
limited to those attributable to the period occurring subsequent to the
ninetieth (90th) day prior to the date upon which such Lender actually notified
Borrower of the occurrence of such event. A certificate of any Lender claiming
compensation under this clause (e) and setting forth a reasonably detailed
calculation of the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of demonstrable error. In determining such amount,
such Lender may use any reasonable averaging and attribution methods.
(f) Indemnity with Respect to Letters of Credit. Borrower hereby
agrees to protect, indemnify, pay and save Fronting Bank harmless from and
against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees and disbursements)
which Fronting Bank may incur or be subject to as a result of (i) the issuance
of the Letters of Credit, other than to the extent of the bad faith, gross
negligence or willful misconduct of Fronting Bank or (ii) the failure of
Fronting Bank to honor a drawing under any Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present or future de jure
or de facto Laws, other than to the extent of the bad faith, gross negligence or
willful misconduct of Fronting Bank. As between Borrower and Fronting Bank,
Borrower assumes all risks of the acts and omissions of any beneficiary with
respect to its use, or
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 37
misuses of, the Letters of Credit issued by Fronting Bank. In furtherance and
not in limitation of the foregoing, Fronting Bank shall not be responsible (i)
for the form, validity, sufficiency, accuracy, genuineness or legal effect of
any document submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) to
the extent that any Letter of Credit is transferred, for the validity or
insufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of
any such Letter of Credit to comply fully with conditions required in order to
draw upon such Letter of Credit, other than as a result of the bad faith, gross
negligence or willful misconduct of Fronting Bank; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any message, by mail,
cable, telegraph, facsimile transmission, or otherwise; (v) for errors in
interpretation of any technical terms; (vi) for any loss or delay in the
transmission or otherwise of any documents required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of such Letter of Credit; or (viii) for any consequence arising from causes
beyond the control of Fronting Bank, including any Law, in each case other than
to the extent of the bad faith, gross negligence or willful misconduct of
Fronting Bank. None of the above shall affect, impair or prevent the vesting of
Fronting Bank's rights and powers hereunder. In furtherance and extension and
not in limitation of the specific provisions hereinabove set forth, any action
taken or omitted by Fronting Bank under or in connection with the Letters of
Credit issued by it or the related certificates, if taken or omitted in good
faith, shall not put Fronting Bank under any resulting liability to Borrower;
provided that, notwithstanding anything in the foregoing to the contrary,
Fronting Bank will be liable to Borrower for any damages suffered by Borrower or
its Subsidiaries as a result of Fronting Bank's grossly negligent or willful
failure or agreement to pay under any Letter of Credit after the presentation to
it of a sight draft and certificates strictly in compliance with the terms and
conditions of the Letter of Credit.
(g) Reimbursement. If Fronting Bank or Administrative Agent is
required at any time, pursuant to any Debtor Relief Law or otherwise, to return
to Borrower any reimbursement by Borrower of any drawing under any Letter of
Credit, each Lender shall pay to Fronting Bank or Administrative Agent, as the
case may be, its pro rata share of such payment, but without interest thereon
unless Fronting Bank or Administrative Agent is required to pay interest on such
amounts to the person recovering such payment, in which case with interest
thereon, computed at the same rate, and on the same basis, as the interest that
Fronting Bank or Administrative Agent is required to pay.
SECTION 2.8. Letter of Credit Usage Absolute. The obligations of Borrower
under this Agreement in respect of any Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement (as the same may be amended from time to time) and any Letter of
Credit Documents (as hereinafter defined) under all circumstances, including,
without limitation, to the extent permitted by law, the following circumstances:
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 38
(a) any lack of validity or enforceability of any Letter of Credit
or any other agreement or instrument relating thereto (collectively, the "Letter
of Credit Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of Borrower in respect of the
Letters of Credit or any other amendment or waiver of or any consent by Borrower
to departure from all or any of the Letter of Credit Documents or any Loan
Document; provided, that Fronting Bank shall not consent to any such change or
amendment unless previously consented to in writing by Borrower;
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the obligations of Borrower in respect of the Letters of
Credit;
(d) the existence of any claim, set-off, defense or other right
that Borrower may have at any time against any beneficiary or any transferee of
a Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), Administrative Agent, Fronting Bank or any Lender
(other than a defense based on the bad faith, gross negligence or willful
misconduct of Administrative Agent, Fronting Bank or such Lender) or any other
Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letter of Credit Documents or any unrelated
transaction;
(e) any draft or any other document presented under or in
connection with any Letter of Credit or other Loan Document proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; provided, that payment by
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have been the result of the bad faith, gross negligence or
willful misconduct of Fronting Bank;
(f) payment by Fronting Bank against presentation of a draft or
certificate that does not strictly comply with the terms of the Letter of
Credit; provided, that such payment shall not have been the result of the bad
faith, gross negligence or willful misconduct of Fronting Bank; and
(g) any other circumstance or happening whatsoever other than the
payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, Borrower; provided, that such other
circumstance or happening shall not have been the result of bad faith, gross
negligence or willful misconduct of Fronting Bank.
ARTICLE 3
TERMS OF THE CREDIT FACILITIES
SECTION 3.1. Notes. All Advances under the Credit Facility other
than Competitive Bid Advances shall be evidenced by the Notes, and each Lender
shall receive an original executed Note in an amount equal to such Lender's
Commitment. Competitive Bid Advances shall be
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 39
evidenced by the Competitive Bid Notes, and each Lender shall receive an
original executed Competitive Bid Note in an amount equal to 50% of the Total
Commitment.
SECTION 3.2. Maturity; Mandatory Principal Reductions.
(a) All outstanding principal of the Notes and the Swingline Note,
together with all accrued but unpaid interest and other amounts owed with
respect thereto, shall be due and payable in full on the Termination Date. All
outstanding principal of any Competitive Bid Note shall be due and payable on
the last day of the applicable Interest Period or maturity date for such
Competitive Bid Loan and in any event on or prior to the Termination Date
(b) Within five (5) Business Days after the determination of the
existence of any Excess Outstandings, Borrower shall reduce the outstanding
principal amount of the Credit Facility by an amount not less than the Excess
Outstandings. Borrower shall pay to Administrative Agent on demand the amount of
any Consequential Loss, if any, that may be due in connection therewith pursuant
to Section 3.6(b); provided any principal reductions shall be applied first to
Variable Rate Advances or Advances that will not result in Consequential Loss.
SECTION 3.3. Interest Rate. Interest on the Notes shall accrue at a rate
per annum equal to the lesser of (a) the Applicable Rate as selected by Borrower
pursuant to this Agreement, subject, however, to the provisions of Section 11.8,
or (b) the Maximum Lawful Rate; provided, however, if at any time the Applicable
Rate exceeds the Maximum Lawful Rate, resulting in the charging of interest
hereunder to be limited to the Maximum Lawful Rate, then any subsequent
reduction in the Applicable Rate shall not reduce the rate of interest below the
Maximum Lawful Rate until the total amount of interest accrued on the
indebtedness evidenced by the Notes equals the amount of interest which would
have accrued on such indebtedness if the Applicable Rate had at all times been
in effect.
Interest on the Swingline Note shall accrue at a rate per annum equal to
the lesser of (a) the greater of (i) the Variable Rate or (ii) the Federal Funds
Rate for such day, plus the LIBOR Margin, plus .50% or (b) the Maximum Lawful
Rate; provided, however, if at any time the Variable Rate exceeds the Maximum
Lawful Rate, resulting in the charging of interest hereunder to be limited to
the Maximum Lawful Rate, then any subsequent reduction in the Variable Rate
shall not reduce the rate of interest below the Maximum Lawful Rate until the
total amount of interest accrued on the indebtedness evidenced by the Swingline
Note equals the amount of interest which would have accrued on such indebtedness
if the Variable Rate had at all times been in effect.
Without notice to Borrower or any other Person, the Variable Rate and the
Maximum Lawful Rate shall each automatically fluctuate upward and downward as
and in the amount by which the Base Rate and Maximum Lawful Rate, respectively,
fluctuate, subject always to limitations contained in this Agreement. In
addition, the Adjusted LIBOR Rate and the Variable Rate with regard to Advances
under the Credit Facility shall fluctuate upward and downward as and in the
amount by which the LIBOR Margin or the Variable Rate Margin fluctuates, subject
always to limitations contained in this Agreement, any such changes in the LIBOR
Margin or the Variable Rate Margin, to occur as provided in Schedule II.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 40
SECTION 3.4. Interest Payments.
(a) Interest on the Notes shall be due and payable as it accrues
on (a) the tenth (10th) day of each calendar month commencing on February 10,
2005 and continuing on the tenth (10th) day of each month thereafter until the
Termination Date (except that interest on seven and fourteen day LIBOR Rate
Advances shall only be payable on the last day of the applicable Interest
Period), and (b) at the end of each Interest Period as to any LIBOR Rate Portion
then expiring, and on demand after the Termination Date so long as any principal
of any Note remains unpaid.
(b) Interest on the Competitive Bid Notes shall be due and payable
as it accrues on the tenth (10th) day of each calendar month on which any
Competitive Bid Loan is outstanding under a Competitive Bid Note, on the last
day of the respective Interest Period in the case of Competitive Bid Pricing
Loan, and on the respective maturity date in the case of a Competitive Bid Fixed
Rate Loan, with all accrued unpaid interest on all Competitive Bid Notes due and
payable on the Termination Date.
(c) Interest on the Swingline Note shall be due and payable on the
date the Swingline Advance on which such interest accrues is required to be
repaid pursuant to Section 2.6, provided, that, any accrued but unpaid interest
on the Swingline Note which remains unpaid on the Termination Date shall be due
on such date.
SECTION 3.5. Conversion of Advances and Interest Rate Elections.
(a) Conversion to Variable Rate. Borrower may, on any Interest
Adjustment Date (other than the Termination Date), convert amounts of any LIBOR
Rate Advances into Variable Rate Advances with interest accruing thereon with
reference to the Variable Rate, as provided in Section 3.3.
(b) Selection of LIBOR Rate Pricing. Upon at least three (3)
Business Days' prior written notice from Borrower to Administrative Agent
("Minimum Notice Requirement"), and subject to the conditions provided in this
Agreement, Borrower may, on any date prior to the Termination Date, convert
amounts of not less than Five Million and No/100 Dollars ($5,000,000.00) in the
aggregate on the same date, or any whole multiple of One Million and No/100
Dollars ($1,000,000.00) in excess thereof of any Variable Rate Advances into
LIBOR Rate Advances, as applicable, with interest accruing thereon with
reference to the Adjusted LIBOR Rate, for the Interest Period selected in such
notice.
Each notice of Adjusted LIBOR Rate election by Borrower (whether in
connection with an initial funding or a conversion of an existing funding) shall
include (i) the amount of the proposed aggregate LIBOR Rate Advances, (ii) the
Interest Period selected by Borrower, and (iii) the Effective Date, and is
subject to the following conditions: (1) the Interest Period shall be limited to
a period commencing on the Effective Date and ending on a date that is seven (7)
days, fourteen (14) days, or one, two, three, four, five, six or twelve months
later, as elected by Borrower in its notice to Administrative Agent; (2)
Borrower's written notice of an election shall be received by Administrative
Agent in time to satisfy the Minimum Notice Requirement; (3) the last day of the
Interest Period will not be subsequent in time to the Termination Date, (4) in
the
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 41
case of a continuation of a LIBOR Rate Advance, the Interest Period applicable
after such continuation shall commence on the last day of the preceding Interest
Period; (5) no LIBOR Rate election shall be made (A) if Administrative Agent
reasonably determines by reason of circumstances affecting the interbank
Eurodollar market that either adequate or reasonable means do not exist for
ascertaining the Adjusted LIBOR Rate for any Interest Period, (B) if it becomes
impracticable for Administrative Agent or any Lender to obtain funds by
purchasing U.S. dollars in the interbank Eurodollar market, (C) if
Administrative Agent or any Lender reasonably determines that the Adjusted LIBOR
Rate will not adequately or fairly reflect the costs to such Lender of
maintaining the applicable LIBOR Rate Advances at such rate, (D) if as a result
of any Regulatory Change, it shall become unlawful or impossible for Lenders to
maintain any such LIBOR Rate election, or (E) if (in the instance of a requested
twelve month Interest Period), any Lender notifies Administrative Agent that it
is unwilling or unable to agree to such LIBOR Rate election due to the length of
the requested Interest Period; (6) there shall never be more than seven (7)
LIBOR Rate Advances, in the aggregate, in effect at any one time under the
Credit Facility (with no more than two (2) of these being for an Interest Period
of 7 days); and (7) no LIBOR Rate election shall be made after the occurrence
and during the continuance of a Default or Event of Default. If only one or two
Lenders are unwilling or unable to make a LIBOR Rate Advance solely because of
the reasons set forth in clause 5(E) above (a "Rate Affected Lender"), but all
other Lenders are willing and able to make such LIBOR Rate Advance and Borrower
elects, notwithstanding such notice from the Rate Affected Lenders, to continue
with such LIBOR Rate Advance, all Lenders other than the Rate Affected Lender
shall all make such LIBOR Rate Advance and the Rate Affected Lender shall make a
Variable Rate Advance for the applicable Interest Period, but shall be subject
to being replaced pursuant to Section 3.16 hereof.
(c) Election and Conversion to Variable Rate. To the extent
Borrower has not made an effective election under and in accordance with Section
3.5(a) or (b) above (including without limitation at the expiration of an
Interest Period), the Applicable Rate shall be the Variable Rate. If Borrower
has failed to make such election at the end of an Interest Period, the Lenders
shall be deemed to have made a Variable Rate Advance in the amount, and in
replacement, of the LIBOR Rate Advance then maturing.
SECTION 3.6. Reduction of Commitment Amount; Consequential Loss.
(a) Borrower may, from time to time if an Event of Default is not
then continuing, fully or partially, reduce the Total Commitment, provided that
(i) notice of such reduction must be received by Administrative Agent by 10:00
a.m. Dallas, Texas, time on the fifth (5th) Business Day preceding the effective
date of such reduction, (ii) each such reduction in the Commitment must be in a
minimum amount of $20,000,000.00 or any whole multiple of $1,000,000.00 in
excess thereof, (iii) Borrower shall not be entitled to an increase in the Total
Commitment pursuant to Section 2.1(b) or otherwise once it has been so reduced,
(iv) if the sum of the aggregate outstanding principal balance of the Credit
Facility (including amounts outstanding under Competitive Bid Notes), exceeds
the Total Commitment as so reduced, Borrower shall make a mandatory principal
prepayment in at least the amount of such excess, together with any
Consequential Loss arising as a result thereof (provided, any such prepayment
shall be applied first to Advances that will not result in Consequential Loss),
and (v) in no event
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 42
shall Borrower be entitled to so reduce the Total Commitment below
$100,000,000.00, unless Borrower has elected to terminate the Credit Facility in
full.
(b) If Borrower shall prepay any LIBOR Rate Advance or a
Competitive Bid Pricing Loan prior to the expiration of its applicable Interest
Period or if Borrower shall fail to obtain an Advance or convert any amounts
after delivering and pursuant to an election satisfying the Minimum Notice
Requirement (unless Borrower elects to cancel a LIBOR Rate Advance due to one or
more Rate Affected Lenders giving notice under clause 5(E) of Section 3.5(b)
that they are unable or unwilling to make such LIBOR Rate Advance), Borrower
shall pay to Lenders or the applicable Lender of such Competitive Bid Loan an
amount (the "Consequential Loss") equal to any actual loss, expense or reduction
in yield that any such Lender reasonably incurs as a result of such event. Any
Consequential Loss required to be paid by Borrower pursuant to this Section 3.6
or any other provisions of this Agreement or of the other Loan Documents in
connection with the prepayment of any LIBOR Rate Advances or Competitive Bid
Loans shall be due and payable whether such prepayment is being made voluntarily
or involuntarily, including, without limitation, as a result of an acceleration
of sums due under LIBOR Rate Advances or Competitive Bid Loans or any part
thereof due to an Event of Default. A Lender (through Administrative Agent) must
request compensation under this Section 3.6(b) as promptly as practicable after
it obtains knowledge of the event which entitles it to such compensation, but in
any event within 180 days after it obtains such knowledge and pursuant to a
certificate which sets forth the amount such Lender is entitled to receive
pursuant to this Section 3.6(b) and the basis for determining such amount, which
certificate shall be presumptively correct as to the matters set forth therein
in the absence of manifest error. Any amounts received by Administrative Agent
from Borrower pursuant hereto shall be disbursed by Administrative Agent in
immediately available funds to the Lenders requesting such amounts.
SECTION 3.7. Schedules on Notes. Each Lender is hereby authorized to
record the date and amount of the initial principal balance of its Note and its
Competitive Bid Note and the date and the amount of each advance and repayment
of principal on such notes, and to attach any such recording as a schedule to
the applicable note whereupon such schedule shall constitute a part of such note
for all purposes. Any such recording shall constitute prima facie evidence of
the accuracy of the information so recorded; provided that the absence or
inaccuracy of any such schedule or notation thereon shall not limit or otherwise
affect the liability of Borrower for the repayment of all amounts outstanding
under the Notes and the Competitive Bid Notes, together with interest thereon.
SECTION 3.8. General Provisions as to Payments. All payments and
indemnities required to be made by Borrower under any of the Loan Documents
shall be joint and several obligations of Borrower and each Guarantor
Subsidiary. Borrower shall make each payment of principal and interest on the
Credit Facility and all fees payable hereunder or under any other Loan Document
not later than 12:00 noon (Dallas time) on the date when due, in Federal or
other funds immediately available in Dallas, Texas, to Administrative Agent at
Administrative Agent's Dallas address for payments set forth in Schedule I,
without setoff, counterclaim or reduction. Administrative Agent will promptly
(and if such payment is received by Administrative Agent by 12:00 noon (Dallas,
Texas time), and otherwise if reasonably possible, on the same Business Day, and
in any event not later than the next Business Day after receipt of such payment)
distribute to each Lender a payment on the applicable Note or Competitive Bid
Note, in
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 43
accordance with such Lender's pro rata share of each such payment received by
Administrative Agent. For purposes of calculating accrued interest on the Credit
Facility, any payment received by Administrative Agent as aforesaid by 12:00
noon (Dallas, Texas time) on any Business Day shall be deemed made on such day;
otherwise, such payment shall be deemed made on the next Business Day after
receipt by Administrative Agent. Whenever any payment of principal or interest
on the Credit Facility, or any fees under the Loan Documents, shall be due on a
day which is not a Business Day, the date for payment thereof shall be extended
to the next succeeding Business Day. If the date for any payment of principal is
extended pursuant to the preceding or operation of law or otherwise, interest
thereon shall be payable for such extended time. If Administrative Agent shall
fail to deliver to any Lender such Lender's pro rata portion of any principal,
interest or fees received by Administrative Agent as required by this Agreement,
then in addition to its pro rata portion of such payment, such Lender shall be
entitled to receive from Administrative Agent interest on the amount which has
failed to be timely paid at the Federal Funds Rate, for the period commencing on
the date Administrative Agent was required to deliver such payment and ending on
(but excluding) the date such payment is made.
SECTION 3.9. Application of Payments.
(a) So long as no Event of Default has occurred and is continuing,
all payments received by Administrative Agent or Lenders hereunder from or on
behalf of Borrower shall be applied first to pay any amounts outstanding on the
Swingline Note (with such payments first being applied to interest on the
Swingline Note, then on the principal balance thereof) then to pay any unpaid
fees owing to Administrative Agent, the Fronting Bank or the Lenders under
Section 2.4 or otherwise, then to pay any accrued interest then due and payable
first on the Notes and then on the Competitive Bid Notes, then to repay the
principal amount first of the Notes and then of the Competitive Bid Notes, (in
inverse order of maturity, in the case of partial prepayments), and then to pay
any other Obligations in the manner and order determined by Administrative Agent
in its sole discretion. Notwithstanding the foregoing, so long as no Event of
Default has occurred and is continuing and after application of any payment to
accrued interest, Administrative Agent shall apply the payment to that portion
of the principal amount of the Notes or Competitive Bid Notes as is designated
by Borrower in a written notice delivered to Administrative Agent simultaneously
with the payment; provided, however, that Administrative Agent shall not assist
Borrower with any determination of the portion of the principal amount of the
Notes or Competitive Bid Notes to which the payment will be applied.
(b) After the occurrence and during the continuance of an Event of
Default, all payments (including prepayments) received by Administrative Agent
or any Lender hereunder from or on behalf of Borrower shall be applied first to
pay any amounts owing on the Swingline Note in the manner and order determined
by Swingline Lender then to the other Obligations in the manner and order
determined by the Required Lenders as provided in Section 9.9 hereof (subject to
the terms and provisions of Article X hereof).
SECTION 3.10. Post-Default Interest; Past Due Principal and Interest.
After maturity of the Notes or the occurrence of an Event of Default, the
outstanding principal balance of the Notes, the Competitive Bid Notes and the
Swingline Note shall, at the option of the Required Lenders, bear interest at
the Default Rate. Any past due principal of and, to the extent permitted by law,
past due interest on the Notes, the Competitive Bid Notes and the Swingling Note
shall
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 44
bear interest, payable as it accrues on demand, for each day until paid at the
Default Rate. Such interest shall continue to accrue at the Default Rate
notwithstanding the entry of a judgment with respect to any of the Obligations,
except as otherwise provided by applicable law.
SECTION 3.11. Computation of Interest and Fees. All interest payable on
the Notes, the Competitive Bid Notes and the Swingline Note, and the amount of
all fees payable hereunder (except as otherwise specifically provided for in the
Fee Letters or in Section 2.4), shall be computed based on the number of days
elapsed and, with respect to LIBOR Rate Portions, 360 days per year, and, in all
other instances, 365 days per year, subject to the provisions hereof limiting
interest to the maximum permitted by applicable law.
SECTION 3.12. Lenders' Capital Adequacy. If any present or future law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a court or
Governmental Authority with appropriate jurisdiction affects the amount of
capital required or expected to be maintained by any Lender or any corporation
controlling such Lender and such Lender reasonably determines that as a
consequence of its obligations under the Credit Facility the rate of return on
it capital has been reduced to a level below that which it otherwise would have
achieved (taking into consideration its policies with respect to capital
adequacy) then such Lender may notify Borrower of such fact, and commencing
ninety (90) days following such notice, Borrower shall pay to such Lender or
Administrative Agent (for such Lender) from time to time on demand, as an
additional fee payable hereunder, such amount as Lender shall determine in good
faith and certify in a notice to Borrower in reasonable detail to be an amount
that will adequately compensate such Lender in light of these circumstances for
such loss. Each Lender shall allocate such cost increases among its customers in
good faith and on an equitable basis.
SECTION 3.13. Regulatory Changes; Indemnification for Failure to Pay When
Due.
(a) If, on or after the Closing Date, any Regulatory Change shall
make it unlawful, impracticable or impossible for any Lender (or its Eurodollar
lending office) to make, maintain or fund LIBOR Rate Advances or Competitive Bid
Pricing Loans, as applicable, and such Lender shall so notify Administrative
Agent, Administrative Agent shall forthwith give notice thereof to the other
applicable Lenders and Borrower, whereupon until such Lender notifies Borrower
and Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to maintain or fund LIBOR Rate
Portions or the funding under a Competitive Bid Note, as the case may be, shall
be suspended. If such Lender shall determine that it may not lawfully continue
to maintain and fund any of its outstanding LIBOR Rate Advances or amounts under
a Competitive Bid Note, to maturity and shall so specify in such notice,
Borrower shall immediately prepay in full the then outstanding principal amount
of such Lender's portion of the LIBOR Rate Advances or Competitive Bid Notes, as
the case may be, together with accrued interest thereon. Concurrently with
prepaying such portion of the LIBOR Rate Advances, Borrower shall borrow a
Variable Rate Advance in an equal principal amount from such Lender (on which
interest and principal shall be payable contemporaneously with the related LIBOR
Rate Advances of the other Lenders), and such Lender shall make such Variable
Rate Advance. If a Lender shall be unable to make, maintain or fund LIBOR Rate
Advances or Competitive Bid Pricing Loans, as above provided for more than sixty
(60) days, and the other Lenders are not similarly restricted, Borrower shall be
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 45
entitled to designate an Eligible Assignee acceptable to Administrative Agent to
purchase the interest of the Lender which is unable to fund LIBOR Rate Advances
or make Competitive Bid Pricing Loans, as the case may be, and such Lender shall
sell its interest to such Eligible Assignee within ten (10) Business Days of
Borrower's request. Any such purchase shall be in accordance with and subject to
the provisions of Section 11.10.
(b) Borrower shall promptly indemnify (i) Administrative Agent and
the Lenders against any actual loss or expense which Administrative Agent or the
Lenders may, as a consequence of Borrower's failure to make a payment on the
date such payment is due hereunder, or the payment, prepayment or conversion of
any LIBOR Rate Advances or amounts due under Competitive Bid Notes hereunder on
a day other than an Interest Adjustment Date or, in the case of Competitive Bid
Notes, the last day of the applicable Interest Period or term of such notes,
reasonably sustain or incur in liquidating or employing deposits from third
parties acquired to effect, fund or maintain any such LIBOR Rate Advances or
Competitive Bid Notes or any part thereof, including, without limitation, any
Consequential Loss; and (ii) the Lenders against and reimburse the Lenders for
increased costs to Lenders, as a result of any Regulatory Change, in the
maintaining of any LIBOR Rate Advances or Competitive Bid Loans (Administrative
Agent shall give Borrower written notice of such costs within ninety (90) days
of its or any Lender's implementation and/or compliance with any such Regulatory
Change, and such costs shall be reimbursed to such Lender prior to the earlier
of (A) the Termination Date, or (B) ten (10) days following written notice
thereof from Administrative Agent to Borrower). All payments made pursuant to
this paragraph shall be made free and clear, without reduction for, or account
of, any present or future taxes or other levies of any nature, excluding net
income and franchise taxes.
SECTION 3.14. Taxes.
(a) No Deduction for Taxes. Except as provided in Section 3.14(d),
any and all payments by Borrower hereunder or under the Notes, the Competitive
Bid Notes or the Swingline Note shall be made free and clear of and without
deduction for any and all present or future Taxes, excluding, (i) in the case of
each Lender, Participant and the Agents, income and franchise taxes imposed by
the jurisdiction under the laws of which such Lender, Participant or
Administrative Agent (as the case may be) is organized or is or should be
qualified to do business or any political subdivision thereof and (ii) in the
case of each Lender or Participant, income and franchise taxes imposed by the
jurisdiction of such Lender's or Participant's Applicable Lending Office or any
political subdivision thereof. If Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note, any
Competitive Bid Note or the Swingline Note to any Lender or Participant, any
Agent or the Swingline Lender, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.14) such Lender,
Participant, Agent or the Swingline Lender (as the case may be) receives an
amount equal to the amount such party would have received had no such deductions
been made, (ii) Borrower shall make such deductions, (iii) Borrower shall pay
the full amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (iv) Borrower shall deliver to
Administrative Agent evidence of such payment to the relevant taxing authority
or other authority in the manner provided in Section 3.14(c); provided
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 46
that Borrower shall not be required to increase any payment by any amount which
such Lender shall be entitled to have repaid by the taxing authority upon filing
of the appropriate documents.
(b) Indemnification. Borrower shall indemnify each Lender and
Administrative Agent for the full amount of Taxes (including, without
limitation, any Taxes imposed by any jurisdiction on amounts payable under this
Section 3.14) paid by any Lender, Participant or Administrative Agent (as the
case may be), except for (i) in the case of each Lender, Participant and the
Agents, income and franchise taxes imposed on net income by the jurisdiction
under the laws of which such Lender, Participant or Agent (as the case may be)
is organized or is or should be qualified to do business or any political
subdivision thereof and (ii) in the case of each Lender or Participant, income
and franchise taxes imposed on net income by the jurisdiction of such Lender's
or Participant's Applicable Lending Office or any political subdivision thereof,
as required by the applicable taxing authority, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally asserted. Such
indemnification shall be made within thirty (30) days from the date any Lender
or Administrative Agent (as the case may be) makes written demand therefor. Each
Lender and Administrative Agent agrees to notify Borrower of any event occurring
after the Closing Date entitling such Lender or Administrative Agent to
indemnification under this Section as promptly as practicable; provided, that
except as otherwise limited by the next sentence, the failure of any Lender or
Administrative Agent to give such notice shall not result in any liability to
such Lender or Administrative Agent or release Borrower from any of its
obligations hereunder. Each Lender and Administrative Agent, as applicable,
shall only be entitled to indemnification under this Section 3.14 for Taxes paid
during the ninety (90) day period ending on the date Borrower receives the
notice described in the immediately preceding sentence; provided, that from and
after such notice, such Lender or Administrative Agent shall be entitled to
compensation for Taxes occurring after such notice until such time as such Taxes
cease to exist.
(c) Tax Payment Receipt. Within thirty (30) days after the date of
any payment of Taxes, Borrower shall furnish to Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof or other
evidence of payment satisfactory to Administrative Agent.
(d) Tax Forms. Each Lender or Participant that is not a
corporation or partnership created or organized in or under the laws of the
United States, any estate that is subject to federal income taxation regardless
of the source of its income, or any trust which is subject to the supervision of
a court within the United States and the control of a United States fiduciary as
described in section 7701 (a) (30) of the Internal Revenue Code (a "Non-U.S.
Lender") shall deliver to Borrower and Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased ) on or before the date on which it becomes a party to this
Agreement (or, in the case of a Participant, on or before the date on which such
Participant purchases the related participation) either:
(i) two duly completed and signed copies of either Internal
Revenue Service Form W-8BEN (relating to such Non-U.S. Lender and
entitling it to a complete exemption from withholding of U.S. Taxes
on all amounts to be received by such Non-U.S. Lender pursuant to
this Agreement and the other Loan
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 47
Documents) or Form W-8ECI (relating to all amounts to be received by
such Non-U.S. Lender pursuant to this Agreement and the other Loan
Documents certifying that such amounts are effectively connected to
the Non-U.S. Lender's conduct of a trade or business within the
United States), or successor and related applicable forms, as the
case may be; or
(ii) in the case of a Non-U.S. Lender that is not a "bank"
within the meaning of Section 881 (c) (3) (A) of the Code and that
does not comply with the requirements of clause (i) hereof, (x) a
statement in a form as shall be reasonably requested by Borrower
from time to time to the effect that such Non-U.S. Lender is
eligible for a complete exemption from withholding of U.S. Taxes
under Code Section 871(h) or 881(c), and (y) two duly completed and
signed copies of Internal Revenue Service Form W-8 or successor and
related applicable forms.
Further, each Non-U.S. Lender agrees (i) to deliver to Borrower and
Administrative Agent, and if applicable, the assigning Lender (or, in the case
of a Participant, to the Lender from which the related participation shall have
been purchased) two further duly completed and signed copies of Forms W-8BEN or
W-8ECI, as the case may be, or successor and related applicable forms, on or
before the date that any such form expires or becomes obsolete and promptly
after the occurrence of any event requiring a change from the most recent
form(s) previously delivered by it to Borrower (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) in accordance with applicable United States laws and regulations and
(ii) in the case of a Non-U.S. Lender that delivers the statement required by
clause (d)(ii) hereof, to deliver to Borrower and Administrative Agent, and if
applicable, the assigning Lender such additional statements and forms as shall
be reasonably requested by Borrower from time to time; unless, in any such case,
any change in law or regulations has occurred subsequent to the date such Lender
became a party to this Agreement ( or in the case of a Participant, the date on
which such Participant purchased the related participation) which renders all
such forms inapplicable or which would prevent such Lender (or Participant) from
properly completing and executing any such form with respect to it and such
Lender promptly notifies Borrower and Administrative Agent (or, in the case of a
Participant, the Lender from which the related participation shall have been
purchased) if it is no longer able to deliver, or if it is required to withdraw
or cancel, any form or statement previously delivered by it pursuant to this
Section 3.14. A Non-U.S. Lender shall not be required to deliver any form or
statement pursuant to the immediately preceding sentences in this Section 3.14
that such Non-U.S. Lender is not legally able to deliver, it being understood
and agreed that Borrower shall withhold or deduct such amount from any payments
made to any Non-U.S. Lender that Borrower reasonably determines is required by
law and that payments resulting from a failure to comply with this Section 3.14
shall not be subject to payment or indemnity by Borrower and Guarantors pursuant
to this Section 3.14.
(e) Form W-9. Upon the request of Administrative Agent, each
Lender that is a "United States person" within the meaning of Section
7701(a)(30) of the Code shall deliver to Administrative Agent two duly signed
completed copies of United States Internal Revenue Service Form W-9. If such
Lender fails to deliver such forms, then Administrative Agent may withhold from
any interest payment to such Lender an amount equivalent to the applicable
back-up withholding tax imposed by the Code, without reduction.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 48
SECTION 3.15. Extension Option. Borrower shall have the option (the
"Extension Option") to extend the Credit Facility by extending the Termination
Date for a one-year period from and after the initial Termination Date of
January 14, 2008, such Extension Option being exercisable only once as provided
below, and subject to satisfaction of each of the following conditions:
(a) Administrative Agent shall have received written notice of
Borrower's election to exercise the Extension Option at least thirty (30) but no
more than ninety (90) days before the Termination Date (as then in effect).
(b) There shall exist no Default or Event of Default at the time
Borrower elects to exercise the Extension Option or at the Termination Date (as
then in effect).
(c) Borrower and each Guarantor Subsidiary shall have executed and
delivered to Administrative Agent a modification and extension agreement,
confirming that the entity documents for Borrower and Guarantor Subsidiaries
previously delivered to Administrative Agent are still in force and effect,
without modification, and such other documents as are reasonably requested by
Administrative Agent to properly document the extension.
(d) Borrower shall pay to Administrative Agent, for the benefit of
the Lenders in accordance with the respective Commitment Percentages of the
Lenders as of the effective date of the extension, an additional non-refundable
commitment fee in the amount of 0.15% of the Total Commitment (the "Extension
Fee") in consideration of the commitment of the Lenders to continue to make
Advances to Borrower until the new extended Termination Date, which Extension
Fee shall be due and payable at the time Borrower delivers its written notice of
election to extend pursuant to Section 3.15(a). As of the date of Borrower's
delivery of written notice regarding the Extension Option, the Extension Fee
will have been earned in full and be a bona fide commitment fee intended as
reasonable compensation to Lenders for the commitment to make Advances until the
extended Termination Date.
(e) Borrower shall pay to Administrative Agent all reasonable
costs and expenses, including reasonable attorneys' fees, incurred in connection
with such extension and the documentation thereof.
(f) During the extended term, all terms and conditions of the Loan
Documents (including but not limited to interest rates and payments) pertaining
to the Credit Facility shall continue to apply; provided, however, that the term
"Termination Date" and all references to such term in this Agreement and the
other Loan Documents shall mean and refer to the extended Termination Date which
shall be one year from the Termination Date as then in effect.
All references in this Agreement or any other Loan Document to the
exercise of the Extension Option shall be deemed to refer to satisfaction of all
conditions set forth above.
SECTION 3.16. Replacement of a Lender. If Borrower is required pursuant to
Section 3.12 or 3.14 to make any additional payment to any Lender or if any
Lender becomes a Rate Affected Lender (any Lender so affected an "Affected
Lender"), Borrower may elect, if such amounts continue to be charged or so long
as such Lender is a Rate Affected Lender, to
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 49
replace such Affected Lender as a Lender under this Agreement, provided that no
Default or Event of Default shall have occurred and be continuing at the time of
such replacement, and provided further that, concurrently with such replacement,
(a) an Eligible Assignee shall agree, as of such date, to purchase for cash the
Advances and other Obligations due to the Affected Lender pursuant to an
Assignment and Acceptance and to become a Lender for all purposes under this
Agreement and to assume all obligations of the Affected Lender to be terminated
as of such date, and (b) Borrower shall pay to such Affected Lender in same day
funds on the day of such replacement all interest, fees and other amounts then
accrued but unpaid to such Affected Lender by Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Affected Lender under Sections 3.12 and 3.14. If any Rate Affected Lender
is replaced pursuant to this Section 3.16, such Lender shall repay to Borrower
the unused portion of the Initial Commitment Fee or the Extension Fee (if such
replacement occurs during the extension period), such amount being determined by
multiplying (a) the Initial Commitment Fee or the Extension Fee, as applicable,
times (b) a fraction (i) the numerator of which is the number of whole months
remaining until the initial Termination Date or, if applicable, the number of
months remaining in the extension period and (ii) the denominator of which is
thirty-six (36) or if the replacement occurs during the extension period, twelve
(12).
ARTICLE 4
CONDITIONS TO CLOSING AND ADVANCES
SECTION 4.1. Conditions To Closing. The obligation of Lenders to fund the
first Advance under the Credit Facility after the Closing Date, the Swingline
Lender to fund a Swingline Advance after the Closing Date, any Fronting Bank to
issue a Letter of Credit, or of any Lender to fund a Competitive Bid Loan,
whichever is first, as provided herein is subject to the satisfaction of the
following conditions and requirements:
(a) receipt by Administrative Agent of (i) this Agreement,
properly executed by Borrower and each Guarantor Subsidiary as of the Closing
Date, (ii) the Swingline Note, properly executed by Borrower as of the Closing
Date, and (iii) evidence acceptable to Administrative Agent that Borrower has
paid all fees and expenses required to be paid by Borrower as of the date of
such Advance;
(b) receipt by each Lender of its Note and Competitive Bid Note,
properly executed by Borrower, together with its portion of the Initial
Commitment Fee;
(c) receipt by Administrative Agent of a Guaranty Agreement
executed by each Guarantor Subsidiary as of the Closing Date;
(d) receipt by Administrative Agent of the Contribution Agreement
in form and substance satisfactory to Administrative Agent, executed by Borrower
and each Guarantor Subsidiary as of the Closing Date;
(e) receipt by Lenders of (i) the audited annual financial
statements for Borrower and its Consolidated Subsidiaries dated December 31,
2003, (ii) the unaudited financial statements of Borrower and its Consolidated
Subsidiaries, dated September 30, 2004, and (ii) a Compliance Certificate
effective as of the last day of the fiscal quarter immediately
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 50
preceding the Closing Date (with any material changes since the end of such
fiscal quarter being noted therein), executed by Borrower, in the form attached
hereto as Exhibit C;
(f) receipt by Administrative Agent of an opinion of legal counsel
for Borrower, each Guarantor Subsidiary and General Partner, opining as to the
due organization and existence of Borrower, each Guarantor Subsidiary and
General Partner, the due authorization and execution of each of the Loan
Documents and the enforceability of each of the Loan Documents, and such other
matters as Administrative Agent may request, addressed to Administrative Agent
and otherwise in form and substance reasonably satisfactory to Administrative
Agent;
(g) receipt by Administrative Agent of all resolutions,
certificates or documents it may reasonably request relating to the formation,
existence and good standing of Borrower, each Guarantor Subsidiary and General
Partner on the Closing Date, corporate authority for the execution and validity
of this Agreement and the other Loan Documents, and any other matters relevant
to this Agreement, all in form and substance satisfactory to Administrative
Agent, which resolutions, certificates and documents shall include, without
limitation, (i) the certificates of incorporation and bylaws, trust agreement,
partnership agreement or other appropriate organizational documents for
Borrower, each Guarantor Subsidiary and General Partner, (ii) resolutions of the
Board of Trust Managers of Borrower and the Board of Directors of Camden USA and
Camden Realty, Inc. and General Partner, and any required partner resolutions or
consents of Camden L.P. authorizing the execution of the Loan Documents on
behalf of Borrower, each Guarantor Subsidiary and General Partner, (iii)
certificates of incumbency for the officers of Borrower, each Guarantor
Subsidiary and General Partner, and (iv) certificates of corporate or limited
partnership existence and good standing issued by the state of organization of
(and to the extent provided by the state of organization with regard to)
Borrower, each Guarantor Subsidiary and General Partner, and, as requested by
Administrative Agent, from the appropriate Governmental Authority of each state
in which Borrower, each Guarantor Subsidiary and General Partner is required by
applicable law to be qualified;
(h) receipt by Administrative Agent of filing officer certificates
(or commercial reports similar thereto, if satisfactory to Administrative Agent)
under Section 9-407(2) of the UCC, releases or partial releases of liens or
financing statements, and/or other evidence satisfactory to Administrative Agent
that there are no Liens against the Unencumbered Properties, except Permitted
Liens;
(i) satisfaction of all conditions contained in Section 4.2 if an
Advance is being made;
(j) receipt by Administrative Agent of copies of certificates of
insurance for each insurance policy maintained by Borrower or any Consolidated
Subsidiary with respect to the Property;
(k) receipt by Administrative Agent of an organizational chart
showing Borrower and all of its Subsidiaries and detailing ownership of the
equity interests in each Subsidiary, and all joint ventures and partnerships in
which Borrower or any Consolidated
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 51
Subsidiary has an interest, and in which States Borrower and each such
Subsidiary are incorporated or organized, as in effect on the last day of the
fiscal quarter preceding the Closing Date (with any material changes thereto
being noted thereon), being attached hereto as Schedule III;
(l) on and as of the Closing Date, all amounts owing under the
Existing Credit Agreement shall be paid in full and all commitments of the
Lenders thereunder shall be terminated; and
(m) receipt by Administrative Agent and/or Lenders of all other
documents, instruments, certificates and information to be delivered on or
before the Closing Date pursuant to the terms of this Agreement and the other
Loan Documents.
All the documents, instruments, certificates, information, evidences and
opinions referred to in this Section 4.1 shall be delivered to Administrative
Agent no later than the Closing Date, and Lenders shall not be bound by or
obligated hereunder until Administrative Agent has received all such items.
SECTION 4.2. Conditions To All Advances or Swingline Advances or Issuances
of Letters of Credit. The obligation of Lenders to fund any Advance or Swingline
Lender to fund any Swingline Advance or Fronting Bank to issue any Letter of
Credit as provided herein is subject to the satisfaction of the following
conditions and requirements:
(a) timely receipt by Administrative Agent of an Advance/Letter of
Credit Request in the case of an Advance under the Notes or a Swingline Advance
and receipt by Administrative Agent and Fronting Bank of an Advance/Letter of
Credit Request in the case of an issuance of a Letter of Credit;
(b) immediately before and after giving effect to such Advance or
Swingline Advance or issuance of Letter of Credit, no Default or Event of
Default shall have occurred and be continuing and the making of such Advance
shall not cause a Default;
(c) the representations and warranties contained in this Agreement
and in the other Loan Documents shall be true and correct in all material
respects on and as of the date of such Advance, Swingline Advance or the
issuance of a Letter of Credit, except that all representations and warranties
that speak as of a particular date shall only be required on the date of each
such Advance to be true and correct in all material respects as of the date to
which such representation or warranty speaks and not as of any subsequent date;
and
(d) such other information and documentation as Administrative
Agent shall reasonably deem necessary or desirable in connection with the
funding of such Advance, Swingline Advance or issuance of such Letter of Credit.
ARTICLE 5
UNENCUMBERED PROPERTIES POOL AND GUARANTIES
SECTION 5.1. Unencumbered Properties Pool. As of any date during the term
of this Agreement, and until all of the Obligations have been paid in full and
the Lenders have no
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 52
commitment to lend hereunder, Borrower and the Guarantor Subsidiaries must own
and maintain the Pool in accordance with the following parameters:
(a) For each of the Unencumbered Properties in the Pool, Borrower
shall have received from a third-party independent environmental consultant, and
delivered to Administrative Agent upon Administrative Agent's request, a written
environmental assessment in form and in substance acceptable to Administrative
Agent that does not disclose any material environmental conditions or risks
related to such Unencumbered Property or any violation of Applicable
Environmental Laws (or if there exists a material environmental condition, risk
or violation, describes the remedial actions being taken); provided, however,
that Administrative Agent shall have given Borrower thirty (30) days' prior
written notice identifying any project that Administrative Agent determines must
be excluded as an Unencumbered Property in the Pool due to a material
environmental condition before such exclusion shall become effective.
(b) The Pool must have no more than an aggregate of $200,000 in
Liens described in subsection (h) of the definition of the term "Permitted
Liens" set forth in Article 1, provided, however, that in the event the Pool has
more than an aggregate of $200,000 in said Liens, Borrower shall designate in
writing to Administrative Agent which project or projects with said Liens shall
be excluded from the Pool so that this requirement is once again satisfied, and
further provided, that such exclusion shall terminate upon reduction of said
Liens below an aggregate of $200,000 and notice by Borrower to Administrative
Agent thereof.
(c) Collectively, the Unencumbered Properties in the Pool, other
than the Development Properties, must have an aggregate occupancy level based on
bona fide tenant leases requiring current rent payments of at least eighty-five
percent (85%), where the occupancy level is the weighted average of the
occupancy level for the prior fiscal quarter.
(d) Borrower's Total Unsecured Debt shall be less than 60% of its
Gross Asset Value of Unencumbered Properties; provided, that, during the two
consecutive quarters following the quarter in which a Portfolio Acquisition is
consummated, Borrower's Total Unsecured Debt shall be less than 65% of its Gross
Asset Value of Unencumbered Properties, after taking into account such Portfolio
Acquisition.
(e) No more than twenty percent (20%) of the Gross Asset Value of
Unencumbered Properties shall be attributable to Development Properties.
(f) The ratio of (i) Unencumbered Adjusted NOI for the immediately
preceding fiscal quarter, and then annualized, to (ii) that portion of
Consolidated Interest Expense attributable solely to Total Unsecured Debt for
the immediately preceding calendar quarter, and then annualized, shall not at
any time be less than or equal to 2.00 to 1.00.
(g) The value of Ground Leased Qualifying Properties shall not
represent more than ten percent (10%) of the value of the Unencumbered
Properties in the Pool.
(h) A maximum of ten percent (10%) of the Pool may be Partially
Owned Qualifying Properties. For Partially Owned Qualifying Properties, only
Borrower's share of net operating income and Debt will be used in covenant
calculations.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 53
SECTION 5.2. Negative Pledge Agreements. Borrower shall not, and shall not
permit any of its Consolidated Subsidiaries to, (a) grant or suffer to exist any
Lien against any of the Unencumbered Properties in the Pool if such Lien would
be in violation of this Article V or Section 8.7, (b) enter into any negative
pledge agreements with any other Person such that Borrower shall be prohibited
at any time from granting, or causing any Consolidated Subsidiaries to grant, to
Administrative Agent, for the benefit of the Lenders, a first priority lien and
security interest in any of the Unencumbered Properties as security for the
Obligations, or (c) enter into any negative pledge agreements with respect to
the Equity Interests of any Guarantor Subsidiary in violation of Section 8.13,
or grant any Lien with respect to the Equity Interests of any Guarantor
Subsidiary.
SECTION 5.3. Additional Guarantor Subsidiaries. Contemporaneously with the
execution of this Agreement, Borrower has caused each of Camden USA, Camden L.P.
and Camden Realty, Inc. to execute and deliver to Administrative Agent for the
benefit of Lenders a Guaranty Agreement. Borrower will promptly notify
Administrative Agent of the formation of any material new Consolidated
Subsidiary and all assets owned or to be owned by such Consolidated Subsidiary
(and, in any event, will disclose with the quarterly financial information
provided to Administrative Agent, all Consolidated Subsidiaries formed during
the fiscal quarter then ending). In the event that any Consolidated Subsidiary,
whether newly formed or pre-existing, owns or becomes the owner of any
Unencumbered Property in the Pool, Borrower shall cause each such Consolidated
Subsidiary (including, without limitation, Camden Summit Partnership, L.P.
following the Summit Acquisition), as soon as practically possible, to execute
and deliver to Administrative Agent for the benefit of Lenders a Guaranty
Agreement (substantially in the form of Exhibit F) and a Contribution Agreement
in the form of Exhibit G (or supplement thereto). Contemporaneously with the
delivery of any such Guaranty Agreement, Borrower shall cause to be delivered to
Administrative Agent appropriate certifications, governmental and corporate
certificates, resolutions, incumbency certificates, legal opinions and other
documents, reasonably deemed necessary or appropriate by Administrative Agent
relating to the formation, existence and good standing of such Consolidated
Subsidiary, the corporate authority of such Consolidated Subsidiary for the
execution and validity of such Guaranty Agreement, and otherwise to evidence the
legal, binding, and enforceable effect of each such Guaranty Agreement. Borrower
and all existing and future Guarantor Subsidiaries acknowledge and agree that
the provisions of this Section 5.3 are a material inducement to the Lenders
entering into this Agreement and making Advances hereunder, and that this
Agreement and Advances hereunder constitutes good and valuable consideration for
the execution and delivery of any and all Guaranty Agreements as contemplated
herein.
SECTION 5.4. Ownership of Guarantor Subsidiaries. At all times, Borrower
must own no less than 66 2/3% of the equity (both voting and non-voting) of each
Guarantor Subsidiary and must have the necessary control of each of the
Guarantor Subsidiaries so that Borrower, without the consent of any other
Person, may (i) transfer, by dividend or otherwise, cash and capital from any
Guarantor Subsidiary to Borrower and (ii) transfer, sell or convey, or grant a
Lien on any and all of the assets, real or personal, of each Guarantor
Subsidiary.
SECTION 5.5. Partnership Matters. Borrower shall not, without the prior
written consent of Administrative Agent, consent to or permit General Partner to
consent to any amendment, supplement, or other modification of the Third Amended
and Restated Agreement of Limited
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 54
Partnership of Camden L.P. dated as of April 15, 1997, as amended, supplemented,
restated or replaced from time to time, that would (i) replace General Partner
as the general partner of Camden L.P. (other than with an Affiliate of
Borrower), (ii) impair General Partner's ability to fully manage and control the
day-to-day operations of Camden L.P., or (iii) detrimentally or otherwise
materially alter General Partner's rights or benefits under such partnership
agreement.
SECTION 5.6. Guaranty Proceeds.
(a) Notwithstanding anything to the contrary contained in this
Agreement or any Guaranty Agreement, Administrative Agent and the Lenders
covenant and agree with Borrower that any funds, payments, claims, or
distributions actually received by Administrative Agent and the Lenders as a
result of, or pursuant to any Guaranty Agreement ("Guaranty Proceeds"), shall be
made available for distribution equally and ratably among the holders of the
Obligations and the trustee or trustees of any senior, unsecured,
non-subordinated Debt of Borrower issued in offerings registered under the
Securities Act of 1933 or exempt from registration pursuant to Rule 144A of
Section 4 thereof and holders of borrowed money incurred by Borrower (the
"Senior Debt") which is outstanding on the date Administrative Agent and the
Lenders receive such Guaranty Proceeds. This Section 5.6 shall not apply to any
payments, funds, claims or distributions received by Administrative Agent or any
Lender directly or indirectly from Borrower or any other Person other than from
a Guarantor Subsidiary pursuant to a Guaranty Agreement, but shall apply solely
to Guaranty Proceeds. Borrower has been supplied a copy of each Guaranty
Agreement and specifically understands and agrees with Administrative Agent and
Lenders that, to the extent Guaranty Proceeds are distributed to holders of the
Senior Debt, each Guarantor Subsidiary has agreed that the Obligation shall not
be deemed reduced by any such distribution, and each Guarantor Subsidiary will
continue to make payments pursuant to its Guaranty Agreement until such time as
the Obligation has been paid in full after taking into effect any distributions
of Guaranty Proceeds to holders of Senior Debt.
(b) Nothing herein contained shall be deemed to limit, modify, or
alter the rights of Administrative Agent and the Lenders under any Guaranty
Agreement. Nothing herein contained shall be deemed to subordinate the
Obligations to the Senior Debt or any other Debt of Borrower and its
Consolidated Subsidiaries, nor give to any holder of any such Debt any rights of
subrogation.
(c) Nothing contained in this Agreement or any Guaranty Agreement
shall be deemed for the benefit of any holders of the Senior Debt or any other
Debt (other than the Obligations) nor shall anything be construed to impose on
Administrative Agent or the Lenders any fiduciary duties, obligations or
responsibilities to the holders of any such Debt. This Section 5.6 and each
Guaranty Agreement is for the sole benefit of Administrative Agent and the
Lenders and their respective successors and assigns.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 55
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Borrower and each Guarantor Subsidiary represent and warrant to Agents
and Lenders that:
SECTION 6.1. Existence and Power of Borrower. Borrower is a trust duly
created and validly existing under the laws of the State of Texas, and qualifies
in all respects as a "real estate investment trust" under Section 856(a) of the
Code. Borrower (a) is or will be qualified to do business and in good standing
under the laws of each state where such qualification is necessary for Borrower
to conduct its business; and (b) has all powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and as contemplated to be conducted, except where the failure to have
any such item would not have a material adverse effect on Borrower's business
and financial condition.
SECTION 6.2. Existence and Power of Guarantor Subsidiaries. Each Guarantor
Subsidiary and General Partner (a) is a corporation or partnership, as
appropriate, duly created, validly existing and in good standing under the laws
of the state, province or country under which it is organized, and is or will be
qualified and in good standing as a foreign corporation or partnership, as
appropriate, under the laws of each state where such qualification is necessary
for such Guarantor Subsidiary or General Partner to conduct its business; and
(b) has all corporate or partnership, as appropriate, powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and as contemplated to be conducted, except
where the failure to have any such item would not have a material adverse effect
on such Guarantor Subsidiary's business and financial condition.
SECTION 6.3. Authorization; Contravention. The execution, delivery and
performance of this Agreement, the Notes, the Competitive Bid Notes, the
Guaranty Agreements, the Contribution Agreement and the other Loan Documents by
Borrower and each Guarantor Subsidiary as appropriate, are within Borrower's or
such Guarantor Subsidiary's corporate, partnership or trust, as appropriate,
powers, have been duly authorized by all necessary corporate, partnership or
trust, as appropriate, action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation, bylaws, partnership agreement or trust
agreement, as appropriate, of Borrower or any such Guarantor Subsidiary or of
any agreement, judgment, injunction, order, decree or other instrument binding
upon Borrower or any such Guarantor Subsidiary or result in the creation or
imposition of any Lien on any asset of Borrower or any such Guarantor
Subsidiary.
SECTION 6.4. Enforceable Obligations. This Agreement, the Notes, and the
other Loan Documents each constitutes a valid and binding agreement of Borrower
to the extent Borrower is a party thereto, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or similar laws affecting creditors rights
generally, and (b) the availability of equitable remedies may be limited by
equitable principles of general applicability. The Guaranty Agreements and the
other Loan Documents each constitutes a valid and binding agreement of each
Guarantor Subsidiary to the extent such Guarantor Subsidiary is a party thereto,
enforceable in accordance with its terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer or similar
laws affecting creditors rights generally, and (b) the availability of equitable
remedies may be limited by equitable principles of general applicability.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 56
SECTION 6.5. Financial Information.
(a) The current financial statements of Borrower and each
Guarantor Subsidiary and all of the other financial reports and information of
Borrower and each Guarantor Subsidiary that have been delivered to
Administrative Agent or Lenders are true and correct in all material respects as
of the date of such current financial statements and other reports and
information.
(b) Except as disclosed in writing to Lenders prior to the
execution and delivery of this Agreement, since December 31, 2003, there has
been no material adverse change in the business, financial position or results
of operations of Borrower or any Guarantor Subsidiary; and, there exists no
condition, event or occurrence that, individually or in the aggregate, could
reasonably be expected to result in a material adverse change in the business,
financial position or results of operations of Borrower or any Guarantor
Subsidiary.
SECTION 6.6. Litigation. There is no pending or, to Borrower's knowledge,
threatened Litigation involving or affecting the Property, Borrower, or its
Consolidated Subsidiaries in which there is a reasonable possibility of an
adverse decision which could have a Material Adverse Effect, or involving or
affecting the validity, enforceability, or priority of any of the Loan
Documents. If any Litigation is threatened or commenced (a) that seeks to
enjoin, prevent or declare invalid or unlawful Borrower's renovation, occupancy,
use or operation of the Improvements; (b) that endangers, questions or attacks
the title to any part of the Real Estate or the validity, enforceability, or
priority of any Loan Document; (c) that seeks to levy upon or seize any part of
the Real Estate; (d) for any condemnation or taking of any part of or interest
in the Real Estate; (e) regarding any claimed damage, default, or diminution or
offset against Rent; or (f) with respect to any claimed personal injury, death
or property damage on or about the Property, and if an adverse decision therein
could constitute a Material Adverse Effect, then Borrower shall promptly and
vigorously contest such Litigation in good faith, resist the entry of any
temporary or permanent injunction, and seek the stay of any such injunction that
may be entered. After the occurrence and during the continuance of an Event of
Default, Administrative Agent may (but shall not be obligated to) commence,
appear in, or defend any such Litigation, compromise or discharge adverse claims
made with respect to the Property, purchase tax titles, remove prior liens or
security interests, and pay all necessary expenses, including attorneys' fees,
incurred in connection with such Litigation, which Borrower shall reimburse to
Administrative Agent on demand and which shall be part of the Obligations, even
if in excess of the Total Commitment.
SECTION 6.7. ERISA.
(a) Each Employee Plan has been maintained and administered in
substantial compliance with the applicable requirements of the Code and ERISA.
No circumstances exist with respect to any Employee Plan that could have a
material adverse effect on Borrower and its Consolidated Subsidiaries taken as a
whole.
(b) With respect to each Pension Plan, (i) no accumulated funding
deficiency (within the meaning of Section 412(a) of the Code), whether waived or
unwaived, exists; (ii) the present value of accrued benefits (based on the most
recent actuarial valuation prepared for each
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 57
such plan, if any, in accordance with ongoing assumptions) does not exceed the
current value of plan assets allocable to such benefits by a material amount;
(iii) no reportable event (within the meaning of Section 4043 of ERISA) other
than purchases and sales of securities from a plan trustee as reported in the
audited financial statements of such plan has occurred; (iv) no uncorrected
prohibited transactions (within the meaning of Section 4975 of the Code) exist
which could have a material adverse effect on Borrower and its Consolidated
Subsidiaries taken as a whole; (v) to the extent such plan is covered by PBGC,
no material liability to the PBGC exists and no circumstances exist that could
reasonably be expected to result in any such liability; and (vi) no material
withdrawal liability (within the meaning of Section 4201(a) of ERISA) exists and
no circumstances exist that could reasonably be expected to result in any such
liability.
(c) As of the date hereof, neither Borrower nor any Consolidated
Subsidiary has any obligation under any Employee Plan to provide post-employment
health care benefits to any of its current or former employees, except as may be
required by Section 4980B of the Code.
SECTION 6.8. Taxes and Filing of Tax Returns. Borrower and each
Consolidated Subsidiary have filed all material tax returns required to have
been filed and has paid all Taxes shown to be due and payable on such returns,
including interest and penalties, and all other Taxes which are payable by such
party, to the extent the same have become due and payable other than Taxes with
respect to which a failure to pay would not have a Material Adverse Effect or
which are being contested as permitted by Section 7.6. All Tax liabilities of
Borrower and each Consolidated Subsidiary are adequately provided for. No Tax
liability of Borrower or any Consolidated Subsidiary has been asserted by the
Internal Revenue Service or any other taxing authority for Taxes in excess of
those already paid, the payment of which would have a Material Adverse Effect.
SECTION 6.9. Ownership of Assets. On the Closing Date and all times during
the Credit Period: (a) except for Permitted Liens, there is no Lien on any of
the Unencumbered Properties, and the execution, delivery, performance or
observance of the Loan Documents will not require or result in the creation of
any Lien on any such property; (b) Borrower or one of its Consolidated
Subsidiaries owns full legal and equitable title, in fee simple absolute (except
with respect to the Ground-Leased Qualified Properties), to all Property in the
Pool, and, except to the extent defects are being contested or otherwise
corrected by actions taken by Borrower in good faith, all other Real Estate; and
(c) substantially all of the Property, in Administrative Agent's determination,
is, and at all times shall be, owned directly (and in fee simple absolute with
respect to Real Estate other than the Ground-Leased Qualifying Properties) by
Borrower or one of the Guarantor Subsidiaries.
SECTION 6.10. Business; Compliance. Borrower and each Consolidated
Subsidiary have performed and abided by all obligations required to be performed
by them under any license, permit, order, authorization, grant, contract,
agreement, or regulation to which they are a party or by which they or any of
their assets are bound and which, if Borrower or such Consolidated Subsidiary
were to fail to perform or abide by, such failure would have a Material Adverse
Effect.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 58
SECTION 6.11. Licenses, Permits. Borrower and each Consolidated Subsidiary
possess such valid franchises, licenses, permits, consents, authorizations,
exemptions and orders of Governmental Authorities, as are necessary to carry on
their business as now being conducted, other than violations which would not
(either individually or collectively) have a Material Adverse Effect, and, if
related to any Unencumbered Properties, would not cause a Pool Violation.
SECTION 6.12. Compliance with Law. The business and operations of Borrower
and each Guarantor Subsidiary have been and are being conducted in accordance
with all applicable Laws, other than violations which would not (either
individually or collectively) have a Material Adverse Effect, and, if such
violation is related to any Unencumbered Properties, would not cause a Pool
Violation. Each of Borrower and its Consolidated Subsidiaries (a) has complied
and will comply, with all Legal Requirements relating to or affecting the
Property, the Credit Facility (including all reporting requirements applicable
to the Lenders) or Borrower or its Consolidated Subsidiaries except where the
failure to so comply would not cause a Material Adverse Effect, and, if such
failure is related to any Unencumbered Properties, would not cause a Pool
Violation; and (b) has no knowledge of, and has received no notice of, any
material violation of any Legal Requirement relating to or affecting any of the
Property, Borrower or any of its Consolidated Subsidiaries, unless such
non-compliance would not have a Material Adverse Effect and, if such
non-compliance is related to any Unencumbered Properties, would not cause a Pool
Violation. The Property, and the intended use, occupancy, or operation thereof,
complies and will comply with all applicable Legal Requirements unless such
non-compliance would not have a Material Adverse Effect and would not, if such
non-compliance is related to an Unencumbered Property, cause a Pool Violation.
No part of the Property constitutes (or will constitute) a nonconforming use
under any zoning Law or similar Legal Requirement, unless such nonconforming use
would not cause a Material Adverse Effect or, if such nonconforming use is
related to an Unencumbered Property, would not cause a Pool Violation.
SECTION 6.13. Utilities and Access. With respect to all Real Estate: (a)
all utility and municipal services required for the renovation, occupancy, use
and operation of the Improvements are available for use and are or will be
available in sufficient amounts for the intended use of the Improvements; (b)
all binding agreements, allocations or commitment letters, required to ensure
the provision of such services have been obtained or will be available from the
applicable utility companies and/or Governmental Authorities providing such
services; (c) all public and private roads necessary for the intended occupancy,
use and operation of the Improvements are completed and available for vehicular
ingress to and egress from the Real Estate and have been publicly dedicated and
accepted for maintenance by all applicable Governmental Authorities; (d) all
necessary or required utility, private roadway, parking, access (including curb
cuts), easements, covenants and permits have been granted or issued; and (e) all
impact, connection or other requisite fees therefor have been paid, unless the
failure to have any of the above would not result in a Material Adverse Effect,
and, if such failure is related to any Unencumbered Properties, would not cause
a Pool Violation.
SECTION 6.14. Full Disclosure. All information heretofore furnished by
Borrower or any Guarantor Subsidiary (or any other party on Borrower's or any
Guarantor Subsidiary's behalf) to Agents and Lenders for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by Borrower or any
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 59
Guarantor Subsidiary to Agents and any Lender will be, true and accurate in
every material respect and shall be, to the best of the knowledge and belief of
the party furnishing such information, without material omission. Borrower and
each Guarantor Subsidiary have, to the best of their knowledge, disclosed to
Administrative Agent in writing any and all facts which might reasonably be
expected to materially and adversely affect the business, operations, prospects
or condition, financial or otherwise, of Borrower or any Guarantor Subsidiary,
or the ability of Borrower or any Guarantor Subsidiary to perform its
obligations under this Agreement or the other Loan Documents.
SECTION 6.15. Environmental Matters. With respect to all Real Estate, (i)
no portion of the Real Estate is contaminated by any substance or material
presently identified to be toxic or hazardous according to any Applicable
Environmental Law, including, without limitation, any asbestos, polychlorinated
biphenyl, radioactive substance, methane, volatile hydrocarbons, industrial
solvents or any other material or substance which has in the past or could
foreseeably at the present time or at any time in the future cause or constitute
a material health, safety or other environmental hazard to any Person or
property, unless such contamination would not have a Material Adverse Effect,
and, if such contamination affects any Unencumbered Properties, would not cause
a Pool Violation, (ii) neither Borrower nor any Consolidated Subsidiary nor, to
the knowledge of Borrower, any other Person has caused or suffered to occur a
discharge, spillage, uncontrolled loss, seePAGE or filtration of oil or
petroleum or chemical liquids or solids, liquid or gaseous products or hazardous
waste, or hazardous substance at, upon, under or within any portion of the Real
Estate or any contiguous real estate which in either circumstance could cause a
Material Adverse Effect or, if related to any Unencumbered Properties, could
result in a Pool Violation, and either (A) would be a violation of Applicable
Environmental Law or (B) has not been remediated so as to cure any violation of
Applicable Environmental Law (such remediation having been accomplished without
increasing the potential environmental liability of Borrower or any Consolidated
Subsidiary or any Agent or Lender), (iii) neither Borrower nor any Consolidated
Subsidiary nor, to the knowledge of Borrower, any other Person, has been or is
involved in operations at or near any portion of the Real Estate which could
lead to the imposition of liability under any Applicable Environmental Law on
Borrower, any Consolidated Subsidiary or any operator of such Real Estate which
could have a Material Adverse Effect, or, if related to any Unencumbered
Properties, could result in a Pool Violation, (iv) neither Borrower, any
Consolidated Subsidiary nor any other Person has permitted any tenant or
occupant of any portion of the Real Estate, to engage in any activity that could
lead to the imposition of liability under any Applicable Environmental Law on
such tenant or occupant, Borrower, any Consolidated Subsidiary or any operator
of any of such property which could have a Material Adverse Effect, or, if
related to any Unencumbered Properties, could result in a Pool Violation, or (v)
to the knowledge of Borrower and the Guarantor Subsidiaries, no part of the Real
Estate is contaminated by any substance or material presently identified to be
toxic or hazardous according to any Applicable Environmental Law if such
contamination could have a Material Adverse Effect, or, if related to any
Unencumbered Properties, could result in a Pool Violation.
SECTION 6.16. Purpose of Credit. Borrower will use the proceeds of the
Credit Facility and the Letters of Credit for the purposes stated in Section
2.1(a) hereof. No part of the proceeds of the Credit Facility nor the Letters of
Credit will be used, directly or indirectly, for a purpose which violates any
Laws. Borrower will not, directly or indirectly, use any of the proceeds of the
Credit Facility for the purpose of purchasing or carrying, or retiring any Debt
which was
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 60
originally incurred to purchase or carry, any "margin stock" as defined in the
Margin Regulations, or to purchase or carry any "security that is publicly-held"
within the meaning of Regulation T of the Board of Governors of the Federal
Reserve System, or otherwise take or permit any action to the extent any of the
foregoing would involve a violation of such Margin Regulations or any other
regulation of such Board of Governors. The Credit Facility is not secured,
directly or indirectly, in whole or in part, by collateral that includes any
"margin stock" within the meaning of the Margin Regulations. Borrower will not
engage principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any "margin stock"
within the meaning of the Margin Regulations.
SECTION 6.17. Governmental Regulations. Neither Borrower nor any
Consolidated Subsidiary is subject to regulation under the Investment Advisers
Act of 1940, as amended. Neither Borrower nor any Consolidated Subsidiary is
subject to regulation under the Investment Company Act of 1940, as amended, the
Public Utility Holding Company Act of 1935, as amended, any Margin Regulations
or any other law, rule or regulation which regulates the incurrence of Debt.
SECTION 6.18. Insurance. Borrower and each Consolidated Subsidiary
maintain with financially sound, responsible and reputable insurance companies
or associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates) insurance concerning its properties and business against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary for the same or similar
businesses, including without limitation, with respect to all the Unencumbered
Properties.
SECTION 6.19. Solvency. (a) The aggregate fair market value of Borrower's
and the Guarantor Subsidiaries' assets exceeds their liabilities (whether
contingent, subordinated, unmatured, unliquidated, or otherwise), (b) Borrower
and the Guarantor Subsidiaries have sufficient cash flow to enable them to pay
their Debts as they mature, and (c) each of Borrower and the Guarantor
Subsidiaries has a reasonable amount of capital to conduct its respective
businesses as presently contemplated.
ARTICLE 7
AFFIRMATIVE COVENANTS
Borrower and each Guarantor Subsidiary covenant and agree that, so long as
this Agreement or any commitment of the Lenders to make Advances hereunder
remains in effect, or any of the Obligations remain unpaid:
SECTION 7.1. Information From Borrower. Borrower will deliver, or cause to
be delivered, to Administrative Agent on behalf of Lenders:
(a) As soon as available and in any event within ninety (90) days
after the end of each Fiscal Year of Borrower, a consolidated balance sheet of
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal Year and
the related statements of income and cash flow for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous Fiscal Year,
all reported by Borrower in accordance with GAAP and audited by Deloitte &
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 61
Touche, L.L.P. (or its successors) or other independent public accountants
reasonably acceptable to Administrative Agent (the financial statements required
by this clause (a) may be included in the reports delivered pursuant to clause
(d) below).
(b) As soon as available and in any event within forty-five (45)
days after the end of each fiscal quarter, a consolidated cash flow statement
and a consolidated balance sheet and related statement of income of Borrower and
its Subsidiaries as of the end of such quarter and year-to-date, all certified
by the chief financial officer, the chief accounting officer or Treasurer of
Borrower as to fairness of presentation and as to whether such financial
statements fairly reflect the financial condition of Borrower and its
Subsidiaries as of the date of delivery thereof, subject to year-end adjustments
(the financial statements required by this clause (b) may be included in the
reports delivered pursuant to clause (d) below). Such financial statements shall
be prepared in conformity with GAAP, except that certain information and note
disclosures normally included in annual financial statements prepared in
accordance with GAAP may be condensed or omitted provided that the disclosures
made are adequate to make the information presented not misleading, and GAAP
shall be applied on a basis consistent with the financial statements referred to
in Section 7.1(a).
(c) Simultaneously with the delivery of each set of financial
statements referred to in Sections 7.1(a) and (b), a Compliance Certificate
executed by an Authorized Officer of Borrower, in the form as attached hereto as
Exhibit C, (i) setting forth, among other things, in reasonable detail the
calculations required to establish whether Borrower was in compliance with the
requirements of Article 5 and Article 8 on the date of such financial
statements, and (ii) stating, to the best of such Authorized Officer's knowledge
and belief, whether or not such financial statements fairly reflect the
financial condition of Borrower and its Consolidated Subsidiaries and results of
Borrower's and its Consolidated Subsidiaries' operations as of the date of the
delivery of such financial statements.
(d) Promptly after the filing thereof, a true, correct and
complete copy of each Form 10-K and Form 10-Q and each other report filed by or
on behalf of Borrower with the SEC.
(e) Immediately upon obtaining knowledge of the occurrence of any
Default, a certificate of an Authorized Officer of Borrower setting forth the
details thereof and the action which Borrower or any applicable Guarantor
Subsidiary is taking or proposes to take with respect thereto.
(f) Prompt notification of (i) any material adverse change in the
financial condition of Borrower or any Guarantor Subsidiary, including without
limitation the occurrence of any Litigation which could reasonably be expected
to have a Material Adverse Effect; (ii) the occurrence of any acceleration of
the maturity of any indebtedness owing by Borrower or any Guarantor Subsidiary,
or any default under any indenture, mortgage, agreement, contract or other
instrument to which Borrower or any Guarantor Subsidiary is a party or by which
Borrower or any Guarantor Subsidiary or any properties of Borrower or any
Guarantor Subsidiary are bound, if such default or acceleration might have a
Material Adverse Effect; (iii) the existence of any Default or Event of Default;
(iv) any material default by Borrower or any of its Consolidated Subsidiaries
under any Legal Requirement, or any default by Borrower or any of its
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 62
Consolidated Subsidiaries in the performance of any obligation which constitutes
a Material Adverse Effect; (v) any actual or threatened (but only if such threat
is communicated to Borrower in writing) condemnation or other taking of any
material portion of any Unencumbered Property, any negotiations with respect
thereto, or any loss of or substantial damage to any portion of the Unencumbered
Property, if any of the foregoing could result in a Pool Violation; and (vi) any
cancellation, adverse alteration or non-renewal of any insurance coverage
required by this Agreement with respect to any Real Estate or other Property,
including any Unencumbered Property, unless such insurance can be, and is being,
replaced within a reasonable period of time after any such event.
(g) Prompt notification, and in any event within five (5) Business
Days of the occurrence, of any change in the Moody's Rating or the S&P Rating.
Borrower shall promptly upon the receipt of notice thereof, also notify
Administrative Agent of any change in the definition of the term "Funds from
Operations" as promulgated by the National Association of Real Estate Investment
Trusts.
(h) From time to time such additional information regarding the
financial position or business of Borrower and its Consolidated Subsidiaries as
Administrative Agent, at the request of any Lender, may reasonably request,
including, without limitation, financial projections of Borrower and its
Consolidated Subsidiaries and information (including current certificates of
insurance) concerning the insurance being maintained by Borrower and any
Consolidated Subsidiary.
SECTION 7.2. Business of Borrower; REIT Status; NYSE Listing. The primary
business of Borrower and its Consolidated Subsidiaries is, and Borrower and each
Guarantor Subsidiary covenant that their primary business shall remain, the
acquisition, ownership, development and operation of residential multi-family
properties and in related activities, such business to be conducted by Borrower
as a real estate investment trust. Borrower shall at all times maintain its
qualification as a real estate investment trust under Section 856 of the Code,
and the regulations of the United States Treasury Department promulgated
thereunder. Borrower shall at all times maintain its eligibility for and listing
on the New York Stock Exchange.
SECTION 7.3. Right of Inspection; Confidentiality. Borrower and each
Guarantor Subsidiary will permit Administrative Agent or any Lender, or any
officer, employee or agent of any Administrative Agent or any Lender, to visit
and inspect any of the Property of Borrower or any Consolidated Subsidiary,
examine the books of record and accounts of Borrower or any Consolidated
Subsidiary, take copies and extracts therefrom, and discuss the affairs,
finances and accounts of Borrower or any Consolidated Subsidiary with the
respective officers, accountants and auditors of Borrower or any Consolidated
Subsidiary, all at such reasonable times and as often as Administrative Agent or
any Lender may reasonably require, all at the expense of Borrower. Borrower will
cooperate and assist, and will cause its Consolidated Subsidiaries to cooperate
and assist, in such inspections, including furnishing all plans, shop drawings
and specifications in Borrower's possession or the possession of its
Consolidated Subsidiaries relating to the Improvements. Each Lender covenants
and agrees to preserve the confidentiality of any financial data and other
information concerning Borrower, any Affiliate of Borrower or related to
Borrower's, or any Borrower's Affiliate's businesses or operations, except to
the extent such Lender is required to disclose such information pursuant to any
applicable law, rule,
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 63
regulation or order of any Governmental Authority; provided that (i) any
information contained in any annual report, or any Form 10-K, Form 10-Q or Form
8-K reports (if any) which have been delivered to the SEC, or any other annual
or quarterly reports to the stockholders of Borrower subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, proxy material
delivered to the stockholders of any Borrower or any report delivered to the
SEC, or any other information that is in the public domain or has become
publicly known, shall not in any event be deemed confidential, and (ii) each
Lender may make any information received by it available (A) to a transferee of
or Participant in any interest in the Credit Facility or the Notes, provided
that such transferee or participant agrees in writing to be bound by the
provisions of this Section 7.3, (B) to any accountants or other professionals
engaged by such Lender, provided that each such accountant or professional
agrees to be bound by the provisions of this Section 7.3, or (C) in connection
with the enforcement of any of the Loan Documents or any litigation in
connection therewith.
SECTION 7.4. Maintenance of Insurance. Borrower and each Consolidated
Subsidiary will at all times maintain or cause to be maintained, with
financially sound and reputable insurance companies having an A.M. Best Rating
of B+ or better, insurance with respect to all the Property owned by Borrower
and its Consolidated Subsidiaries covering its respective risks as are
customarily carried by businesses similarly situated including, without
limitation, the following: (a) worker's compensation insurance; (b)
comprehensive general public liability and property damage insurance in respect
of all activities in which Borrower or such Consolidated Subsidiary might incur
personal liability for the death or injury of an employee or third person, or
damage to or destruction of another's property; (c) insurance against loss or
damage by fire, lightning, hail, tornado, explosion and other similar risk; and
(d) comprehensive automobile liability insurance. Borrower and each Consolidated
Subsidiary shall maintain coverage with respect to the foregoing risks in at
least such coverage amounts as are customarily carried by businesses similarly
situated.
SECTION 7.5. Maintenance and Use. Borrower will keep, and will cause its
Consolidated Subsidiaries to keep, the Real Estate in first class order, repair,
operating condition and appearance, causing all necessary repairs, renewals,
replacements, additions and improvements to be promptly made, and will not allow
any of the Real Estate to be misused, abused or wasted or to deteriorate.
Borrower will not and will not allow its Consolidated Subsidiaries to, without
the prior written consent of Administrative Agent, (a) remove from any
Unencumbered Property any fixtures or personal property except such as is worn
or obsolete or is replaced by Borrower or one of its Consolidated Subsidiaries
by an article of equal suitability and value, owned by Borrower or one of its
Consolidated Subsidiaries, free and clear of any Lien except Permitted Liens or
any other liens permitted under this Agreement; (b) make any structural
alteration to any Unencumbered Property after completion of the Improvements
thereon if such alteration impairs the value thereof or any other alteration
thereto which impairs the value thereof; (c) initiate or permit any zoning
reclassification of any Unencumbered Property, seek any variance under existing
zoning ordinances, or use or permit the use of any Unencumbered Property in a
manner that is a nonconforming use under applicable zoning ordinances or other
Legal Requirements, except for any such actions taken in the ordinary course of
Borrower's business and which would not result in a Pool Violation; (d) impose
any easement, restrictive covenant or encumbrance upon any Unencumbered
Property, execute or file any subdivision plat or condominium declaration
affecting any Unencumbered Property, or consent to the annexation
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 64
of any Unencumbered Property to any municipality, other than in the ordinary
course of business or which would not result in a Pool Violation; (e) perform,
or consent to, any drilling or exploration for or extraction, removal or
production of any mineral, hydrocarbon, gas, natural element, compound or
substance (including sand and gravel) from the surface or subsurface of any
Unencumbered Property, or (f) use or occupy or allow the use or occupancy of any
Unencumbered Property in any manner that violates any Legal Requirement,
constitutes a public or private nuisance, or makes void, voidable or cancelable,
or increases the premium of, any insurance, if the taking of any such action
could result in a Pool Violation.
SECTION 7.6. Payment of Taxes, Impositions and Claims. Borrower and each
Guarantor Subsidiary shall pay, and shall cause all the Consolidated
Subsidiaries to pay, (a) all Taxes imposed upon it or any of its assets or with
respect to any of its franchises, business, income or profits, and all
Impositions not later than the due date thereof, or before any material penalty
or interest may accrue thereon and (b) all material claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or might become a Lien on any
of its assets; provided, however, payment of Taxes, Impositions or claims shall
not be required if and for so long as (i) the amount, applicability or validity
thereof is currently being contested in good faith by appropriate action
promptly initiated and diligently conducted in accordance with good business
practices and no material part of the property or assets of Borrower or any
Consolidated Subsidiary are subject to levy or execution, (ii) Borrower or such
Consolidated Subsidiary as required in accordance with GAAP, shall have set
aside on its books reserves (segregated to the extent required by GAAP) deemed
by it to be adequate with respect thereto, and (iii) if material, Borrower or
such Consolidated Subsidiary has notified Administrative Agent of such
circumstances, in detail satisfactory to Administrative Agent, and, provided
further, that Borrower or such Consolidated Subsidiary shall pay any such Tax,
Imposition or claim if such contest is not successful and in any event prior to
the commencement of any action to realize upon or foreclose any Lien against any
Unencumbered Property.
SECTION 7.7. Compliance with Laws and Documents. Borrower shall at all
times comply, and cause each of its Consolidated Subsidiaries to comply, with
all Legal Requirements, the articles of incorporation and bylaws, trust
agreement, partnership agreement or other organizational documents of Borrower
and each of the Consolidated Subsidiaries, and any other agreement to which
Borrower, or any Consolidated Subsidiary of Borrower is a party, unless its
failure to so comply alone or in the aggregate would not have a Material Adverse
Effect.
SECTION 7.8. Environmental Law Compliance and Indemnity. Each of Borrower
and the Guarantor Subsidiaries agrees to promptly pay and discharge when due all
debts, claims, liabilities and obligations with respect to any clean-up measures
necessary for Borrower or any Consolidated Subsidiary to comply with Applicable
Environmental Laws affecting Borrower or any Consolidated Subsidiary. Borrower
and the Guarantor Subsidiaries hereby, jointly and severally, indemnify and
agree to defend and hold Administrative Agent and each Lender and their
respective successors and assigns harmless from and against any and all claims,
demands, causes of action, loss, damage, liabilities, costs and expenses
(including reasonable attorneys' fees and court costs) of any and every kind or
character, known or unknown, fixed or contingent, asserted against or incurred
by Administrative Agent or any Lender at any time and from time to time
including, without limitation, those asserted or arising subsequent to the
payment or other
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 65
satisfaction of the Notes, by reason of, arising out of or related in any way to
the failure of Borrower or any Consolidated Subsidiary to comply with any
Applicable Environmental Law or Agent's and Lenders' entering into this
Agreement and the transactions herein contemplated, INCLUDING MATTERS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE (SOLE,
COMPARATIVE, CONTINGENT OR OTHERWISE) OF ADMINISTRATIVE AGENT OR ANY LENDER OR
FOR WHICH ADMINISTRATIVE AGENT OR ANY LENDER MAY HAVE STRICT LIABILITY, BUT
EXCLUDING MATTERS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
ADMINISTRATIVE AGENT OR ANY LENDER. It shall not be a defense to the covenant of
Borrower and the Guarantor Subsidiaries to indemnify that the act, omission,
event or circumstance did not constitute a violation of any Applicable
Environmental Law at the time of its existence or occurrence. The terms
"hazardous substance" and "release" shall have the meanings specified in the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), and the terms
"solid waste" and "disposed" shall have the meanings specified in the Resource
Conservation and Recovery Act of 1976 ("RCRA"); provided, to the extent that any
other applicable laws of the United States of America or political subdivision
thereof establish a meaning for "hazardous substance," "release," "solid waste,"
or "disposed" which is broader than that specified in either SARA or RCRA, such
broader meaning shall apply. As used in this Agreement, "Applicable
Environmental Law" shall mean and include the singular, and "Applicable
Environmental Laws" shall mean and include the collective aggregate of the
following: Any law, statute, ordinance, rule, regulation, order or determination
of any governmental authority or any board of fire underwriters (or other body
exercising similar functions), or any restrictive covenant or deed restriction
(recorded or otherwise) affecting Borrower or any Consolidated Subsidiary
pertaining to health, safety or the environment, including, without limitation,
all applicable flood disaster laws and health, safety and environmental laws and
regulations pertaining to health, safety or the environment, including without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, the
Superfund Amendments and Reauthorization Act of 1986, the Occupational Safety
and Health Act, the Texas Water Code, the Texas Solid Waste Disposal Act, the
Texas Workers' Compensation Laws, and any federal, state or municipal laws,
ordinances, regulations or law which may now or hereafter require removal of
asbestos or other hazardous wastes from any of the Property or impose any
liability on Administrative Agent or any Lender related to asbestos or other
hazardous wastes in any of the Property. The provisions of this Section 7.8
shall survive the repayment of the Obligations. In the event of the transfer of
the Notes or any portion thereof, each Lender or any prior holder of the Notes
and any Participants shall continue to be benefitted by this indemnity and
agreement with respect to the period of such holding of the Notes.
SECTION 7.9. Covenant Compliance. Borrower and each Guarantor Subsidiary
shall perform and comply with all covenants, obligations and agreements
contained in this Agreement and in the other Loan Documents.
SECTION 7.10. Quantity and Quality of Documents. All certificates,
opinions, reports and documents to be delivered from time to time hereunder
shall be in such number of counterparts as Administrative Agent may reasonably
request and in form reasonably acceptable to Administrative Agent, and
counterpart signature PAGEs to any such documents may be attached to and shall,
together with all counterparts, constitute one and the same document.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 66
SECTION 7.11. Use of Proceeds. Borrower and each Guarantor Subsidiary will
use the proceeds of the Credit Facility solely for the purposes represented in
this Agreement and shall not use such proceeds, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any Margin Stock in violation of any Legal Requirements, and none of such
proceeds will be used in violation of any other Legal Requirements.
SECTION 7.12. Additional Documents. Within ten (10) Business Days after
request by Administrative Agent, Borrower and each Guarantor Subsidiary agree
that they will execute and deliver or cause to be executed and delivered to
Administrative Agent such other and further instruments, documents or
certificates as in the reasonable judgment of Administrative Agent may be
required to better effectuate the transactions contemplated herein or to create,
evidence, preserve or maintain the Lenders' rights hereunder or under the other
Loan Documents, and Borrower and each Guarantor Subsidiary shall do all such
additional acts, give such assurances and execute such instruments as
Administrative Agent may reasonably require to vest more completely in and
assure to Lenders their rights under this Agreement and the other Loan
Documents.
ARTICLE 8
NEGATIVE COVENANTS
Borrower and each Guarantor Subsidiary covenant and agree that without the
prior written consent of the Required Lenders, so long as Lenders' commitment to
make Advances or arrange for the issuance of Letters of Credit under the Credit
Facility remains in effect, or any of the Obligations remain unpaid:
SECTION 8.1. Minimum Net Worth. Consolidated Net Worth shall not at any
time be less than the sum of (a) $1.2 billion prior to consummation of the
Summit Acquisition and $1.8 billion after consummation of the Summit
Acquisition, plus (b) an amount equal to eighty percent (80%) of the amount of
any proceeds (less reasonable and customary transaction costs) received by
Borrower or any Consolidated Subsidiary from any Equity Offering.
SECTION 8.2. Liabilities to Assets Ratios.
(a) (a) The ratio of (i) Total Consolidated Debt to (ii) Gross
Asset Value, shall not at any time be greater than 0.60 to 1.0; provided that,
during the two consecutive quarters following the quarter in which a Portfolio
Acquisition is consummated, the ratio of (x) Total Consolidated Debt to (y)
Gross Asset Value shall not at any time be greater than .65 to 1.0, after giving
effect to such Portfolio Acquisition.
(b) The ratio of (i) Secured Indebtedness to (ii) Gross Asset
Value shall not at any time be greater than 0.40 to 1.0.
(c) The ratio of (i) Secured Recourse Debt to (ii) all Secured
Indebtedness, shall not at any time be greater than 0.50 to 1.0.
(d) On a loan-by-loan basis, Borrower and its Consolidated
Subsidiaries shall not incur Secured Recourse Debt that exceeds 75% of the
current appraised value (or cost if a
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 67
current appraisal is not available or the current appraised value is otherwise
uncertain) of the Real Estate securing such loan.
SECTION 8.3. Interest Coverage Ratio. The ratio of (a) Consolidated EBITDA
for the immediately preceding fiscal quarter, and then annualized, to (b)
Consolidated Interest Expense for the immediately preceding fiscal quarter, and
then annualized, shall not at any time be less than 2.00 to 1.00.
SECTION 8.4. Fixed Charge Coverage Ratio. The ratio of (a) Consolidated
EBITDA for the immediately preceding fiscal quarter, and then annualized, to (b)
Fixed Charges for the immediately preceding calendar quarter, and then
annualized, shall not at any time be less than or equal to 1.75 to 1.00.
SECTION 8.5. Debt Limitations. Neither Borrower nor any Consolidated
Subsidiary shall incur any Debt, the occurrence of which would cause a violation
or breach of any covenant or term of this Agreement, including without
limitation those contained in Section 5.1 or Section 8.2.
SECTION 8.6. Limitation on Sale or Transfer of Assets. Neither Borrower
nor any Consolidated Subsidiary shall sell, assign, convey, exchange, lease,
transfer or otherwise dispose of any of its Property, except (a) for leasing and
sales in the ordinary course of its business, (b) transfers of assets by a
Consolidated Subsidiary to Borrower or to another Guarantor Subsidiary, or
between Borrower and any Guarantor Subsidiary or between Guarantor Subsidiaries,
and (c) transfers of assets by a Consolidated Subsidiary to another Consolidated
Subsidiary.
SECTION 8.7. Permitted Liens. Borrower shall not , and Borrower shall not
permit any of its Consolidated Subsidiaries to, create, incur, assume or suffer
to exist any Lien upon any of the Property, except for (a) Permitted Liens, (b)
capitalized leases with respect to computer and other office equipment or
inventory and purchase money liens with respect to personal property so long as
(i) the Debt secured by any such Lien does not exceed the purchase price of such
personal property (ii) any such Lien encumbers only the personal property so
purchased and the proceeds upon sale, disposition, loss or destruction thereof
is used to pay the Debt secured thereby, and (iii) such Lien, after giving
effect to the Debt secured thereby, does not give rise to an Event of Default,
and (c) Liens on Property securing Secured Indebtedness to the extent such Liens
and Secured Indebtedness does not result in a violation of the terms and
covenants hereof.
SECTION 8.8. Consolidations, Mergers, and Maintenance. Borrower shall not,
and Borrower shall not permit any of its Consolidated Subsidiaries to: (a)
consolidate or merge with or into any other Person except for (i) mergers of any
Guarantor Subsidiary into Borrower (with Borrower as the survivor of any such
merger) or another Guarantor Subsidiary, (ii) a consolidation or merger by any
Consolidated Subsidiary of Borrower that is not a Guarantor Subsidiary with a
Guarantor Subsidiary or with another Person in which Borrower remains the direct
or indirect owner of all of the outstanding capital stock and other equity
securities of the continuing or surviving entity, or (iii) a merger or
consolidation with another Person if (A) such Person is organized under the laws
of United States of America or one of its States, (B) Borrower or a Guarantor
Subsidiary is the surviving entity, and (C) Borrower continues to be in
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 68
compliance with all financial and other covenants contained in this Agreement,
and no Change in Control or Default or Event of Default results or would result
from such transaction; or (b) other than in connection with a consolidation or
merger permitted in clause (a) immediately above terminate, or fail to maintain,
its corporate existence or qualification, as applicable, in the state of its
incorporation and any other applicable jurisdiction where the business of such
Consolidated Subsidiary requires such qualification (provided that nothing
herein shall permit the dissolution of Borrower or the failure of Borrower to
maintain its trust existence and qualification to do business as elsewhere
required in this Agreement); or (c) terminate, or fail to maintain, its good
standing and qualification to transact business in all jurisdictions where the
failure to maintain its good standing or qualification to transact business
could have a material adverse effect on its financial condition or operations.
SECTION 8.9. Management of Property. No material change shall be made in
the manner in which the Property is being leased, managed and operated without
the prior written consent of Administrative Agent.
SECTION 8.10. Intentionally Deleted.
SECTION 8.11. Limitation on Distributions. Unless necessary to comply with
Section 7.2 with respect to Borrower's qualification as a real estate investment
trust, or solely as a result of a conversion of convertible debentures, Borrower
shall not, directly or indirectly, declare or pay any Distribution with respect
to any class of stock of Borrower unless, immediately after giving effect to
such proposed Distribution, the aggregate of all Distributions made during any
Fiscal Year would not exceed ninety-five percent (95%) of Funds from Operations
for Borrower and its Consolidated Subsidiaries attributable to such period.
SECTION 8.12. Investments. Borrower shall not, and shall not permit any of
its Consolidated Subsidiaries to, make any Investments, other than Investments
in the following:
(a) Unimproved Real Estate (excluding Development Properties), to
the extent only that the cost thereof, when added to the aggregate cost of all
unimproved Real Estate (excluding Development Properties) then owned by Borrower
and its Consolidated Subsidiaries, would not exceed five percent (5.0%) of Gross
Asset Value.
(b) Ownership interests in partnerships, joint ventures,
unconsolidated Affiliates or similar entities [accounted for on an equity basis
(determined in accordance with GAAP)], to the extent only that the aggregate
amount of such Investments does not exceed twenty percent (20%) of Gross Asset
Value.
Once the aggregate of all Investments by Borrower and its Consolidated
Subsidiaries in such joint ventures and partnerships (other than as a guarantor)
exceeds the lesser of two and one-half percent (2.5%) of Gross Asset Value or
One Hundred Fifty Million and No/100 Dollars ($150,000,000.00), then all such
Investments shall be treated on a pro rata basis such that Borrower shall be
credited with a pro rata share of income and investment and will be charged with
a pro rata share of the applicable expense and liability, with respect to such
Investments, as if such Investments were reflected on a consolidated basis. The
pro rata treatment of such Investments shall continue only so long as the
aggregate amount of such Investments is greater
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 69
than the lesser of two and one-half percent (2.5%) of Gross Asset Value or One
Hundred Fifty Million and No/100 Dollars ($150,000,000.00).
(c) The stock or other beneficial or equity ownership interests of
any Persons other than Consolidated Subsidiaries and Affiliates, to the extent
only that the aggregate amount of such Investments does not exceed five percent
(5%) of Gross Asset Value.
(d) Property that is not multi-family projects, or other assets,
so long as the aggregate undepreciated book value (as determined in accordance
with GAAP) of such non-multi-family projects and other assets does not exceed
seven and one-half percent (7.5%) of Gross Asset Value.
(e) Development Properties to the extent only that the aggregate
amount of such Investments does not exceed twenty percent (20%) of Gross Asset
Value.
(f) Notes, mortgages and accounts receivable evidencing
indebtedness payable to Borrower and its Consolidated Subsidiaries, to the
extent only that the aggregate amount of such Investments does not exceed ten
percent (10%) of Gross Asset Value.
In addition to the limitations set forth above, in no event shall the
aggregate value of all the Investments permitted under Section 8.12(a) through
(f) above exceed twenty-five percent (25%) of Gross Asset Value at any time. The
value of the Investments for the purpose of this section shall be the aggregate
undepreciated book value thereof, as determined in accordance with GAAP (which
shall be at the lower of cost or market).
SECTION 8.13. Negative Pledge. Borrower and each Consolidated Subsidiary
shall not (a) enter into any negative pledge agreements with any other Person
such that Borrower or any of Guarantor Subsidiaries shall be prohibited from
granting to Administrative Agent, for the benefit of Lenders, as security for
the Obligations, a first priority security interest in all the stock or other
equity interests of Borrower in any of such Guarantor Subsidiaries ("Equity
Interests"); or (b) grant any Liens with respect to any Equity Interests.
SECTION 8.14. Transactions with Affiliates. Neither Borrower nor any
Consolidated Subsidiary shall engage in any transaction with an Affiliate of
Borrower unless such transaction is (a) between Borrower and any Consolidated
Subsidiary or between Guarantor Subsidiaries or (b) is generally as favorable to
Borrower or such Consolidated Subsidiary as could be obtained in an arm's length
transaction with an unaffiliated Person in accordance with prevailing industry
customs and practices.
SECTION 8.15. Employee Plans.
(a) Neither Borrower nor any Guarantor Subsidiary shall, nor shall
any such Person cause any member of its Controlled Group (as that term is
defined in the Code) to, fail to maintain and administer any Employee Plan in
accordance with the applicable requirements of the Code and ERISA. Neither
Borrower nor any Guarantor Subsidiary shall permit or suffer to exist any
circumstances with respect to any Employee Plan that could have a material
adverse effect on Borrower or such Guarantor Subsidiary.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 70
(b) With respect to any Pension Plan, neither Borrower nor any
Guarantor Subsidiary shall (i) permit any accumulated funding deficiency (within
the meaning of Section 412(a) of the Code), whether waived or unwaived, to
exist; (ii) permit the present value of accrued benefits (based on the most
recent actuarial valuation prepared for each such plan, if any, in accordance
with ongoing actuarial assumptions) to exceed the current value of plan assets
allocable to such benefits by a material amount; (iii) permit any reportable
event (within the meaning of Section 4043 of ERISA) to occur, other than
purchases and sales of securities from a plan trustee as reported in the audited
financial statements of such plan; (iv) permit a prohibited transaction (within
the meaning of Section 4975 of the Code) to occur which has or could have a
material adverse effect on Borrower or any Guarantor Subsidiary; (v) incur any
material liability to the PBGC; or (vi) incur any material withdrawal liability
(within the meaning of Section 4201(a) of ERISA).
(c) Neither Borrower nor any Guarantor Subsidiary shall incur a
material obligation to provide post-employment health care benefits to any of
its current or former employees, except as may be required by Section 4980B of
the Code or otherwise required by law.
SECTION 8.16. Use Violations. Neither Borrower nor any Guarantor
Subsidiary shall use, maintain, operate or occupy, or allow the use,
maintenance, operation or occupancy of, any of its properties in any manner that
(a) violates any Legal Requirement, (b) may be dangerous unless safeguarded as
required by law, (c) constitutes a public or private nuisance, (d) makes void,
voidable or cancelable any insurance then in force with respect thereto or (e)
makes void, voidable, or cancelable any governmental permit, unless the
occurrence of any such event would not have a Material Adverse Effect on
Borrower or any Guarantor Subsidiary.
SECTION 8.17. Exceptions to Covenants. Neither Borrower nor any Guarantor
Subsidiary shall take or permit to be taken any action or fail to take any
action which is permitted by any of the covenants contained in this Agreement if
such action or omission would result in the breach of any other covenant
contained in this Agreement.
SECTION 8.18. Fiscal Year and Accounting Methods. Neither Borrower nor any
Guarantor Subsidiary will change its Fiscal Year or its method of accounting
(other than changes as are concurred with by Borrower's independent public
accountants as being required by GAAP).
SECTION 8.19. Governmental Regulations. Neither Borrower nor any Guarantor
Subsidiary will conduct its business in such a way that it will become subject
to regulation under the Investment Advisers Act of 1940, as amended. Neither
Borrower nor any Guarantor Subsidiary will conduct its business in such a way
that it will become subject to regulation under the Investment Company Act of
1940, as amended, or the Public Utility Holding Company Act of 1935, as amended,
or any other laws, rules or regulations which regulate the incurrence of Debt.
SECTION 8.20. Treasury Stock. Borrower shall not purchase any of its stock
or beneficial interests or other equity securities during the continuance of an
Event of Default.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 71
ARTICLE 9
DEFAULTS AND REMEDIES
SECTION 9.1. Events of Default. The term "Event of Default" as used in
this Agreement, shall mean any one of the following:
(a) Failure to Pay Obligations. The failure of Borrower to pay any
principal of any Advance (including under any Note or any Competitive Bid Note)
or Swingline Advance, any installment thereof, any interest thereon, or any fees
or other amount required to be paid to Administrative Agent, the Lenders or the
Fronting Bank hereunder or under the Notes, the Swingline Note or the other Loan
Documents when due and payable, whether at scheduled maturity or any other
payment date, upon acceleration, or otherwise.
(b) Nonperformance of Particular Covenants. Borrower shall fail to
observe or perform any covenant contained in Article V, Sections 7.1, 7.2, and
7.11 and Article VIII (other than Sections 8.9 and 8.12).
(c) Nonperformance of Other Covenants. The failure of Borrower
(and, if applicable, any of the Guarantor Subsidiaries or other Consolidated
Subsidiaries) to timely and properly observe, keep or perform any covenant,
agreement or condition required herein or any other Loan Document, other than an
Event of Default specifically addressed in another subsection of this Section
9.1, and the continuation of such failure for ten (10) days after written notice
thereof has been given to Borrower by Administrative Agent, of if such default
is of such a nature that it cannot reasonably be completely remedied within said
ten (10) day period, such additional period of time as may be reasonably
necessary to cure same, provided Borrower commences such cure within such ten
(10) day period and diligently prosecutes same, until completion, but in no
event shall such extended period exceed thirty (30) days.
(d) Representations and Warranties. Any statement, representation
or warranty made by or on behalf of Borrower or any Guarantor Subsidiary herein
or any other Loan Document, or in any financial statement or any other writing
heretofore or hereafter delivered to Administrative Agent or any Lender in
connection with the Obligations is false, fraudulent, misleading or erroneous in
any material respect and the defect causing such representation or warranty to
be incorrect when made or deemed made (but only if such defect is of such a
nature that it can be cured within the following cure period and is not as a
result of fraud or intentional misrepresentation) is not removed within thirty
(30) days after written notice thereof from Administrative Agent to Borrower.
(e) Bankruptcy or Insolvency. Borrower or Guarantor Subsidiary or
any other Consolidated Subsidiary of Borrower:
(i) (A) executes an assignment for the benefit of creditors,
or takes any action in furtherance thereof; (B) admits in writing
its inability to pay, or fails to pay, its debts generally as they
become due; (C) as a debtor, files a petition, case, proceeding or
other action pursuant to, or voluntarily seeks the benefit of any
Debtor Relief Law, or takes any action in furtherance thereof; or
(D) seeks
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 72
the appointment of a receiver, trustee, custodian or liquidator of
any part of the Property; or
(ii) suffers the filing of a petition, case, proceeding or
other action against it as a debtor under any Debtor Relief Law or
seeking appointment of a receiver, trustee, custodian or liquidator
of any part of the Property, and (A) admits, acquiesces in or fails
to contest diligently the material allegations thereof; (B) the
petition, case, proceeding or other action results in entry of any
order for relief or order granting relief sought against it; (C) in
a proceeding under the Title 11 of the United States Code, the case
is converted from one chapter to another; or (D) fails to have the
petition, case, proceeding or other action permanently dismissed or
discharged on or before the earlier of trial thereon or ninety (90)
days next following the date of its filing; or
(iii) conceals, removes, or permits to be concealed or
removed, any part of its Property, with intent to hinder, delay or
defraud its creditors or any of them, or makes or suffers a transfer
of any of its Property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar Law; or suffers or permits, while
insolvent, any creditor to obtain a lien (other than as described in
subparagraph (iv) below) upon any of its Property through legal
proceedings which are not vacated and such lien discharged prior to
enforcement of such lien and in any event within ninety (90) days
from the date thereof; or
(iv) fails to have discharged within a period of thirty (30)
days any attachment sequestration, or similar writ levied upon any
of its Property; or
(v) fails to pay any final money judgment in excess of
$500,000 against it within thirty (30) days after the entry of such
judgment.
(f) Liquidation. The liquidation, termination, dissolution,
merger, or consolidation of Borrower, any Guarantor Subsidiary or any other
Consolidated Subsidiary of Borrower, other than a merger or consolidation,
permitted under the terms and conditions of Section 8.8.
(g) Material Adverse Change. Any circumstance or event of whatever
nature (including the filing of, or any adverse determination or development in,
any Litigation) occurs which (a) impairs the validity or enforceability of any
Loan Document with respect to a material term, (b) materially and adversely
affects or changes the condition (financial or otherwise), operations, business,
management or assets of Borrower and the Guarantor Subsidiaries, taken as a
whole, or (c) impairs the ability of Borrower to make any payment of principal
or interest due on the Notes or any Competitive Bid Note or to fulfill any other
material Obligation.
(h) Enforceability; Priority. Any Loan Document shall for any
reason cease to be in full force and effect, be declared null and void or
unenforceable in whole or in part cease to have the priority required herein, or
the validity or enforceability thereof, in whole or in part shall be challenged
or denied but, in the case of a challenge by a party other than Borrower or
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 73
any of its Consolidated Subsidiaries, only if Administrative Agent reasonably
determines that such challenge is serious.
(i) Employee Plan Assets; Reportable Event. The characterization
of the assets of Borrower or any of its Consolidated Subsidiaries as assets of
an Employee Plan if such plan owns stock in Borrower or any of its Consolidated
Subsidiaries; or with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and Administrative Agent shall have
determined in its discretion that such event could reasonably be expected to
result in liability of Borrower or any Consolidated Subsidiary to the PBGC.
(j) Other Loan Documents. A default or event of default occurs
under any Loan Document other than this Agreement and the same is not remedied
within the applicable period of grace (if any) provided in such Loan Document.
(k) Other Debt. In respect of any borrowed Debt (other than the
Obligations) of Borrower or any Consolidated Subsidiary individually or
collectively in an amount equal to or greater than at least $5,000,000, (a) any
default or other event or condition occurs or exists beyond the applicable grace
or cure period, the effect of which is to cause or to permit any holder of such
Debt to cause, whether or not it elects to cause, any of that Debt to become due
before its stated maturity or regularly scheduled payment dates, or (b) any of
such Debt is declared to be due and payable or required to be prepaid by
Borrower or any Consolidated Subsidiary before its stated maturity, or (c) any
of such Debt is not paid when due.
(l) Guarantor Denial. Any Guarantor Subsidiary denies that it has
any liability or obligation under its Guaranty Agreement, or shall notify
Administrative Agent or any of the Lenders of its intention to attempt to cancel
or terminate its Guaranty Agreement, or shall fail to observe or comply with any
term, covenant, condition or agreement under its Guaranty Agreement or
pertaining to such Guarantor Subsidiary hereunder.
(m) Control. A Change in Control occurs or there shall be a change
in the majority of the Board of Trustees (or Directors) of Borrower during any
twelve (12) month period, excluding any change in trustees (or directors)
resulting from (i) the death or disability of any trustee or director, or (ii)
satisfaction of any requirement for the majority of the members of the board of
trustees or directors of Borrower to qualify under applicable law as independent
trustees or directors or (iii) the replacement of any trustee or director who is
an officer or employee of Borrower or an affiliate of Borrower with any other
officer or employee of Borrower or an affiliate of Borrower.
It is understood and agreed by Borrower and each Guarantor Subsidiary that
any of the foregoing "Events of Default" shall constitute a default under each
of the Notes and Competitive Bid Notes, and that such "Events of Default" are
cumulative and in addition to any default or events of default contained in any
of the other Loan Documents, and that in the event of any discrepancy or
inconsistency between any Event of Default hereunder and any default or event of
default contained in any other Loan Document, the description of the Event of
Default stated herein shall control.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 74
SECTION 9.2. Notice and Cure. If any Loan Document provides for
Administrative Agent to give to Borrower any notice regarding a Default or an
Event of Default, and if Administrative Agent fails to give such notice to
Borrower as provided, the sole and exclusive remedy of Borrower for such failure
(unless such failure was a result of the gross negligence or willful misconduct
of Administrative Agent or any Lender) shall be to seek appropriate equitable
relief to enforce the agreement to give such notice and to have any acceleration
of the maturity of the Obligations postponed or revoked pending or upon the
curing of such Default to Administrative Agent's satisfaction in the manner and
during the period of time permitted by such agreement, if any, and Borrower
waives any and all right to damages and any other relief.
SECTION 9.3. Remedies. Upon the occurrence of an Event of Default,
Administrative Agent may, and at the direction and election of the Required
Lenders shall, acting by or through any of its agents, trustees or other
Persons, without notice (unless expressly provided for herein), demand or
presentment (including, without limitation, notice of default, notice of intent
to accelerate or of acceleration) all of which are hereby waived, and in
addition to any other provision of this Agreement or any other Loan Document,
exercise any or all of the following rights, remedies and recourses: Terminate
the Lenders' commitment to make Advances hereunder and declare the unpaid
principal balance of each of the Notes, and each of the Competitive Bid Notes
and Swingline Notes, and the accrued and unpaid interest thereon, and any other
accrued but unpaid portion of the Obligations to be immediately due and payable,
without notice (expressly including, but not limited to, notice of default,
notice of intent to accelerate or of acceleration), except any notice that is
expressly required by the terms of this Agreement, presentment, protest, demand
or action of any nature whatsoever, each of which hereby is expressly waived by
Borrower and each of its Consolidated Subsidiaries, whereupon the same shall
become immediately due and payable, and reduce any claim to judgment.
Notwithstanding the foregoing or anything to the contrary contained herein or in
any other Loan Document, upon the occurrence of an Event of Default described in
Section 9.1(e)(i)(C) or 9.1(e)(ii) the entire unpaid principal balance of the
Notes, the Competitive Bid Notes and the Swingline Note, and all accrued, unpaid
interest thereon and any other accrued but unpaid portion of the Obligations
shall automatically be accelerated and immediately be due and payable in full
and the Lenders' Commitment automatically terminated, without notice (expressly
including, but not limited to, notice of default, intent to accelerate or of
acceleration), presentment, protest, demand or action of any nature whatsoever,
each of which hereby is expressly waived by Borrower; provided, however, that if
accelerated automatically pursuant to this sentence, the Notes, the Competitive
Bid Notes and the Swingline Note and all such indebtedness may be reinstated at
the option and upon the written approval of the Required Lenders, and in the
case of the Swingline Note, the Swingline Lender.
SECTION 9.4. Rights of Set-Off.
(a) Each of Borrower and the Guarantor Subsidiaries hereby
expressly grants to Administrative Agent and the Lenders the right of setoff
against all deposits and other sums at any time held or credited by or due from
Administrative Agent or any Lender to Borrower or any Guarantor Subsidiary, in
accordance with the provisions of this Section 9.4. The rights of Administrative
Agent and each Lender under this Section 9.4 are in addition to other rights and
remedies (including, without limitation, other rights of setoff under law or
equity) that Administrative Agent and each Lender may have under law or by
agreement.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 75
(b) Upon the occurrence and during the continuance of any Event of
Default, each Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, at its option, without notice or demand and
without liability, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, excepting, however, any fiduciary
or escrow accounts established by Borrower or any Guarantor Subsidiary into
which only funds of unrelated third-parties are deposited, and provided that
Borrower or such Guarantor Subsidiary has informed such Lender and
Administrative Agent of the nature of such accounts) at any time held, and other
indebtedness at any time owing, by any Lender or any Affiliate thereof to or for
the credit or the account of Borrower or any Guarantor Subsidiary against any
and all of the Obligations now or hereafter existing under this Agreement, the
Notes and the other Loan Documents, in such order and manner as such Lender may
determine, subject, however, to the agreements contained in Section 10.14
hereof, regardless of whether such Lender shall have made any demand under this
Agreement or the Notes or the Competitive Bid Notes and although such
obligations may be unmatured.
(c) Borrower and each Guarantor Subsidiary agree, to the fullest
extent it may effectively do so under applicable law, that each Lender and any
holder of a participation in any of the Notes (with the appropriate consent of
such Lender) may exercise rights of setoff or counterclaim and other rights with
respect to such participation as fully as if such holder of a participation were
a direct creditor of Borrower or such Guarantor Subsidiary in the amount of such
participation.
SECTION 9.5. Remedies Cumulative, Concurrent and Non-Exclusive.
Administrative Agent and the Lenders shall have all rights, remedies and
recourses granted in the Loan Documents, and available at law or equity, and
same (a) shall be cumulative and concurrent, (b) may be pursued separately,
successively or concurrently against Borrower or any Guarantor Subsidiary, or
any others obligated under any of the Notes, Competitive Bid Notes or Swingline
Note, or against any one or more of them, at the sole discretion of Lenders, (c)
may be exercised as often as the occasion therefor shall arise, it being agreed
by Borrower and each Guarantor Subsidiary that the exercise or failure to
exercise any of same shall in no event be construed as a waiver or release
thereof or of any other right, remedy or recourse, and (d) are intended to be,
and shall be, non-exclusive.
SECTION 9.6. No Conditions Precedent to Exercise Remedies. Borrower and
each other Person hereafter obligated for payment or fulfillment of all or any
part of the Obligations shall not, except as otherwise provided by applicable
law, be relieved of such obligation by reason of (a) the release, regardless of
consideration, of any Person obligated with respect to the Obligations, and (b)
any other act or occurrence, save and except the complete payment of the
Obligations. Borrower and each Guarantor Subsidiary waive any right to require
Lenders to proceed against any other Person, or pursue any other remedy in
Lenders' power. All dealings between Borrower, any Guarantor Subsidiary,
Administrative Agent and any Lender, whether or not resulting in the creation of
the Obligations, shall conclusively be presumed to have been had or consummated
upon reliance upon this Agreement. Borrower and each Guarantor Subsidiary
authorize Lenders, without notice or demand and without any reservation of
rights against Borrower or any Guarantor Subsidiary and without affecting
liability hereunder or on the Obligations, from time to time, to renew, extend
for any period, accelerate, modify, compromise,
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 76
settle, or release the obligation of any other Person that may be obligated with
respect to any or all of the Obligations.
SECTION 9.7. Waivers. To the full extent permitted by law, Borrower and
each Guarantor Subsidiary hereby irrevocably and unconditionally waive and
release (a) except as specifically provided for herein, all notices of any
Default or Event of Default or of the election by Administrative Agent or the
Lenders to exercise any right, remedy or recourse provided for under the Loan
Documents, (b) any right to a marshaling of assets with respect to the Notes,
Competitive Bid Notes or Swingline Note or any Debt of Borrower or any Guarantor
Subsidiary, and (c) except as specifically provided for herein, any and all
right to receive demand, grace, notice, presentment for payment, protest, notice
of intention to accelerate the Obligations or notice of acceleration of the
Obligations.
SECTION 9.8. Discontinuance of Proceedings. In case Administrative Agent
shall have proceeded to invoke any right, remedy or recourse permitted under the
Loan Documents and shall thereafter elect to discontinue or abandon same for any
reason, Administrative Agent shall have the unqualified right to do so and, in
such event, Borrower, each Guarantor Subsidiary, Administrative Agent and the
Lenders shall be restored to their respective former positions with respect to
the Obligations, the Loan Documents, and otherwise, and the rights, remedies,
recourses and powers of Administrative Agent and Lenders shall continue as if
same had never been invoked.
SECTION 9.9. Application of Proceeds. All payments on the Notes or the
Competitive Bid Notes received by Administrative Agent or any Lender during the
existence of an Event of Default, shall be applied as determined by the Required
Lenders (provided that, as among themselves, Lenders agree that any such
proceeds shall be applied as contemplated by Article X hereof); all payments
received by a Lender on its Competitive Bid Note during the existence of an
Event of Default shall be applied as determined by the applicable Lender; and
all payments received by Swingline Lender on the Swingline Note during the
existence of an Event of Default shall be applied as determined by Swingline
Lender.
SECTION 9.10. Actions in Respect of Letters of Credit.
(a) If any Letter of Credit shall have been issued hereunder and
remains outstanding on the Termination Date or upon the occurrence of an Event
of Default, then Borrower shall pay to Administrative Agent, on behalf of the
Lenders, in same day funds at Administrative Agent's office designated in such
demand, for deposit in a special cash collateral account (the "Letter of Credit
Collateral Account") to be maintained in the name of Administrative Agent (on
behalf of Lenders) and under its sole dominion and control at such place as
shall be designated by Administrative Agent, an amount equal to the amount of
the Letter of Credit Usage under the Letters of Credit. Interest shall accrue on
the Letter of Credit Collateral Account at a rate equal to the rate on overnight
funds.
(b) Borrower hereby pledges, assigns and grants to Administrative
Agent, as administrative agent for its benefit and the ratable benefit of
Lenders, a lien on and a security interest in, the following collateral (the
"Letter of Credit Collateral"):
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 77
(i) the Letter of Credit Collateral Account, all cash
deposited therein and all certificates and instruments, if any, from
time to time representing or evidencing the Letter of Credit
Collateral Account;
(ii) all notes, certificates of deposit and other instruments
from time to time hereafter delivered to or otherwise possessed by
Administrative Agent for or on behalf of Borrower in substitution
for or in respect of any or all of the then existing Letter of
Credit Collateral;
(iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then
existing Letter of Credit Collateral; and
(iv) to the extent not covered by the above clauses, all
proceeds of any or all of the foregoing Letter of Credit Collateral.
The lien and security interest granted hereby secures the payment of
all obligations of Borrower now or hereafter existing hereunder and
under any other Loan Document.
(c) Borrower hereby authorizes Administrative Agent for the
ratable benefit of Lenders to apply, from time to time after funds are deposited
in the Letter of Credit Collateral Account, funds then held in the Letter of
Credit Collateral Account to the payment of any amounts, in such order as
Administrative Agent may elect, as shall have become due and payable by Borrower
to Lenders in respect of the Letters of Credit.
(d) Neither Borrower nor any Person claiming or acting on behalf
of or through Borrower shall have any right to withdraw any of the funds held in
the Letter of Credit Collateral Account, except as provided in this Section
9.10.
(e) Borrower agrees that it will not (i) sell or otherwise dispose
of any interest in the Letter of Credit Collateral or (ii) create or permit to
exist any lien, security interest or other charge or encumbrance upon or with
respect to any of the Letter of Credit Collateral, except for the security
interest created by this Section 9.10.
(f) After the Termination Date or if any Event of Default shall
have occurred and be continuing:
(i) Administrative Agent may, in its sole discretion,
without notice to Borrower except as required by law and at any time
from time to time, charge, set off or otherwise apply all or any
part of first, (x) amounts previously drawn on any Letter of Credit
that have not been reimbursed by Borrower and (y) any Letter of
Credit Usage described in clause (ii) of the definition thereof that
are then due and payable and second, any other unpaid Obligations
then due and payable against the Letter of Credit Collateral Account
or any part thereof, in such order as Administrative Agent shall
elect. The rights of Administrative Agent under this Section 9.10
are in addition to any rights and remedies which any Lender may
have.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 78
(ii) Administrative Agent may also exercise, in its sole
discretion, in respect of the Letter of Credit Collateral Account,
in addition to the other rights and remedies provided herein or
otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code in effect in
the State of Texas at that time.
(g) Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Letter of Credit
Collateral if the Letter of Credit Collateral is accorded treatment
substantially equal to that which Administrative Agent accords its own property,
it being understood that, assuming such treatment, Administrative Agent shall
not have any responsibility or liability with respect thereto.
(h) Prior to the Termination Date, at such time as all Events of
Default have been cured or waived in writing, all amounts remaining in the
Letter of Credit Collateral Account shall be promptly returned to Borrower.
Absent such cure or written waiver, any surplus of the funds held in the Letter
of Credit Collateral Account and remaining after termination of all outstanding
Letters of Credit and payment in full of all of the Obligations of Borrower
hereunder and under any other Loan Document after the Termination Date shall be
paid to Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
(i) Notwithstanding anything contained herein to the contrary,
from and after an Event of Default, to the extent proceeds are received by
Administrative Agent, such proceeds will be distributed to Lenders pro rata in
accordance with their Aggregate Loan Percentages.
ARTICLE 10
AGENTS AND THE LENDERS
SECTION 10.1. Appointment and Authorization of Agents.
(a) Each Lender hereby irrevocably appoints and authorizes
Administrative Agent as its nominee and agent, in its name and on its behalf:
(i) to act as nominee for and on behalf of such Lender in and under all Loan
Documents; (ii) to arrange the means whereby the funds of the Lenders are to be
made available to Borrower under the Loan Documents; (iii) to take such action
as may be requested by any Lender under the Loan Documents (when such Lender is
entitled to make such request under the Loan Documents and after such requesting
Lender has obtained the concurrence of such other Lenders as may be required
under the Loan Documents); (iv) to receive all documents and items to be
furnished to Lenders under the Loan Documents; (v) to promptly distribute to
each Lender the material information, notices, requests, documents and items
received from Borrower or the Guarantor Subsidiaries under the Loan Documents,
including, without limitation, the documents delivered by Borrower to
Administrative Agent pursuant to Section 7.1 hereof; (vi) to promptly distribute
to each Lender such Lender's Commitment Percentage (subject to the last
paragraph of Section 10.6) of each payment or prepayment in accordance with the
terms of the Loan Documents; and (vii) to deliver to the appropriate Persons
requests, demands, approvals and consents received from the Lenders.
(b) The obligations of each Agent, the Sole Lead Arranger and the
Joint Bookrunners hereunder are only those expressly set forth herein. Each
Lender and Borrower and
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 79
each Guarantor agree that no Agent, Sole Lead Arranger nor the Joint Bookrunners
is a fiduciary for Lenders or for Borrower or the Guarantor Subsidiaries but
simply is acting in the capacity described herein to alleviate administrative
burdens for both Borrower and Lenders and that no Agent has duties or
responsibilities to the Lenders, Borrower or of Borrower's counsel or any
Guarantor Subsidiaries except those expressly set forth herein. Without limiting
the generality of the foregoing, Administrative Agent shall not be required to
take any action or exercise any right or remedy with respect to any Default or
Event of Default, except if requested by the Required Lenders. Notwithstanding
the administrative authority delegated to Administrative Agent, Administrative
Agent shall not cause or permit any modification of the Loan Documents or take
other action relating to the Credit Facility specifically requiring the consent
or approval of the Required Lenders without such consent or approval. Action
taken by Administrative Agent including, without limitation, any exercise of
remedies or initiation of suit or other legal proceedings made in accordance
with the instructions of the Required Lenders or as otherwise permitted by this
Article X, shall be binding upon each of the Lenders. Each Lender specifically
acknowledges that it has reviewed and approved the voting and other provisions
of this Agreement and the other Loan Documents setting forth the relative rights
and obligations among the Lenders and agrees to be bound by such provisions, and
acknowledges that Administrative Agent (and counsel for the Lenders, as a group)
are acting on behalf of all the Lenders.
(c) Each Agent, in its capacity as a Lender, shall have the same
Rights under the Loan Documents as any other Lender and may exercise the same as
though it were not acting as an Agent, and any resignation by any Agent
hereunder shall not impair or otherwise affect any Rights which it has or may
have in its capacity as an individual Lender.
(d) Each Agent, Sole Lead Arranger, Joint Bookrunner and Lender
may now or hereafter be engaged in one or more loan, letter of credit, leasing,
or other financing transactions with Borrower or any Guarantor Subsidiary, act
as trustee or depositary for Borrower or any Guarantor Subsidiary or otherwise
be engaged in other transactions with Borrower, any Guarantor Subsidiary and/or
their Affiliates (collectively, the "other activities") not the subject of the
Loan Documents. Without limiting the Rights of the Lenders specifically set
forth in the Loan Documents, none of the Agents, Sole Lead Arranger, Joint
Bookrunners or Lenders shall be responsible to account to the other Lenders for
such other activities, and no Lender shall have any interest in any other
activities, any present or future guaranties by or for the account of Borrower
or any Guarantor Subsidiary which are not contemplated or included in the Loan
Documents, any present or future offset exercised by any Agent, Sole Lead
Arranger, Joint Bookrunners or Lender in respect of such other activities, any
present or future property taken as security for any such other activities, or
any property now or hereafter in the possession or control of any Agent, Sole
Lead Arranger, Joint Bookrunner or Lender which may be or become security for
the Obligations by reason of the general description of indebtedness secured or
of property contained in any other agreements, documents or instruments related
to any such other activities; provided that, if any payments in respect of such
guaranties, such property or the proceeds thereof or any offset shall be applied
to reduction of the Obligations, then each Lender shall be entitled to share in
such application pursuant to the terms of this Agreement.
(e) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to Borrower or any Guarantor, Administrative
Agent (irrespective of whether the
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 80
principal of the Loan or Letter of Credit Usage shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether
Administrative Agent shall have made any demand on Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise (i) to file and
prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loan and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of Lenders and Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
Lenders and Administrative Agent and their respective agents and counsel and all
other amounts due Lenders and Administrative Agent under the Loan Documents)
allowed in such judicial proceeding; and (ii) to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender to make such payments to Administrative Agent and, in
the event that Administrative Agent shall consent to the making of such payments
directly to Lenders, to pay to Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of Administrative
Agent and its agents and counsel, and any other amounts due Administrative
Agent. Nothing contained herein shall be deemed to authorize Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize Administrative Agent to
vote in respect of the claim of any Lender in any such proceeding.
SECTION 10.2. Possession of Instruments by Administrative Agent.
Administrative Agent shall exercise all rights and remedies under the Loan
Documents and take all actions with respect thereto in accordance with the
request or direction of the Required Lenders, or otherwise as and to the extent
provided herein or in the other Loan Documents; provided, however, that
Administrative Agent may take such actions in its name without the joinder of
the Lenders, and Borrower, the Guarantor Subsidiaries and all third parties,
including Borrower and Guarantor Subsidiaries, shall be entitled to rely on the
actions taken by Administrative Agent with respect to the execution by
Administrative Agent of any and all agreements, financing statements,
affidavits, notices or any other type of document or instrument pertaining
thereto, including, without limitation, in connection with the exercise of any
rights or remedies of the Lenders under the Loan Documents, and the same shall
be binding upon all the Lenders as to any third party relying on such actions of
Administrative Agent. Administrative Agent shall also be the named secured party
or beneficiary under any document hereafter given as security for the Credit
Facility and shall take and maintain any and all documents, instruments and
agreements pertaining to or evidencing any security for the Obligations, as
agent for and on behalf of all Lenders, and the grant to Administrative Agent of
any Lien under any Loan Document shall be for the ratable benefit of all
Lenders.
SECTION 10.3. Expenses. Each Lender shall pay its Commitment Percentage of
any expenses (including, without limitation, court costs, reasonable attorneys'
fees and other costs of collection) incurred by Administrative Agent in
connection with any of the Loan Documents if Administrative Agent does not
receive reimbursement therefor from other sources within thirty (30) days after
incurred; provided that, (a) subject to the terms and conditions of Section
11.4, each Lender shall be entitled to receive its Commitment Percentage of any
reimbursement for such expenses, or part thereof, which Administrative Agent
subsequently receives from such
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 81
other sources, and (b) any such payment by Lenders shall not limit or release
any obligation of Borrower for payment of such expenses.
SECTION 10.4. Delegation of Duties; Reliance; Consultation. The Lenders
may perform any of their duties or exercise any of their Rights under the Loan
Documents by or through Administrative Agent, and the Lenders, Administrative
Agent, Sole Lead Arranger and Joint Bookrunners may perform any of their duties
or exercise any of their Rights under the Loan Documents by or through their
respective officers, directors, employees, attorneys, agents, or other
representatives (collectively, "Representatives"). Administrative Agent, Sole
Lead Arranger, Joint Bookrunners, the Lenders, and their respective
Representatives shall (a) be entitled to rely upon (and shall be protected in
relying upon) any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, e-mails, telecopy, telegram, telex or teletype message,
statement, order or other documents or conversation believed by any of them to
be genuine and correct and to have been signed or made by the proper Person and,
with respect to legal matters, upon opinion of counsel selected by
Administrative Agent, Sole Lead Arranger, Joint Bookrunners or such Lender, (b)
be entitled to deem and treat each Lender as the owner and holder of its
Commitment for all purposes until, subject to Section 11.10, written notice of
the assignment or transfer thereof shall have been given to and received by
Administrative Agent (and, any request, authorization, consent or approval of
any Lender shall be conclusive and binding on each subsequent holder, assignee,
or transferee of such Lender's Commitment (or any part thereof) or Participant
therein until such notice is given and received), and (c) other than in
connection with Borrower's failure to pay required principal or interest under
the Obligations, not be deemed to have notice of the occurrence of a Default or
an Event of Default unless notified thereof by another Lender or Borrower.
Administrative Agent may consult with legal counsel, independent public
accountants, consultants, appraisers and other experts selected by
Administrative Agent, and shall not be liable for any action taken or omitted to
be taken by Administrative Agent in good faith in accordance with the advice of
such counsel, accountants or experts. Any such counsel, accountants or other
experts shall be engaged to represent and render services to all the Lenders as
a group, unless otherwise specified by Administrative Agent.
SECTION 10.5. Limitation of Liability.
(a) Neither Administrative Agent, Sole Lead Arranger, Joint
Bookrunners, nor any of their Representatives shall be liable for any action
taken or omitted to be taken by it or them under the Loan Documents in good
faith and believed by it or them to be within the discretion or power conferred
upon it or them by the Loan Documents or be responsible for the consequences of
any error of judgment or negligence, except for gross negligence or willful
misconduct, and neither Administrative Agent, Sole Lead Arranger, Joint
Bookrunners nor any of its Representatives has a fiduciary relationship with any
Lender by virtue of the Loan Documents (provided that nothing herein shall
negate the obligation of Administrative Agent to account for funds received by
it for the account of any Lender).
(b) Unless indemnified to its satisfaction against loss, cost,
liability, and expense, Administrative Agent shall not be compelled to do any
act under the Loan Documents or to take any action toward the execution or
enforcement of the powers thereby created or to prosecute or defend any suit in
respect of the Loan Documents. If Administrative Agent requests instructions
from the Lenders with respect to any act or action (including, but not limited
to, any
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 82
failure to act) in connection with any Loan Document, Administrative Agent shall
be entitled (but shall not be required) to refrain (without incurring any
liability to any Person by so refraining) from such act or action unless and
until it has received such instructions. In no event, however, shall
Administrative Agent or any of its Representatives be required to take any
action which it or they reasonably determine could incur for it or them criminal
or civil liability.
(c) Neither Administrative Agent, Sole Lead Arranger, Joint
Bookrunners nor any of their Representatives shall be responsible in any manner
to any Lender or any Participant for, and each Lender represents and warrants
that it has not relied upon Administrative Agent, Sole Lead Arranger, Joint
Bookrunners or their Representatives in respect of, (i) the creditworthiness of
Borrower or any Guarantor Subsidiary and the risks involved to such Lender, (ii)
the effectiveness, enforceability, genuineness, validity, or the due execution
of any Loan Document, (iii) any representation, warranty, document, certificate,
report, or statement made therein or furnished thereunder or in connection
therewith, (iv) the existence, priority, or perfection of any Lien or negative
pledge granted or purported to be granted under any Loan Document, (v) the
observation of or compliance with any of the terms, covenants, or conditions of
any Loan Document on the part of Borrower or any Guarantor Subsidiary, or (vi)
the relative Rights of the Lenders as among themselves. Each Lender jointly and
severally agrees to indemnify Administrative Agent, Sole Lead Arranger and Joint
Bookrunners and hold them harmless from and against (but limited to such
Lender's Commitment Percentage of) any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, reasonable expenses, and
reasonable disbursements of any kind or nature whatsoever (including counsel
fees and disbursements) which may be imposed on, asserted against, or incurred
by Administrative Agent, Sole Lead Arranger or Joint Bookrunners in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by Administrative Agent, Sole Lead Arranger or Joint Bookrunners under the Loan
Documents; PROVIDED THAT, ALTHOUGH ADMINISTRATIVE AGENT, SOLE LEAD ARRANGER AND
JOINT BOOKRUNNERS SHALL HAVE THE RIGHT TO BE INDEMNIFIED FOR THEIR NEGLIGENCE
[SOLE, COMPARATIVE, CONTINGENT OR OTHERWISE], ADMINISTRATIVE AGENT, SOLE LEAD
ARRANGER AND JOINT BOOKRUNNERS SHALL NOT HAVE THE RIGHT TO BE INDEMNIFIED
HEREUNDER FOR THEIR OWN FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
SECTION 10.6. Default. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from any Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." Administrative
Agent will promptly notify Lenders of its receipt of any such notice. Upon the
occurrence and continuance of a Default or an Event of Default, Administrative
Agent shall make a recommendation to the Lenders of any actions to be taken, and
each Lender agrees to promptly confer with the other Lenders in order that the
Lenders can consider such course of action or any other actions to be taken for
the enforcement of the Rights of the Lenders; provided that Administrative Agent
shall be entitled (but not obligated) to proceed to take any actions necessary
in its reasonable judgment to preserve Rights, pending agreement by the Lenders
on the course of action to be taken. If the Required Lenders cannot agree on a
course of action to be taken within sixty (60) days following
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 83
Administrative Agent's initial recommendation, Administrative Agent shall
thereafter take such action as Administrative Agent deems advisable to enforce
the Rights of the Lenders; provided, that if, after Administrative Agent has
begun taking such action, the Required Lenders agree on a course of action
contrary to that undertaken by Administrative Agent, then Administrative Agent
shall change its course of action so as to follow the course of action agreed
upon by the Required Lenders. Any action directed or approved by the Required
Lenders, including without limitation, any exercise of remedies or initiation of
suit or other legal proceedings, shall be binding upon each Lender. In actions
with respect to any property of Borrower or any Subsidiary of Borrower,
Administrative Agent is acting for the account of each Lender to the extent of
each Lender's Commitment Percentage. Any and all agreements to subordinate
(whether made heretofore or hereafter) other indebtedness or obligations of
Borrower or any Subsidiary to the Obligations shall be construed as being for
the benefit of each Lender to the extent of its respective Commitment
Percentage. If Administrative Agent acquires any security for the Obligations or
any guaranty of the Obligations, the same shall be held for the benefit of each
Lender in proportion to such Lender's respective Commitment Percentage.
Lenders agree, among themselves, that unless otherwise agreed to by
Administrative Agent and the Required Lenders, all monies collected or received
by Administrative Agent after the occurrence and during the continuance of an
Event of Default in respect of any security that may be given for the
Obligations, directly or indirectly, or by exercise of Rights, judgment on the
Notes any other means shall be applied first to the payment of unpaid, past due
fees hereunder, and then to either interest or principal of the Obligations as
recommended by Administrative Agent and approved by the Required Lenders (except
that any amounts to be applied to interest or principal shall be distributed to
Lenders based on their Aggregate Loan Percentage until the Credit Facility
(including the Competitive Bid Loans) is paid in full).
SECTION 10.7. Lenders' Decisions. The Lenders agree as among themselves
that any decisions or elections to be made by the Lenders (and not
Administrative Agent) under this Agreement and the other Loan Documents shall be
made by the Required Lenders, except in the case, if any, where unanimity or a
specific different number or percentage of the Lenders is expressly required
under this Agreement or any other Loan Documents (use of the terms "Lenders" in
any of the Loan Documents, without an express provision for different voting
rights other than as set forth in the definition of Required Lenders, does not
imply that unanimous consent is thereby required). Administrative Agent may, at
its election, request any determination, vote, consent or approval by the
Lenders in writing or orally (by telephone or in person). In addition, if any
request by Administrative Agent for the Lenders' determination or approval
hereunder is made in writing and such writing contains written notice to the
Lenders requesting a response within ten (10) Business Days, or longer, from the
date the Lenders are deemed to have received notice as herein provided (and
setting forth the actual date of the last day of the Lender reply period), then
the Lenders shall use reasonable efforts to reply within the applicable reply
period, provided, that if any such Lender does not reply within the applicable
reply period, such Lender shall be deemed not to have approved of or consented
to or concurred with such recommendation or determination.
SECTION 10.8. Limitation of Liability of Lenders. To the extent permitted
by law, (a) neither any Lender nor any Participant shall incur any liability to
any other Lender or Participant except for acts or omissions in bad faith, and
(b) neither any Agent, Joint
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 84
Bookrunners nor any Lender or Participant shall incur any liability to Borrower,
any Guarantor Subsidiary or any other Person for any act or omission of any
other Lender or any Participant.
SECTION 10.9. Relationship of Lenders. Nothing herein shall be construed
as creating a partnership or venture among any Agents, among any Agent and the
Lenders, or among the Lenders.
SECTION 10.10. Debtor-Creditor Relationship. Each Lender has and shall
maintain a direct creditor-debtor relationship with Borrower and will have
direct recourse, singly or in the aggregate, against Borrower and the Guarantor
Subsidiaries, subject to the terms and conditions of the Loan Documents.
Notwithstanding the foregoing, any right, remedy, action, omission or waiver
respecting this Agreement, the Notes, the Guaranty Agreements and the other Loan
Documents shall only be exercised, made, taken, or permitted by Administrative
Agent, acting upon the direction of the Required Lenders, as the agent for all
Lenders; provided, however, that if the Required Lenders have elected and
directed Administrative Agent to institute suit against Borrower or any
Guarantor Subsidiary for payment of any past due amounts under the Notes, any
Competitive Bid Note or any other Obligations for which Lenders have recourse
against Borrower or any Guarantor Subsidiary, or in the event of any bankruptcy
proceedings or other legal proceedings relating to this Agreement against
Borrower or any Guarantor Subsidiary, each Lender shall be entitled, at its
option, to bring or join in such proceedings in its own name (subject, however,
to the terms of this Agreement).
SECTION 10.11. Credit Decisions. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, Sole Lead Arranger, Joint
Bookrunners 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 and each of the other Loan Documents to which it is a party
or to which any Agent is a party for its benefit. Each Lender also acknowledges
that it will, independently and without reliance upon any Agent, Sole Lead
Arranger, Joint Bookrunners or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement or with
respect to either Credit Facility. In addition, for purposes of determining
compliance with the conditions specified in Section 4.l, each Lender that has
signed this Agreement shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
SECTION 10.12. Removal of any Agent. Lenders, acting by written notice to
Administrative Agent from and agreed to by the Required Lenders other than
Administrative Agent, may remove for cause Administrative Agent, as the agent
under the Credit Facility, and appoint one of the other Lenders as
Administrative Agent's successor, which successor Administrative Agent shall be
subject to Borrower's reasonable consent so long as no Event of Default has
occurred and is continuing. Upon the appointment of a successor Administrative
Agent, the removed Administrative Agent and the successor Administrative Agent
shall execute such documents as the Lenders may reasonably request to reflect
such appointment of a successor Administrative Agent and shall notify Borrower
of the change in such agent. The
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 85
successor Administrative Agent shall be vested with all rights, powers and
privileges and be bound to all duties, obligations and responsibilities of
Administrative Agent so removed in and under this Agreement and the other Loan
Documents; provided, however, that until such time as Borrower is notified in
writing signed by both the removed and successor Administrative Agent as to the
appointment of the successor Administrative Agent, Borrower and the Guarantor
Subsidiaries shall be entitled to rely on any decision, approval or other act by
the removed Administrative Agent as binding on Lenders, and, may pay to
Administrative Agent any amounts due or owing by Borrower under the Loan
Documents.
SECTION 10.13. Resignation by any Agent. An Agent's status as an Agent
under this Agreement shall automatically terminate fifteen (15) days after the
closing or liquidation of such Agent or fifteen (15) days after such Agent is
adjudicated insolvent. Additionally, any Agent may resign its position as an
Agent at any time by giving at least thirty (30) days written notice thereof to
Borrower and the other Lenders. Upon any such occurrence causing a termination
of Administrative Agent or the delivery of such notice of resignation from such
Agent, the Required Lenders and Borrower shall select a successor for
Administrative Agent. If the Required Lenders and Borrower cannot agree upon the
choice of the successor Administrative Agent within ten (10) days after the
occurrence causing a termination in the case of a termination of such
Administrative Agent, or ten (10) days prior to the effective resignation date
set forth in such Administrative Agent's resignation notice in the case of a
resignation by such Administrative Agent, then the Designated Successor Agent
shall become Administrative Agent's successor. Borrower shall be entitled to
participate in the selection of the replacement Administrative Agent only if no
Default has occurred and is continuing and no Event of Default has occurred. If
any Agent other than Administrative Agent shall resign or be terminated,
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, Borrower may select a successor for any other Agent. Upon any such
termination or resignation, (a) the successor Agent shall automatically be
vested with all rights, powers and privileges and be bound to all duties,
obligations and responsibilities of the Agent being replaced in and under this
Agreement and the other Loan Documents and shall thereafter be deemed the
"Administrative Agent", "Syndication Agent", "Documentation Agent", "Co-Agent"
or other designated Agent, for all purposes under the Loan Documents and (b)
such terminating or resigning Agent shall act only in a custodial capacity for
the holding by it of any funds theretofore received from Borrower and any such
funds shall be held in trust for the benefit of Lenders or Borrower, as the case
may be. Additionally, upon the successor Agent becoming an Agent as provided in
this Section 10.13, the terminating or resigning Agent and the new Agent shall
execute such documents as any Lender may reasonably request to reflect such
succession. All costs incurred in connection with the execution of such
documents shall be paid by the Lenders in proportion to each Lender's Commitment
Percentage. Sole Lead Arranger or either Joint Bookrunner may resign its
position at any time by giving at least ten (10) days written notice thereof to
Borrower and Administrative Agent. Notwithstanding the foregoing, however, Bank
of America, N.A. may not be removed as Administrative Agent at the request of
the Required Lenders unless Bank of America, N.A. shall also simultaneously be
replaced as "Fronting Bank" and "Swingline Lender" pursuant to documentation in
form and substance reasonably satisfactory to Bank of America, N.A.
SECTION 10.14. Sharing of Payments and Setoffs. Each Lender agrees that if
it should receive any amount (whether by voluntary payment, by realization upon
any collateral, by the
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 86
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Loan Documents or otherwise)
which is applicable to the payment of the principal of or interest on the Credit
Facility, of a sum which with respect to the related sum or sums received by the
other Lenders exceeds such Lender's Commitment Percentage, then such Lender
receiving such excess payment shall purchase without recourse or warranty from
the other Lenders an interest in the indebtedness of Borrower to such Lenders in
such amount as shall result in a proportional participation by all of the
Lenders in such amount; provided that if all or any portion of such excess
amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest. This Section 10.14 shall not impair the right of any Lender to
exercise any right of setoff or counterclaim it may have with respect to any
funds in an account pledged to such Lender to secure only indebtedness other
than the Obligations, and to apply the amount received or subject to such
exercise to the payment of such other indebtedness, it being expressly agreed by
all Lenders, however, that until the Obligations are paid and satisfied in full,
any and all amounts received by any Lender from offset of any account of
Borrower or any Guarantor Subsidiary that either (a) constitutes collateral for
the Credit Facility (if any) or (b) contains funds exclusively derived from or
related to any collateral for the Credit Facility, shall be applied to the
Obligations, and not to any other indebtedness of Borrower or any Guarantor
Subsidiary to such Lender.
SECTION 10.15. Non-Advancing Lenders. In the event that a Lender shall
fail or refuse to advance its Commitment Percentage of any Advance under the
Credit Facility, or any Lender shall fail or refuse to advance its Commitment
Percentage of any payment or reimbursement by Lenders as required hereunder, or
of any amount to be funded pursuant to Section 10.3, when it is obligated to do
so, Administrative Agent shall notify, in the case of the failure or refusal to
make an Advance under the Credit Facility, the Lenders, or any of them, may
elect, each at its sole option and discretion (without any obligation whatsoever
to do so), to advance such non-advancing Lender's portion, pro rata in
accordance with the proportion that the Commitment Percentage of each Lender
electing to make such advance bears to the Commitment Percentages of all Lenders
electing to make such advance. Upon making any such advance, and notwithstanding
anything to the contrary expressed or implied herein or in the Notes or any
other Loan Document, all subsequent payments made on the Credit Facility, and
all proceeds realized from the sale of any collateral securing the Credit
Facility (if any) or from the exercise of right of setoff or other remedies
under this Agreement or the other Loan Documents, shall be applied, in the
manner described below, only to the Lenders, other than the non-advancing Lender
(and the non-advancing Lender shall not be entitled to receive the same), until
the amounts advanced by such advancing Lenders, on behalf of the non-advancing
Lender (together with the interest earned thereon pursuant to this Agreement and
the applicable Notes), have been repaid in full. As among Lenders other than the
non-advancing Lender, Lenders that advanced funds on behalf of the non-advancing
Lender shall receive the portion the non-advancing Lender would have been
entitled to receive had it advanced (together with the interest earned thereon
pursuant to this Agreement and the applicable Notes), to be applied pro rata in
accordance with the amounts advanced by each such advancing Lender, until the
amounts advanced by such Lenders on behalf of the non-advancing Lender (together
with the interest earned thereon pursuant to this Agreement and the applicable
Notes), have been repaid in full; any Lender that advanced only on its own
behalf based on its Commitment Percentage shall be repaid based on such
Commitment Percentage or its Aggregate Loan Percentage, as applicable. In
addition, any Lenders that
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 87
advance funds on behalf of a non-advancing Lender pursuant to this Section 10.15
shall (i) receive a proportionate share (based on the amounts so advanced by
such Lenders) of the amount the non-advancing Lender would have been entitled to
receive of any distribution of any collateral that may ever be given to secure
the Credit Facility in the event the same is distributed among Lenders, and (ii)
have a claim against such non-advancing Lender for the amounts so advanced and
shall be entitled to all rights and remedies at law or in equity to recover any
unpaid amounts. A non-advancing Lender shall not be entitled to vote on any
matters under this Agreement or related to the Credit Facility (and its interest
shall be excluded for purposes of determining the requisite percentage or number
of Lenders for a vote or otherwise in the determination of the "Required
Lenders" for any purpose hereunder) so long as such Lender remains a
non-advancing Lender.
SECTION 10.16. Benefit of Lenders. All terms, conditions and agreements
set forth in this Article X, specifically including, without limitation, the
provisions of Section 10.14 are for the sole and exclusive benefit of the
Lenders, and neither Borrower, any Guarantor Subsidiary nor any other Person
shall be entitled to rely on or seek the benefit of such provisions; provided,
however, that Borrower and the Guarantor Subsidiaries shall be entitled to rely
on any decision, approval or other act by Administrative Agent as binding the
Lenders.
SECTION 10.17. Roles of Agents. Neither Syndication Agents, Documentation
Agents, Co-Agents nor any other agent other than Administrative Agent shall have
any duties or obligations, nor shall Syndication Agents, Documentation Agents,
Co-Agents or any such other agent take any action as an Agent under this
Agreement or the other Loan Documents, other than as may be specifically
designated in writing by Administrative Agent. Any action to be taken by Agents
under this Agreement or the other Loan Documents, shall be taken solely by
Administrative Agent.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Continuing Agreement. This is a continuing Agreement and all
the rights, powers and remedies of Administrative Agent and the Lenders
hereunder, and all agreements and obligations of Borrower, the Guarantor
Subsidiaries, Administrative Agent and the Lenders hereunder, shall continue to
exist until the Notes, the Competitive Bid Notes and the Swingline Note have
been paid in full, the commitment of Lenders to make Advances hereunder has been
terminated, all Letters of Credit and obligations to issue Letters of Credit
have been terminated, and all other Obligations have been paid in full.
SECTION 11.2. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telecopy or
similar writing), except for any telephone notices as specifically provided for
herein, may be personally served or sent by telecopier, mail or the express mail
service of the United States Postal Service, Federal Express or other equivalent
overnight or expedited delivery service, and (a) if given by personal service or
telecopier (confirmed by telephone), it shall be deemed to have been given upon
receipt; (b) if sent by telecopier without telephone confirmation, it shall be
deemed to have been given twenty-four (24) hours after being given; (c) if sent
by mail, it shall be deemed to have been given upon the earlier of (i) actual
receipt, or (ii) three (3) Business Days after deposit in a
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 88
depository of the United States Postal Service, first class mail, postage
prepaid; (d) if sent by Federal Express, the express mail service of the United
States Postal Service or other equivalent overnight or expedited delivery
service, it shall be deemed given upon the earlier of (i) actual receipt or (ii)
twenty-four (24) hours after delivery to such overnight or expedited delivery
service, delivery charges prepaid, and properly addressed to Administrative
Agent, Borrower, the applicable Guarantor Subsidiary or the applicable Lender;
provided that notices to Administrative Agent under Article III and Article IV
shall not be effective until received. For purposes hereof, the address of the
parties to this Agreement shall be as set forth in Schedule I attached hereto.
Any party may, by proper written notice hereunder to the other parties, change
the address to which notices shall thereafter be sent to it. Notwithstanding
anything to the contrary implied or expressed herein, the notice requirements
herein (including the method, timing or deemed giving of any notice) is not
intended to and shall not be deemed to increase the number of days or to modify
the method of notice or to otherwise supplement or affect the requirements for
any notice required or sent pursuant to any Legal Requirement (including,
without limitation, any applicable statutory or law requirement), or otherwise
given hereunder, that is not required under this Agreement or the other Loan
Documents. The provisions of this Section 11.2 shall control over any
conflicting contractual notice provisions contained in the Loan Documents.
SECTION 11.3. No Waivers. No failure or delay by any Agent or any Lender
in exercising any right, power or privilege hereunder or under the Notes or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law or in any of the other Loan Documents.
SECTION 11.4. Expenses; Documentary Taxes; Indemnification. Borrower and
the Guarantor Subsidiaries, jointly and severally, agree to pay (a) all expenses
of Administrative Agent, Sole Lead Arranger and Joint Bookrunners and the
reasonable fees and disbursements of legal counsel for Administrative Agent, in
connection with the negotiation, documentation and closing of the Credit
Facility, and thereafter all reasonable expenses of Administrative Agent, Sole
Lead Arranger, Joint Bookrunners and the Lenders in connection with any waiver,
approval, or consent hereunder or under the other Loan Documents or any
amendment, supplement or replacement of any of the Loan Documents, or any
Default or alleged Default hereunder; and (b) if a Default or an Event of
Default occurs, all out-of-pocket expenses incurred by Administrative Agent,
Sole Lead Arranger, Joint Bookrunners or the Lenders, including reasonable fees
and disbursements of legal counsel in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom (including,
without limitation, any bankruptcy or other insolvency proceedings), fees of
auditors and consultants incurred in connection therewith and investigation
expenses incurred by Administrative Agent, Sole Lead Arranger, Joint Bookrunners
and the Lenders in connection therewith. Borrower and the Guarantor
Subsidiaries, jointly and severally, indemnify Administrative Agent, Sole Lead
Arranger, Joint Bookrunners and each Lender (and all officers, directors and
Affiliates thereof) and hold Administrative Agent, Sole Lead Arranger, Joint
Bookrunners and each Lender (and all officers, directors and Affiliates thereof)
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind (including, without limitation, the reasonable fees and
disbursements of counsel for Administrative Agent, Sole Lead Arranger, Joint
Bookrunners and
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 89
the Lenders (and all officers, directors and Affiliates thereof) in connection
with any investigative, administrative or judicial proceeding, whether or not
Agents, Sole Lead Arranger, Joint Bookrunners or Lenders (or any officers,
directors or Affiliates thereof)) shall be designated a party thereto) which may
be incurred by Administrative Agent, Sole Lead Arranger, Joint Bookrunners or
any Lender (or any officers, directors or Affiliates thereof) relating to or
arising out of this Agreement or any actual or proposed use of proceeds of the
Notes or the Competitive Bid Notes; PROVIDED THAT NEITHER ADMINISTRATIVE AGENT,
SOLE LEAD ARRANGER, JOINT BOOKRUNNERS NOR ANY LENDER (NOR ANY OFFICER, DIRECTOR
OR AFFILIATE THEREOF) SHALL HAVE THE RIGHT TO BE INDEMNIFIED HEREUNDER FOR ITS
OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IT BEING THE INTENTION HEREBY THAT
ADMINISTRATIVE AGENT, SOLE LEAD ARRANGER, JOINT BOOKRUNNERS AND EACH LENDER (AND
ALL OFFICERS, DIRECTORS AND AFFILIATES THEREOF) SHALL BE INDEMNIFIED FOR THE
CONSEQUENCES OF ITS OR HIS NEGLIGENCE (SOLE, CONTRIBUTORY, CONTINGENT OR
OTHERWISE) WHETHER WHOLE OR IN PART.
SECTION 11.5. Amendments, Waivers and Consents. Any provision of this
Agreement, the Notes or the other Loan Documents may be amended or waived, or
the Lenders may give approvals or consents hereunder, if, but only if, such
amendment, in writing and is signed by Borrower and by the Required Lenders or
by Administrative Agent on behalf of the Required Lenders.
SECTION 11.6. Survival. The obligations of Borrower and the rights of
Administrative Agent and the Lenders under the Loan Documents shall continue
until all Obligations have been paid in full and as provided in Section 11.14.
All representations, warranties and covenants (including, without limitation,
indemnities) made by Borrower herein or in any other Loan Document shall survive
the delivery of the Loan Documents to Administrative Agent and the Lenders, the
making of Advances, and the termination of the commitment of the Lender's to
lend hereunder, and, with respect to indemnities herein (and any other
provisions in any Loan Document specified to survive), shall survive the payment
in full of the Obligations and the release or termination of the Loan Documents,
any bankruptcy or other debtor relief proceeding, and any other event
whatsoever. No investigation at any time made by or on behalf of Administrative
Agent or the Lenders shall diminish the right of Administrative Agent and the
Lenders to rely on all representations and warranties made by Borrower under any
Loan Document.
SECTION 11.7. Prior Understandings; No Defenses; Release; No Oral
Agreements. This Agreement supersedes all other prior understandings and
agreements, whether written or not, between the parties hereto relating
specifically to the transactions provided for herein. Borrower and each
Guarantor Subsidiary, for themselves and for all Consolidated Subsidiaries,
confirm that there are no existing defenses, claims, counterclaims or rights of
offset against Administrative Agent or any Lender in connection with the
negotiation, preparation, execution, performance or any other matters related to
this Agreement or any of the other Loan Documents and any of the transactions
contemplated thereby, and Borrower and each Guarantor Subsidiary, for themselves
and for all Consolidated Subsidiaries, hereby expressly release and discharge
Administrative Agent and each Lender, and the Representatives of Administrative
Agent and
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 90
each Lender, from any and all such claims, known or unknown. Borrower and each
Guarantor Subsidiary further confirm that neither Administrative Agent nor any
Lender has made any agreements with, or commitments or representations to,
Borrower or any Guarantor Subsidiary or any other Consolidated Subsidiary
(either in writing or orally) other than as expressly stated herein or in the
other Loan Documents.
THIS WRITTEN LOAN AGREEMENT, TOGETHER WITH THE OTHER WRITTEN LOAN
DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
To the fullest extent applicable, Borrower, each Guarantor Subsidiary,
Administrative Agent and each Lender acknowledge and agree that this Agreement
and each of the other Loan Documents shall be subject to Section 26.02 of the
Texas Business and Commerce Code.
SECTION 11.8. Limitation on Interest. It is expressly stipulated and
agreed to be the intent of Borrower, Administrative Agent, the Lenders and
Swingline Lender at all times to comply with the applicable law governing the
maximum rate or amount of interest payable on or in connection with the Notes,
the Competitive Bid Notes, the Swingline Note and the Credit Facility. If the
applicable law is ever judicially interpreted so as to render usurious any
amount called for under the Notes, the Competitive Bid Notes, the Swingline
Note, this Agreement or under any of the other Loan Documents, or contracted
for, charged, taken, reserved or received with respect to any of the Notes, the
Competitive Bid Notes, the Swingline Note, this Agreement or any other Loan
Document, or if acceleration of the maturity of the Notes, any Competitive Bid
Note or the Swingline Note, any prepayment by Borrower, or any other
circumstance whatsoever, results in any Lender or Swingline Lender having been
paid any interest in excess of that permitted by applicable law, then it is the
express intent of Borrower, Administrative Agent, all the Lenders and Swingline
Lender that all excess amounts theretofore collected by Lenders or Swingline
Lender be credited on the balance of the Notes (or, if the Notes have been or
would thereby be paid in full, credited to the Competitive Bid Notes, and if the
Competitive Bid Notes have been paid in full, refunded to Borrower) or Swingline
Note, if applicable, and the provisions of the Notes, any Competitive Bid Notes,
the Swingline Note and the other applicable Loan Documents immediately be deemed
reformed and the amounts thereafter collectible hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and thereunder. The right to accelerate
the maturity of the Notes, any Competitive Bid Note or the Swingline Note does
not include the right to accelerate any interest which has not otherwise accrued
on the date of such acceleration, and Lenders and Swingline Lender, if
applicable, do not intend to collect any unearned interest in the event of
acceleration. All sums paid or agreed to be paid to Administrative Agent, the
Lenders or Swingline Lender for the use, forbearance or detention of the
indebtedness evidenced hereby or by the Notes, any Competitive Bid Note or
Swingline Note shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the Maximum Lawful Rate or maximum amount of
interest
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 91
permitted under applicable law. The term "applicable law" as used herein shall
mean the laws of the State which govern this Agreement, or DIDMCA or any other
applicable United States federal law to the extent that it permits Lenders to
contract for, charge, take, reserve or receive a greater amount of interest than
under laws of the state which govern this Agreement. The provisions of this
Section 11.8 shall control all agreements between Borrower, Administrative
Agent, the Lenders or Swingline Lender.
SECTION 11.9. Invalid Provisions. If any provision of the Loan Documents
is held to be illegal, invalid, or unenforceable under present or future laws
effective during the term thereof, such provision shall be fully severable, the
Loan Documents shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part thereof, and the remaining
provisions thereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of the Loan Documents a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
SECTION 11.10. Lender Assignments and Participations.
(a) Lenders may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Note, its Competitive Bid Note and its
Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an Affiliate of any Lender, or an assignment of all of a Lender's
rights and obligations under this Agreement, any such partial
assignment shall be in an amount at least equal to Five Million and
No/100 Dollars ($5,000,000.00) in Commitment amount, unless
Administrative Agent otherwise consents to a lesser amount;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations
under this Agreement and the applicable Note and Competitive Bid
Note; and
(iv) the parties to such assignment shall execute and deliver
to Administrative Agent for its acceptance, with a copy to Borrower,
an Assignment and Acceptance in the form of Exhibit D hereto,
together with any Note subject to such assignment and a processing
fee of $3,500, and payment of all legal fees and expenses incurred
by Administrative Agent with respect to such Assignment.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits of a
Lender hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Agreement. Upon the consummation of any assignment pursuant to
this Section, the assignor, Administrative Agent and Borrower shall make
appropriate
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 92
arrangements so that, if required, a new Note and any new Competitive Bid
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state
thereof, it shall deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 3.14.
(b) Administrative Agent shall maintain a copy of each Assignment
and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitments and
Commitment Percentages and Aggregate Loan Percentages of each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and Borrower, Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by
the parties thereto, together with the Note and any Competitive Bid Note(s)
subject to such assignment, and payment of the processing fee, Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit D hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the parties thereto, and Borrower shall
promptly execute and deliver one or more new Notes and Competitive Bid Notes
payable to the assignee (and to the assigning Lender in the case of less than a
full assignment of such Lender's interest in the Credit Facility), in the
appropriate amount(s) of any such Note(s) and Competitive Bid Notes to be
substantially in the form of Exhibit A-1 and A-2 as applicable, with the
addition of a provision indicating that each such Note and any Competitive Bid
Note is in renewal and replacement of the applicable prior Note or Competitive
Bid Note.
(d) Each Lender may sell participations to one or more Persons in
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and its Note, any such purchaser of such a
participation interest a "Participant"); provided, however, 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, (iii) prior to an Event of Default which has
occurred and is continuing, such Participant (unless it is an Affiliate of a
Lender) shall be approved by Borrower, such approval not to be unreasonably
withheld or delayed by Borrower and such approval to be deemed given by Borrower
if no objection is received by the selling Lender from Borrower within two (2)
Business Days after notice of such proposed participation has been provided by
the selling Lender to Borrower, (iv) the Participant shall be entitled to the
benefit of the yield protection provisions contained in Article III, (v) any
such participation shall be in an amount at least equal to Five Million and
No/100 Dollars ($5,000,000) in Commitment Amount, and (vi) Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of Borrower relating to its
Note and Competitive Bid Note and to approve any amendment, modification, or
waiver of any provision of this Agreement (other than amendments, modifications,
or waivers decreasing the amount of principal of or the rate at which
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 93
interest is payable on such notes, extending any scheduled principal payment
date or date fixed for the payment of interest on such notes or extending the
Termination Date other than as provided for herein or releasing Borrower or any
Guarantor Subsidiary from liability).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any portion of
its Note or its Competitive Bid Note or any amount outstanding thereunder to any
Federal Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank; provided that any
foreclosure or similar action pursuant to such assignment or pledge shall be
subject to the provisions of this Section 11.10 concerning assignments.
Additionally, any Lender may, with the consent of Administrative Agent, pledge
all or any portion of its Note and Competitive Bid Note to any trustee for, or
any other representative of, holders of obligations owed by such Lender, as
security for such obligations; provided that any foreclosure or similar action
by such trustee shall be subject to the provisions of this Section 11.10
concerning assignments. No such assignment shall release the assigning Lender
from its obligations hereunder.
(f) Any Lender may furnish any information concerning Borrower or
any of the Subsidiaries in the possession of such Lender from time to time to
assignees and Participants (including prospective assignees and participants),
subject, however, to the provisions of Section 7.3; provided that, until
Borrower has approved (or deemed to have approved) or disapproved a prospective
assignee or Participant pursuant to this Agreement (if such approval is
indicated by this Agreement at such time), any Lender may provide to such
prospective assignee or Participant only information available to the public.
SECTION 11.11. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided that none of Borrower nor any Guarantor Subsidiary
or other Consolidated Subsidiary shall, directly or indirectly, assign or
transfer, or attempt to assign or transfer, any of its rights, duties or
obligations under this Agreement without the express prior written consent of
all of the Lenders.
SECTION 11.12. Senior Debt; Borrower Subordination. The indebtedness of
Borrower and the Guarantor Subsidiaries hereunder and under the Notes, the
Swingline Note and all of the Obligations is intended to be and shall be senior
to any subordinated indebtedness of Borrower or any Guarantor Subsidiary (the
foregoing shall not in any way imply Lenders' consent to any such subordinate
debt which is not otherwise permitted by this Agreement). The Notes, the
Swingline Note and any other amounts advanced to or on behalf of Borrower or any
other Person pursuant to the terms of this Agreement or any other Loan Document,
shall never be in a position subordinate to any Debt of Borrower or any
Guarantor Subsidiary owing to any other Person, except with the knowledge and
written consent of the Lenders. If Borrower or any Guarantor Subsidiary is now
or hereafter becomes indebted to Borrower or any other Guarantor Subsidiary, (a)
such indebtedness and all interest thereon shall, at all times, be subordinate
in all respects to the Obligations and to all liens, security interests and
rights now or hereafter existing to secure the Obligations; and (b) Borrower or
any other Guarantor Subsidiary holding such inter-company indebtedness shall not
be entitled after the occurrence of a Default to enforce or receive payment,
directly or indirectly, of any such indebtedness until the Obligations have been
fully and finally paid and performed.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 94
SECTION 11.13. Nonliability of Agent and Lender. The relationship between
Borrower and the Guarantor Subsidiaries, on the one hand, and that of
Administrative Agent and the Lenders, on the other, shall be solely that of
debtor and creditor. Neither Administrative Agent nor any Lender shall have any
fiduciary responsibility to Borrower, the Guarantor Subsidiaries or any other
Subsidiary of Borrower. Borrower agrees that neither Administrative Agent nor
any Lender shall have liability to Borrower or any Guarantor Subsidiary or other
Subsidiary of Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by Borrower or any Guarantor Subsidiary or other Subsidiary in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined by
a court of competent jurisdiction in a final and non-appealable order that such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither Administrative Agent nor any Lender shall
have any liability with respect to, and Borrower, each Guarantor Subsidiary and
each other Subsidiary hereby waives, releases and agrees not to sue for, any
special, consequential, indirect or punitive damages suffered by Borrower or any
Subsidiary in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
SECTION 11.14. Payment Set Aside. To the extent that Borrower or any other
Person pays the Obligations or any part thereof to Administrative Agent or the
Lenders, or Administrative Agent or the Lenders enforce any of their Rights
under any Loan Document, and such payment or enforcement or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside,
and/or required to be repaid to Borrower or such other Person, its estate, a
trustee, receiver, or any other Person under any Law, then to the extent of such
repayment, the Obligations or part thereof originally intended to be satisfied,
together with all Loan Documents (including all the terms thereof and all of
Agent's and Lenders' rights thereunder), notwithstanding any prior termination
and/or delivery of the Loan Documents to Borrower (it being agreed that the
provisions of this Section shall survive any such termination and/or delivery),
shall be revived and continued in effect as if such payment had not been made or
such enforcement had not occurred. Administrative Agent shall be entitled to
retain the Loan Documents in its possession for one (1) year after the date on
which all Obligations have been paid in full; provided, that such retention or
non-retention of such documents after payment in full of all Obligations shall
not impair the revival provisions in this Section or the survival provisions in
Section 11.6.
SECTION 11.15. Construction. The parties hereto acknowledge and agree that
neither this Agreement nor any other Loan Document shall be construed more
favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to
the negotiations and preparation of this Agreement and the other Loan Documents.
SECTION 11.16. Time of Essence. Time shall be of the essence in this
Agreement.
SECTION 11.17. Inconsistent Provisions. In the event of any conflict or
inconsistency between the terms of this Agreement and the terms of the other
Loan Documents (including without limitation, the terms of any Letter of Credit
Document), the terms of this Agreement shall control.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 95
SECTION 11.18. Consolidated Group. Borrower and the Guarantor Subsidiaries
are engaged in the businesses set forth in Section 7.2 of this Agreement. These
operations require financing on a basis such that the credit supplied can be
made available from time to time to Borrower and the Guarantor Subsidiaries, as
required for the continued successful operation of Borrower and the Guarantor
Subsidiaries. Borrower and the Guarantor Subsidiaries have requested that
Lenders make the Credit Facility available primarily for the purposes of
financing the operations of Borrower and the Guarantor Subsidiaries. Borrower
and the Guarantor Subsidiaries expect to derive benefit (and the boards of
directors or other governing body of each of Borrower and the Guarantor
Subsidiaries may reasonably be expected to derive benefit), directly or
indirectly, from the Credit Facility established by Lenders, both in their
separate capacities and as members of the group of companies, since the
successful operation and condition of Borrower and each Guarantor Subsidiary is
dependent on the continued successful performance of the functions of the group
as a whole.
SECTION 11.19. Submission To Jurisdiction; Service of Process.
(a) Any legal action or proceeding with respect to this Agreement,
the Notes, the Swingline Note or any other Loan Document may be brought in the
courts of the State of Texas or of the United States of America for the Southern
District of Texas, and, by execution and delivery of this Agreement, Borrower
and each Guarantor Subsidiary hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto hereby irrevocably waive any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which any of them may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions.
(b) Borrower and each Guarantor Subsidiary irrevocably consent to
the service of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to Borrower or such Guarantor Subsidiary at its address
provided herein.
(c) Nothing contained in this Section 11.19 shall affect the right
of any Agent, any Lender or any holder of a Note to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against Borrower in any other jurisdiction.
SECTION 11.20. JURY TRIAL WAIVER. BORROWER, EACH GUARANTOR SUBSIDIARY,
ADMINISTRATIVE AGENT AND EACH LENDER EACH HEREBY WAIVE ANY RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTES, THE COMPETITIVE BID NOTES, OR THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 11.21. APPLICABLE LAW. THIS AGREEMENT, THE NOTES AND ALL THE OTHER
LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TEXAS, EXCEPT TO THE EXTENT THAT UNITED STATES FEDERAL LAW APPLIES
PURSUANT TO SECTION 11.8 OR OTHERWISE.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 96
SECTION 11.22. Counterparts. This Agreement and all amendments hereto, and
all the other Loan Documents may be executed in any number of original
counterparts, each of which when so executed and delivered shall be an original,
and all of which, collectively, shall constitute one and the same agreement, it
being understood and agreed that the signature pages may be detached from one or
more counterparts and combined with the signature pages from any other
counterpart in order that one or more fully executed originals may be assembled.
SECTION 11.23. USA Patriot Act Notice. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
and each Guarantor Subsidiary that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower and each Guarantor Subsidiary, which information
includes the name and address of the Borrower and each Guarantor Subsidiary and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower and each Guarantor Subsidiary in accordance
with the Act.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) PAGE 97
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers effective as of the
Closing Date.
Borrower's Tax ID No.: 76-6088377 BORROWER:
CAMDEN PROPERTY TRUST,
a Texas real estate investment trust
By: ________________________________________
Dennis M. Steen
Senior Vice President
and Chief Financial Officer
GUARANTOR SUBSIDIARIES:
CAMDEN USA, INC., a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
CAMDEN OPERATING, L.P., a Delaware limited
partnership
By: CPT-GP, INC., a Delaware corporation,
General Partner
By: ____________________________________
Name: __________________________________
Title: _________________________________
CAMDEN REALTY, INC., a Delaware corporation
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
ADMINISTRATIVE AGENT AND LENDER:
BANK OF AMERICA, N.A.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
SYNDICATION AGENT AND LENDER:
JPMORGAN CHASE BANK, N.A.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
DOCUMENTATION AGENT AND LENDER:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
DOCUMENTATION AGENT AND LENDER:
WELLS FARGO BANK, N.A.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
MANAGING AGENT AND LENDER:
PNC BANK, NATIONAL ASSOCIATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
MANAGING AGENT AND LENDER:
SUNTRUST BANK
By: ________________________________________
Name: Nancy B. Richards
Title: Vice President
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
MANAGING AGENT AND LENDER:
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
MANAGING AGENT AND LENDER:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
MANAGING AGENT AND LENDER:
CITICORP NORTH AMERICA, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
MANAGING AGENT AND LENDER:
EUROHYPO AG, NEW YORK BRANCH
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
CO-AGENT AND LENDER:
BANK OF CHINA, NEW YORK BRANCH
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
CO-AGENT AND LENDER:
AMSOUTH BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
CO-AGENT AND LENDER:
U.S. BANK NATIONAL ASSOCIATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
CO-AGENT AND LENDER:
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
CO-AGENT AND LENDER:
THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
LENDER:
COMERICA BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
LENDER:
UFJ BANK LIMITED
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
LENDER:
FIRST COMMERCIAL BANK, LOS ANGELES BRANCH
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
LENDER:
MELLON BANK, N.A.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
LENDER:
CHANG HWA BANK, LOS ANGELES BRANCH
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
LENDER:
E. SUN COMMERCIAL BANK, LTD., LOS
ANGELES BRANCH
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SIGNATURE PAGE
SCHEDULE I
AGENTS, LENDERS AND BORROWER
I. AGENTS, ARRANGER AND LENDERS
A. ADMINISTRATIVE AGENT AND LENDER
Bank of America, N.A.
901 Main Street, 66th Floor
Dallas, Texas 75202
Attention: Real Estate Loan Administration/Kathy Meyer
Tel: (214) 209-1507
Fax: (214) 209-1559
Bank of America, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attn: Steven Renwick
Tel: (214) 209-1867
Fax: (214) 209-0995
B. SOLE LEAD ARRANGER
Banc of America Securities LLC
214 North Tryon Street
Mail Code NC1-027-18-04
Charlotte, North Carolina 28255
Attn: Bryce Langen
Tel: (704) 387-5104
Fax: (704) 386-0255
C. SYNDICATION AGENT AND LENDER
JPMorgan Chase Bank, N.A.
707 Travis, 6th Floor North
Houston, Texas 77002
Tel: (713) 216-1511
Fax: (713) 216-2391
Attn: Susan M. Tate
D. DOCUMENTATION AGENTS AND LENDERS
Wachovia Bank, National Association
191 Peachtree Street, NE, GA-8057
Atlanta, GA 80303-1740
Tel: (404) 332-6549
Fax: (404)-332-4066
Attn: Cathy Casey
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE I
Wells Fargo Bank, N.A.
1000 Louisiana Street, 4th Floor, T 5002-042
Houston, TX 77002
Tel: (713) 319-1427
Fax: (713) 739-1077
Attn: Allyn Riley
E. MANAGING AGENT AND LENDERS
PNC Bank, National Association
1 PNC Plaza, 249 Fifth Avenue
Mail Stop P1-POPP-19-D
Pittsburgh, PA 15222-2707
Tel: (412) 762-2260
Fax: (412) 762-6500
Attn: Jim Collela
SunTrust Bank
8330 Boone Blvd., 8th Floor
Vienna, VA 22182
Tel: (703) 442-1557
Fax: (703) 442-1570
Attn: Nancy B. Richards
Commerzbank AG, New York and Grand Cayman Branches
2 World Financial Center
New York, NY 10281-1051
Tel: (212) 266 7569
Fax: (212) 266-7565
Attn: Douglas Traynor
Deutsche Bank Trust Company Americas
200 Crescent Court, Suite 550
Dallas, TX 75201
Tel: (214) 740-7905
Fax: (214) 740-7910
Attn: Ann Ramsey
Eurohypo AG, New York Branch
1114 Avenue of the Americas
Twenty-Ninth Floor
New York, New York 10036
Fax: (212) 479-5800
Attn: Head of Portfolio Operations
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE I
with a copy to:
Eurohypo AG, New York Branch
1114 Avenue of the Americas
Twenty-Ninth Floor
New York, New York 10036
Fax: (212) 479-5800
Attn: Legal Director
Citicorp North America, Inc.
390 Greenwich Street, 1st Floor
New York, NY 07960
Tel: (212) 723-6590
Fax: (212) 723-88547
Attn: Blake R. Gronich
F. LENDERS
AmSouth Bank
1900 5th Avenue North, BAC 15
Birmingham, Alabama 35203
Tel: (205) 326-4071
Fax: (205) 326-4075
Attn: Robert Blair
Bank of Ireland
Bank of Ireland Corporate
La Touche House
International Financial Services Center
Custom House Docks
Dublin 1, Ireland
Tel: +353 1 611 5406
Fax: + 353 1 839 0129
Attn: Mr. Philip Allen
Bank of China, New York Branch
410 Madison Avenue
New York, NY 10017
Tel: (212) 035-3101 x229
Fax: (212) 308-4993
Attn: David Hoang
U.S. Bank National Association
800 Nicollet Mall
BC-MN-H03A
Minneapolis, MN 55402
Tel: (612) 303-3586/ (612) 303-3597
Fax: (612) 303-2270
Attn: Mike Raarup/Connie Tima______________
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE I
Credit Suisse First Boston,
Acting through its Cayman Islands Branch
Eleven Madison Avenue
New York, NY 10010
Tel: (212) 325-1986
Fax: (212) 538-0391
Attn: William O'Daly
G. LENDERS
Chang Hwa Bank, Los Angeles Branch
333 South Grand Avenue, Suite 600
Los Angeles, Ca 90071
Tel: (213) 620-7200 X 230
Fax: (213) 620-7227
Attn: Jessy Liu
Comerica Bank
One Detroit Center
Detroit, MI 48226
Tel: (313) 222-9290
Fax: (313) 222-9295
Attn: Leslie Vogel
E. Sun Commercial Bank, Ltd., Los Angeles Branch
17700 Castleton Street, Suite 500
City of Industry, CA 91748
Tel: (626) 810-2400, Ext 225
Fax: (626) 839-5531
Attn: Homer Hou
Mellon Bank, N.A.
One Mellon Bank Center, Room 5325
Pittsburgh, PA 15258-0001
Tel: (412) 234-5344
Fax: (412) 234-8657
Attn: Jim McDunn
First Commercial Bank, Los Angeles Branch
515 South Flower Street, Suite 1050
Los Angeles, CA 90071
Tel: (213) 405-1133
Fax: (213) 362-0219
Attn: Josephine Chong
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE I
UFJ Bank Limited
55 East 52nd Street
New York, NY 10055
Tel: (212) 339-6210
Fax: (212) 754-2368
Attn: Jesse McDonald
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE I
COMMITMENT
AMOUNTS AND
PERCENTAGES
----------- COMMITMENT
LENDER COMMITMENT PERCENTAGE
------ ---------- ----------
Bank of America, N.A. $ 45,000,000 7.5%
JPMorgan Chase Bank, N.A. $ 45,000,000 7.5%
Wachovia Bank, National Association $ 45,000,000 7.5%
Wells Fargo Bank, N.A. $ 45,000,000 7.5%
Commerzbank AG New York and Grand Cayman Branches $ 35,000,000 5.833334%
Citicorp North America, Inc. $ 35,000,000 5.833334%
Deutsche Bank Trust Company Americas $ 35,000,000 5.833334%
Eurohypo AG, New York Branch $ 35,000,000 5.833334%
SunTrust Bank $ 35,000,000 5.833334%
PNC Bank, National Association $ 35,000,000 5.833334%
Am South Bank $ 30,000,000 5.0%
Bank of China, New York Branch $ 25,000,000 4.166666%
The Governor and Company of the Bank of Ireland $ 25,000,000 4.166666%
U.S. Bank National Association $ 25,000,000 4.166666%
Credit Suisse First Boston $ 20,000,000 3.333333%
UFJ Bank Limited $ 20,000,000 3.333333%
Comerica Bank $ 15,000,000 2.5%
Chang Hwa Bank, Los Angeles Branch $ 15,000,000 2.5%
Mellon Bank, N.A. $ 15,000,000 2.5%
E.Sun Commercial Bank, Ltd., Los Angeles Branch $ 10,000,000 1.666666%
First Commercial Bank, Los Angeles Branch $ 10,000,000 1.666666%
Total $600,000,000 100%
II. BORROWER
Camden Property Trust
3 Greenway Plaza
Suite 1300
Houston, Texas 77046
Attn: Dennis Steen
Fax No.: (713) 354-2710
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE I
SCHEDULE II
LIBOR MARGIN; VARIABLE RATE MARGIN; FACILITY FEE PERCENTAGE
Variable Facility
Applicable Debt Rating(1) LIBOR Rate Fee
TIERS S&P/Moody's Margin Margin Percentage
- ----- ------------------------- ------ -------- ----------
I A-/A3 or higher 45 bps 0 bps 15 bps
II BBB+/Baa1 50 bps 0 bps 15 bps
III BBB/Baa2(2) 65 bps 0 bps 15 bps
IV BBB-/Baa3 80 bps 0 bps 20 bps
V Less than BBB-/Baa3 105 bps 25 bps 25 bps
(1) As defined in Section 1.1, the Applicable Debt Rating is the higher of the
Moody's Rating or the S&P Rating at the time in question.
(2) Current Applicable Debt Rating on the Closing Date.
AMENDED AND RESTATED CREDIT AGREEMENT (Camden Property Trust) SCHEDULE II
SCHEDULE III
ORGANIZATIONAL CHART, PART I OF II
[SUMMARY OWNERSHIP STRUCTURE]
SCHEDULE IV - AMENDED AND RESTATED CREDIT AGREEMENT
(Camden Property Trust) PAGE 1
[DETAILED OWNERSHIP STRUCTURE]
SCHEDULE IV - AMENDED AND RESTATED CREDIT AGREEMENT
(Camden Property Trust) PAGE 2
ORGANIZATIONAL CHART, PART II OF II
ENTITY NAME STATE OF INCORPORATION OR ORGANIZATION
- ----------- --------------------------------------
CPT-GP, Inc. Delaware
CPT-LP, Inc. Delaware
Camden Property Trust Texas
Camden Acquisitions, Inc. Delaware
Camden Builders, Inc. Delaware
Camden Development, Inc. Delaware
Camden Housing, Inc. Delaware
Camden Operating, L.P Delaware
Camden Realty, Inc. Delaware
Camden Summit, Inc. Delaware
Camden Technology, Inc. Delaware
Camden USA, Inc. Delaware
Camden-Delta Westwind, LLC Delaware
Denver West Apartments, LLC Colorado
Oasis-California, Inc. Nevada
Oasis Martinique, LLC Delaware
ORI, Inc. Nevada
ORI-Colorado, Inc. Nevada
ORI Park, Inc. Nevada
ORI Wexford, Inc. Nevada
Sierra-Nevada Multifamily Investment, LLC Delaware
Westwind Development, LLC Delaware
SCHEDULE IV - AMENDED AND RESTATED CREDIT AGREEMENT
(Camden Property Trust) PAGE 3
SCHEDULE IV
CAMDEN PROPERTY TRUST CA DTD 8/15/2002
OUTSTANDING LETTERS OF CREDIT AS OF 01/07/2005
LC NUMBER BENEFICIARY LC AMOUNT ($) ISSUE DATE EXPIRY DATE
- --------- ----------- ------------- ---------- -----------
3052588 Davis-Penn Mortgage $ 255,636.00 11/22/2002 02/18/2005
3054218 Davis-Penn Mortgage $ 228,260.00 02/20/2003 07/17/2005
0940696 Fannie Mae Multifamily $ 368,738.00 03/03/2003 06/10/2005
3025800 Zurich Insurance Company $ 975,000.00 03/03/2003 04/15/2005
3058548 St. Paul Fire and Ma $ 5,000,000.00 08/28/2003 08/29/2005
3058786 Davis-Penn Mortgage $ 235,307.00 09/12/2003 07/29/2005
3058899 U.S. Dept. of Housing $ 25,014.44 09/16/2003 07/29/2005
3062824 St. Paul Fire and Ma $ 5,000,000.00 04/26/2004 05/02/2005
3064437 Hartford Fire Insurance $ 785,000.00 07/19/2004 04/15/2005
3065551 Davis-Penn Mortgage $ 1,095,922.42 09/17/2004 08/15/2005
3071534 Real Estate Collateral $ 285,851.98 11/05/2004 07/29/2005
3071917 Fairfax County Department $ 65,400.00 11/30/2004 07/29/2005
---------------
$ 14,320,129.84
===============
SCHEDULE IV - AMENDED AND RESTATED CREDIT AGREEMENT
(Camden Property Trust) PAGE 1
EXHIBIT A-1
REVOLVING PROMISSORY NOTE
$ ________________ Dallas, Texas ________, 2005
FOR VALUE RECEIVED, CAMDEN PROPERTY TRUST, a Texas real estate investment
trust ("Maker"), hereby promises to pay to the order of __________, a
____________ ("Lender"), in care of Administrative Agent, at its banking house
in the City of Dallas, Dallas County, Texas, or at such other address given to
Maker by Administrative Agent, the principal sum of _______________ and ___/100
Dollars ($________.), or so much thereof as may be advanced and outstanding,
together with interest, as hereinafter described.
This Note has been executed and delivered pursuant to the terms of that
certain Amended and Restated Credit Agreement (as the same may be modified,
amended, supplemented, extended or restated from time to time, the "Credit
Agreement") dated January 14, 2005, executed by and among Maker, Bank of
America, N.A., as Administrative Agent ("Administrative Agent"), JPMorgan Chase
Bank, N.A., as Syndication Agent, Wachovia Bank, N.A. and Wells Fargo Bank,
N.A., as Documentation Agents and the Lenders (which includes the payee of this
Note), and is one of the notes defined therein as a "Note", the terms and
provisions of the Credit Agreement related to this Note being incorporated
herein by reference for all purposes. Each capitalized term used but not defined
herein shall have the meaning given to such term in the Credit Agreement. The
terms of the Credit Agreement shall govern in the case of any inconsistency
between such terms and the terms hereof.
Payment and performance of this Note is guaranteed by the Guarantor
Subsidiaries pursuant to each Guaranty Agreement. Any holder hereof shall be
entitled to all benefits and remedies and security set forth in the Credit
Agreement, the Guaranty Agreements and all the other Loan Documents.
1. Interest and Payment.
(a) Maturity. The principal of this Note and all accrued but
unpaid interest hereon shall be due and payable in full on the Termination Date
as in effect under the Credit Agreement.
(b) Accrual of Interest. Subject to Paragraph 1(f) below, interest
on this Note shall accrue at a rate per annum equal to the lesser of (i) at
Maker's option, the Variable Rate or the Adjusted LIBOR Rate, subject, however,
to the provisions of the Credit Agreement, or (ii) the Maximum Lawful Rate;
provided, however, that as to any portion of the outstanding principal balance
hereof that is not subject to an effective election of or conversion to the
Adjusted LIBOR Rate in accordance with the terms of the Credit Agreement,
interest on such portion of this Note shall accrue interest at the lesser of (i)
the Variable Rate or (ii) the Maximum Lawful Rate. Interest on this Note shall
be calculated at a daily rate equal to 1/360 of the annual percentage rate which
this Note bears, subject to the provisions hereof limiting interest to the
EXHIBIT A-1 - REVOLVING PROMISSORY NOTE (Camden Property Trust) PAGE 1
Maximum Lawful Rate. Without notice to Maker or any other Person, the Variable
Rate and the Maximum Lawful Rate shall each automatically fluctuate upward and
downward as and in the amount by which the Base Rate and the Maximum Lawful
Rate, respectively, fluctuate, subject always to limitations contained in this
Note and the Credit Agreement.
(c) Agreements Concerning Pricing Election. Reference should be
made to the provisions of Section 3.5 of the Credit Agreement concerning the
terms, manner and agreements related to the interest rate elections available to
Maker under this Note.
(d) Interest Payments. Accrued interest hereon shall be due and
payable as is provided in Article III of the Credit Agreement, which provides,
in part, for (i) monthly payments of interest on the tenth (10th ) day of each
calendar month, commencing on February 10, 2005, and continuing thereafter on
the tenth (10th) day of each month during the Credit Period, and (ii) to the
extent applicable, payment on the last day of each Interest Period.
(e) Costs Due to Regulatory Changes. Maker shall indemnify Lender
against and reimburse Lender for costs to Lender, as a result of any Regulatory
Change, in the maintaining of any LIBOR Rate Advance as provided in the Credit
Agreement.
(f) Default Rate. After maturity of this Note or the occurrence of
an Event of Default, the outstanding principal balance of this Note shall, at
the option of the Lenders, bear interest at the Default Rate. Any past due
principal, and to the extent permitted by law, past due interest on this Note
shall bear interest, payable as it accrues on demand, for each day until paid at
the Default Rate. Such interest shall continue to accrue at the Default Rate
notwithstanding the entry of a judgment with respect to any of the Obligations
or any other event, unless otherwise provided by law.
(g) Maximum Lawful Rate Adjustments. If at any time the Applicable
Rate shall be limited to the Maximum Lawful Rate, any subsequent reductions in
the Applicable Rate shall not reduce the rate of interest on this Note below the
Maximum Lawful Rate until the total amount of interest accrued equals the amount
of interest which would have accrued if the Applicable Rate had at all times
been in effect. In the event that at maturity (stated or by acceleration), or at
the final payment of the Credit Facility, the total amount of interest paid or
accrued on the Credit Facility is less than the amount of interest which would
have accrued if the Applicable Rate had at all times been in effect with respect
thereto, then at such time, to the extent permitted by law, Maker shall pay to
Administrative Agent, for the ratable benefit of the Lenders, an amount equal to
the difference between (a) the lesser of the amount of interest which would have
accrued if the Applicable Rate had at all times been in effect and the amount of
interest which would have accrued if the Maximum Lawful Rate had at all times
been in effect, and (b) the amount of interest actually paid on the Credit
Facility.
2. Default. The occurrence of a Default or an Event of Default, under
and as defined in the Credit Agreement, shall constitute, respectively, a
Default or an Event of Default under this Note.
EXHIBIT A-1 - REVOLVING PROMISSORY NOTE (Camden Property Trust) PAGE 2
3. Remedies.
(a) All Remedies Available. Upon the occurrence of an Event of
Default, the holder hereof, acting by and through Administrative Agent in
accordance with the terms of Articles IX and X of the Credit Agreement, shall
have the right to declare the entire unpaid principal balance of, and all
accrued unpaid interest on, this Note at once due and payable (and upon such
declaration, the same shall be at once due and payable), to foreclose any liens
and security interests securing payment hereof (if any), to offset against this
Note any sum or sums owed by it to Maker, and to exercise any of its other
rights, powers and remedies under this Note, under the Credit Agreement or any
other Loan Document, or at law or in equity.
(b) No Waiver. Neither the failure by the holder hereof to
exercise, nor delay by the holder hereof in exercising, the right to accelerate
the maturity of this Note or any other right, power or remedy upon any Default
or Event of Default shall be construed as a waiver of such Default or Event of
Default or as a waiver of the right to exercise any such right, power or remedy
at any time. No single or partial exercise by the holder hereof of any right,
power or remedy shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right, power or remedy may be exercised at any
time and from time to time. All rights and remedies provided for in this Note
and in any other Loan Document are cumulative of each other and of any and all
other rights and remedies existing at law or in equity, and the holder hereof
shall, in addition to the rights and remedies provided herein or in any other
Loan Document, be entitled to avail itself of all such other rights and remedies
as may now or hereafter exist at law or in equity for the collection of the
indebtedness owing hereunder, and the resort to any right or remedy provided for
hereunder or under any such other Loan Document or provided for by law or in
equity shall not prevent the concurrent or subsequent employment of any other
appropriate rights or remedies. Without limiting the generality of the foregoing
provisions, the acceptance by the holder hereof from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the rights of the holder hereof
to accelerate the maturity of this Note or to exercise any other right, power or
remedy at the time or at any subsequent time, or nullify any prior exercise of
any such right, power or remedy, or (ii) constitute a waiver of the requirement
of punctual payment and performance, or a novation in any respect.
4. Usury Savings Provisions.
(a) General Limitation. Notwithstanding anything herein or in any
other Loan Document, expressed or implied, to the contrary, in no event shall
any interest rate charged hereunder or under any of the other Loan Documents, or
any interest contracted for, collected or received by Lender or any holder
hereof, exceed the Maximum Lawful Rate or the maximum amount permitted under
law.
(b) Intent of Parties. It is expressly stipulated and agreed to be
the intent of Maker and Lender at all times to comply with the applicable law
governing the maximum rate or amount of interest payable on or in connection
with this Note. If the applicable law is ever judicially interpreted so as to
render usurious any amount called for under this Note or under any
EXHIBIT A-1 - REVOLVING PROMISSORY NOTE (Camden Property Trust) PAGE 3
of the other Loan Documents, or contracted for, charged, taken, reserved or
received with respect to this Note, or if acceleration of the maturity of this
Note, any prepayment by Maker, or any other circumstance whatsoever, results in
Lender having been paid any interest in excess of that permitted by applicable
law, then it is the express intent of Maker and Lender that all excess amounts
theretofore collected by Lender be credited on the principal balance of this
Note (or, if this Note has been or would thereby be paid in full, refunded to
Maker), and the provisions of this Note and the other applicable Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder and thereunder.
The right to accelerate the maturity of this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to collect any unearned interest in the
event of acceleration. All sums paid or agreed to be paid to Lender for the use,
forbearance or detention of the indebtedness evidenced hereby or by any other
Loan Document shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the Maximum Lawful Rate. The term "applicable law"
as used herein shall mean the laws of the State of Texas, or DIDMCA or any other
applicable United States federal law to the extent that it permits Lender to
contract for, charge, take, reserve or receive a greater amount of interest than
under the laws of the state which governs the Credit Agreement. The provisions
of this paragraph shall control all agreements between Maker and Lender.
5. General Provisions.
(a) Business Days. Whenever any payment shall be due under this
Note on a day which is not a Business Day, the date on which such payment is due
shall be extended to the next succeeding Business Day, and such extension of
time shall be included in the computation of the amount of interest then
payable.
(b) Manner of Payment. The manner in which payments are to be made
on this Note shall be governed by the provisions hereof and the Credit
Agreement, including without limitation Article III of the Credit Agreement.
(c) Prepayments. Voluntary prepayments may be made on this Note
subject to and in accordance with Section 3.6 of the Credit Agreement. A
principal payment may be required on this Note from time to time subject to and
in accordance with Section 3.2(b) of the Credit Agreement.
(d) Application of Payments. All payments made on this Note shall
be applied in accordance with Sections 3.6, 3.9 and 9.9 of the Credit Agreement,
as applicable. Nothing herein shall limit or impair any rights of any holder
hereof to apply as provided in the Loan Documents any past due payments or other
collections after default. Except to the extent specific provisions are set
forth in this Note or another Loan Document with respect to application of
payments, all payments received by the holder hereof shall be applied, to the
extent thereof, to the indebtedness owing by Maker to the holder hereof in such
order and
EXHIBIT A-1 - REVOLVING PROMISSORY NOTE (Camden Property Trust) PAGE 4
manner as the Lenders shall deem appropriate, any instructions from Maker or
anyone else to the contrary notwithstanding.
(e) Costs of Collection. If any holder of this Note retains an
attorney in connection with any default or at maturity or to collect, enforce or
defend this Note or any other Loan Document in any lawsuit or in any probate,
reorganization, bankruptcy or other proceeding, or if Maker sues any holder of
this Note in connection with this Note or any other Loan Document and does not
prevail, then Maker agrees to pay to each such holder, in addition to principal
and interest, all costs and expenses incurred by such holder in trying to
collect this Note or in any such suit or proceeding, including reasonable
attorneys' fees.
(f) Waivers and Acknowledgments. Maker and all sureties,
endorsers, guarantors and any other party now or hereafter liable for the
payment of this Note in whole or in part, hereby severally (i) waive demand,
presentment for payment, notice of dishonor and of nonpayment, protest, notice
of protest, notice of intent to accelerate, notice of acceleration and all other
notice (except only for any notice that is specifically required by the terms of
the Credit Agreement or any other Loan Document), filing of suit and diligence
in collecting this Note or enforcing any security herefor; (ii) agree to any
substitution, subordination, exchange or release of any party primarily or
secondarily liable hereon or any security that may ever be given; (iii) agree
that the holder hereof shall not be required first to institute suit or exhaust
its remedies against Maker or others liable or to become liable hereon or to
enforce its rights against them or any security herefor; (iv) consent to any
extension or postponement of time of payment of this Note for any period or
periods of time and to any partial payments, before or after maturity, and to
any other indulgences with respect hereto, without notice thereof to any of
them; and (v) submit (and waive all rights to object) to personal jurisdiction
in the State of Texas, and venue in Harris County, Texas, for the enforcement of
any and all obligations under the Loan Documents.
(g) Amendments in Writing. This Note may not be changed, amended
or modified except in a writing expressly intended for such purpose and executed
by the party against whom enforcement of the change, amendment or modification
is sought.
(h) Notices. Any notice required or which any party desires to
give under this Note shall be given and effective as provided in Section 11.2 of
the Credit Agreement.
(i) Assignments/Participations. Maker acknowledges and agrees that
the holder of this Note may, at any time and from time to time, assign all or a
portion of its interest in the Credit Facility or transfer to any Person a
participation interest in the Credit Facility, subject to and in accordance with
the terms and conditions of the Credit Agreement, including Section 11.10
thereof.
(j) Successors and Assigns. All of the covenants, stipulations,
promises and agreements contained in this Note by or on behalf of Maker shall
bind its successors and assigns and shall be for the benefit of Lender and any
holder hereof, and its successors and assigns, whether so expressed or not,
subject, however, to the provisions of Section 11.10 of the Credit Agreement.
EXHIBIT A-1 - REVOLVING PROMISSORY NOTE (Camden Property Trust) PAGE 5
(k) Time of the Essence. Time shall be of the essence in this Note
with respect to all of Maker's obligations hereunder.
(l) GOVERNING LAW. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY TEXAS LAW, EXCEPT TO THE EXTENT THAT UNITED STATES FEDERAL LAW
APPLIES PURSUANT TO SECTION 11.8 OF THE CREDIT AGREEMENT OR OTHERWISE.
(m) INTEGRATION. THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the date first
above written.
MAKER:
CAMDEN PROPERTY TRUST, a Texas real estate
investment trust
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
EXHIBIT A-1 - REVOLVING PROMISSORY NOTE (Camden Property Trust) PAGE 6
EXHIBIT A-2
$____________ Dallas, Texas (Date)
COMPETITIVE BID NOTE
FOR VALUE RECEIVED, CAMDEN PROPERTY TRUST, a Texas real estate investment
trust ("Maker") hereby promises to pay to the order of ________________________
("Lender") the aggregate unpaid principal amount of all Competitive Bid Loans
made by Lender to Maker pursuant to each Competitive Bid Acceptance Notice, in
immediately available funds at the main Dallas, Texas office of Bank of America,
N.A., a national banking association, as Administrative Agent under the Credit
Agreement (hereinafter defined), together with interest on the unpaid principal
amount hereof at the rates and on the dates included in each Competitive Bid
Acceptance Notice. Maker shall pay the principal of and accrued and unpaid
interest on each Competitive Bid Loan as indicated in each Competitive Bid
Acceptance Notice and Section 2.3 of the Credit Agreement.
This Note is being executed and delivered pursuant to the terms of that
certain Amended and Restated Credit Agreement (as the same may be modified,
amended, supplemented, extended or restated from time to time, the "Credit
Agreement"), dated January 14, 2005, executed by and among Maker, Bank of
America, N.A., as Administrative Agent ("Administrative Agent"), JPMorgan Chase
Bank, N.A., as Syndication Agent, Wachovia Bank, N.A. and Wells Fargo Bank,
N.A., as Documentation Agents, and the Lenders (which includes the payee of this
Note), and is one of the notes defined therein as a "Competitive Bid Note", the
terms and provisions of the Credit Agreement related to this Note being
incorporated herein by reference for all purposes. Each capitalized term used
but not defined herein shall have the meaning given to such term in the Credit
Agreement. The terms of the Credit Agreement shall govern in the case of any
inconsistency between such terms and the terms hereof.
Lender may from time to time submit to Maker a Competitive Bid Quote
pursuant to Section 2.3 of the Credit Agreement. In the event that Maker accepts
all or a portion of the offer reflected in any such Competitive Bid Quote
pursuant to the terms of a Competitive Bid Acceptance Notice, this Note shall
evidence the indebtedness created by the applicable Competitive Bid Loan and
Maker's obligations to pay same in accordance with the terms of the respective
Competitive Bid Acceptance Notice and the Credit Agreement.
Lender shall, and is hereby authorized to, record on each Schedule
attached hereto for each Competitive Bid Loan made by Lender, or to otherwise
record in accordance with its usual practice, the date and amount of each
Competitive Bid Loan made by Lender and the date and amount of each principal
and/or interest payment thereon, provided that Lender's failure to do so shall
not absolve Maker of its obligations hereunder or under any other Loan Document
or in any way affect Maker's obligations to pay all principal of and accrued
interest on each Competitive Bid Loan.
EXHIBIT A-2 - COMPETITIVE BID NOTE (Camden Property Trust) PAGE 1
Payment and performance of this Note is guaranteed pursuant to each
Guaranty Agreement. Any holder shall be entitled to all benefits and remedies
set forth in the Credit Agreement, the Guaranty Agreements and all the other
Loan Documents.
1. Default. The occurrence of a Default or an Event of Default, under
and as defined in the Credit Agreement, shall constitute, respectively, a
Default or an Event of Default under this Note.
2. Remedies.
(a) All Remedies Available. Upon the occurrence of an Event of
Default, the holder hereof, acting by and through Administrative Agent in
accordance with the terms of Articles IX and X of the Credit Agreement, shall
have the right to declare the entire unpaid principal balance of, and all
accrued unpaid interest on, this Note at once due and payable (and upon such
declaration, the same shall be at once due and payable), to foreclose any liens
and security interests securing payment hereof (if any), to offset against this
Note any sum or sums owed by it to Maker, and to exercise any of its other
rights, powers and remedies under this Note, under the Credit Agreement or any
other Loan Document, or at law or in equity.
(b) No Waiver. Neither the failure by the holder hereof to
exercise, nor delay by the holder hereof in exercising, the right to accelerate
the maturity of this Note or any other right, power or remedy upon any Default
or Event of Default shall be construed as a waiver of such Default or Event of
Default or as a waiver of the right to exercise any such right, power or remedy
at any time. No single or partial exercise by the holder hereof of any right,
power or remedy shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right, power or remedy may be exercised at any
time and from time to time. All rights and remedies provided for in this Note
and in any other Loan Document are cumulative of each other and of any and all
other rights and remedies existing at law or in equity, and the holder hereof
shall, in addition to the rights and remedies provided herein or in any other
Loan Document, be entitled to avail itself of all such other rights and remedies
as may now or hereafter exist at law or in equity for the collection of the
indebtedness owing hereunder, and the resort to any right or remedy provided for
hereunder or under any such other Loan Document or provided for by law or in
equity shall not prevent the concurrent or subsequent employment of any other
appropriate rights or remedies. Without limiting the generality of the foregoing
provisions, the acceptance by the holder hereof from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the rights of the holder hereof
to accelerate the maturity of this Note or to exercise any other right, power or
remedy at the time or at any subsequent time, or nullify any prior exercise of
any such right, power or remedy, or (ii) constitute a waiver of the requirement
of punctual payment and performance, or a novation in any respect.
3. Usury Savings Provisions.
(a) General Limitation. Notwithstanding anything herein or in any
other Loan Document, expressed or implied, to the contrary, in no event shall
any interest rate charged
EXHIBIT A-2 - COMPETITIVE BID NOTE (Camden Property Trust) PAGE 2
hereunder or under any of the other Loan Documents, or any interest contracted
for, collected or received by Lender or any holder hereof, exceed the Maximum
Lawful Rate or the maximum amount permitted under law.
(b) Intent of Parties. It is expressly stipulated and agreed to be
the intent of Maker and Lender at all times to comply with the applicable law
governing the maximum rate or amount of interest payable on or in connection
with this Note. If the applicable law is ever judicially interpreted so as to
render usurious any amount called for under this Note or under any of the other
Loan Documents, or contracted for, charged, taken, reserved or received with
respect to this Note, or if acceleration of the maturity of this Note, any
prepayment by Maker, or any other circumstance whatsoever, results in Lender
having been paid any interest in excess of that permitted by applicable law,
then it is the express intent of Maker and Lender that all excess amounts
theretofore collected by Lender be credited on the principal balance of this
Note (or, if this Note has been or would thereby be paid in full, refunded to
Maker), and the provisions of this Note and the other applicable Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder and thereunder.
The right to accelerate the maturity of this Note does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to collect any unearned interest in the
event of acceleration. All sums paid or agreed to be paid to Lender for the use,
forbearance or detention of the indebtedness evidenced hereby or by any other
Loan Document shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of such indebtedness
until payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the Maximum Lawful Rate. The term "applicable law"
as used herein shall mean the laws of the State of Texas, or DIDMCA or any other
applicable United States federal law to the extent that it permits Lender to
contract for, charge, take, reserve or receive a greater amount of interest than
under the laws of the state which governs the Credit Agreement. The provisions
of this paragraph shall control all agreements between Maker and Lender.
4. Costs of Collection. If any holder of this Note retains an attorney
in connection with any default or at maturity or to collect, enforce or defend
this Note or any other Loan Document in any lawsuit or in any probate,
reorganization, bankruptcy or other proceeding, or if Maker sues any holder of
this Note in connection with this Note or any other Loan Document and does not
prevail, then Maker agrees to pay to each such holder, in addition to principal
and interest, all costs and expenses incurred by such holder in trying to
collect this Note or in any such suit or proceeding, including reasonable
attorneys' fees.
5. Amendments in Writing. This Note may not be changed, amended or
modified except in a writing expressly intended for such purpose and executed by
the party against whom enforcement of the change, amendment or modification is
sought.
6. Assignments/Participations. Maker acknowledges and agrees that the
holder of this Note may, at any time and from time to time, assign all or a
portion of its interest in the Credit Facility or transfer to any Person a
participation interest in the Credit Facility, subject to
EXHIBIT A-2 - COMPETITIVE BID NOTE (Camden Property Trust) PAGE 3
and in accordance with the terms and conditions of the Credit Agreement,
including Section 11.10 thereof.
7. Successors and Assigns. All of the covenants, stipulations, promises
and agreements contained in this Note by or on behalf of Maker shall bind its
successors and assigns and shall be for the benefit of Lender and any holder
hereof, and its successors and assigns, whether so expressed or not, subject,
however, to the provisions of Section 11.10 of the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY TEXAS LAW,
EXCEPT TO THE EXTENT THAT UNITED STATES FEDERAL LAW APPLIES PURSUANT TO SECTION
11.8 OF THE CREDIT AGREEMENT OR OTHERWISE.
Time shall be of the essence in this Note with respect to all of Maker's
obligations hereunder.
THIS NOTE AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the date first
above written.
MAKER:
CAMDEN PROPERTY TRUST, a Texas real estate
investment trust
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
EXHIBIT A-2 - COMPETITIVE BID NOTE (Camden Property Trust) PAGE 4
SCHEDULE [I]
TO
COMPETITIVE BID NOTE OF CAMDEN PROPERTY TRUST,
PAYABLE TO [LENDER]
DATED ____________, _______
_____ Competitive Bid Pricing Loan/_____ Competitive Bid Fixed Rate Loan (check
one)
Made on ___________, _______. Principal Amount $_____________
Payment Date Principal Amount Paid Interest Paid Unpaid Balance
- ------------ --------------------- ------------- --------------
EXHIBIT A-2 - COMPETITIVE BID NOTE (Camden Property Trust) PAGE 5
EXHIBIT A-3
SWINGLINE NOTE
$______________ ___(Date)___
CAMDEN PROPERTY TRUST (the "Borrower"), promises to pay to the order of
BANK OF AMERICA, N.A., a national banking association (the "Lender"), the lesser
of the principal sum of ___________________ and No/100 Dollars ($____________)
or the aggregate principal amount of all Swingline Advances made by Lender to
the Borrower pursuant to the Credit Agreement (as hereinafter defined), in
immediately available funds at the main Dallas, Texas office of the
Administrative Agent (as defined in the Credit Agreement), together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Credit Agreement. The Borrower shall pay the principal of and
accrued and unpaid interest on the Swingline Advances in full on demand by
Lender, but in any event on or before the Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Swingline Advance and the date and amount of each
principal payment hereunder, provided that its failure to do so shall not
absolve the Borrower of its obligations hereunder or under any other Loan
Document.
This Note is the Swingline Note issued pursuant to, and is entitled to the
benefits of, the Amended and Restated Credit Agreement dated as of January 14,
2005 (which, as it may be amended or modified and in effect from time to time,
is herein called the "Credit Agreement"), among the Borrower, the lenders
parties thereto, including without limitation the Lender, Bank of America, N.A.,
as Administrative Agent, JPMorgan Chase Bank, N.A., as Syndication Agent,
Wachovia Bank, N.A. and Wells Fargo Bank, N.A., as Documentation Agents, to
which Credit Agreement reference is hereby made for a statement of terms and
conditions governing this Note, including, without limitation, the interest rate
to be paid hereunder and the terms and conditions under which this Note may be
prepaid or its maturity date accelerated. This Note is guaranteed pursuant to
the Guaranty Agreements. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF TEXAS, BUT GIVING EFFECT TO FEDERAL LAW
APPLICABLE TO NATIONAL BANKS.
EXHIBIT A-3 - SWINGLINE NOTE (Camden Property Trust) PAGE 1
MAKER:
CAMDEN PROPERTY TRUST, a Texas real estate
investment trust
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
EXHIBIT A-3 - SWINGLINE NOTE (Camden Property Trust) PAGE 2
SCHEDULE OF ADVANCES AND PAYMENTS OF PRINCIPAL
TO
SWINGLING NOTE OF CAMDEN PROPERTY TRUST.
Principal Amount of Principal Amount Unpaid
Date Swingline Loan Paid Balance
- ---- ------------------- ---------------- -------
EXHIBIT A-3 - SWINGLINE NOTE (Camden Property Trust) PAGE 3
EXHIBIT B
REQUEST FOR ADVANCE/LETTER OF CREDIT
This Request for Advance/Letter of Credit is being delivered by Camden
Property Trust ("Borrower") pursuant to that certain Amended and Restated Credit
Agreement (the "Credit Agreement"), dated as of January 14, 2005, executed by
Borrower, Bank of America, N.A., as Administrative Agent, JPMorgan Chase Bank,
N.A., as Syndication Agent, Wachovia Bank, N.A. and Wells Fargo Bank, N.A., as
Documentation Agents, and the Lenders, as therein defined. Unless defined herein
or indicated otherwise, each capitalized term used herein shall have the meaning
given to such term in the Credit Agreement.
1. Advance.
(a) The aggregate Advance requested hereby is for an amount
equal to $_______________. Borrower requests that the
proceeds of such Advance be wired to ___________________
or deposited in ___________________. Borrower represents
and warrants to Lenders that the Advance herein
requested does not exceed the amount which Borrower is
entitled to receive pursuant to Section 2.1 (or any
other provisions) of the Credit Agreement.
(b) Borrower requests that of the Advance requested hereby,
$_____________ bear the Applicable LIBOR Rate. With
respect to the LIBOR Rate Advance, the Interest Period
shall be _____ months, with the Effective Date being
____________________.
2. Swingline Advance. Borrower hereby requests a Swingline
Advance in an amount equal to $____________.
3. Letter of Credit. Borrower hereby requests that the Fronting
Bank issue a Letter of Credit in the amount of $____________,
with a term of __________, and ____________ as the beneficiary
thereof.
4. Representations and Warranties. Borrower hereby certifies,
represents and warrants to Administrative Agent and the
Lenders that:
(a) This Request for Advance has been duly authorized by all
necessary action on the part of Borrower.
(b) The representations and warranties contained in the
Credit Agreement and the other Loan Documents remain
true and correct on and as of the date hereof with the
same force and effect as though made on the date hereof
(except with respect to those representations and
warranties which are made as of a particular date).
EXHIBIT B - REQUEST FOR ADVANCE (Camden Property Trust) PAGE 1
(c) No Default or Event of Default has occurred and is
continuing, and the making of the Advance, Swingline
Advance and/or Letter of Credit requested hereby shall
not constitute a Default or Event of Default.
(d) The proceeds of the Advance, Swingline Advance and/or
Letter of Credit herein requested will not be used in
violation of any provision of the Credit Agreement or
any other Loan Document.
5. Non-Waiver. Borrower acknowledges and agrees that the making
of the Advance or Swingline Advance or issuance of Letter of
Credit requested hereby shall not (a) constitute a waiver of
any condition precedent to the obligation of the Lenders to
make further Advances or Swingline Advances or issue Letters
of Credit or (b) preclude the Lenders from thereafter
declaring the failure of Borrower to satisfy all such
conditions precedent to be a Default.
6. Maximum Available Amount. Attached hereto is a true and
correct schedule showing the Maximum Available Amount after
giving effect to the Advance, Swingline Advance and/or Letter
of Credit requested hereby.
EXECUTED as of _____________, _____.
BORROWER:
CAMDEN PROPERTY TRUST, a Texas real
estate investment trust
By: ______________________________
Name: ____________________________
Title: ___________________________
EXHIBIT B - REQUEST FOR ADVANCE (Camden Property Trust) PAGE 2
EXHIBIT C
CERTIFICATE OF COMPLIANCE
This Certificate is being delivered pursuant to that certain Amended and
Restated Credit Agreement dated as of January 14, 2005 (the "Credit Agreement"),
among Camden Property Trust ("Borrower), Bank of America, N.A., as
administrative agent ("Administrative Agent"), JPMorgan Chase Bank, N.A., as
syndication agent, Wachovia Bank, N.A. and Wells Fargo Bank, N.A., as
documentation agents, and the lenders (the "Lenders") named in the Credit
Agreement. All terms used but not defined herein shall have the meanings set
forth in the Credit Agreement. This Certificate is submitted on a quarterly
basis on or before the fiftieth (50th) day following the end of Borrower's
fiscal quarter for the period ended ___________ ___, _______. The undersigned
hereby further certifies to the following as of the date set forth below:
1. The representations and warranties of Borrower and the Guarantor
Subsidiaries under the Credit Agreement are true and complete in all material
respects as of the date hereof (except with respect to those representations and
warranties which are made as of a particular date).
2. No event has occurred which constitutes a Default or Event of
Default.
3. As of __________________, _____ (being the last day of Borrower's
most recently ended fiscal quarter), Borrower and its Consolidated Subsidiaries
are in compliance with the financial covenants contained in Sections 5.1, 8.1,
8.2, 8.3 and 8.4 of the Credit Agreement, and the following information is true,
accurate and complete as of such date:
A. Pertinent Information
1. Gross Asset Value of Unencumbered Properties is $______.
2. Total Unsecured Debt is $__________.
3. Unencumbered Adjusted NOI is $_________.
4. Consolidated Interest Expense attributable solely to
Total Unsecured Debt is $______.
5. Total Consolidated Debt is $_________.
6. Gross Asset Value is $________.
7. Secured Indebtedness is $________.
8. Secured Recourse Debt is $________.
9. Consolidated EBITDA is $________.
EXHIBIT C - CERTIFICATE OF COMPLIANCE (Camden Property Trust) PAGE 1
10. Fixed Charges are $_________.
11. Attached hereto is a list of the Unencumbered Properties
showing total units, occupancy rate, Unencumbered
Adjusted NOI, and Gross Asset Value among other
information.
B. Covenants
1. The aggregate amount of Liens described in subsection
(h) of the definition of Permitted Liens that the Pool
has is $________.
2. The aggregate occupancy level of the Unencumbered
Properties in the Pool, other than the Development
Properties, based on bona fide tenant leases requiring
current rent payments is ______%.
3. The Gross Asset Value of Unencumbered Properties is
______% of the Total Unsecured Debt.
4. The percent of Gross Asset Value of Unencumbered
Properties attributable to Development Properties is
______%.
5. The ratio of (a) Unencumbered Adjusted NOI to (b) the
portion of the Consolidated Interest Expense
attributable solely to Total Unsecured Debt is ____ to
1.00.
6. The Consolidated Net Worth is $_______.
7. The ratio of (a) Total Consolidated Debt excluding
Debentures to (b) Gross Asset Value is _____ to 1.0.
8. The ratio of (a) Secured Indebtedness to (b) Gross Asset
Value is ____ to 1.0.
9. The ratio of (a) Secured Recourse Debt to (b) Secured
Indebtedness is ____ to 1.0.
10. The ratio of (a) Consolidated EBITDA to (b) Consolidated
Interest Expense is ____ to 1.00.
11. The ratio of (a) Consolidated EBITDA to (b) Fixed
Charges is ____ to 1.00.
4. I hereby certify that I am the duly elected Chief Financial Officer
(or other duly Authorized Officer permitted under the Credit Agreement) of
Borrower. I hereby further certify, in my capacity as the Chief Financial
Officer (or such other Authorized Officer as indicated below) of Borrower, that
the information set forth herein and on the attachments hereto is true
EXHIBIT C - CERTIFICATE OF COMPLIANCE (Camden Property Trust) PAGE 2
and correct in all material respects to the best of my knowledge and prepared in
accordance with GAAP.
5. If this Certificate is being delivered in connection with the fiscal
year-end financial statements of Borrower, I hereby certify that, to the best of
my knowledge and belief, the financial statements of Borrower being delivered
herewith fairly reflect the financial condition of Borrower and its Consolidated
Subsidiaries and the results of Borrower's and its Consolidated Subsidiaries'
operations as of the date of delivery of such financial statements.
IN WITNESS WHEREOF, I have executed this Certificate as of the ______ day
of _________________, _______.
_____________________________
Title:
EXHIBIT C - CERTIFICATE OF COMPLIANCE (Camden Property Trust) PAGE 3
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE is made and entered into effective as of
the __ day of ____________, _____, by and between ________________ ("Assignor"),
and ________________ ("Assignee").
R E C I T A L S:
I. Pursuant to the terms and provisions of that certain Amended and
Restated Credit Agreement (as amended from time to time, the "Credit Agreement")
dated as of January 14, 2005, executed by and among Camden Property Trust, a
Texas real estate investment trust ("Borrower"), Bank of America, N.A., a
national banking association, as Administrative Agent ("Administrative Agent"),
JPMorgan Chase Bank, N.A., as Syndication Agent, Wachovia Bank, N.A. and Wells
Fargo Bank, N.A., as Documentation Agents, and the lenders (collectively, the
`Lenders") from time to time party to the Credit Agreement, a revolving credit
facility (the "Credit Facility") was made available to Borrower. Each
capitalized term defined in the Credit Agreement and used herein without
definition shall have the same meaning assigned to such term in the Credit
Agreement.
II. Assignor has a Commitment under the Credit Facility in the amount of
$________, and owns and holds a ____ % Commitment Percentage in the Credit
Facility, and, therefore, has an interest the Credit Agreement, and all of the
other Loan Documents, as one of the Lenders thereunder, as more particularly set
forth therein.
III. Assignor desires to assign to Assignee a _____________ percent
(_________%) interest in all of Assignor's right, title and interest in, to and
under the Credit Facility, and a proportionate interest in the Credit Agreement
and all of the other Loan Documents.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confessed, Assignor and Assignee hereby
covenant and agree as follows:
1. Assignor has SOLD, ASSIGNED, TRANSFERRED and CONVEYED, and by these
presents does hereby SELL, ASSIGN, TRANSFER and CONVEY, unto
Assignee as of the Assignment Date (hereinafter defined) a _________
percent ( %) interest in all of Assignor's rights, interests and
obligations as a Lender under the Credit Agreement and all of the
other Loan Documents (the "Assigned Interest").
Assignee hereby assumes all obligations of Assignor with respect to the Assigned
Interest.
Assignor hereby represents and warrants to Assignee that Assignor (a) is the
legal and beneficial owner of the Assigned Interest and (b) is legally
authorized to enter into this Assignment and Acceptance.
EXHIBIT D - ASSIGNMENT AND ACCEPTANCE (Camden Property Trust) PAGE 1
Assignee hereby confirms and acknowledges that, except as specifically set forth
herein, Assignor: (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument or document furnished pursuant thereto, other than that
Assignor is the legal and beneficial owner of the Assigned Interest and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
value or condition of, or title to, any of the Property, or the financial
condition of Borrower or any of the Guarantor Subsidiaries; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
performance or observance by Borrower of any of its obligations under any Loan
Document or any other instrument or document furnished pursuant thereto.
Assignor hereby requests that Administrative Agent exchange Assignor's Note and
Competitive Bid Note, respectively, as follows:
NOTE
Note Payable to
the Order of: Amount of Note
[Assignor] $___________
[Assignee] $___________
COMPETITIVE BID NOTE
[Assignor] $___________
[Assignee] $___________
Assignee hereby represents and warrants that Assignee (a) is legally authorized
to enter into this Assignment and Acceptance, and (b) is an Eligible Assignee.
Assignee hereby: (i) appoints Administrative Agent as the Administrative Agent
under the Credit Agreement and the other Loan Documents and authorizes
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to Administrative Agent by the terms thereof; (ii) confirms that it
has received a copy of the Credit Agreement and other Loan Documents, together
with copies of such financial statements of Borrower and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon Assignor, any other Lender,
Administrative Agent or any other Person, and based on such
EXHIBIT D - ASSIGNMENT AND ACCEPTANCE (Camden Property Trust) PAGE 2
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, subject to and in accordance with Article X of the Credit Agreement;
(iv) agrees with Assignor for the benefit of Administrative Agent, each other
Lender and Borrower and any other Person that it will perform all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender thereunder, and that it shall be liable directly to
Assignor, Administrative Agent, Borrower, each other Lender or any other Person
for the performance of such obligations; and (v) agrees not to disclose any
financial information of the Borrower or other confidential information
regarding the Credit Facility as and to the extent provided in Section 7.3 of
the Credit Agreement.
The effective date of this Assignment and Acceptance shall be ________ __, ____
(the "Assignment Date"), determined in accordance with Section 11.10(c) of the
Credit Agreement. Following the execution of this Assignment and Acceptance,
each party hereto and each Person consenting hereto shall deliver its duly
executed counterpart hereof to Administrative Agent for acceptance and recording
in the Register by Administrative Agent.
As of the Assignment Date, (i) Assignee shall be a "Lender" under the Loan
Documents and, to the extent provided in this Assignment and Acceptance and
subject to the terms of Article X of the Credit Agreement, shall have the rights
and obligations of a Lender thereunder, and (ii) Assignor shall, with respect
only to the Assigned Interest, relinquish its rights and be released from its
obligations under the Loan Documents, subject to Section 11.10 of the Credit
Agreement.
In accordance with Section 11.10 (a) (iv) of the Credit Agreement, Assignor and
Assignee agree to pay Administrative Agent a processing fee in the sum of
$3,500.00, together with any legal fees of Administrative Agent incurred in
connection with this Assignment.
Upon acceptance and recording of this Assignment and Acceptance, from and after
the Assignment Date, Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to Assignee.
If Assignee is organized under the laws of a jurisdiction outside the United
States, it hereby represents that it has delivered to Assignor and
Administrative Agent completed and signed copies of any forms that may be
required by the United States Internal Revenue Service in order to certify
Assignee's exemption from United States withholding taxes with respect to any
payment or distributions made or to be made to Assignee with respect to the
Credit Facilities or under the Credit Agreement or such other documents as are
necessary to indicate that all such payments or distributions are subject to
such taxes at a rate reduced by an applicable tax treaty.
This Assignment and Acceptance shall be governed by, and construed in accordance
with, the laws of the State of Texas, without giving effect to the conflict of
laws principles thereof.
This Assignment and Acceptance may be executed in any number of counterparts
which shall together constitute but one and the same agreement.
EXHIBIT D - ASSIGNMENT AND ACCEPTANCE (Camden Property Trust) PAGE 3
[REMAINDER OF PAGE LEFT BLANK -
SIGNATURES TO FOLLOW]
EXHIBIT D - ASSIGNMENT AND ACCEPTANCE (Camden Property Trust) PAGE 4
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
and Acceptance as of the date first above written.
ASSIGNOR:
By: ________________________________
Name: ______________________________
Title: _____________________________
Address of Assignee: ASSIGNEE:
____________________________________ By: ________________________________
____________________________________ Name: ______________________________
Fax No.: ___________________________ Title: _____________________________
ACKNOWLEDGED and ACCEPTED as of
the _____ day of _________, ____.
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: ________________________________
Name: ______________________________
Title: _____________________________
BORROWER:
CAMDEN PROPERTY TRUST, a Texas real estate investment trust
By: ________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT D - ASSIGNMENT AND ACCEPTANCE (Camden Property Trust) PAGE 5
EXHIBIT E-1
COMPETITIVE BID QUOTE REQUEST
(Section 2.3(b))
_________________
(Date)
To: Bank of America, N.A.., as
administrative agent (the "Administrative Agent")
From: Camden Property Trust ("Borrower")
Re: Amended and Restated Credit Agreement (as the same may be modified,
amended, supplemented, extended or restated from time to time, the "Credit
Agreement") dated January 14, 2005, executed by and among Borrower,
Administrative Agent, JPMorgan Chase Bank, N.A., as Syndication Agent,
Wachovia Bank, N.A. and Wells Fargo Bank, N.A., as Documentation Agents,
and the Lenders.
1. Capitalized terms used herein have the meanings assigned to them in
the Credit Agreement.
We hereby give notice pursuant to Section 2.3(b) of the Credit Agreement that we
request Competitive Bid Quotes for the following proposed Competitive Bid
Advance(s):
A. _________ Competitive Bid Pricing Loan [check if applicable]
Borrowing Date:
Principal Amount(1) Interest Period(2)
B. _________ Competitive Bid Fixed Rate Loan [check if
applicable]
Borrowing Date: _______________, _______
Principal Amount(1) Term(3)
Competitive Bid Quotes for a Competitive Bid Pricing Loan should offer a
Competitive Bid Margin. Competitive Bid Quotes for a Competitive Bid Fixed Rate
Loan should offer a fixed rate of interest for the term.
- ----------------------
(1) Amount must be at least US $10,000,000 and an integral multiple of US
$1,000,000.
(2) Fourteen days or one, two, three, four, five or six months, subject to the
provisions of the definition of Interest Period
(3) Not longer than six months.
EXHIBIT E-1 - COMPETITIVE BID QUOTE REQUEST (Camden Property Trust) PAGE 1
Upon acceptance by the undersigned of any or all of the Competitive Bid Advances
offered by any of the Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in Article VI of the Credit Agreement and that all conditions
specified in Section 4.2 of the Credit Agreement have been satisfied.
CAMDEN PROPERTY TRUST,
a Texas real estate investment trust
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT E-1 - COMPETITIVE BID QUOTE REQUEST (Camden Property Trust) PAGE 2
EXHIBIT E-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.3(c))
__________________________
(Date)
To: Each of the Lenders party to the
Credit Agreement referred to below
Re: Invitation for Competitive Bid Quotes to
Camden Property Trust ("Borrower")
Pursuant to Section 2.3 of that certain Amended and Restated Credit
Agreement (as the same may be modified, amended, supplemented, extended or
restated from time to time, the "Credit Agreement") dated January 14, 2005,
executed by and among Borrower, Bank of America, N.A., as Administrative Agent,
JPMorgan Chase Bank, N.A., as Syndication Agent, Wachovia Bank, N.A. and Wells
Fargo Bank, N.A., as Documentation Agents, and the Lenders, (defined therein) we
are pleased on behalf of the Borrower to invite you to submit Competitive Bid
Quotes to the Borrower for the following proposed Competitive Bid Advance(s):
A. _____ Competitive Bid Pricing Loan [check if applicable]
Borrowing Date: _______________, ______,
Principal Amount Interest Period
- ---------------- ---------------
B. _____ Competitive Bid Fixed Rate Loan [check if applicable]
Borrower Date: ________________, ______
Principal Amount Term
- --------------- ----
Such Competitive Bid Quotes should offer a Competitive Bid Margin or a
fixed interest rate, as applicable. Your Competitive Bid Quote must comply with
Section 2.3(d) of the Credit Agreement and the foregoing.
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement
Please respond to this invitation by no later than [____ p.m.] [_____.m.]
(Dallas, Texas time) on , .
EXHIBIT E-2 - INVITATION FOR COMPETITIVE BID QUOTES
(Camden Property Trust) PAGE 1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: ____________________________
Name: __________________________
Title: _________________________
EXHIBIT E-2 - INVITATION FOR COMPETITIVE BID QUOTES
(Camden Property Trust) PAGE 2
EXHIBIT E-3
COMPETITIVE BID QUOTE
(Section 2.3(d))
To: Bank of America, N.A.,
as Administrative Agent
Re: Competitive Bid Quote to Camden Property Trust ("Borrower")
In response to your invitation on behalf of the Borrower dated _________
we hereby make the following Competitive Bid Quote pursuant to Section 2.3(d) of
the Credit Agreement hereinafter referred to and on the following terms:
1. Quoting Lender:
2. Person to contact at Quoting Lender:
3. Borrowing Date: _____________________________(1)
4. A. We hereby offer to make Competitive Bid Pricing Loan(s) in the
following principal amounts, for the following Interest Periods and
at the following rates:
Principal Interest Competitive
Amount(2) Period(3) Bid Margin(4)
- --------- --------- -------------
B. We hereby offer to make Competitive Bid Fixed Rate Loan(s) in the
following principal amounts, for the following term at the following
rates:
Principal Term/Maturity
Amount(2) Date(5) Interest Rate(6)
- --------- -------------- ----------------
- -------------------------
(1) As specified in the related Invitation For Competitive Bid Quotes.
(2) Principal amount bid for each Interest Period or term may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 and an
integral multiple of $1,000,000.
(3) Fourteen days, one, two, three, four, five or six months, as specified in
the related Invitation for Competitive Bid Quotes.
(4) Competitive Bid Margin over or under the Applicable LIBOR Rate (excluding
the LIBOR Margin) determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".
(5) Any period of days up to six months
(6) Specify fixed per annum interest rate.
EXHIBIT E-3 - COMPETITIVE BID QUOTES (Camden Property Trust) PAGE 1
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in that certain Amended and
Restated Credit Agreement (as the same may be modified, amended, supplemented,
extended or restated from time to time, the "Credit Agreement") dated , executed
by and among Borrower, Administrative Agent, JPMorgan Chase Bank, N.A., as
Syndication Agent, Wachovia Bank, N.A. and Wells Fargo Bank, N.A., as
Documentation Agents, and the Lenders, irrevocably obligates us to make the
Competitive Bid Loan(s) for which any offer(s) are accepted, in whole or in
part. Capitalized terms used herein and not otherwise defined herein shall have
their meanings as defined in the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By: _____________________________
Title: __________________________
EXHIBIT E-3 - COMPETITIVE BID QUOTES (Camden Property Trust) PAGE 2
EXHIBIT F
Guaranty
EXHIBIT F - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 1
EXHIBIT G
CONTRIBUTION AND INDEMNIFICATION AGREEMENT
THIS CONTRIBUTION AND INDEMNIFICATION AGREEMENT (this "Agreement"), dated
as of January 14, 2005, is made and executed by and among CAMDEN PROPERTY TRUST,
a Texas real estate investment trust ("Borrower"), each of the GUARANTOR
SUBSIDIARIES of Borrower listed on the signature pages hereof or on any
supplements or amendments to this Agreement as listed on Schedule A hereto, as
Schedule A is amended and supplemented at any time and from time to time to
include additional Guarantor Subsidiaries of Borrower as a party hereto (each
such Guarantor Subsidiary now or hereafter becoming a party to this Agreement
being referred to herein individually as a "Guarantor Subsidiary" and
collectively as the "Guarantor Subsidiaries"), and Bank of America, N.A., a
national banking association ("Administrative Agent"), as Administrative Agent
for and on behalf of all Lenders from time to time party to that certain Credit
Agreement (as modified, amended, supplemented or restated from time to time, the
"Credit Agreement") of even date herewith, by and among Borrower, Administrative
Agent, JPMorgan Chase Bank, N.A., as Syndication Agent, Wachovia Bank, N.A. and
Wells Fargo Bank, N.A., as Documentation Agents, and various lenders from time
to time party thereto (the "Lenders"). Each of the Guarantor Subsidiaries and
Borrower are hereinafter sometimes referred to individually as a "Credit Party,"
and collectively as the "Credit Parties." Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
WITNESSETH:
WHEREAS, each of the Guarantor Subsidiaries desires to protect itself
against any event whereby it would be held liable under its guaranty thereof or
otherwise for the indebtedness and obligations of any one or more of the Credit
Parties under the Credit Agreement and the other Loan Documents, other than to
the extent of the benefit received by it thereunder, and to provide by this
Agreement an agreement to contribute and indemnify by and to each other to
accomplish such result; and
WHEREAS, the Credit Parties have determined that valuable benefits will be
derived by the Credit Parties as a result of the extensions of credit to be made
available to or for the use of the Credit Parties pursuant to the Credit
Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and confessed, each of the Credit Parties agrees
as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
1.01 Defined Terms. As used in this Agreement, each of the following terms
shall have the meaning assigned to such term below in this Section 1.01:
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 1
"Contribution Percentage" means for each Indemnitor the percentage
obtained by dividing such Indemnitor's Obtained Benefit by the aggregate
Obtained Benefit of all Guarantor Subsidiaries.
"Excess Payments" has the meaning assigned to such term in Section 2.01.
"Indemnitee" has the meaning assigned to such term in Section 2.01.
"Indemnitor" has the meaning assigned to such term in Section 2.01.
"Obtained Benefit" has the meaning assigned to such term in Section 2.01.
1.02 References. References in this Agreement to Article or Section
numbers shall be to Articles or Sections of this Agreement, unless expressly
stated to the contrary. References in this Agreement to "hereby," "herein,"
"hereinafter," "hereinabove," "hereinbelow," "hereof," "hereunder" and words of
similar import shall be to this Agreement in its entirety and not only to the
particular Article or Section in which such reference appears. References in
this Agreement to "includes" or "including" shall mean "includes, without
limitation," or "including, without limitation," as the case may be. References
in this Agreement to statutes, sections or regulations are to be construed as
including all statutory or regulatory provisions consolidating, amending,
replacing, succeeding or supplementing the statute, section or regulation to
which reference is made.
1.03 Number and Gender. Whenever the context requires, reference herein
made to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the singular. Definitions of
terms defined in the singular or plural shall be equally applicable to the
plural or singular, as the case may be, unless otherwise indicated. Words
denoting gender shall be construed to include the masculine, feminine and
neuter, when such construction is appropriate; and specific enumeration shall
not exclude the general but shall be construed as cumulative.
ARTICLE II.
TERMS OF CONTRIBUTION AND INDEMNIFICATION
2.01 Contribution and Indemnification. Pursuant to the terms of the Credit
Agreement, Borrower has been extended credit. In connection with such Credit
Facilities, and as a condition to Administrative Agent and Lenders entering into
the Credit Agreement and making Advances or Swingline Advance or issuing Letters
of Credit thereunder, the Guarantor Subsidiaries have jointly and severally
guaranteed payment in full of the Obligations (as defined in the Credit
Agreement). The board of directors, managers or partners, as the case may be, of
each Guarantor Subsidiary has determined that such Guarantor Subsidiary will
receive direct and/or indirect benefits from the making of the Advances or
Swingline Advances or issuance of Letters of Credit pursuant to the Credit
Agreement. The aggregate amount of benefits obtained directly or indirectly by
any Credit Party, and not repaid by Borrower or another Credit Party, is
referred to herein as the "Obtained Benefit." In the event that any Guarantor
Subsidiary (in such capacity, an "Indemnitee") pays (whether through direct
payments or as a result of providing collateral for the Obligations) any amounts
on the Obligations in excess of such Guarantor Subsidiary's
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 2
Obtained Benefit (the "Excess Payments"), the Indemnitee shall be entitled to
make demand on Borrower for such Excess Payments, and, to the extent not
recovered from Borrower, to receive from each other Guarantor Subsidiary that
received an Obtained Benefit (in such capacity, "Indemnitor"), such Indemnitor's
Contribution Percentage of the Excess Payment. If any Indemnitor is unable to
pay the Contribution Percentage of the Excess Payment, each Guarantor Subsidiary
agrees to make a contribution to the Indemnitee to the extent necessary so that
each Guarantor Subsidiary shares equally the liability for such Excess Payment
in relation to the relative Obtained Benefit received by such Guarantor
Subsidiary. IN SUCH REGARD, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH
GUARANTOR SUBSIDIARY SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE OTHER
GUARANTOR SUBSIDIARIES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING WITH
RESPECT TO THE OBLIGATIONS AND EXCEEDING THE INDEMNITEE'S OBTAINED BENEFIT OR
CONTRIBUTION PERCENTAGE THEREOF AS PROVIDED HEREIN.
2.02 Payments. Any amount due to an Indemnitee by an Indemnitor or Credit
Party under this Agreement shall be due and payable within ten (10) days of
demand therefore by the relevant Indemnitee. All payments to be made by any
Indemnitor under this Agreement shall be made to such Indemnitee at Borrower's
principal office in Dallas, Texas, in immediately available funds, not later
than 2:00 p.m., Dallas, Texas time, on the date on which such payment shall come
due.
2.03 Non-Exclusive Remedy. The remedies available to any Indemnitee
pursuant to the provisions of this Article II are not exclusive and, in such
regard, any Indemnitee shall be entitled to join any Indemnitor as a party to
any proceeding involving such Indemnitee, any Indemnitor or Administrative Agent
or the Lenders, including for purposes of enforcement of the provisions of this
Agreement.
2.04 Term. The term of this Agreement shall commence as of the date hereof
and continue in effect until all Obligations are terminated or extinguished (but
not by reason of the payment of the Obligations by any party hereto in a
proportion other than as specified in Section 2.01).
2.05 Subordination. Any amounts owed by any Credit Party to any other
Credit Party under this Agreement shall be subordinate to the Obligations as
more particularly set forth in Section 5 of each of the Guaranty Agreements
executed by Guarantors pursuant to the Credit Agreement.
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.01 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and the Lenders, and their respective
heirs, legal representatives, and assigns of any of them.
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 3
3.02 Amendments Waivers. Subject to Section 3.13 hereof, neither this
Agreement nor any provision hereof may be amended, waived, discharged, or
terminated verbally, but rather, only by an instrument in writing signed by the
party against whom enforcement of the amendment, waiver, discharge, or
termination is sought.
3.03 Non-Waiver. It is understood and agreed that any delay, waiver, or
omission by any party hereto to exercise any right or power arising hereunder
shall not be construed to be a waiver by such party of any subsequently arising
right or power hereunder.
3.04 No Impairment of Guaranties or Primary Liability. This Agreement
shall not in any way be deemed to limit, alter or otherwise affect the terms and
provisions of the Guaranty of the Guarantor Subsidiaries or any other Guaranty
of the Obligations, or to affect the Guarantor Subsidiaries' obligations and
agreements thereunder in favor of Administrative Agent and the Lenders; or to
affect or impair in any way the Borrower's primary liability for the Obligations
or any of the Guarantor Subsidiaries' rights of contribution and indemnity as
against the Borrower, or any common law or other rights of contribution and
indemnity as against other Guarantor Subsidiaries.
3.05 Notices. Any notice, demand, offer, or other written instrument
required or permitted to be given pursuant to this Agreement shall be in writing
signed by the party giving such notice and shall be hand delivered or sent by
overnight courier, certified mail (return receipt requested), or telefax to the
other party(ies) at the relevant address set forth in the Credit Agreement. Any
party shall have the right to change the address to which notice shall be sent
or delivered to it hereunder by similar notice sent in like manner to the other
parties. A notice shall be deemed to be duly received (a) if sent by hand, on
the date when left with a responsible person at the address of the recipient;
(b) if sent by certified mail or overnight courier, on the date of receipt by a
responsible person at the address of the recipient; or (c) if sent by telefax,
upon receipt by the sender of an acknowledgment or transmission report generated
by the machine from which the telefax was sent indicating that the telefax was
sent in its entirety to the recipient's telefax number.
3.06 Attorneys' Fees. In the event any dispute between any of the parties
to this Agreement should result in litigation or any other proceeding (including
arbitration and mediation), the prevailing party shall be reimbursed by the
nonprevailing party for all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by the prevailing party in connection with such
litigation or other proceeding and any appeal or enforcement thereof.
3.07 Severability. If any term or provision of this Agreement or
application thereof to any Person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Agreement, or the application of such
terms or provisions to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by applicable law.
3.08 Time of the Essence. The parties to this Agreement agree that time is
of the essence to the performance of the obligations of the parties hereunder.
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 4
3.09 ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH WRITTEN AND VERBAL, BETWEEN THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF.
3.10 JURISDICTION AND VENUE. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO,
ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM
THIS AGREEMENT SHALL BE LITIGATED IN COURTS HAVING SITUS IN HOUSTON, HARRIS
COUNTY, TEXAS, AND EACH PARTY HERETO HEREBY SUBMITS TO THE JURISDICTION OF ANY
SUCH COURT IN ANY SUCH ACTION AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO
TRANSFER OR CHANGE THE JURISDICTION OR VENUE OF ANY LITIGATION BROUGHT AGAINST
IT IN ACCORDANCE WITH THIS SECTION 3.10.
3.11 GOVERNING LAW. TO THE EXTENT THAT THE CREDIT AGREEMENT, THE NOTES AND
THE OTHER LOAN DOCUMENTS ARE TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF TEXAS, THIS AGREEMENT, TOO, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO CHOICE OF LAW PRINCIPLES OF SUCH LAWS.
3.12 Counterparts. This Agreement and all amendments hereto may be
executed in any number of original counterparts, each of which when so executed
and delivered shall be an original, and all of which, collectively, shall
constitute one and the same agreement, it being understood and agreed that the
signature pages may be detached from one or more counterparts and combined with
the signature pages from any other counterpart in order that one or more fully
executed originals may be assembled.
3.13 Agreement to Supplement. The Credit Parties acknowledge and agree
that this Agreement will be amended and supplemented from time to time to add
additional Guarantor Subsidiaries of Borrower as Guarantor Subsidiaries party to
this Agreement, and Administrative Agent shall be entitled to supplement this
Agreement, the signature pages hereof and Schedule A hereto, without action or
joinder of any other parties hereto, to reflect the addition hereto of such
additional Guarantor Subsidiaries, whereby any such Guarantor Subsidiary shall
become a Guarantor Subsidiary and a Credit Party hereunder for all purposes.
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 5
IN WITNESS WHEREOF, the parties hereto have executed this Contribution and
Indemnification Agreement to be effective as of the date first hereinabove
written.
BORROWER:
CAMDEN PROPERTY TRUST,
a Texas real estate investment trust
By: _______________________________
Name: _____________________________
Title: ____________________________
GUARANTOR SUBSIDIARIES:
CAMDEN USA, INC., a Delaware corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
CAMDEN OPERATING, L.P., a Delaware
limited partnership
By: CPT-GP, INC., a Delaware
corporation, General Partner
By: ___________________________
Name: _________________________
Title: ________________________
CAMDEN REALTY, INC., a Delaware
corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 6
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 7
SCHEDULE A
GUARANTOR SUBSIDIARIES
CAMDEN USA, INC., a Delaware corporation
CAMDEN OPERATING, L.P., a Delaware limited partnership
CAMDEN REALTY, INC., a Delaware corporation
EXHIBIT G - CONTRIBUTION AND INDEMNIFICATION AGREEMENT
(Camden Property Trust) PAGE 8