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EXHIBIT 10.35
SECOND AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT is dated as of August 9, 2000 (this "Amendment"), and is among MHC
OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership ("Borrower"),
MANUFACTURED HOME COMMUNITIES, INC., a Maryland corporation (the "REIT"), each
of the undersigned "Lenders", WELLS FARGO BANK, NATIONAL ASSOCIATION, in its
capacity as "Agent", "Swingline Lender" and "Issuing Lender", BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, in its capacity as "Syndication Agent",
and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as "Documentation Agent".
Capitalized terms used herein and not defined herein shall have the meanings
ascribed to them in the Credit Agreement referenced below.
WHEREAS, certain of the parties hereto have previously entered into
that certain Second Amended and Restated Credit Agreement dated as of April 28,
1998 (as heretofore amended, the "Credit Agreement");
WHEREAS, the Credit Agreement has been previously amended by that
certain First Amendment to Second Amended and Restated Credit Agreement dated as
of December 18, 1998;
WHEREAS, Commerzbank Aktiengesellschaft, New York Branch, has
succeeded to the rights and obligations of Commerzbank Aktiengesellschaft,
Chicago Branch under the Credit Agreement;
WHEREAS, Morgan Guaranty Trust Company of New York ("Morgan") has
assigned to LaSalle Bank National Association ("LaSalle") a portion of its
Commitment in the amount of Eight Million Three Hundred Thirty Three Thousand
Three Hundred Thirty Three and 34/100 Dollars ($8,333,333.34), thereby
increasing the Commitment of LaSalle to Thirty Three Million Three Hundred
Thirty Three Thousand Three Hundred Thirty Three and 34/100 Dollars
($33,333,333.34);
WHEREAS, the parties hereto desire to (i) reduce the amount of the
Facility from One Hundred Seventy Five Million Dollars ($175,000,000) to One
Hundred Fifty Million Dollars ($150,000,000), (ii) terminate the remaining
Commitment of Morgan, (iii) appoint LaSalle as the replacement Documentation
Agent, (iv) appoint Wells Fargo Bank, N.A. ("Wells Fargo") as "Sole Lead
Arranger" for the Facility, and (v) otherwise amend the Credit Agreement as
provided herein.
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NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereto agree as follows:
1. DEFINITIONS. Section 1.01 of the Credit Agreement is hereby
amended as follows:
a. APPLICABLE MARGIN. The last sentence of the definition of
"Applicable Margin" is hereby deleted in its entirety.
b. DEBT SERVICE. The definition of "Debt Service" is hereby
deleted in its entirety and replaced with the following language:
"Debt Service" means, for any period, Interest Expense for
such period plus scheduled principal amortization (exclusive of
Balloon Payments) for such period on all Indebtedness of the REIT,
on a consolidated basis.
c. EBITDA. The definition of "EBITDA" is hereby amended to add
the following language after clause (vi) thereof and before the period:
", plus (or minus in the case of a loss) (vii) Borrower's
Share of the net income (or loss) of each Investment Affiliate for such
period calculated in conformity with GAAP before depreciation, minus (or
plus in the case of a loss) (viii) Borrower's Share of the gains (or
losses) from extraordinary or unusual items or asset sales or write-ups or
forgiveness of indebtedness included in the calculation of the net income
of each Investment Affiliate for such period."
d. FIRST EXTENDED MATURITY DATE. The following defined term is
hereby added:
"First Extended Maturity Date" has the meaning set forth in
Section 3.01.
e. GROSS ASSET VALUE. The parenthetical phrase in the
definition of "Gross Asset Value" is hereby deleted and replaced with the
following language: "(subject to the last sentence of Section 9.08)".
f. INITIAL MATURITY DATE. The following defined term is hereby
added:
"Initial Maturity Date" means August 9, 2003.
g. INTEREST EXPENSE. The definition of "Interest Expense" is
hereby deleted and replaced with the following language:
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"Interest Expense" means, for any period and without
duplication, total interest expense, whether paid, accrued or
capitalized (including the interest component of Capital Leases but
excluding interest expense covered by an interest reserve
established under a loan facility) of the REIT, on a consolidated
basis and determined in accordance with GAAP.
h. LOANS. The definition of "Loans" is hereby deleted in its
entirety and replaced with the following language:
"Loans" means the loans made pursuant to the Facility,
including, without limitation, loans made pursuant to Section 2.01
hereof, Swingline Loans and Loans made pursuant to Mandatory
Borrowings.
i. MATURITY DATE. The definition of "Maturity Date" is hereby
deleted in its entirety and replaced with the following language:
"Maturity Date" means the Initial Maturity Date as such date
may be extended pursuant to Article III.
j. NET INCOME. The definition of "Net Income" is hereby
amended to add the following language at the end thereof and before the
period:
"; provided, however, that Net Income shall not include the net
income (or loss) of Investment Affiliates"
k. NET WORTH. The definition of "Net Worth" is hereby amended
to delete the last sentence thereof in its entirety and to replace the
reference to "September 30, 1996" with "March 31, 2000."
l. NON-MANUFACTURED HOME COMMUNITY PROPERTY. The definition of
"Non-Manufactured Home Community Property" is hereby amended to delete the
word "or" before clause (v) thereof and replace it with a comma, and to
add the following language at the end thereof before the period: "or (vi)
Taxable REIT Subsidiary Interests."
m. NON-RECOURSE INDEBTEDNESS. The definition of "Non-Recourse
Indebtedness" is hereby deleted and replaced with the following:
"Non-Recourse Indebtedness" means any single loan with respect
to which recourse for payment is limited to specific assets related
to a particular Property or group of Properties encumbered by a Lien
securing such Indebtedness, so long as the Adjusted Asset Value for
such Property, or the total of the Adjusted Asset Values for such
group of Properties, does not exceed One Hundred Million
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Dollars ($100,000,000); provided, however, that personal recourse to
the REIT, Borrower or any Subsidiary by a holder of any such loan
for fraud, misrepresentation, misapplication of cash, waste,
environmental claims and liabilities and other circumstances
customarily excluded by institutional lenders from exculpation
provisions and/or included in separate indemnification agreements in
non-recourse financing of real estate shall not, by itself, prevent
such loan from being characterized as Non-Recourse Indebtedness.
n. PRE-EXTENSION TERM LOAN. The definition of "Pre-Extension
Term Loan" is hereby deleted in its entirety.
o. RECOURSE INDEBTEDNESS. The following defined term is hereby
add:
"Recourse Indebtedness" means, with respect to any Person,
Indebtedness which is not Non-Recourse Indebtedness.
p. REQUISITE LENDERS. The definition of "Requisite Lenders" is
hereby deleted in its entirety and replaced with the following language:
"Requisite Lenders" means, collectively Lenders whose Pro Rata
Shares, in the aggregate, are at least sixty-six and two-thirds
percent (66 2/3%); provided, however, that, in determining such
percentage at any given time, all then existing Defaulting Lenders
will be disregarded and excluded and the Pro Rata Shares of Lenders
shall be redetermined, for voting purposes only, to exclude the Pro
Rata Shares of such Defaulting Lenders; and provided, further, that,
so long as there are at least two (2) Lenders who are not Defaulting
Lenders, the Requisite Lenders must be comprised of a minimum of two
(2) Lenders; and provided, further, that for purposes of any
amendment, modification or waiver of the requirements of Article IX,
the Requisite Lenders must include Agent in its capacity as a Lender
(provided Agent is not a Defaulting Lender)."
q. SECOND EXTENDED MATURITY DATE. The following defined term
is hereby added:
"Second Extended Maturity Date" has the meaning set forth in
Section 3.02.
r. SUPERMAJORITY LENDERS. The definition of "Supermajority
Lenders" is hereby deleted in its entirety and replaced with the following
language:
"Supermajority Lenders" means, collectively Lenders whose Pro
Rata Shares, in the aggregate, are at least eight five percent
(85%); provided, however,
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that, in determining such percentage at any given time, all then
existing Defaulting Lenders will be disregarded and excluded and the
Pro Rata Shares of Lenders shall be redetermined, for voting
purposes only, to exclude the Pro Rata Shares of such Defaulting
Lenders; and provided, further, that, so long as there are at least
two (2) Lenders who are not Defaulting Lenders, the Supermajority
Lenders must be comprised of a minimum of two (2) Lenders; and
provided, further, that for purposes of any amendment, modification
or waiver of the requirements of Article IX, the Supermajority
Lenders must include Agent in its capacity as a Lender (provided
Agent is not a Defaulting Lender)."
s. TAXABLE REIT SUBSIDIARY INTERESTS. The following defined
term is hereby added:
"Taxable REIT Subsidiary Interests" means equity interests in
Subsidiaries not engaged in the development, ownership or operation
of real estate and permitted to be held by Borrower and the REIT
pursuant to Section 856(l) of the Internal Revenue Code (as amended
from time to time) without violating the REIT's status as a real
estate investment trust."
t. TOTAL LIABILITIES. The definition of "Total Liabilities" is
hereby deleted in its entirety and replaced with the following language:
"Total Liabilities" means, without duplication, all
Indebtedness of the REIT, on a consolidated basis, plus all other
items which, in accordance with GAAP, would be included as
liabilities on the liability side of the balance sheet of the REIT
(including, without limitation, accounts payable incurred in the
ordinary course of business), on a consolidated basis; provided,
however, that "Total Liabilities" shall not include dividends
declared by the REIT or Borrower which are permitted under Section
8.01(d) but not yet paid.
u. WHOLLY-OWNED SUBSIDIARY. The following defined term is
hereby added:
"Wholly-Owned Subsidiary" means any Subsidiary which is
wholly-owned directly or indirectly by Borrower or the REIT.
2. SWINGLINE LOANS. The last sentence of Section 2.10(b)(ii) of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following: "Swingline Loans shall be available no more frequently than six (6)
times in any month."
3. PRE-EXTENSION TERM LOAN. Section 2.11 of the Credit Agreement is
hereby deleted in its entirety.
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4. EXTENSION OPTIONS. Sections 3.01 and 3.02 of the Credit Agreement
are hereby deleted in their entirety and replaced with the following language:
3.01. First Extension Option. At the written request of
Borrower made at least thirty (30) days prior to the Initial Maturity
Date, the Maturity Date shall be extended to the one-year anniversary of
the Initial Maturity Date (the "First Extended Maturity Date") provided
that the following conditions are satisfied:
(a) no Event of Default or Unmatured Event of Default
shall have occurred and be continuing as of the Initial Maturity
Date;
(b) all representations and warranties contained in this
Agreement and the other Loan Documents shall be true and correct in
all material respects as of the Initial Maturity Date except to the
extent they related to a specific date;
(c) Agent shall have received Officer's Certificates of
the REIT dated as of the Initial Maturity Date stating that the
executive officer who is the signatory thereto, which officer shall
be the chief executive officer or the chief financial officer of the
REIT, has reviewed, or caused under his supervision to be reviewed,
the terms of this Agreement and the other Loan Documents, and has
made, or caused to be made under his supervision, a review in
reasonable detail of the transactions and condition of Borrower, the
REIT, the Subsidiaries, and the Agreement Parties, and that (A) such
review has not disclosed the existence as of the date of such
Officer's Certificate, and that the signers do not have knowledge of
the existence as of the date of such Officer's Certificate, of any
condition or event which constitutes an Event of Default or
Unmatured Event of Default and (B) all representations and
warranties contained in this Agreement and the other Loan Documents
are true and correct in all material respects as of the date of such
Officer's Certificate except to the extent they relate to a specific
date; and
(d) on or before the Initial Maturity Date, Agent shall
have received, on behalf of Agent and Lenders, an extension fee in
the amount of one-fourth of one percent (0.25%) of the amount of the
Facility.
3.02. Second Extension Option. At the written request of
Borrower made at least thirty (30) days prior to the First Extended
Maturity Date, the Maturity Date shall be further extended to the one-year
anniversary of the First Extended Maturity Date (the "Second Extended
Maturity Date") provided that the following conditions are satisfied:
(a) no Event of Default or Unmatured Event of Default
shall have occurred and be continuing as of the First Extended
Maturity Date;
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(b) all representations and warranties contained in this
Agreement and the other Loan Documents shall be true and correct in
all material respects as of the First Extended Maturity Date except
to the extent they related to a specific date;
(c) Agent shall have received Officer's Certificates of
the REIT dated as of the First Extended Maturity Date stating that
the executive officer who is the signatory thereto, which officer
shall be the chief executive officer or the chief financial officer
of the REIT, has reviewed, or caused under his supervision to be
reviewed, the terms of this Agreement and the other Loan Documents,
and has made, or caused to be made under his supervision, a review
in reasonable detail of the transactions and condition of Borrower,
the REIT, the Subsidiaries, and the Agreement Parties, and that (A)
such review has not disclosed the existence as of the date of such
Officer's Certificate, and that the signers do not have knowledge of
the existence as of the date of such Officer's Certificate, of any
condition or event which constitutes an Event of Default or
Unmatured Event of Default and (B) all representations and
warranties contained in this Agreement and the other Loan Documents
are true and correct in all material respects as of the date of such
Officer's Certificate except to the extent they relate to a specific
date; and
(d) on or before the First Extended Maturity Date, Agent
shall have received, on behalf of Agent and Lenders, an extension
fee in the amount of thirty-five hundredths of one percent (0.35%)
of the amount of the Facility.
5. REPRESENTATIONS AND WARRANTIES. Subsections 5.01(x) and 5.02(t)
of the Credit Agreement are hereby deleted in their entirety.
6. NEGATIVE COVENANTS. Article VIII of the Credit Agreement is
hereby amended as follows:
a. BORROWER'S COVENANT WITH RESPECT TO INDEBTEDNESS.
Subsection 8.01(a) is hereby deleted in its entirety and replaced with the
following language:
(a) Indebtedness. Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(i) the Obligations;
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(ii) trade debt incurred in the normal course of
business;
(iii) intercompany payables and receivables owing
between Subsidiaries in the nature of trade debt incurred in
the normal course of business;
(iv) Indebtedness which, after giving effect thereto,
may be incurred or may remain outstanding without giving rise
to an event of Default or Unmatured Event of Default under any
provision of Articles VIII and IX; provided, however, that (A)
Borrower shall not, and shall not permit any of its
Subsidiaries to, guarantee or otherwise become or remain
directly or indirectly liable with respect to the Indebtedness
of any Investment Affiliate, and (B) Borrower shall not permit
any Wholly-Owned Subsidiary to create, incur, assume or
otherwise become or remain directly or indirectly liable with
respect to, any Recourse Indebtedness in excess of Ten Million
Dollars ($10,000,000) per Wholly-Owned Subsidiary at any time
or Thirty Million Dollars ($30,000,000) in the aggregate for
all Wholly-Owned Subsidiaries at any time.
b. BORROWER'S COVENANT WITH RESPECT TO LIENS. Clause (iii) of
Subsection 8.01(b) is hereby deleted in its entirety and replaced with the
following language:
(iii) Liens securing Indebtedness permitted to be
incurred and remain outstanding pursuant to Section
8.01(a)(iv).
c. REIT'S COVENANT WITH RESPECT TO INDEBTEDNESS. Subsection 8.02(a)
is hereby deleted in its entirety and replaced with the following
language:
(a) Indebtedness. The REIT shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(i) the Obligations; and
(ii) Indebtedness which, after giving effect thereto,
may be incurred or may remain outstanding without giving rise to an
event of Default or Unmatured Event of Default under any provision
of Articles VIII and IX; provided, however, that (A) the REIT shall
not, and shall not permit any of its Subsidiaries to, guarantee or
otherwise become or remain directly or indirectly liable with
respect to the Indebtedness of any Investment Affiliate, and (B) the
REIT shall not permit any Wholly-Owned Subsidiary to create, incur,
assume or otherwise become or remain directly or indirectly liable
with respect to, any
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Recourse Indebtedness in excess of Ten Million Dollars ($10,000,000)
per Wholly-Owned Subsidiary at any time or Thirty Million Dollars
($30,000,000) in the aggregate for all Wholly-Owned Subsidiaries at
any time.
7. FINANCIAL COVENANTS. Article IX of the Credit Agreement is hereby
amended as follows:
a. SECURED DEBT TO GROSS ASSET VALUE. The numerical reference
in Section 9.02 to "0.40:1" is hereby deleted and replaced with the
following: "0.50:1".
b. MINIMUM NET WORTH. Section 9.07 is hereby deleted in its
entirety and replaced with the following language:
"9.07. Minimum Net Worth. Borrower will maintain a Net Worth
of not less than Three Hundred Twenty Two Million Dollars
($322,000,000) plus ninety percent (90%) of all Net Offering
Proceeds receiving by the REIT or Borrower after August 9, 2000."
c. PERMITTED HOLDINGS. Taxable REIT Subsidiary Interests are
hereby added as a category of Permitted Holdings under Section 9.08 with a
Maximum Percentage of Gross Asset Value of five percent (5%). The last
sentence of Section 9.08 is hereby deleted in its entirety and replaced
with the following language:
"Gross Asset Value as it relates to the foregoing categories of
Permitted Holdings shall be calculated as follows: (i) the Gross
Asset Value attributable to any Non-Manufactured Home Community
Property (other than cash or Cash Equivalents), any Manufactured
Home Community Mortgage (other than mortgage indebtedness which is
either eliminated in the consolidation of the REIT, Borrower and the
Subsidiaries or accounted for as investment in real estate under
GAAP) or any Manufactured Home Community Partnership Interest (other
than a Controlled Partnership Interest) shall be calculated based
upon its Adjusted Asset Value; (ii) the Gross Asset Value
attributable to any Land or any Security issued by a real estate
investment trust primarily engaged in the development, ownership and
management of manufactured home communities shall be equal to the
lesser of (A) the acquisition cost thereof or (B) the current market
value thereof (such market value to be determined in a manner
reasonably acceptable to Agent); (iii) the Gross Asset Value
attributable to any Taxable REIT Subsidiary Interest shall be the
acquisition or investment cost thereof; and (iv) the Gross Asset
Value attributable to any Development Activity shall be determined
in accordance with GAAP."
8. AGENCY PROVISIONS. The second sentence of Section 11.08 of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following language:
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"The terms "Lenders", "Requisite Lenders", "Supermajority Lenders",
or any similar terms may include Agent in its individual capacity as
a Lender, one of the Requisite Lenders or one of the Supermajority
Lenders, but Requisite Lenders and Supermajority Lenders shall not
include Agent solely in its capacity as Agent."
9. REDUCTION OF FACILITY; APPOINTMENT OF REPLACEMENT OF
DOCUMENTATION AGENT AND SOLE LEAD ARRANGER
a. FACILITY REDUCTION. The amount of the Facility is hereby
reduced from One Hundred Seventy-Five Million Dollars ($175,000,000) to
One Hundred Fifty Million Dollars ($150,000,000).
b. TERMINATION OF MORGAN'S COMMITMENT. The Commitment of
Morgan is hereby terminated, and Morgan hereby relinquishes its rights and
is hereby released from its obligations under the Credit Agreement. Morgan
shall return to Borrower its original Loan Note.
c. RESTATEMENTS OF COMMITMENTS. As of the date hereof, the
Commitment and Pro Rata Share of each of the undersigned Lenders shall be
as set out under such Lender's name on the counterpart signature pages
attached to this Amendment. Borrower shall issue to LaSalle a replacement
Loan Note in the face amount of its Commitment noted on its counterpart
signature page attached hereto.
d. APPOINTMENT OF REPLACEMENT DOCUMENTATION AGENT. From and
after the date hereof, LaSalle shall be the Documentation Agent for the
Facility.
e. APPOINTMENT OF SOLE LEAD ARRANGER. From and after the date
hereof, Wells Fargo shall be the "Sole Lead Arranger" for the Facility.
The Sole Lead Arranger shall not be required to take any action or assume
any liability except as may be required in its capacity as a Lender,
Agent, Swingline Lender or Issuing Lender under the Credit Agreement. For
purposes of the indemnifications set forth in the Credit Agreement, the
term "Agent" shall be deemed to include the Sole Lead Arranger.
10. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
is subject to satisfaction of each of the following conditions precedent:
a. LEGAL OPINION. Borrower shall have delivered to Agent for
the benefit of the Lenders a favorable opinion of counsel for Borrower and
the REIT in form and substance reasonably satisfactory to Agent and its
counsel;
b. EVIDENCE OF AUTHORITY. Borrower shall have delivered to
Agent for the benefit of the Lenders such evidence as Agent shall
reasonably require of the
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existence, good standing and authority of Borrower and the REIT and the
incumbency and authority of their respective signatories; and
c. EXTENSION FEES. Each Lender shall have received an
extension fee in the amount set forth below its signature to this
Amendment.
11. CONSENT OF THE REIT AND REAFFIRMATION OF THE REIT GUARANTY. The
REIT hereby consents to the terms of this Amendment and agrees that the REIT
Guaranty remains valid and enforceable and that the REIT has no defenses or
offsets to enforcement against the REIT under the REIT Guaranty.
12. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants as follows:
a. AUTHORITY OF BORROWER. Borrower has the requisite
partnership power and authority to execute, deliver and perform this
Amendment. The execution, delivery and performance thereof, and the
consummation of the transactions contemplated hereby, have been duly
approved by the general partner of Borrower, and no other partnership
proceedings or authorizations on the part of Borrower or its general or
limited partners are necessary to consummate such transactions. This
Amendment has been duly executed and delivered by Borrower and constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency and other
laws affecting creditors' rights generally and general equitable
principles.
b. AUTHORITY OF THE REIT. The REIT has the requisite corporate
power and authority to execute, deliver and perform this Amendment. The
execution, delivery and performance hereof, and the consummation of the
transactions contemplated hereby, have been duly approved by the Board of
Directors of the REIT, and no other corporate proceedings on the part of
the REIT are necessary to consummate such transactions. This Amendment has
been duly executed and delivered by the REIT and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency and other laws affecting
creditors' rights generally and general equitable principles.
c. NO CONFLICT AS TO BORROWER. The execution, delivery and
performance by Borrower of this Amendment, and each of the transactions
contemplated hereby, do not and will not (i) conflict with or violate
Borrower's limited partnership agreement or Certificate of Limited
Partnership or other organizational documents, as the case may be, or the
organizational documents of any Subsidiary of Borrower or (ii) conflict
with, result in a breach of or constitute (with or without notice or lapse
of time or both) a default under any Requirement of Law, Contractual
Obligation or Court Order of or binding upon Borrower or any of its
Subsidiaries, or require termination of any such Contractual Obligation,
the consequences of which conflict or breach or default or
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termination would have a Material Adverse Effect, or result in or require
the creation or imposition of any Lien whatsoever upon any Property
(except as contemplated herein).
d. NO CONFLICT AS TO THE REIT. The execution, delivery and
performance by the REIT of this Amendment, and each of the transactions
contemplated hereby, do not and will not (i) conflict with or violate its
Articles or Certificate of Incorporation or by-laws, or other
organizational documents, as the case may be, or the organizational
documents of Borrower or any Subsidiary, (ii) conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both)
a default under any Requirement of Law, Contractual Obligation or Court
Order of the REIT, Borrower or any Subsidiary, or require termination of
any such Contractual Obligation, the consequences of which conflict or
breach or default or termination will have a Material Adverse Effect, or
result in or require the creation or imposition of any Lien whatsoever
upon any of its Property, or (iii) require any approval of the
stockholders of the REIT.
e. CONSENTS AND AUTHORIZATIONS. Each of Borrower and the REIT
has obtained all consents and authorizations required pursuant to its
Contractual Obligations with any other Person, the failure of which to
obtain would have a Material Adverse Effect, and has obtained all consents
and authorizations of, and effected all notices to and filings with, any
Governmental Authority necessary to allow Borrower or the REIT, as
applicable, to lawfully execute, deliver and perform its obligations under
this Amendment.
f. DATE DOWN OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in the Credit Agreement and in
the other Loan Documents are true and correct in all material respects on
and as of the date hereof except to the extent such representation and
warranty is made as of a specified date, in which case such representation
and warranty is true and correct as of such specified date.
g. NO EVENT OF DEFAULT OR UNMATURED EVENT OF DEFAULT. No Event
of Default or Unmatured Event of Default exists as of the date hereof.
h. NET WORTH. The Net Worth as of March 31, 2000 was Three
Hundred Seventy Eight Million Eight Hundred Seventy Thousand Dollars
($378,870,000).
13. EFFECT ON CREDIT AGREEMENT. The Credit Agreement and all other
Loan Documents (each as amended, supplemented or otherwise modified hereby)
shall remain in full force and effect and are hereby ratified and confirmed in
all respects. Except as expressly provided herein or pursuant hereto, the
execution, delivery, performance and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent or any Lender under
the Loan Documents, nor constitute a waiver of any provisions of any of the Loan
Documents.
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14. MISCELLANEOUS
a. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts, and each such counterpart, when so executed
and delivered, shall be deemed to be an original and binding upon the
party signing such counterpart; all such counterparts taken together shall
constitute one and the same instrument.
b. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF ILLINOIS.
c. HEADINGS. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purpose.
d. ENTIRE AGREEMENT. This Amendment is the entire agreement
among the parties with respect to the matters addressed herein, and may
not be modified except by written modification signed by all parties
hereto.
e. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, successors, personal representatives and assigns (as permitted
under the Credit Agreement).
f. EXPENSES. Pursuant to Section 12.01(a) of the Credit
Agreement, Borrower hereby agrees to promptly pay all reasonable
attorneys' fees and expenses or other costs or expenses incurred by Agent
in connection with this Amendment and the transactions contemplated
hereby.
g. CONSENT TO ASSIGNMENT. Agent and Borrower hereby consent to
the Assignment, and Agent hereby waives the payment of any processing fee
payable in connection therewith.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date set forth above.
MHC OPERATING LIMITED PARTNERSHIP, an Illinois
limited partnership
By: MANUFACTURED HOME COMMUNITIES, INC., a
Maryland corporation, as General Partner
By: /s/ John M. Zoeller
----------------------------------------
Name: John M. Zoeller
Title: Vice President
MANUFACTURED HOME COMMUNITIES, INC., a Maryland
corporation
By: /s/ John M. Zoeller
----------------------------------------
Name: John M. Zoeller
Title: Vice President
S-1
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent,
Swingline Lender, Issuing Lender and a Lender
By: /s/ Steven R. Lowery
----------------------------------------
Name: Steven R. Lowery
Title: Vice President
Commitment: $ 50,000,000.00
Extension Fee: $ 250,000.00
Pro Rata Share: 33.33334%
S-2
16
BANK OF AMERICA N.A., formerly known as BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Syndication Agent and a Lender
By: /s/ Megan McBride
--------------------------------
Name: Megan McBride
------------------------------
Title: Principal
-----------------------------
Commitment: $33,333,333.33
Extension Fee: $ 150,000.00
Pro Rata Share: 22.22222%
S-3
17
COMMERZBANK AKTIENGESELLSCHAFT, Chicago Branch, as
a Lender
By: /s/ Douglas P. Traynor /s/ David Buettner
------------------------------------------------------
Name: Douglas P. Traynor David Buettner
Title: Vice President Assistant Vice President
Commitment: $33,333,333.33
Extension Fee: $ 150,000.00
Pro Rata Share: 22.22222%
S-4
18
LASALLE BANK NATIONAL ASSOCIATION, as a Lender and
as Documentation Agent
By: /s/ John C. Hein
----------------------------------------
Name: John C. Hein
Title: SVP
Commitment: $33,333,333.34
Extension Fee: $ 150,000.00
Pro Rata Share: 22.22222%
S-5
19
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Robert Bottamedi
----------------------------------------
Name: Robert Bottamedi
Title: Vice President
Commitment: $0
Extension Fee: $0
S-6