Exhibit 99.1
THIRD AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") made as of the
17th day of June, 2005, by and among AMERICAN CAMPUS COMMUNITIES OPERATING
PARTNERSHIP LP, a Maryland limited partnership ("Borrower"), AMERICAN CAMPUS
COMMUNITIES, INC., a Maryland corporation ("Parent Guarantor"), THE OTHER
ENTITIES LISTED ON THE SIGNATURE PAGES HEREOF AS GUARANTORS (the "Subsidiary
Guarantors"; the Parent Guarantor and the Subsidiary Guarantors are hereinafter
referred to collectively as the "Guarantors"), KEYBANK NATIONAL ASSOCIATION, a
national banking association ("KeyBank"), DEUTSCHE BANK TRUST COMPANY AMERICAS
("DBTCA"), as the resigning Administrative Agent and resigning Collateral Agent,
THE OTHER LENDERS WHICH ARE SIGNATORIES HERETO (KeyBank and the other lenders
which are signatories hereto, collectively, the "Lenders"), and KEYBANK NATIONAL
ASSOCIATION, a national banking association, as successor Administrative Agent
(the "Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower, Guarantors, DBTCA as Administrative Agent, and the
Lenders then parties thereto entered into that certain Credit Agreement dated as
of August 17, 2004, as amended by that certain First Amendment to Credit
Agreement dated as of November 1, 2004, and that certain Second Amendment to
Credit Agreement dated as of December 10, 2004 (as amended, the "Loan
Agreement");
WHEREAS, DBTCA desires to resign as the Administrative Agent and the
Collateral Agent under the Loan Agreement and to transfer its obligations as the
"Issuing Bank" and the "Swing Line Bank" under the Loan Agreement, the Borrower
and the Lenders desire to appoint KeyBank as the Administrative Agent under the
Loan Agreement, and KeyBank has agreed to become the Issuing Bank and the Swing
Line Bank under the Loan Agreement;
WHEREAS, Borrower has further requested that the Agent and the Lenders
release the "Collateral" (as defined in the Loan Agreement), increase the amount
of the credit facility under the Loan Agreement and make certain other changes;
and
WHEREAS, the Agent and the Lenders have agreed to such modifications to the
Loan Agreement subject to the execution and delivery by Borrower and Guarantors
of this Amendment.
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All the terms used herein which are not otherwise defined
herein shall have the meanings set forth in the Loan Agreement.
2. Modification of the Loan Agreement. Borrower, the Lenders and Agent, do
hereby modify and amend the Loan Agreement as follows:
1
(a) By deleting the amount "$75,000,000" appearing on the cover page of the
Loan Agreement, and inserting in lieu thereof the amount "$100,000,000";
(b) By deleting in their entirety the defined terms "Adjusted Net Operating
Income", "Appraisal", "Appraised Value", "Appraiser", "Borrowing Base Amount",
"Borrowing Base Property Value", "Collateral", "Collateral Agent", "Collateral
Documents", "Hedge Bank", "Mortgage Policies", "Mortgages", "Secured Hedge
Agreement", "Secured Parties" and "Supplemental Collateral Agent" appearing in
Section 1.01 of the Loan Agreement;
(c) By deleting in their entirety the definitions of "Additional Borrowing
Base Property", "Administrative Agent's Account", "Aggregate Borrowing Base
Amount", "Base Rate", "Borrowing Base Property Conditions", "Borrowing Base
Property Value", "Capitalization Rate", "Capitalized Value", "Consolidated Cash
Interest Expense", "Consolidated EBITDA", "Fee Letter", "Initial Issuing Bank",
"On-Campus Participating Entities", "On-Campus Participating Properties",
"Permitted Liens", "Reference Banks", "Removed Borrowing Base Property",
"Start-Up Student Housing Property", "Swing Line Bank" and "Termination Date",
appearing in Section 1.01 of the Loan Agreement, and inserting in lieu thereof
the following definitions:
"Additional Borrowing Base Property" means any Student Housing Property as
to which all of the following conditions have been met: (a) the Borrower
has notified the Administrative Agent in writing that it wishes to
designate such Student Housing Property as a "Borrowing Base Property", (b)
the Borrower has delivered to the Administrative Agent a description, in
detail reasonably satisfactory to the Administrative Agent, of such Student
Housing Property, (c) unless otherwise agreed in writing by the Required
Lenders, all of the Borrowing Base Property Conditions have been satisfied
with respect to such Student Housing Property, and (d) the Borrower has
delivered to the Administrative Agent a revised Schedule II hereto
reflecting the inclusion of such Student Housing Property within the
definition of "Borrowing Base Property", it being understood that such
revised Schedule II shall become effective only upon the inclusion of such
Student Housing Property within the definition of "Borrowing Base
Property".
"Administrative Agent's Account" means the account of the Administrative
Agent maintained by Administrative Agent at its office at 127 Public
Square, Cleveland, Ohio 44114-1306, ABA #041-001-039, credit to KREC Loan
Services, Account No. 1140228209012, with reference to American Campus
Communities Operating Partnership, Attention: Vernon Johnson, or such other
account as the Administrative Agent shall specify in writing to the Lender
Parties from time to time.
"Aggregate Borrowing Base Amount" means, as of any date of determination
with respect to the Borrowing Base Properties, an amount equal to the
lesser of (a) 65% of the aggregate Unencumbered Property Value and (b) the
Implied Mortgage Amount, in each case as determined from the Borrowing Base
Certificate most recently delivered to the Administrative Agent pursuant to
Section 5.03(d).
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"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of
(a) the rate of interest announced publicly by KeyBank in Cleveland, Ohio,
from time to time, as KeyBank's "prime rate" and (b) 0.50% per annum above
the Federal Funds Rate. The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to a customer.
A change in the rate of interest payable hereunder and resulting from a
change in the Base Rate shall become effective as of the opening of
business on the day on which such change in the Base Rate becomes
effective, without notice or demand of any kind.
"Borrowing Base Property Conditions" means, collectively, the following
conditions with respect to any Student Housing Property, each of which
shall be established to the satisfaction of the Administrative Agent: (a)
such Student Housing Property is 100% owned by a Subsidiary Guarantor
either (i) in fee simple or (ii) subject to a ground lease which (A) has a
remaining term of at least 30 years (after giving effect to any renewal
terms that are exercisable at the sole option of the applicable Subsidiary
Guarantor), (B) contains customary leasehold mortgagee protection rights,
and (C) is mortgageable without the applicable ground lessor's consent (or
with only such consents as shall have been obtained); (b) no Person other
than a Loan Party has any direct or indirect ownership of any Equity
Interest or other voting interest in such Subsidiary Guarantor (it being
understood that no such Person shall be deemed to have any such ownership
interest for purposes of this definition solely by virtue of (i) owning any
Equity Interest in the Parent Guarantor, (ii) owning any limited
partnership interests in the Borrower; provided that, in the case of this
clause (ii), at least 51% of the limited partnership interests in the
Borrower are at all times owned by the Parent Guarantor, or (iii) in the
case of the Ground Leased Property (Temple), the ownership by the Ground
Lessor (Temple) of a 1.0% membership interest in the Loan Party which owns
the Ground Leased Property (Temple); provided that, in the case of this
clause (iii), such Loan Party retains control of all decisions relating to
the financing and management of the Ground Leased Property (Temple),
subject to the terms of the Ground Lease (Temple)); (c) such Student
Housing Property and the interest of Borrower and any Guarantor therein is
subject to no Liens or negative pledge other than with respect to any
Student Housing Property those described in clauses (a), (b), (d) and (e)
of the definition of "Permitted Liens"; (d) construction of such Student
Housing Property is complete, a certificate of occupancy has been issued
for such Student Housing Property (or such Student Housing Property may
otherwise be lawfully occupied for its intended use), and such Student
Housing Property is not otherwise a Development Property; (e) such Student
Housing Property is free of material title defects and structural defects,
has all Environmental Permits applicable thereto and is not subject to any
material Environmental Claim or otherwise in violation of any Environmental
Law if the result of such violation would be reasonably likely to result in
a material adverse effect on the value of such Student Housing Property;
(f) such Student Housing Property is managed by the Borrower or one of its
Subsidiaries; (g) such Student Housing Property is located entirely in a
state within the United States; (h) such Student Housing Property has been
designated as a "Borrowing Base Property" on Schedule II or in a Borrowing
Base Certificate in accordance with Section 5.03(i), and in either event
has not been removed as a Borrowing Base Property pursuant to Section
5.03(d), (i) with respect to which Student Housing Property (x) the
Administrative Agent shall have received the Borrowing Base Qualification
Documents (which shall be promptly distributed by Administrative Agent to
the Lenders), and (y) at the time such Student Housing Property is accepted
as a Borrowing Base Property under this Agreement, the aggregate occupancy
level for the preceding calendar quarter of tenants in possession and
paying rent and which are not in default under their respective leases was
at least eighty-five percent (85%) of the aggregate rentable Units within
such Student Housing Property; and (j) all other applicable conditions set
forth in Section 3.01(a) have been satisfied with respect to such
Subsidiary Guarantor and such Student Housing Property (such satisfaction
to be determined mutatis mutandis for any Additional Borrowing Base
Property).
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"Capitalization Rate" means 8.0%.
"Capitalized Value" means, for any Real Estate Asset as of any date of
determination, an amount equal to (a) the Net Operating Income for such
Real Estate Asset divided by (b) the Capitalization Rate.
"Consolidated Cash Interest Expense" means, for any period, an amount equal
to (a) consolidated total interest expense of the Consolidated Entities for
such period minus (b) any non-cash amounts included in such consolidated
total interest expense which reflect the amortization of deferred financing
charges for such period plus (c) any interest capitalized by the
Consolidated Entities during such period, excluding any such capitalized
interest relating to construction financing for a Development Property to
the extent an interest reserve or a loan "holdback" is maintained in
respect of such capitalized interest pursuant to the terms of such
financing; provided that, for any period ending on or before June 30, 2005,
Consolidated Cash Interest Expense shall exclude interest expense
attributable to Debt that was repaid in connection with the IPO.
4
"Consolidated EBITDA" means, for any period, without duplication, the
consolidated net income or loss of the Consolidated Entities for such
period (before deduction for minority interests in any of the Consolidated
Entities and excluding any adjustments for so-called "straight-line rent
accounting"); plus (A) the amount of any dividends or other distributions
actually paid to any of the Consolidated Entities by any of the On-Campus
Participating Entities during such period; plus (B) the following items to
the extent deducted in computing such consolidated net income for such
period: (i) consolidated interest expense of the Consolidated Entities for
such period, (ii) consolidated income tax expense of the Consolidated
Entities for such period, and (iii) consolidated real estate depreciation,
amortization and other extraordinary and non-cash items of the Consolidated
Entities for such period (except, in the case of such other non-cash items,
to the extent that a cash payment will be required to be made in respect
thereof in a future period); minus (C) the following items to the extent
included in computing such consolidated net income for such period: (i) all
consolidated gains (or plus all consolidated losses) attributable to any
sales or other dispositions of assets or debt restructurings of the
Consolidated Entities in such period, and (ii) all income (or plus all
losses) from all Unconsolidated Entities; plus (or minus, as applicable)
(D) the Unconsolidated Allocation Percentage of any of the items described
above in this definition that are attributable to any Unconsolidated Entity
for such period.
"Fee Letter" means the fee letter dated May 26, 2005, between the Borrower
and KeyBank, as the same may be amended from time to time.
"Initial Issuing Bank" means KeyBank.
"On-Campus Participating Entities" means each of (a) American Campus
(Laredo), Ltd., (b) American Campus (PVAMU) Ltd., (c) American Campus (U of
H), Ltd., (d) American Campus (PVAMU IV) Ltd., each of which entities
described in (a)-(d) holds all of the right, title and interest of the
Parent Guarantor and its Subsidiaries in one of the On-Campus Participating
Properties, and (e) any other entity approved by the Required Lenders
pursuant to Section 5.02(f).
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"On-Campus Participating Properties" means, collectively, the Student
Housing Properties described on Schedule IV attached hereto, together with
any additional Student Housing Properties owned by On-Campus Participating
Entities approved pursuant to Section 5.02(f).
"Permitted Liens" means: (a) Liens for taxes, assessments or governmental
charges or levies the payment of which is not, at the time, required by
Section 5.01(b); (b) statutory Liens of banks and rights of set-off and
other Liens imposed by law, such as materialmen's, mechanics', carriers',
workmen's and repairmen's Liens and other similar Liens arising in the
ordinary course of business securing obligations, in each case that (i) are
not overdue for a period of more than 30 days and (ii) individually or
together with all other Permitted Liens outstanding as of any date of
determination do not materially adversely affect the use of the property to
which they relate unless, in the case of (i) or (ii) above, such liens are
the subject of a Good Faith Contest; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or to
secure public or statutory obligations; (d) easements, zoning restrictions,
rights of way, restrictive covenants and other non-monetary encumbrances on
title to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use or value of
such property for its intended purposes; (e) Tenancy Leases; (f) with
respect to Real Estate Assets encumbered by Non-Recourse Debt, easements,
zoning restrictions, rights of way, restrictive covenants and other Liens
affecting such real property that are permitted to exist under the terms of
the agreements governing such Non-Recourse Debt; (g) Liens incurred or
deposits made in the ordinary course of business to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money); (h) any attachment or judgment Lien not
constituting an Event of Default; (i) any (i) interest or title of a lessor
or sublessor under any lease not prohibited by this Agreement, (ii)
restriction or encumbrance that the interest or title of such lessor or
sublessor may be subject to, or (iii) subordination of the interest of the
lessee or sublessee under such lease to any restriction or encumbrance
referred to in the preceding subclause (ii), so long as the holder of such
restriction or encumbrance agrees to recognize the rights of such lessee or
sublessee under such lease; and (j) Liens arising from filing UCC financing
statements relating solely to leases not prohibited by this Agreement.
"Reference Bank" means KeyBank.
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"Removed Borrowing Base Property" means any Student Housing Property
previously included within the definition of "Borrowing Base Property" as
to which all of the following conditions have been met: (a) the Borrower
has notified the Administrative Agent in writing that it wishes to exclude
such Student Housing Property from the definition of "Borrowing Base
Property" as a result of the sale or other permanent disposition or
refinancing of such Borrowing Base Property, (b) no Default or Event of
Default has occurred and is continuing at the time such Student Housing
Property is excluded from the definition of "Borrowing Base Property" or
would result from such exclusion, and (c) prior to the exclusion of such
Student Housing Property from the definition of "Borrowing Base Property",
the Borrower has delivered to the Administrative Agent a Borrowing Base
Certificate demonstrating that, after giving effect to such exclusion, (i)
the Aggregate Borrowing Base Amount will be equal to or greater than the
Facility Exposure and (ii) unless otherwise approved in writing by the
Required Lenders, there will be not less than four Borrowing Base
Properties having an Aggregate Borrowing Base Amount of not less than
$60,000,000.
"Start-Up Student Housing Property" means a Student Housing Property that
either (a) has not been owned by Borrower or a Subsidiary Guarantor for a
period of four full fiscal quarters, or (b) if such Student Housing
Property was a Development Property of Borrower or one of its Subsidiaries,
such Student Housing Property has ceased to be a Development Property for
less than a period of four full fiscal quarters.
"Swing Line Bank" means KeyBank, in its capacity as the Lender of Swing
Line Advances, and its successors and permitted assigns in such capacity.
"Termination Date" means the earlier of (a) August 17, 2007, as such date
may be extended as provided in Section 2.18, and (b) the date of
termination in whole of the Revolving Credit Commitments, the Letter of
Credit Commitments and the Swing Line Commitment pursuant to Section 2.05
or 6.01."
(d) By deleting the table appearing in the definition of "Applicable
Margin" appearing in Section 1.01 of the Loan Agreement and inserting in lieu
thereof the following table:
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- ------------------------------------------------------------------------------------------
Pricing Applicable Margin for Applicable Margin for
Level Leverage Ratio Base Rate Advances Eurodollar Rate Advances
- ------- -------------- ------------------ ------------------------
- ------------------------------------------------------------------------------------------
I > 60% 1.00% 2.00%
- ------------------------------------------------------------------------------------------
II < 60% but > 55% 0.75% 1.75%
-
- ------------------------------------------------------------------------------------------
III < 55% but > 50% 0.50% 1.60%
-
- ------------------------------------------------------------------------------------------
IV < 50% 0.25% 1.45%
-
- ------------------------------------------------------------------------------------------
(e) By deleting the amount "$5,000,000" appearing in the third (3rd) line
of the definition of "Letter of Credit Facility", appearing in Section 1.01 of
the Loan Agreement, and inserting in lieu thereof the amount "$15,000,000";
(f) By amending the definition of "Loan Documents" appearing in Section
1.01 of the Loan Agreement by inserting the word "and" before "(e)" in the
second (2nd) line of such definition, and by deleting the words "(f) the
Collateral Documents and (g) each Secured Hedge Agreement,";
(g) By deleting the word "Collateral" appearing in the last line of the
definition of "Material Adverse Affect", appearing in Section 1.01 of the Loan
Agreement, and inserting in lieu thereof the words "Borrowing Base Properties";
(h) By adding the following definitions to Section 1.01 of the Loan
Agreement:
"Borrowing Base Qualification Documents" means, with respect to any Student
Housing Property which the Borrower seeks to include as a Borrowing Base
Property in the calculation of the Borrowing Base Amount, the following
which are to be received by Administrative Agent not less than five (5)
Business Days prior to any addition of such Student Housing Property to the
Borrowing Base Properties: (a) a formal written request of Borrower to
Administrative Agent to add a Student Housing Property as a Borrowing Base
Property; (b) the Borrowing Base Certificate required by Section 5.03(d);
(c) if such Student Housing Property is owned or leased by a Subsidiary
Guarantor, such Subsidiary Guarantor shall have executed and delivered to
Administrative Agent a Guaranty Supplement and such other documents
described in Section 3.01(a)(iii), (iv), (v), (vi), (vii), (x), (xi) and
(xii) as Administrative Agent may reasonably require; (d) historic
operating statements, if available, for the prior eight (8) fiscal
quarters; (e) a current rent roll certified by the Borrower and showing
such information as the Agent may reasonably require; (f) a projected
operating budget for such Student Housing Property for the next four (4)
fiscal quarters of the Borrower; (g) a budget setting forth any capital
expenditures to be made with respect to such Student Housing Property
within the following twelve (12) month period, in form and substance
satisfactory to the Agent; and (h) a certification of an officer of
Borrower that such Student Housing Property meets each of the Borrowing
Base Property Conditions.
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"Implied Mortgage Amount" means, as of any date of determination with
respect to the Borrowing Base Properties, an amount equal to the aggregate
Net Operating Income for the Borrowing Base Properties divided by the
product of (i) the Mortgage Constant, (ii) 12 and (iii) 1.30, in each case
as determined from the Borrowing Base Certificate most recently delivered
to the Administrative Agent pursuant to Section 5.03(d); provided that for
purposes of calculating Net Operating Income for any Start-Up Student
Housing Property, the Net Operating Income attributable to such Start-Up
Student Housing Property shall be calculated on an annualized basis using
the sum of (A) the actual historical results for the period that the
Start-Up Student Housing Property was owned and operated by the Borrower or
such Subsidiary Guarantor and (B) the proforma results, as approved by the
Administrative Agent, for the future period necessary to achieve an
annualized number.
"KeyBank" means KeyBank National Association.
"Net Operating Income" means, for any Real Estate Asset as of any date of
determination, an amount equal to (A) the aggregate gross revenues from the
operations of such Real Estate Asset during the four fiscal-quarter period
most-recently ended, excluding any accrued revenues attributable to
so-called "straight-line rent accounting"; minus (B) the sum of (i) all
expenses and other proper charges incurred in connection with the operation
of such Real Estate Asset during such period (including real estate taxes,
but excluding any management fees, debt service charges, income taxes,
depreciation, amortization, capital reserves and other non-cash expenses),
and (ii) an assumed management fee equal to 5% of the aggregate gross
revenues from the operations of such Real Estate Asset during such period.
"Secured Debt" means as of any given date the amount of the Consolidated
Total Indebtedness that is secured in any manner by any Lien.
"Secured Recourse Debt" means as of any given date the amount of the
Secured Debt less the amount of Non-Recourse Debt.
"Unencumbered Property Value" means, as of any date of determination, the
sum of the following amounts on such date, all as determined for the
Consolidated Entities on a consolidated basis in accordance with GAAP: (i)
the Capitalized Value of all Borrowing Base Properties owned by the
Borrower or a Subsidiary Guarantor for four full fiscal quarters or more as
of such date, plus (ii) the undepreciated book value of all Borrowing Base
Properties owned or in operation by the Borrower or a Subsidiary Guarantor
for less than four full fiscal quarters as of such date, in each case as
determined from the Borrowing Base Certificate most recently delivered to
the Administrative Agent pursuant to Section 5.03(d).
9
"Unsecured Debt" means as of any given date the amount of the Consolidated
Total Indebtedness which is not Secured Indebtedness.";
(i) By deleting the amount "$5,000,000" appearing in the fifth (5th) line
of Section 2.01(c) of the Loan Agreement, and inserting in lieu thereof the
amount "$15,000,000";
(j) By deleting in its entirety Section 2.03(b) of the Loan Agreement;
(k) By deleting the words "Collateral or other" appearing in the first line
of Section 2.04(c)(ii)(F) of the Loan Agreement;
(l) By inserting the words "; provided, however, that in the event that the
Interest Period for an Advance shall be for a period of six months, then
interest with respect to such Advance shall also be payable in arrears on the
three-month anniversary of the commencement of such Interest Period" following
the word "full" appearing in the last line of Section 2.07(a)(ii) of the Loan
Agreement;
(m) By deleting in its entirety Section 2.07(d) of the Loan Agreement, and
inserting in lieu thereof the following:
"(d) Interest Rate Determination.
(i) Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate.
(ii) If Telerate Page 3750 is unavailable and Reference Bank is unable
to furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(B) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base Rate Advance),
and
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(C) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.";
(n) By deleting the percentage "0.25%" appearing in Section 2.08(a)(i) of
the Loan Agreement, and inserting in lieu thereof the percentage "0.20%", and by
deleting the percentage "0.20%" appearing in Section 2.08(a)(ii) of the Loan
Agreement, and inserting in lieu thereof the percentage "0.15%";
(o) By deleting in its entirety Section 2.16(a) of the Loan Agreement, and
inserting in lieu thereof the following:
"(a) The Borrower may, at any time, by written notice to the
Administrative Agent, request an increase in the aggregate amount of the
Revolving Credit Commitments by not less than $10,000,000 nor more than
$100,000,000 in the aggregate (each such proposed increase, a `Commitment
Increase') to be effective as of a date that is within 24 months after the
Closing Date (the `Increase Date') as specified in the related notice to the
Administrative Agent; provided, however, that (i) in no event shall the
aggregate amount of the Commitments at any time exceed $200,000,000, (ii) in no
event shall the Borrower submit more than two (2) separate requests for a
Commitment Increase hereunder, and (iii) on the date of any request by the
Borrower for a Commitment Increase and on the related Increase Date, the
applicable conditions set forth in Article III shall be satisfied.";
(p) By inserting the following paragraph as subparagraph (e) of Section
2.16 of the Loan Agreement:
"(e) As a condition to the effectiveness of any increase in the
aggregate Commitments pursuant to this Section 2.16, the Borrower shall pay (i)
to the Administrative Agent such fees as required by the Fee Letter, and (ii) to
each Increasing Lender or Assuming Lender, as applicable, such fees as they may
require in connection therewith, which fees shall, when paid, be fully earned
and non-refundable under any circumstances."
(q) By inserting the following section as Section 2.18 of the Loan
Agreement:
"SECTION 2.18 Extension of Termination Date.
(a) Provided that no Default or Event of Default shall have occurred and
be continuing, the Borrower shall have the option, to be exercised by giving
written notice to the Administrative Agent not more than ninety (90) days and
not less than thirty (30) days prior to the initial scheduled Termination Date
(an "Extension Request"), subject to the terms and conditions set forth in this
Agreement, to extend the Termination Date to August 17, 2008. The request by the
Borrower for extension of the Termination Date shall constitute a representation
and warranty by the Borrower that all of the conditions set forth in this
Section shall have been satisfied on the date of such request.
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(b) The obligations of the Administrative Agent and the Lenders to
extend the Termination Date as provided in Section 2.18(a) shall be subject to
the satisfaction of the following conditions precedent on the then effective
Termination Date (without regard to such extension request):
(i) Payment of Extension Fee. The Borrower shall pay to the Agent on
or before the then effective Termination Date (without regard to such extension
request) for the account of the Lenders in accordance with their respective Pro
Rata Shares an extension fee equal to one-fifth of one percent (0.20%) of the
total Commitment, which fee shall, when paid, be fully earned and non-refundable
under any circumstances.
(ii) No Default. On the date the Extension Request is given and on
the Termination Date (as determined without regard to such extension) there
shall exist no Default or Event of Default.
(iii) Representations and Warranties. The representations and
warranties made by the Borrower, the Guarantors and their respective
Subsidiaries in the Loan Documents or otherwise made by or on behalf of such
Persons in connection therewith or after the date thereof shall have been true
and correct in all material respects when made and shall also be true and
correct in all material respects on the Termination Date (as determined without
regard to such extension) except for representations or warranties that
expressly relate to an earlier date.
(c) The Administrative Agent shall promptly notify each of the Lenders
in the event that the Termination Date is extended as provided in this Section
2.18."
(r) By deleting in its entirety Section 3.01(a)(ii) of the Loan Agreement,
and inserting in lieu thereof the following:
"(ii) Copies of the Borrowing Base Property Qualification Documents
for each of the Borrowing Base Properties.";
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(s) By inserting the word "and" at the end of Section 3.02(a)(iii) of the
Loan Agreement, deleting the word "and" appearing at the end of Section 3.02(b)
of the Loan Agreement, and deleting the last paragraph of Section 3.02 of the
Loan Agreement (which is also labeled (b) and which deals with modifications or
endorsements to Mortgages and Mortgage Policies);
(t) By deleting the words "except for the Liens created under the Loan
Documents" appearing in Section 4.01(c)(iv) of the Loan Agreement;
(u) By deleting in its entirety Section 4.01(d) of the Loan Agreement, and
inserting in lieu thereof the following:
"(d) Governmental Consents. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of any Loan Document to
which it is or is to be a party (either individually or as the general partner
or managing member of another Loan Party) or for the consummation of the
transactions contemplated by the Loan Documents, or (ii) to the knowledge of any
Loan Party, the exercise by the Administrative Agent or any Lender Party of its
rights under the Loan Documents, except for the authorizations, approvals,
actions, notices and filings listed on Schedule 4.01(d) hereto, all of which
have been duly obtained, taken, given, or made and are in full force and
effect.";
(v) By deleting in its entirety Section 4.01(m) of the Loan Agreement, and
inserting in lieu thereof "(m) [Intentionally omitted].";
(w) By deleting in its entirety Section 4.01(q) of the Loan Agreement, and
inserting in lieu thereof "(q) [Intentionally omitted].";
(x) By deleting in its entirety Section 4.01(y) of the Loan Agreement, and
inserting in lieu thereof the following:
"(y) Borrowing Base Properties.
(i) The Loan Parties are the legal and beneficial owners of the
Borrowing Base Properties free and clear of any Lien, except for Permitted Liens
described in clauses (a), (b), (d) and (e) of the definition of "Permitted
Liens". Each of the Borrowing Base Properties satisfies the requirements in this
Agreement to being a Borrowing Base Property. To each Loan Party's knowledge,
except as set forth on Schedule 4.01(y) hereto, there are no proceedings in
condemnation or eminent domain affecting any of the Borrowing Base Properties
and, to the knowledge of each Loan Party, none is threatened. No Person has any
option or other right to purchase all or any portion of any of the Borrowing
Base Properties or any interest therein.
13
(ii) To each Loan Party's knowledge, the Borrowing Base Properties
and the use thereof comply in all material respects with all applicable zoning,
subdivision and land use laws, regulations and ordinances, all applicable
health, fire, building codes, parking laws and all other laws, statutes, codes,
ordinances, rules and regulations applicable to the Borrowing Base Properties,
or any of them, including without limitation the Americans with Disabilities
Act. To each Loan Party's knowledge, all material permits, licenses and
certificates for the lawful use, occupancy and operation of each component of
each of the Borrowing Base Properties in the manner in which it is currently
being used, occupied and operated, including, but not limited to liquor licenses
and certificates of occupancy, or the equivalent, have been obtained and are
current and in full force and effect. To each Loan Party's knowledge, no legal
proceedings are pending or threatened with respect to the zoning of any
Borrowing Base Property. To each Loan Party's knowledge, neither the zoning nor
any other right to construct, use or operate any Borrowing Base Property is in
any way dependent upon or related to any real estate other than such Borrowing
Base Property in any way that has had or is reasonably likely to give rise to a
materially adverse effect as to the value, use of or ability to sell or finance
such Borrowing Base Property. No tract map, parcel map, condominium plan,
condominium declaration, or plat of subdivision will be recorded by any Loan
Party with respect to any Borrowing Base Property without the Administrative
Agent's prior written consent, which consent shall not be unreasonably withheld,
delayed or conditioned.
(iii) [Intentionally omitted.]
(iv) [Intentionally omitted.]
(v) To each Loan Party's knowledge, all improvements on any
Borrowing Base Property, including without limitation the roof and all
structural components, plumbing systems, HVAC systems, fire protection systems,
electrical systems, equipment, elevators, exterior doors, parking facilities,
sidewalks and landscaping, are in good condition and repair. The Loan Parties
are not aware of any latent or patent structural or other material defect or
deficiency in any of the Borrowing Base Properties and, to the Loan Parties'
knowledge, city water supply, storm and sanitary sewers, and electrical, gas (if
applicable) and telephone facilities are available to each of the Borrowing Base
Properties within the boundary lines of each of the Borrowing Base Properties
(except in any way that has not had and is reasonably likely to not give rise to
a materially adverse effect as to the value, use of or ability to sell or
finance such Borrowing Base Property), are fully connected to the improvements
and are fully operational, are sufficient to meet the reasonable needs of each
of the Borrowing Base Properties as now used or presently contemplated to be
used, and no other utility facilities are necessary to meet the reasonable needs
of any of the Borrowing Base Properties as now used or presently contemplated.
Except in any way that has not had and is reasonably likely to not give rise to
a materially adverse effect as to the value, use of or ability to sell or
finance such Borrowing Base Property, to the Loan Parties' knowledge no part of
any of the Borrowing Base Properties is within a flood plain and none of the
improvements thereon create encroachments over, across or upon any of the
Borrowing Base Properties' boundary lines, rights of way or easements, and no
building or other improvements on adjoining land create such an encroachment
which could reasonably be expected to have a Material Adverse Effect. All public
roads and streets necessary for service of and access to each of the Borrowing
Base Properties for the current and contemplated uses thereof have been
completed and are serviceable and are physically and legally open for use by the
public. To the Loan Parties' knowledge after due inquiry, any septic system
located at any of the Borrowing Base Properties is in good and safe condition
and repair and in compliance with all applicable law.
14
(vi) Each of the Borrowing Base Properties is comprised of one (1)
or more parcels which constitute separate tax lots. No part of any of the
Borrowing Base Properties is included or assessed under or as part of another
tax lot or parcel, and no part of any other property is included or assessed
under or as part of the tax lots or parcels comprising any of the Borrowing Base
Properties.";
(y) By inserting the words "Liens described in clauses (a), (b), (d) and
(e) of the definition of" before the word "Permitted Liens" appearing in the
last line of Section 4.01(z)(ii) of the Loan Agreement;
(z) By deleting in its entirety Section 4.01(z)(v) of the Loan Agreement,
and inserting in lieu thereof the following:
"(v) ACT-Village at Temple LLC is the exclusive owner of the Lessee's
interest under and pursuant to the Ground Lease (Temple) and has not assigned,
transferred or encumbered its interest in, to, or under the Ground Lease
(Temple) (other than assignments that will terminate on or prior to the Closing
Date).";
(aa) By deleting in their entirety Sections 5.01(k)(ii), (iii) and (iv) of
the Loan Agreement, and inserting in lieu thereof the following:
15
"(ii) Promptly upon request by Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge and deliver any and all such
further acts, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as Agent, or any Lender Party
through the Administrative Agent, may reasonably require from time to time in
order to carry out more effectively the purposes of the Loan Documents, and
cause each of its Subsidiaries to do so.";
(bb) By deleting the word "Collateral" appearing in Sections 5.02(a)(iv)
and (vi) of the Loan Agreement, and inserting in lieu thereof the words
"Borrowing Base Asset";
(cc) By deleting in its entirety Section 5.02(b)(ii)(F) of the Loan
Agreement, and inserting in lieu thereof the following:
"(F) Secured Recourse Debt the incurrence of which would not result
in a Default under Section 5.04 or any other provision of this Agreement,
provided that each individual obligation included within Secured Recourse Debt
shall not exceed 80% of the value of the collateral securing such Secured
Recourse Debt as reasonably determined by Borrower and approved by
Administrative Agent;"
(dd) By deleting the percentage "25%" appearing in the third (3rd) line of
Section 5.02(f)(v) of the Loan Agreement, and inserting in lieu thereof the
percentage "30%";
(ee) By deleting in their entirety Sections 5.02(f)(v)(A) and 5.02(f)(v)(B)
of the Loan Agreement, and inserting in lieu thereof the following:
"(A) unimproved Real Estate Assets not constituting Development
Properties, so long as the aggregate amount of such Investments, calculated on
the basis of cost, does not at any time exceed 5% of Consolidated Total Asset
Value at such time,
(B) Development Properties, so long as the aggregate amount of such
Investments, calculated on the basis of actual cost, does not at any time exceed
25% of Consolidated Total Asset Value at such time, and";
(ff) By inserting the following after the words "Unconsolidated Entity"
appearing in the last line of Section 5.02(f) of the Loan Agreement:
", and (C) no Loan Party shall make, nor shall it permit any of its
Subsidiaries (including, without limitation the On-Campus Participating
Entities) to make, without the prior written approval of the Required
Lenders, any Investment after the date hereof in any Person which is not an
On-Campus Participating Entity as of the Closing Date (or approved pursuant
to the Second Amendment to credit agreement dated as of December 10, 2004
among Borrower, DBTCA, as Administrative Agent and the other parties
thereto) which engages in the development or ownership of a Student Housing
Property where it is intended that such Loan Party shall receive from such
Student Housing Property a share of excess cash flow with a college,
university or other institution of higher learning";
16
(gg) By deleting in its entirety Section 5.02(g) of the Loan Agreement, and
inserting in lieu thereof the following:
"(g) Restricted Payments. In the case of the Parent Guarantor and
the Borrower only, declare or pay any dividends, purchase, redeem, retire,
defease or otherwise acquire for value any of its Equity Interests now or
hereafter outstanding, return any capital to its stockholders, partners or
members (or the equivalent Persons thereof) as such, make any distribution of
assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Persons thereof) as such; provided,
however, that the Parent Guarantor and the Borrower may declare and pay
dividends or make other distributions solely in Cash or shares of their
respective common stock so long as, in the case of any such Cash dividends or
distributions, (i) no Default or Event of Default shall have occurred and be
continuing at the time of declaration or payment thereof and the aggregate
amount of such Cash dividends or distributions, together with the aggregate
amount of Cash dividends or distributions made during the applicable period
pursuant to the immediately following clause (ii), do not exceed during any four
consecutive fiscal quarters of the Parent Guarantor ending on or before June 30,
2006, 100% of Funds From Operations for such four fiscal quarter period and
thereafter for any four consecutive fiscal quarters of the Parent Guarantor 95%
of Funds from Operations for such four fiscal quarter period, (ii) no Default or
Event of Default of the type described in Section 6.01(a) or (f) shall have
occurred and be continuing at the time of declaration or payment thereof and
such Cash dividends or distributions are required to be made in order for the
Parent Guarantor to comply with Section 5.01(m), or (iii) such Cash dividends or
distributions are made by the Borrower to the Parent Guarantor to enable it to
pay, and the Parent Guarantor uses the proceeds of such dividends or
distributions to pay, costs and expenses incurred by the Parent Guarantor in the
ordinary course of conducting its business in the manner permitted under Section
5.02(m)."
(hh) By inserting the words "with respect to any property or assets other
than Borrowing Base Properties," following "(ii)" appearing in the fourth (4th)
line of Section 5.02(l) of the Loan Agreement;
17
(ii) By deleting in its entirety Section 5.03(d) of the Loan Agreement, and
inserting in lieu thereof the following:
"(d) Borrowing Base Certificate. (i) As soon as available and in any
event within 45 days after the end of each fiscal quarter of the Parent
Guarantor, (ii) at the time any Additional Borrowing Base Property is included
in the definition of "Borrowing Base Property", (iii) at the time any Removed
Borrowing Base Property is excluded from the definition of "Borrowing Base
Property", and (iv) at any time that a Borrowing Base Property fails to satisfy
all of the Borrowing Base Conditions, a Borrowing Base Certificate, as at the
end of such fiscal quarter or the date of such inclusion or exclusion, as the
case may be, in each case certified by the Chief Financial Officer (or person
performing similar functions) of the Parent Guarantor. Borrower shall
immediately notify Administrative Agent in the event that a Borrowing Base
Property fails to satisfy any of the Borrowing Base Conditions.";
(jj) By deleting the words "30 days after the end of each month" appearing
in the first (1st) and second (2nd) lines of Section 5.03(e) of the Loan
Agreement, and inserting in lieu thereof the words "45 days after the end of
each fiscal quarter of the Parent Guarantor", and by deleting the word
"Adjusted" appearing in the fifth (5th) line of Section 5.03(e) of the Loan
Agreement;
(kk) By inserting the words ", which delivery may be made electronically,
including via Syndtrak or posting to the Parent Guarantor's internet website"
following the words "national securities exchange" appearing in the last line of
Section 5.03(i) of the Loan Agreement;
(ll) By deleting the words "and Schedule 4.01(q)" appearing in Section
5.03(j) of the Loan Agreement;
(mm) By inserting the words "Lien described in clauses (a), (b), (d) and
(e) of the definition of" before the words "Permitted Lien" appearing in the
last line of Section 5.03(l) of the Loan Agreement;
(nn) By deleting in its entirety Section 5.03(m) of the Loan Agreement, and
inserting in lieu thereof the following:
"(m) Material Contracts. As soon as available a copy of any Material
Contract entered into with respect to any Borrowing Base Property after the date
hereof.";
(oo) By deleting in their entirety Sections 5.04(b), (c), (d) and (e) of
the Loan Agreement, and inserting in lieu thereof the following:
"(b) Minimum Consolidated Net Worth: Maintain at all times a
Consolidated Net Worth of not less than the sum of (a) $100,000,000 plus (b) an
amount equal to 75% of the Net Cash Proceeds of all issuances or sales of Equity
Interests of the Parent Guarantor or any of its Subsidiaries consummated after
the Closing Date.
18
(c) Minimum Consolidated Interest Coverage Ratio: Maintain, as of the
last day of each fiscal quarter of the Parent Guarantor, a Consolidated Interest
Coverage Ratio equal to or greater than 1.85:1.00.
(d) Minimum Consolidated Fixed Charge Coverage Ratio: Maintain, as of
the last day of each fiscal quarter of the Parent Guarantor, a Consolidated
Fixed Charge Coverage Ratio equal to or greater than 1.50:1.00.
(e) Minimum Fixed Rate/Hedged Debt Ratio: Maintain at all times a
Consolidated Fixed Rate/Hedged Debt Ratio equal to or greater than 70%.";
(pp) By adding at the end of Section 5.04 of the Loan Agreement the
following new paragraphs as subparagraphs of Section 5.04 of the Loan Agreement:
"(f) Maximum Secured Debt: Maintain, as of the last day of each fiscal
quarter of the Parent Guarantor, a ratio of Secured Debt to Consolidated Total
Asset Value of not more than 55%.
(g) Maximum Secured Recourse Debt. Maintain, as of the last day of each
fiscal quarter of the Parent Guarantor, a ratio of Secured Recourse Debt to
Consolidated Total Asset Value of not greater than 20%.";
(qq) By deleting in its entirety Section 6.01(c) of the Loan Agreement, and
inserting in lieu thereof the following:
"(c) Breach of Certain Covenants. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Section 2.14, Section
5.02(e), (i), (m), (n) or (o), Section 5.02, Section 5.03(a) or 5.04; or";
(rr) By deleting in its entirety Section 6.01(j) of the Loan Agreement, and
inserting in lieu thereof the following:
"(j) [Intentionally omitted.]";
(ss) By inserting the words "or any other Loan Party" before the words
"under any Bankruptcy Law" appearing in the seventh (7th) to last line of
Section 6.01 of the Loan Agreement;
19
(tt) By deleting in its entirety Section 7.03(d) of the Loan Agreement and
inserting in lieu thereof the following:
"(d) [Intentionally omitted.]";
(uu) By deleting the word "Collateral" appearing in the seventh (7th) line
of Section 7.08 of the Loan Agreement, and inserting in lieu thereof the words
"Borrowing Base Property";
(vv) By deleting the words "; Appointment of Supplemental Collateral
Agents" appearing in the title of Section 8.01 of the Loan Agreement, and by
deleting the words "and on behalf of itself and its Affiliates as potential
Hedge Banks" appearing in the third (3rd) line of Section 8.01(a) of the Loan
Agreement;
(ww) By deleting in its entirety Section 8.01(b) of the Loan Agreement, and
inserting in lieu thereof the following:
"(b) [Intentionally omitted.]";
(xx) By inserting the following sentence at the end of Section 8.01 of the
Loan Agreement:
"The obligations of Administrative Agent hereunder are primarily
administrative in nature, and nothing contained in this Agreement or any of
the other Loan Documents shall be construed to constitute the
Administrative Agent as a trustee for any Lender Party or to create an
agency or fiduciary relationship. Administrative Agent shall act as the
contractual representative of the Lender Parties hereunder and
notwithstanding the use of the term `Administrative Agent' or `Agent', it
is understood and agreed that the Administrative Agent shall not have any
fiduciary duties or responsibilities to any Lender Party by reason of this
Agreement or any other Loan Document and is acting as an independent
contractor, the rights and duties of which are limited to those expressly
set forth in this Agreement and the other Loan Documents.";
(yy) By deleting in its entirety Section 8.03 of the Loan Agreement, and
inserting in lieu thereof the following:
"SECTION 8.03 Administrative Agent and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, the Lender
acting as the Administrative Agent shall have the same rights and powers
under the Loan Documents as any other Lender Party and may exercise the
same as though it were not the Administrative Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated,
include such Lender acting as Administrative Agent in its individual
capacity. The Lender acting as the Administrative Agent and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures
of, accept investment banking engagements from and generally engage in any
kind of business with, any Loan Party, any Subsidiary of any Loan Party and
any Person that may do business with or own securities of any Loan Party or
any such Subsidiary, all as if such Lender acting as Administrative Agent
were not the Administrative Agent and without any duty to account therefor
to the Lender Parties.";
20
(zz) By deleting the words "it has been replaced as Collateral Agent and"
appearing in the fourth (4th) line of Section 8.06 of the Loan Agreement, and by
deleting the fourth (4th) sentence in Section 8.06 of the Loan Agreement, and
inserting in lieu thereof the following:
"Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
under the Loan Documents.";
(aaa) By deleting in its entirety Section 9.01 of the Loan Agreement, and
inserting in lieu thereof the following:
"SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders, and
then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by
all of the Lenders, do any of the following at any time: (i) waive any of
the conditions specified in Section 3.01 or, in the case of the Initial
Extension of Credit, Section 3.02, (ii) amend the definition of "Required
Lenders" or otherwise change the number of Lenders or the percentage of (x)
the Commitments, (y) the aggregate unpaid principal amount of the Advances
or (z) the aggregate Available Amount of outstanding Letters of Credit
that, in each case, shall be required for the Lenders or any of them to
take any action hereunder, (iii) release the Borrower with respect to any
of its monetary Obligations under the Loan Documents or reduce or limit the
obligations of any Guarantor under Article VII or release such Guarantor or
otherwise limit such Guarantor's liability with respect to the Guaranteed
Obligations except in accordance with Section 7.08, (iv) release any
Borrowing Base Property (except as contemplated by the definition of
"Removed Borrowing Base Property"), in each case in any transaction or
series of related transactions, or permit the creation, incurrence,
assumption or existence of any Lien on any individual Borrowing Base
Property, in each case in any transaction or series of related
transactions, to secure any Obligations other than Obligations owing to the
Lender Parties under the Loan Documents, (v) amend this Section 9.01, (vi)
increase the Commitments of the Lenders (except as provided in Section
2.16) or subject the Lenders to any additional obligations, (vii) reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (viii) extend the Termination Date (except as provided
in Section 2.18) or otherwise postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts
payable hereunder or amend Section 2.06, or (ix) limit the liability of any
Loan Party under any of the Loan Documents; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Swing Line Bank or each Issuing Bank, as the case may be, in addition to
the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or of the Issuing Banks, as the case may
be, under this Agreement; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or the
other Loan Documents."
21
(bbb) By deleting "DBTCA" appearing in the first (1st) line of Section
9.02(b) of the Loan Agreement, and inserting in lieu thereof "KeyBank";
(ccc) By deleting the words "or release all or substantially all of the
Collateral" appearing in Section 9.07(g)(v) of the Loan Agreement;
(ddd) By deleting in its entirety Section 9.11 of the Loan Agreement, and
inserting in lieu thereof:
"Section 9.11 [Intentionally omitted.]";
(eee) By deleting in their entirety Exhibits A, B, C, D, E and H attached
to the Loan Agreement and inserting in lieu thereof Exhibits A, B, C, D, E and H
attached hereto;
(fff) By deleting in their entirety Exhibits G-1 and G-2 attached to the
Loan Agreement;
(ggg) By deleting Schedule I attached to the Loan Agreement, and inserting
in lieu thereof Schedule I attached hereto.
(hhh) The notice address for KeyBank, as the Initial Issuing Bank and as
the Administrative Agent is at 127 Public Square, Cleveland, Ohio 44114-1306,
Attention: John Scott; Tel: 216/689-5986; Fax: 216/689-4997; E-mail:
john_c_scott@keybank.com;
22
(iii) Any references to "Agent" in the Loan Documents shall be deemed to be
a reference to Administrative Agent alone;
(jjj) All references to "Secured Party" or "Secured Parties" in the Loan
Documents shall be a reference to "Administrative Agent and any Lender Party" or
"Administrative Agent and the Lender Parties", as applicable; and
(kkk) All references to "Reference Banks" in the Loan Documents shall refer
only to, and be interpreted consistent with, there being a single Reference
Bank.
3. Appointment of KeyBank as Administrative Agent, Swing Line Bank and
Issuing Bank.
(a) As of the effective date of this Amendment, DBTCA resigns as
Administrative Agent, the Swing Line Bank and the Issuing Bank under the Loan
Agreement. As of the effective date of this Amendment, the Lenders hereby accept
the resignation of DBTCA as Administrative Agent, Issuing Bank and Swing Line
Bank, and appoint KeyBank as the successor Administrative Agent, Issuing Bank
and Swing Line Bank. KeyBank hereby accepts such appointment and agrees that, as
of the effectiveness of this Amendment, KeyBank shall assume all of the rights
and obligations of the Administrative Agent, the Issuing Bank and the Swing Line
Bank under the Loan Agreement. The parties hereto waive the 30-day notice period
for such resignation set forth in Section 8.06 of the Loan Agreement and the
requirements of Section 9.02 of the Loan Agreement with respect to the
assignment to a new Issuing Bank or Swing Line Bank. The Borrower hereby
consents to all of the foregoing.
(b) As of the effective date of this Amendment, DBTCA resigns as the
Collateral Agent under the Loan Agreement; provided, however, that
notwithstanding such resignation, DBTCA in its capacity as Collateral Agent is
authorized to, and hereby agrees to, execute and file such documents as are
necessary to release the security interests of the Collateral Agent in the
Collateral. Each of the Lender Parties authorizes Collateral Agent to release
the Collateral on behalf of any Affiliate thereof which is a Hedge Bank.
(c) Any rights under the Loan Agreement or any related Loan Documents
which by their terms inure to the benefit of a retiring Agent shall remain
unmodified and unaffected by the resignation of DBTCA as Administrative Agent or
Collateral Agent and the appointment of KeyBank as successor Administrative
Agent as provided herein.
4. Lead Arranger, Syndication Agent and Co-Documentation Agents. From and
after the effectiveness of this Amendment, KeyBanc Capital Markets Inc. shall be
the sole Lead Arranger, DBTCA and Citigroup Global Markets, Inc. shall be the
Co-Syndication Agents, and JPMorgan Chase Bank, N.A. shall be the Documentation
Agent. No other Lender shall have any other title under the Loan Agreement.
5. Increase of Commitment. In connection with the increase of the
Commitment pursuant to this Amendment, the Borrower has executed and delivered
to the Lenders replacement Notes to reflect the new Commitments of each Lender.
The Lenders shall as of the effectiveness of this Amendment make such
adjustments to the outstanding Advances so that, after giving effect to such
increase, the outstanding Advances and the Pro Rata Shares of the Lenders are
consistent with their respective Commitments (and Borrower shall pay any amounts
due under Section 9.04(c) of the Loan Agreement in connection therewith).
23
6. Borrowing Base Properties. In connection with the execution of this
Amendment, Borrower has delivered to Administrative Agent the documents required
under Section 3.02(a)(ii) of the Loan Agreement with respect to the initial
Borrowing Base Properties.
7. References to Loan Agreement. All references in the Loan Documents to
the Loan Agreement shall be deemed a reference to the Loan Agreement, as
modified and amended herein.
8. Acknowledgment of Borrower and Guarantors. Borrower and Guarantors
hereby acknowledge, represent and agree that the Loan Documents, as modified and
amended herein or in any other documents delivered in connection herewith,
remain in full force and effect and constitute the valid and legally binding
obligation of Borrower and Guarantors, as applicable, enforceable against
Borrower and Guarantors in accordance with their respective terms, and that the
execution and delivery of this Amendment and any other documents in connection
therewith do not constitute, and shall not be deemed to constitute, a release,
waiver or satisfaction of Borrower's or Guarantors' obligations under the Loan
Documents.
9. Representations and Warranties. Borrower and Guarantors represent and
warrant to Agent and the Lenders as follows:
(a) Authorization. The execution, delivery and performance of this
Amendment and the transactions contemplated hereby (i) are within the authority
of Borrower and Guarantors, (ii) have been duly authorized by all necessary
proceedings on the part of the Borrower and Guarantors, (iii) do not and will
not conflict with or result in any breach or contravention of any provision of
law, statute, rule or regulation to which the Borrower or any of the Guarantors
is subject or any judgment, order, writ, injunction, license or permit
applicable to the Borrower or any of the Guarantors, (iv) do not and will not
conflict with or constitute a default (whether with the passage of time or the
giving of notice, or both) under any provision of the partnership agreement or
certificate, certificate of formation, operating agreement, articles of
incorporation or other charter documents or bylaws of, or any mortgage,
indenture, agreement, contract or other instrument binding upon, the Borrower or
any of the Guarantors or any of their respective properties or to which the
Borrower or any of the Guarantors is subject, and (v) do not and will not result
in or require the imposition of any lien or other encumbrance on any of the
properties, assets or rights of the Borrower or any of the Guarantors, other
than the liens and encumbrances created by the Loan Documents.
(b) Enforceability. The execution and delivery of this Amendment are
valid and legally binding obligations of Borrower and Guarantors enforceable in
accordance with the respective terms and provisions hereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors'
rights and the effect of general principles of equity.
(c) Approvals. The execution, delivery and performance of this Amendment
and the transactions contemplated hereby do not require the approval or consent
of any Person or the authorization, consent, approval of or any license or
permit issued by, or any filing or registration with, or the giving of any
notice to, any court, department, board, commission or other governmental agency
or authority other than those already obtained.
24
(d) Reaffirmation. Borrower and Guarantors reaffirm and restate as of
the date hereof each and every representation and warranty made by the Borrower,
the Guarantors and their respective Subsidiaries in the Loan Documents or
otherwise made by or on behalf of such Persons in connection therewith except
for representations or warranties that expressly relate to an earlier date.
10. No Default. By execution hereof, the Borrower and Guarantors certify
that Borrower and each of the Guarantors is and will be in compliance with all
covenants under the Loan Documents after the execution and delivery of this
Amendment, and that no Default or Event of Default has occurred and is
continuing.
11. Waiver of Claims. Borrower and Guarantors acknowledge, represent and
agree that none of such Persons has any defenses, setoffs, claims, counterclaims
or causes of action of any kind or nature whatsoever with respect to the Loan
Documents, the administration or funding of the Loan or with respect to any acts
or omissions of Agent or any Lender Party, or any past or present officers,
agents or employees of Agent or any Lender Party, and each of such Persons does
hereby expressly waive, release and relinquish any and all such defenses,
setoffs, claims, counterclaims and causes of action, if any.
12. Ratification. Except as hereinabove set forth, all terms, covenants and
provisions of the Loan Agreement remain unaltered and in full force and effect,
and the parties hereto do hereby expressly ratify and confirm the Loan Documents
as modified and amended herein. Nothing in this Amendment or any other document
delivered in connection herewith shall be deemed or construed to constitute, and
there has not otherwise occurred, a novation, cancellation, satisfaction,
release, extinguishment or substitution of the indebtedness evidenced by the
Notes or the other obligations of Borrower and Guarantors under the Loan
Documents.
13. Effective Date. This Amendment shall be deemed effective and in full
force and effect as of the date hereof upon (a) the execution and delivery of
this Amendment by Borrower, Guarantors, Agent and the Lenders, (b) the payment
to Agent of any fees required by the Agent in connection with this Amendment,
(c) the payment to each Lender of such fees as are separately agreed to by such
Lender, Agent and the Borrower pursuant to their separate agreement (all of
which fees pursuant to clauses (b) and (c) shall be fully earned when paid and
non-refundable under any circumstances), (d) the delivery to Agent of a
Borrowing Base Certificate, and (e) delivery to the Agent of the Borrowing Base
Qualification Documents for the Borrowing Base Properties. The Borrower will pay
the reasonable fees and expenses of Agent in connection with this Amendment.
14. Amendment as Loan Document. This Amendment shall constitute a Loan
Document.
15. Counterparts. This Amendment may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
25
16. MISCELLANEOUS. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES . This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors, successors-in-title and assigns as provided in
the Loan Agreement.
[Remainder of Page Intentionally Left Blank]
26
IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
AMERICAN CAMPUS COMMUNITIES OPERATING
PARTNERSHIP LP
By: AMERICAN CAMPUS
COMMUNITIES HOLDINGS LLC,
its general partner
By: AMERICAN CAMPUS
COMMUNITIES, INC.,
its sole member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Executive Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
27
GUARANTORS:
----------
AMERICAN CAMPUS COMMUNITIES, INC.
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Executive Vice President
AMERICAN CAMPUS COMMUNITIES
HOLDINGS LLC
By: AMERICAN CAMPUS COMMUNITIES,
INC., its sole member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Executive Vice President
RAP STUDENT HOUSING PROPERTIES LLC
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
RSVP-ACT, LLC
By: RAP STUDENT HOUSING PROPERTIES
LLC, its sole member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
TITAN INVESTMENTS II LLC
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
28
AMERICAN CAMPUS-TITAN II, LLC
By: RSVP-ACT, LLC, its managing member
By: RAP STUDENT HOUSING
PROPERTIES LLC, its sole member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
ACT-VILLAGE AT TEMPLE LLC
By: AMERICAN CAMPUS-TITAN II, LLC, its
sole member
By: RSVP-ACT, LLC, its managing
member
By: RAP STUDENT HOUSING
PROPERTIES LLC, its sole
member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
RFG CAPITAL GROUP, LLC
By: RAP STUDENT HOUSING PROPERTIES
LLC, its sole member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
29
RFG CAPITAL MANAGEMENT PARTNERS, L.P.
By: RAP STUDENT HOUSING PROPERTIES
LLC, its general partner
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
RFG-CMP THE VILLAGE ON UNIVERSITY LLC
By: RFG CAPITAL MANAGEMENT
PARTNERS, L.P., its sole member
By: RAP STUDENT HOUSING
PROPERTIES LLC, its general
partner
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
SHP-THE VILLAGE ON UNIVERSITY LLC
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
30
RFG-CMP THE VILLAGE AT SCIENCE
DRIVE, LLC
By: RFG CAPITAL MANAGEMENT
PARTNERS, L.P., its sole member
By: RAP STUDENT HOUSING
PROPERTIES LLC, its general
partner
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
SHP-THE VILLAGE AT SCIENCE DRIVE, LLC
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
RFG-CMP ACT LLC
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
SHP-ACT LLC
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
31
AMERICAN CAMPUS-TITAN LLC
By: SHP-ACT LLC, its managing member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
ACT-VILLAGE AT FRESNO STATE, LLC
By: AMERICAN CAMPUS-TITAN LLC, its
sole member
By: SHP-ACT LLC, its managing
member
By: /s/ Brian B. Nickel
-------------------
Name: Brian B. Nickel
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
32
LENDERS:
KEYBANK NATIONAL ASSOCIATION,
individually as a Lender and as
successor Administrative Agent,
Swing Line Bank and Issuing Bank
By: /s/ John C. Scott
-----------------
Name: John C. Scott
Title: Vice President
DEUTSCHE BANK TRUST COMPANY
AMERICAS, individually as a
Lender and as resigning
Administrative Agent, Collateral
Agent, Swing Line Bank and Issuing
Bank
By: /s/ James Rolison
-----------------
Name: James Rolison
Title: Director
By: /s/ George Reynolds
-------------------
Name: George Reynolds
Title: Vice President
CITICORP NORTH AMERICA, INC.
By: /s/ David Bouton
----------------
Name: David Bouton
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By: /s/ Allen E. Wise
-----------------
Name: Allen E. Wise
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
33
PNC BANK, NATIONAL ASSOCIATION
By: /s/ James A. Colella
--------------------
Name: James A. Colella
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Stephen J. Shockey
----------------------
Name: Stephen J. Shockey
Title: First Vice President
34
SCHEDULE I
----------
COMMITMENTS AND APPLICABLE LENDING OFFICES
------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Name of Revolving Letter of Swing Line Domestic Lending Office Eurodollar Lending Office
Initial Credit Credit Commitment
Lender/ Commitment Commitment
Initial
Issuing
Bank
- -------------------------------------------------------------------------------------------------------------------------
KeyBank $20,000,000 $15,000,000 $15,000,000 127 Public Square 127 Public Square
National Cleveland, OH 44114-1306 Cleveland, OH 44114-1306
Association Attn: John Scott Attn: John Scott
Tel. 216-689-5986 Tel. 216-689-5986
Fax: 216-689-4997 Fax: 216-689-4997
E-mail: E-mail:
john_c_scott@keybank.com john_c_scott@keybank.com
- -------------------------------------------------------------------------------------------------------------------------
Deutsche $15,000,000 -- -- 90 Hudson Street 90 Hudson Street
Bank Trust Mail Stop: JCY05-0199 Mail Stop: JCY05-0199
Company Jersey City, NJ 07302 Jersey City, NJ 07302
Americas Attn: Deal Administration Attn: Deal Administration
- -------------------------------------------------------------------------------------------------------------------------
Citicorp $16,250,000 -- -- 2 Penns Way, Suite 200 2 Penns Way, Suite 200
North New Castle, DE 19720 New Castle, DE 19720
America, Attn: Dawnmarie Conover Attn: Dawnmarie Conover
Inc. Tel: 302-894-6047 Tel: 302-894-6047
Fax: 302-994-0849 Fax: 302-994-0849
E-mail: Dawnmarie. E-mail: Dawnmarie.
conover@citigroup.com conover@citigroup.com
- -------------------------------------------------------------------------------------------------------------------------
JPMorgan $16,250,000 -- -- 707 Travis, 6th Floor 707 Travis, 6th Floor
Chase Houston, TX 77002 Houston, TX 77002
Bank, N.A. Attn: Shelia Fitzwater Attn: Shelia Fitzwater
Tel: 713-216-5391 Tel: 713-216-5391
Fax: 713-216-7713 Fax: 713-216-7713
E-mail: E-mail:
shelia.fitzwater@chase.com shelia.fitzwater@chase.com
- -------------------------------------------------------------------------------------------------------------------------
PNC Bank, $16,250,000 -- -- One PNC Plaza One PNC Plaza
National 249 Fifth Avenue 249 Fifth Avenue
Association Pittsburgh, PA 15222 Pittsburgh, PA 15222
Attn: James Colella Attn: James Colella
Tel: 412-762-2260 Tel: 412-762-2260
Fax: 412-762-6500 Fax: 412-762-6500
E-mail: E-mail:
james.colella@pnc.com james.colella@pnc.com
- -------------------------------------------------------------------------------------------------------------------------
LaSalle $16,250,000 135 S. LaSalle Street, 135 S. LaSalle Street,
Bank Suite 1225 Suite 1225
National Chicago, IL 60603 Chicago, IL 60603
Association Attn: Steven Shockey Attn: Steven Shockey
Tel: 312-904-7096 Tel: 312-904-7096
Fax: 312-904-6691 Fax: 312-904-6691
E-mail: E-mail:
Stephen.Shockey@abnamro.com Stephen.Shockey@abnamro.com
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Total $100,000,000 $15,000,000 $15,000,000
- ------------------------------------------------------------
35